Globe Newspaper Co. v. Superior Court

401 N.E.2d 360, 379 Mass. 846, 5 Media L. Rep. (BNA) 2617, 1980 Mass. LEXIS 1022

• Court: Massachusetts Supreme Judicial Court
• Decided: February 26, 1980
• Status: Published

Opinions

Liacos,

J. On April 25, 1979, the plaintiff, Globe Newspaper Company (Globe), petitioned a single justice of this court for extraordinary relief pursuant to G. L. c. 211, § 3. The petition challenged the April 25, 1979, order of a trial judge of defendant Superior Court, who acted under the authority of G. L. c. 278, § 16A, to close a criminal trial to the general public. The judge had denied the Globe’s motion to intervene and had denied the Globe’s motion for a hearing and motion to revoke the order concerning exclusion of the press. Thus, the Globe sought from the single justice a temporary restraining order and permanent injunction ordering the judge to permit members of the press to attend the trial and related proceedings. On April 26, 1979, as the jury in the criminal trial were being empanelled, a single justice conducted a hearing on the Globe’s petition and denied it after stating orally his reasons for his decision. A judgment was entered on May 7, 1979.¹ The Globe appeals. Mass. R. A. P. 1 (b), 365 Mass. 844 (1974).

During the pendency of this appeal, the criminal trial proceeded to its conclusion. Thus, the issue raised before the single justice is now moot, and the appeal from his judgment must be dismissed. The issues raised by this record, however, are significant and troublesome, and are “capable of repetition yet evading review.” Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 515 (1911). Gannett Co. v. De-Pasquale, 443 U.S. 368, 377-378 (1979). We deem it appropriate therefore to express our views on the issues argued. Wellesley College v. Attorney Gen., 313 Mass. 722, 731 (1943). In so doing, we consider matters now part of the record, but which were not put before the single justice.

Although neither the single justice nor this court is compelled to take the allegations in the Globe’s petition as true, we may do so in light of the circumstances that the Commonwealth did not file an answer, Mass. R. Civ. P. 8 (d), 365 Mass. 749 (1974), and that the facts alleged in the petition are not disputed. The petition shows that on or about April 19, 1979, the Superior Court in the county of Norfolk commenced hearings with respect to preliminary motions in the case of Commonwealth vs. Albert Aladjem, Superior Court, Norfolk County, No. 73102-9. The court caused a sign marked “closed” to be placed on the court room door, and court personnel turned away people seeking entry.² After failing to gain entry on April 24, 1979, counsel for the Globe on April 25 attempted to file with thé court the motion to intervene and the other two motions. At the commencement of proceedings before the court, the judge ruled that he would not accept the Globe’s motions as being proper for filing. Without holding a hearing and without argument of counsel, the judge ordered that the trial be closed and the press and general public excluded. Counsel for the defendant objected to the closure order, and the assistant district attorney stated that the Commonwealth did not request closure.

The transcript of the hearing before the judge is annexed to plaintiff’s petition. It reveals that the Aladjem case in-valved three girls, ages sixteen, sixteen and seventeen at the time of trial. The indictments contained allegations of forcible rape and forced unnatural rape. The judge ruled that G. L. c. 278, § 16A, requires closure. He stated, “This ruling and Order results from a reading of the statute and from the feeling of the Court that a child-victim of an alleged sexual attack is entitled minimally to at least the same protection that a child-defendant in a case involving sexual matters has.”

At the April 26 hearing before the single justice, the Globe and the Attorney General appeared. The assistant district attorney also appeared and stated: “ [Wjhere the defendant is asserting his right to a constitutional, public trial, a trial judge may consider that as outweighing the otherwise legitimate statutory interest, particularly where the Commonwealth on behalf of the victims, and this is literally on behalf of the victims in the sense that they were consulted fully by the prosecutor in this case. The Commonwealth waives whatever rights it may have to exclude the press.”

In a supplemental statement, the parties stipulated to facts concerning events after the April 26 hearing. In an April 30 conference with the trial judge, the assistant district attorney represented that she had spoken with the three victims about the presence of the press in the courtroom; the victims stated that they would not object to inclusion of the press if the press promised not to print any personal data about them, photograph them, or attempt to interview them. On May 10, 1979, following a jury trial, the defendant Aladjem was found not guilty.

The Globe argues that the single justice erred in denying its petition, claiming that G. L. c. 278, § 16A, did not authorize the judge to exclude the press from the Aladjem trial. This argument relies not only on statutory language and purpose, but also the principle that a statute should be construed to avoid constitutional doubts. We agree in part that the order closing the entire trial was in error. The Globe also raises several constitutional issues. The Globe contends that the First Amendment to the Constitution of the United States and art. 16 of the Declaration of Rights of the Constitution of Massachusetts protect the right of the public and press to be present during the conduct of criminal trials. In particular, the Globe argues that G. L. c. 278, § 16A, is overbroad and was applied unconstitutionally in this case. Also, the Globe maintains that the trial court’s failure to hold a hearing on the closure issue violated the Globe’s rights to due process of law. Finally, the Globe argues that the Sixth Amendment creates a right in the public to attend criminal trials. We reach only some of these questions today.³

1. The Globe argues that G. L. c. 278, § 16A, is ambiguous and is unconstitutional. Before we can turn to these constitutional arguments, we must construe G. L. c. 278, § 16A, in light of the asserted ambiguity.⁴ See Bellotti v. Baird, 443 U.S. 622, 644 n.24 (1979); Poulos v. New Hampshire, 345 U.S. 395, 402 (1953). In considering the claimed ambiguity, we are mindful of two principles of statutory construction. First, “ [w]ords or phrases in a statute are to be given their ordinary meaning. They are to be construed according to their natural import and approved usage.” Burke v. Chief of Police of Newton, 374 Mass. 450, 452 (1978). “ [T]he statutory language itself is the principal source of insight into the legislative purpose. . . . [W]here the language of the statute is plain and unambiguous, . . . legislative history is not ordinarily a proper source of construction.” Hoffman v. Howmedica, Inc., 373 Mass. 32, 37 (1977). However, “[i]f the language of a provision is unclear, a court may look to outside sources for assistance in determining the correct construction.” Rosenbloom v. Kokofsky, 373 Mass. 778, 781 (1977).

We consider three possible ambiguities in G. L. c. 278, § 16A. First, to what part or parts of a judicial proceeding does the locution, “At the trial . . . the presiding justice shall exclude the general public,” refer? Second, is the word, “shall” used in a mandatory or directory sense? Third, are members of the press “persons” with “a direct interest” in the case? The Globe urges that the latter two questions mark ambiguities in the statute, and it is at least clear that the language “a direct interest” has required construction in the past. Commonwealth v. Marshall, 356 Mass. 432 (1969). Commonwealth v. Blondin, 324 Mass. 564 (1949), cert. denied, 339 U.S. 984 (1950). Because neither party has recognized the ambiguity underlying our first question, we take time to explicate it here.

The word “trial” is itself ambiguous. In determining the meaning of a word in a statute, we look to its ordinary lexical meaning. Burke v. Chief of Police of Newton, supra. “Rather than using terms in their everyday sense, ‘ [t]he law uses familiar legal expressions in their familiar legal sense.’” Bradley v. United States, 410 U.S. 605, 609 (1973) (citation omitted). In its legal definition of “trial,” Webster’s New International Dictionary 2705 (2d ed. 1959) suggests that the term has several senses: “In a general sense trial includes all proceedings from the time when issue is joined, or more usually when the parties are called to try their case in court, to the time of its final determination; in criminal law the term trial is, however, generally restricted to proceedings subsequent to swearing in the jury.” This range of meanings also appears in Black’s Law Dictionary 1675 (rev. 4th ed. 1968). Despite the dictionaries’ suggestion that “criminal trial” should be defined restrictively, our older cases have endorsed a definition of “trial” as “the examination before a competent tribunal, according to the laws of the land, of the facts put in issue in a cause, for the purpose of determining such issue.” Commonwealth v. Soderquest, 183 Mass. 199, 201 (1903), overruled on other grounds, Commonwealth v. Penrose, 363 Mass. 677, 679-681 (1973). This definition is broader than the lexical definition. Fact-finding hearings may occur before the jury are empanelled. A hearing to determine whether there is probable cause to bind a defendant over for trial is an example. It is not clear whether a hearing on a motion to suppress would constitute “examination ... of the facts put in issue in a cause.” Cf. Commonwealth v. Soderquest, supra (arraignment is not trial). According to our cases’ definition, then, the distinction between “trial” and “pretrial” is not plain. But compare Mass. R. Crim. P. 13, 14, 378 Mass. 871, 874 (1979), with Mass. R. Crim. P. 19, 20, 378 Mass. 888, 889 (1979). The recent disagreement among members of the United States Supreme Court concerning the applicability to a motion to suppress of the word “trial,” appearing in the Sixth Amendment, is further evidence that the distinction is blurred. See Gannett Co. v. DePasquale, supra. Indeed, it is not clear that the “trial” necessarily encompasses all events occurring after the jury are empanelled. For example, a side bar conference, a hearing of legal arguments, or a voir dire hearing held in the absence of the jury to determine the admissibility of evidence may not meet the Soderquest definition. Thus, “trial” has no single, irresistible interpretation.

Even if we assume that “trial” has an unambiguous meaning, the sentence, “At the trial . . . the presiding justice shall exclude the general public,” is still ambiguous. “At the trial” is ambiguous, for “At” may mean “throughout,” but it may also mean “at some time in” or “during parts of.” Thus, the legislative order, “At the trial the presiding justice shall charge the jury,” would not imply that the charge should continue throughout the entire trial. On the other hand, “At the trial the presiding justice shall maintain order in the court room” would apply throughout. The meaning of the sentence varies with the nature of the act which the judge is ordered to do. Certain acts, such as a jury charge, occur once and within a limited time. Others, such as maintaining order, are continuous. And some acts, such as excluding the general public, can logically occur at many stages of the trial. Thus, even if “trial” has a definite signification, neither the words of the statute alone nor the nature of the act commanded settles whether G. L. c. 278, § 16A, requires partial or wholesale closure.

2. In order to resolve the ambiguities in G. L. c. 278, § 16A, we must first consider whether any principles of statutory construction should influence our analysis. At least two such principles exert pressure in this case. It is well-established that a “statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score.” United States v. Jin Fuey Moy, 241 U.S. 394, 401 (1916) (Holmes, J.). Accord, Commonwealth v. King, 374 Mass. 5, 15 (1977); Alegata v. Commonwealth, 353 Mass. 287, 290 (1967); Worcester County Nat'l Bank v. Commissioner of Banks, 340 Mass. 695, 701 (1960); Ferguson v. Commissioner of Corps. & Taxation, 316 Mass. 318, 323-324 (1944). It is also well settled that a statute in derogation of the common law should be strictly construed, so long as the construction is consistent with the statutory purpose. See Hayon v. Coca Cola Bottling Co., 375 Mass. 644, 648-649 (1978); Vallin v. Bondesson, 346 Mass. 748, 753 (1964); Houghton v. Dickinson, 196 Mass. 389, 391 (1907).

(a) The Globe raises several questions about the constitutionality of excluding the press from a criminal trial. In the face of those arguments and the United States Supreme Court’s uncertain posture on the issues, see Richmond Newspapers, Inc. v. Virginia, 220 Va. cxxix, decided July 9, 1979, which recently has been argued before the Supreme Court on appeal; Gannett Co. v. DePasquale, supra, we seek to shrink the region of possible constitutional doubts about G. L. c. 278, § 16A. Nevertheless, a number of reasons counsel against our deciding those questions today. We take care to point out that, even if we chose to decide the constitutional questions here presented, the question whether the State’s interests outweigh a defendant’s Sixth Amendment right to a public trial would in no way be before us; the defendant is not before this court. Furthermore, instead of deciding the moot issues of the Globe’s First and Sixth Amendment rights, we await the United States Supreme Court’s decision in Richmond Newspapers, Inc. v. Virginia, supra. Nor do we reach the question of press or defendant rights under the State Constitution. The Globe’s contentions relying on art. 16 were not adequately argued in plaintiff’s brief. Mass. R. A. P. 16 (a) (4), as amended 367 Mass. 919 (1975). Indeed, the Globe’s brief relegates the Constitution of this Commonwealth to one cursory, con-clusory footnote. See Beaton v. Land Court, 367 Mass. 385, 389, appeal dismissed, 423 U.S. 806 (1975). As for State constitutional rights analogous to those arguably available under the Sixth Amendment, the Globe’s brief is silent, and our Constitution is unclear, about the right to a public trial.

Finally, we decline to reach the constitutional questions because “[a] court will ordinarily ‘not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of ... . Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.’” Fazio v. Fazio, 375 Mass. 394, 405 (1978). See Commonwealth v. Gustafsson, 370 Mass. 181, 186 (1976). We can decide the present case on nonconstitutional grounds. Therefore, we do so. Also, because our second principle of construction — that statutes in derogation of the common law should be strictly construed — argues for a construction favoring publicity, our result minimizes constitutional doubts about G. L. c. 278, § 16A. Although we do not squarely reach the constitutional questions raised today, we believe that the principles of construction we adopt bring us to a conclusion which approximates the results urged upon us by the Globe on constitutional grounds.⁵ We turn to consideration of the relationship between G. L. c. 278, § 16A, and the common law.

(b) Public trials have been the rule at common law since the Anglo Saxons conducted their trials “like an ill-managed public meeting.” F. Pollock, The Expansion of the Common Law 30 (1904). In re Oliver, 333 U.S. 257, 266 (1948). See generally Gannett Co. v. DePasquale, 443 U.S. 368, 386 n.15 (1979). Id. at 418-427 (Blackmun, J., dissenting). Although in 1884 Mr. Justice Holmes’ famous dicta stated some of the reasons for the rule, Cowley v. Pulsifer, 137 Mass. 392, 394 (1884),⁶ this long established precept, so imbedded in our practice, required no explication until 1949. In Commonwealth v. Blondin, 324 Mass. at 569-570, while sustaining G. L. c. 278, § 16A, against a due process attack, we noted “the universal practice of our courts, especially in criminal cases, to keep the doors open, except as otherwise provided by statute.”

Public trials protect against systematic use of the courts as instruments of political and religious persecution. In re Oliver, supra at 268-270. Publicity prevents abuses of a single judge’s power. Id. at 270-271. See 1 J. Bentham, Rationale of Judicial Evidence 524 (J.S. Mill ed. 1827). The pressure of public scrutiny may deter witness perjury; Commonwealth v. Bohmer, 374 Mass. 368, 380 n.14 (1978), and may engender confidence in court officials. Gannett Co. v. DePasquale, 443 U.S. 368, 429 (1979) (Blackmun, J., dissenting). Open trials may also induce members of the public to come forward with new testimony or other evidence. Commonwealth v. Bohmer, supra at 380 n.14. Other benefits óf publicity are more abstract. As the audience of the courts’ struggle to do justice, the public learns how courts work and may suggest how courts can improve. At the same time, the public experiences the drama of justice being done. "Like theater, the judicial drama teaches the audience not to make" the participants’ mistakes — it deters criminal misconduct — and permits a catharsis — a sense that wrongs have been righted.⁷ Thus, the common law practice of open criminal trials improves the quality of justice done in the courts and binds the courts more closely to the society they serve. General Laws c. 278, § 16A, was enacted against the background of the common law tradition, and that is why we said in Commonwealth v. Blondin, supra at 571: “It is to be strictly construed in favor of the general principle of publicity.”

3. Recognizing the power of the principles favoring publicity, we must identify the precise interests that over-matched the common law rule and thereby justified G. L. c. 278, § 16A, in the Legislature’s eyes.⁸ In Blondin, supra at 571, we considered the Legislature’s purpose in enacting G. L. c. 278, § 16A. “Doubtless it was thought that female witnesses in particular could come forward, institute complaints, and testify with less reluctance, so that more justice would be accomplished if they could be relieved from the inhibitions imposed by the presence of a curiosity impelled audience.” Although this formulation is generally correct, it does not put the matter strongly enough.

Originally enacted in St. 1923, c. 251, with the title “An Act to protect witnesses under the age of seventeen at trials for certain crimes,” the statute was designed “for the protection of minors from the vulgar and obscene and from public degradation.” 1923 House Doc. No. 1349. In St. 1931, c. 205, the statute was revised as part of a comprehensive reexamination of the treatment of children in the Commonwealth. 1931 House Doc. No. 1200. The Special Commission Established to Investigate the Laws Relative to Dependent, Delinquent and Neglected Children, and Children Otherwise Requiring Special Care stated the statutory purpose: “To spare girls of juvenile age the embarrassment, humiliation and demoralization of testifying to all the sordid details of rape, incest, carnal abuse or other crime in-valving sex, incidental to open trial with examination and cross-examination.” Id. at 90.

This legislative history reveals that G. L. c. 278, § 16A, stands at the nexus of two overlapping strands of policy; the Legislature wished to shield certain victims of sex crimes from the difficult experience of testifying in public;⁹ and the Legislature joined this solicitude for victims with the broad, paternal protection afforded children generally.¹⁰ The rape victim’s ordeal in court has been well documented.¹¹ It has been said that “ [t]he court experience, for the rape victim, precipitates as much of a psychological crisis as the rape itself.”¹² In fact, the victim may feel that she has been raped twice: once by the defendant and once by the criminal j ustice system.¹³ A rape victim who anticipates humiliation or embarrassment may choose not to come forward at all, or, if she comes forward, may abandon her participation midway through the case.¹⁴ Even if she continues to participate in the criminal process, she may become so distressed that she cannot testify effectively.

This is especially true for the child victim of rape. The child’s delicate psyche has few resources to help it withstand the trauma of sexual assault. Furthermore, “ [i]t is generally agreed by child psychiatrists that the degree of psychic trauma is as much, or perhaps more, dependent on the way that the child victim is treated after discovery than at the time of the offense itself.”¹⁵ Even an adult victim confronted with the criminal justice system is typically “frightened, confused, and reticent.”¹⁶ For a child with only the barest understanding of the purposes and procedures of a trial, the act of giving evidence may be particularly difficult and bewildering.¹⁷

One of the most disturbing aspects of the trial for many victims is testifying in public.¹⁸ The victim is often embarrassed to discuss intimate and painful matters before a group of strangers. The victim may also fear that she will be held up to public ridicule. A researcher has described the experience of typical child victims: “[A] child is likely either to be confused and frightened by the presence of many persons, or impressed with this unusual opportunity for enthralling a large audience with his stories. In both cases the public’s presence may serve to interfere with the child’s powers of recollection and narration. Ip addition, psychiatrists have observed that ‘the victim naturally wishes to avoid publicity, the embarrassment which accompanies questioning by authorities, or courtroom experiences. Children in particular are often profoundly disturbed by this situation.’”¹⁹ Recognizing the problem, judges and com-ipentatqrs have considered clearance of the courtroom during the victim’s testimony.²⁰

Thus* the purpose of G. L. c. 278, § 16A, is tq encourage young victims qf sexual offenses to come forward; once they have come forward, the statute is designed to preserve their ability to testify by protecting them from undue psychological harm at trial. See Commonwealth v. Leo, ante 34, 38 (1979). In broader terms, the statute’s purposes go beyond protection of juvenile privacy to encompass the Státe’s interest in sound and orderly administration of justice; ipost important, the statute helps obtain just convictions for the types of crimes from which the victims had often suffered at the hands of the criminal justice system, while their asssail-ants had often gone free. We now construe the statute in light of these purposes.

4. The first question that we must decide is whether the language “At the trial. . . the presiding justice shall exclude the general public” necessarily relates to closure of the entire trial. We have shown the language in question to be ambiguous, and our precedent does not illuminate the point. The legislative history, though equivocal, tends to favor a reading that the statute does not mandate closure of the whole trial. Although the 1931 Special Commission Report speaks of a “private hearing,” it does not exclude the possibility that the hearing be private only in part. Moreover, the Report states the purpose of G. L. c. 278, § 16A, as, “[t]o spare girls of juvenile age the embarrassment, humiliation and demoralization of testifying . . . incidental to open trial” (emphasis supplied). 1931 House Doc. No. 1200, at 90. In light of the principles favoring publicity, we construe the statute to relate to closure of the trial only during the victim’s testimony.²¹

We next consider whether G. L. c. 278, § 16A, requires closure of the trial during the victim’s testimony. The Globe argues that the Legislature used the word “shall” in G. L. c. 278, § 16A, in a directory, rather than a mandatory, sense. That is incorrect. Although “[t]he word ‘shall’ as used in statutes ... is not of inflexible signification and not infrequently is construed as permissive or directory in order to effectuate a legislative purpose,” Swift v. Registrars of Voters of Quincy, 281 Mass. 271, 276 (1932); see Myers v. Commonwealth, 363 Mass. 843, 846 (1973), “[t]he word ‘shall’ ... is commonly a word of imperative obligation . . . .” Johnson v. District Attorney for the N. Dist., 342 Mass. 212, 215 (1961). “The general rule whereby directions to public officers for the protection of public or private rights are mandatory may be applied in a like manner to directions to courts.” C. Sands, Sutherland Statutory Construction § 57.16, at 439 (4th ed. 1973). Thus, the mandatory construction appears preferable. Treating the statute as directory would frustrate its purposes. If she were uncertain whether she would have to testify in public, a young woman might choose not to cooperate with the police and the prosecutor. She might be deterred from coming forward at all.

Furthermore, legislative history is relevant to a determination whether a statute is mandatory or directory, and “[t]he deliberate refusal of the General Court to adopt a word which plainly would have conferred discretionary power . . . [may], in place of one whose natural purport would compel them . . . [shall], is significant of a settled intention to use the imperative word.” Rea v. Aldermen of Everett, 217 Mass. 427, 431 (1914). Here the Legislature in 1923 sent the Governor a bill, 1923 House Doc. No. 1219, stating that “the court shall exclude the general public.” The Governor returned the bill with amendments including a change from “shall” to “may.” In an accompanying message, the Governor said, “A statute giving the presiding judge the discretion to exclude the public . . . ought to be sufficient . . . .” 1923 House Doc. No. 1349. The version eventually enacted appears to have been a compromise. It provided that “the presiding justice shall, if said trial is before a district court, or may, if before the superior court, exclude the general public . . . .” St. 1923, c. 251. When the Special Commission reviewed the statute in 1931, it stated: “The Commission is very strongly of the opinion that the reasons for a private hearing in such cases, now mandatory in the district courts, are equally compelling in the Superior Court, and the Commission recommends that the above section 16A be amended so that the presiding justice, whether in the Superior or District Court, shall exclude the general public from the court room, admitting only such persons as may have a direct interest in the case.” 1931 House Doc. No. 1200, at 90. The Legislature followed the commission’s recommendation. This legislative history leaves little room for doubt that the word “shall” in G. L. c. 278, § 16A, is mandatory as to the victim’s testimony.²²

The Globe contends that it should not be excluded under G. L. c. 278, § 16A, because it is among “such persons as may have a direct interest in the case.” In Blondin, supra at 571, the Globe argues, we provided for liberal construction of the clause, and we said: “The intent was to distinguish between persons having a legitimate reason for being present and mere idle spectators who are often attracted in large numbers to sensational trials involving sex issues, not only to the detriment of the community but sometimes to the degradation of justice itself.” Because the Globe’s reporters have a legitimate reason to attend the trial, a reason unrelated to voyeurism, the Globe argues they have a “direct interest.”

We have never said that the “direct interest” clause encompasses the press, and in Blondin, supra at 572, we expressly reserved the question. We have stated in dictum that the statute does not require exclusion of the defendant’s parent, husband, wife, guardian or friend. In Commonwealth v. Marshall, 356 Mass. 432 (1969), we held that a defendant had a right under G. L. c. 278, § 16A, and the Sixth Amendment to have his mother, brother, sister, and friend present at his trial. However, including a few of the defendant’s associates is an entirely different matter from including the press. Admittedly, the presence of a few more persons in the courtroom might not appreciably increase the victim’s anxiety about her testimony. But the knowledge that those few extra persons were reporters who might publish her testimony to thousands would probably increase by orders of magnitude her sense of exposure; vulnerability, and alarm. We believe that a policy of admitting the press during young victims’ testimony would substantially increase the risk that the Commonwealth would lose the benefit of that testimony.

5. In holding that G. L. c. 278, § 16A, is mandatory only as to the victim’s testimony, we do not rule out the possibility that the trial judge might close other parts of the trial. The decision to close any part of the trial other than the victim’s testimony or to close the entire trial is a matter within the judge’s sound discretion. See Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 546 (1977). Because the judge’s discretion in the context of a criminal trial is well settled, we take this opportunity to provide general guidelines for the exercise of that discretion. See id. at 550-552; Kennedy v. District Court of Dukes County, 356 Mass. 367, 373 (1969). As we understand G. L. c. 278, § 16A, and the common law relating to closure of trials, a judge should hold a hearing before entering an order closing parts of the trial other than the victim’s testimony. Although we have not ruled that the plaintiff has a constitutional interest, this view is consistent with the constitutional requirement that a party receive a hearing before suffering a deprivation of such an interest. See Gannett Co. v. DePasquale, 443 U.S. 368, 401-402 (1979) (Powell, J., concurring); id. at 445-446 (Blackmun, J., dissenting). We take this position because of our expressed view of the significance of society’s interest in public trials.

In a case in which G. L. c. 278, § 16A, applies, the Commonwealth may move for closure of parts of the trial other than the victim’s testimony or for closure of the entire trial. The issue at the hearing shall be whether such closure is necessary to serve the statutory purpose; i.e., to preserve evidence required for a just conviction. For example, if closing all or part of the trial were necessary to assure the availability of evidence of fresh complaint, see, e.g., Commonwealth v. Gangi, 243 Mass. 341, 344 (1923); W.B. Leach & P.J. Liacos, Massachusetts Evidence 133 (4th ed. 1967), the judge would be justified in ordering closure. The Commonwealth should bear the burden of showing necessity. Furthermore, because of the policy favoring publicity, an agreement between the prosecution and the defense to close the trial should not justify closure nor even be relevant to the judge’s determination of necessity.

At the hearing, any person to be excluded from the trial should have an opportunity to state his objections to the order.²³ The person need not file a formal motion to intervene. The public need not receive prior notice of the closure hearing. On the other hand, the court should hear a person who in timely fashion informs the court of his desire to object. The hearing should be completed expeditiously and should not ordinarily involve lengthy legal argument. Qn conclusion of the hearing, the judge should make findings of fact as appropriate and should rule on the necessity for closure.²⁴

Since the appeal before us involves an issue now moot, it is to be dismissed.

So ordered.

1 The opinion of the United States Supreme Court in Gannett Co. v. DePasquale, 443 U.S. 368 (1979), had not been given at the time of the hearing before the single justice.

2 Court personnel later told some members of the press that they could enter during the preliminary hearings. Apparently one reporter did enter, but the judge told him that he should not publish information received at the hearing.

3 Indeed, the single justice could have refrained from deciding any issue on the merits. Ordinarily, we will exercise our jurisdiction under G. L. c. 211, § 3, only “if no other remedy is expressly provided.” Here it is arguable that the Globe might have sought a declaratory judgment that G. L. c. 278, § 16A, does not authorize exclusion of the press, and that even if it does, the statute violates the First and Sixth Amendments to the United States Constitution and art. 16 of the Declaration of Rights. G. L. c. 231A.

However, we think the single justice was correct in hearing this matter in view of the doubts concerning the practicality of an alternative remedy in the circumstances, and in view of the significant public issues raised by the petition. We state our views for similar reasons. See Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 550-551 (1977).

4 General Laws c. 278, § 16A, reads as follows: “At the trial of a complaint or indictment for rape, incest, carnal abuse or other crime involving sex, where a minor under eighteen years of age is the person upon, with or against whom the crime is alleged to have been committed, or at the trial of a complaint or indictment for getting a woman with child out of wedlock, or for the non-support of an illegitimate child, the presiding justice shall exclude the general public from the court room, admitting only such persons as may have a direct interest in the case.” As to the constitutionality of the “begetting” statute, G. L. c. 273, § 11, see Commonwealth v. MacKenzie, 368 Mass. 613 (1975). General Laws c. 273, § 11, was subsequently repealed by St. 1977, c. 848, § 7.

5 This approximate parellelism extends not only to the substantive doctrine, but also to procedural safeguards. See part 5, infra.

6 “It is desirable that the trial of causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.”

7 “ [B]y publicity, the temple of justice adds to its other functions that of á school: a school of the highest order, where the most important branches of morality are enforced by the most impressive means: a theatre, in Which the sports of the imagination give place to the more interesting exhibitions of Teal life. Sent thither by the self-regarding motive of curiosity, men imbibe, without intending it, and without being aware of it, a disposition to be influenced, more or less, by the social and tutelary motive, the love of justice. Without effort on their own parts, without effort and without merit on the part of their respective governments, they learn the chief part of what little they are permitted to learn (for the obligation of physical' impossibility is still more irresistible than that of legal prohibition), of the state of the laws on which their fate depends.” 1 J. Bentham, supra at 525. See Note, Trial Secrecy and the First Amendment Right of Public Access to Judicial Proceedings, 91 Harv. L. Rev. 1899, 1906-1909 (1978). See also Note, The Right to Attend Criminal Hearings, 78 Colum. L. Rev. 1308, 1323 (1978). On the purpose of the criminal law to foster legal and moral responsibility in the citizenry, see generally Hart, The Aims of the Criminal Law, 23 Law & Contemp. Prob. 401 (1958).

8 “If the statute, because it modifies the common law, is to be strictly construed, yet the construction adopted should advance, rather than defeat, the purpose of the Legislature.” Houghton v. Dickinson, 196 Mass. 389, 391 (1907). The Legislature, of course, has power to create exceptions to the rules of common law, New Bedford Standard Times Publishing Co. v. Clerk of the Third Dist. Court of Bristol, 377 Mass. 404, 410-411 (1979), and the common law itself provided for exceptions to the rule of publicity. See Commonwealth v. Blondin, 324 Mass. 564, 571-572 (1949), cert. denied, 339 U.S. 984 (1950). Thus, we said in Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 546 (1977): “These statutes do not preclude the exercise by judges of a sound discretion to impose reasonable cloture, including impoundment, in other cases when found necessary.”

9 Since G. L. c. 278, § 16A, was enacted, the Commonwealth has demonstrated sensitivity for the rape victim’s plight in other ways. G. L. c. 41, § 97B (rape victim reporting, prosecuting and counseling services); G. L. c. 41, § 97D (reports of rape and attempted sexual assault must be kept confidential); G. L. c. 233, § 21B (limiting admissibility of evidence of victim’s sexual history and reputation). See also Commonwealth v. Gibbons, 378 Mass. 766, 768-769, 774 & n.ll (1979).

10 Many statutes are designed to protect the identity of minors who are subjects of litigation. See e.g., G. L. c. 119, § 60A (Juvenile Court records not open to public inspection); G. L. c. 119, § 65 (excluding public from Juvenile Court sessions). See also G. L. c. 119, § 60 (limiting uses of delinquency adjudication) held unconstitutional in part in Commonwealth v. Ferrara, 368 Mass. 182 (1975); G. L. c. 210, § 5C (records of adoption proceedings must be segregated); G. L. c. 276, § 100B (juvenile probation and court records may be sealed after three years from final entry). Generally, the purpose of these statutes is to prevent stigmatization of minors and to encourage rehabilitation. See generally Police Comm’r of Boston v. Municipal Court of the Dorchester Dist., 374 Mass. 640, 651-652, 666-668 (1978). In the case of a juvenile defendant, the compulsion of those purposes is strong. In the case of the innocent victim of a sexual assault, the obligation not to aggravate her injuries is very strong indeed.

11 E.g., J. Bode, Fighting Back, ch. 7 (1978); L. Brodyaga, M. Gates, S. Singer, M. Tucker & R. White, Rape and its Victims: A Report for Citizens, Health Facilities, and Criminal Justice Agencies, cc. 8-9 (1975) (hereinafter LEAA Report); E. Hilberman, The Rape Victim, cc. 2, 7, 8 (1976); L. Holmstrom & A. Burgess, The Victim of Rape, cc. 6-8 (1978); S. Katz & M. Mazur, Understanding the Rape Victim, cc. 12, 14, 15 (1979); J. MacDonald, Rape, 128-130 (1971); C. Bohmer, Judicial Attitudes Toward Rape Victims (D. Chappell, R. Geis & G. Geis eds. 1977); A. Burgess & A. Laszlo, When the Prosecutrix is a Child: The Victim Consultant in Cases of Sexual Assault, in Victims and Society (E. Viano ed. 1976); Libai, The Protection of the Child Victim of a Sexual Offense in the Criminal Justice System, 15 Wayne L. Rev. 977 (1969); O’Neale, Court Ordered Psychiatric Examination of a Rape Victim in a Criminal Rape Prosecution — Or How Many Times Must a Woman be Raped, 18 Santa Clara L. Rev. 119 (1978).

¹²

L. Holmstrom & A. Burgess, supra note 11, at 229.

13 J. Bode, Fighting Back, c. 7 (1978). L. Holmstrom & A. Burgess, supra note 11, at 235-236.

¹⁴

S. Katz & M. Mazur, Understanding the Rape Victim 197-198 (1979).

15 Libai, supra note 11, at 980-981. See E. Hilberman, The Rape Victim 53 (1976).

16 LEAA Report at 105.

17 See A. Burgess & A. Laszlo, supra at note 11; C. Bohmer, supra note 11, at 166-168. J. MacDonald, Rape 128 (1971).

18 L. Holmstrom & A. Burgess, supra note 11, at 227; Libai, supra note 11, at 979.

19 Libai, supra note 11 at 1021 (footnote omitted). See E. Hilberman, supfa note 11, at 53; S. Katz & M. Mazur, supra note 11, at 199-200, 233-236.

20 C. Bohmer, supra note 11, at 167. LEAA Report, c. VIII. England and Israel give courts power to exclude the general public when a child victim testifies. Israel, Sweden, and Denmark provide that a court official should question the child privately for the prosecution and defense. See generally Libai, supra note 11, at 986-1001; C. Bohmer, supra at 167. So, too, a large number of the American States have excluded the public to protect the child victim, either by judicial decision or by statute. See Gannett Co. v. DePasquale, 443 U.S. at 388 n.19, for a partial listing of American authority.

21 The language bf G. L. c. 278, § 16C, inserted by St. 1978, c. 316, more clearly states that the closure order may be for the entire trial or “during those portions of such trial when direct testimony is to be presented.” We think this 1978 phrasing not to be inconsistent with the view we take of the earlier analogous statute (§ 16A). The Commonwealth implies that G. L. c. 278, § 16A, mandates closing the entire trial. The Commonwealth goes on to imply that in Commonwealth v. Leo, ante 34, 37-38 (1979), we held that § 16A mandatorily extends the right to a closed trial to the child victim and to her alone. The Commonwealth concludes that the child may make an intelligent and voluntary waiver of her right to full or partial closure. Accordingly, a trial judge should hold a hearing on the waiver issue.

This argument misconceives our holding in Leo. We did not say that the victim is the only person who possesses the right to a closed trial. We said that the main purpose of the statute apparently was to protect the Commonwealth’s case by protecting its witnesses. Id. at 38. Therefore, it was clear that the statute did not give a defendant the right to a hearing from which the press was excluded.

The Commonwealth’s suggestion would also place the trial court in the awkward position of having to rule on a child’s putative waiver of an important right, Use of a waiver doctrine in this context would entail difficult factual determinations and relatively cumbersome procedures (appointment of counsel and in some cases a guardian). It would place a heavy responsibility on even a mature child. It could also import more uncertainty into the process of testifying and make the victim’s experience still more taxing.

22 This view is further supported by the language of G. L. c. 278, § 16B (inserted by St. 1949, c. 302), where, as to criminal proceedings in the district court involving husband and wife, it is stated, “[t]he presiding justice . . . may exclude the general public . . . during the trial.” General Laws c. 278, § 16C (inserted by St. 1978, c. 316), deals with rape or incest trials and provides that a trial judge “may” exclude “all spectators” on request of the parties and where the defendant waives his right to a public trial in writing. The Legislature clearly knows the difference between the permissive “may” and the mandatory “shall.”

23 As we held in Blondín, supra, and Marshall, supra, the judge may not exclude certain persons with a “direct interest in the case.”

24 Although a judge might abuse his discretion or make an error of law, such an error would not warrant reversal on statutory grounds if raised on appeal by a defendant. Cf. Commonwealth v. Leo, ante 34, 37-38, (1979) (G. L. c. 278, § 16A, does not create rights in a defendant). If a defendant should raise at the hearing a constitutional objection to closure, the judge should consider the extent of his constitutional right to a public trial.