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Prosecutors say child rapist shouldn’t be released when sentence ends

A convicted child rapist who is nearing the end of his sentence is too dangerous to be released, according to prosecutors seeking to keep him incarcerated under the state’s violent sex offender law.

The civil commitment petition, which would allow Denis Gagne to be held up to five years after his sentence ends, is one of two avenues prosecutors have taken recently that would keep him behind bars. The other is reflected in an indictment issued last month by a Merrimack County grand jury, accusing 64-year-old Gagne of a 1989 sexual assault against one of the two women he is being held for raping.

“We want the guy incarcerated,” Merrimack County Attorney Scott Murray said, declining to comment further on his office’s decision to take both routes.

Gagne has been behind bars for much of the last 25 years, but his criminal history is complex.

Department of Corrections records show he was arrested in 1989 and charged with two counts of aggravated felonious sexual assault. According to news reports, the victims were two young girls, ages 6 and 8.

Gagne was convicted of those crimes. But he was released in 1995 – six years into a 15- to 30-year sentence – after his lawyers learned that they had not been given evidence questioning the credibility of a Franklin police officer who had investigated his case.

At the time, a prosecutor upset over his release called Gagne “a very serious threat to our society.”

Two years later, in 1997, Gagne ended up back in state prison on the same sexual assault charges, according to records, which don’t make clear why.

That sentence ends in June.

Murray said he couldn’t comment on the nature of the new aggravated felonious sexual assault indictment, but that it’s for an assault Gagne has not previously been charged with. According to the indictment, the incident happened in Franklin during August or September of 1989 when the now 30-year-old woman was 7.

Murray said Gagne can still be prosecuted for the crime because the statute of limitations on aggravated felonious sexual assaults where the victim is under 18 at the time is the victim’s 40th birthday.

Gagne will be arraigned on that charge March 13.

The criminal proceeding will be separate from the civil suit Murray said prosecutors filed in July under the state’s violent sex offender law. The law, which went into effect in 2007, allows sex offenders to be held after their sentence ends if a jury believes they suffer from a mental abnormality that makes them dangerous and likely to re-offend.

The avenue is rarely taken by prosecutors, and Murray said that in general the cases are complicated.

Before prosecutors can file a petition with the court, the law requires that the offender be assessed by a team of licensed psychiatrists and psychologists who specialize in sex offender diagnosis and treatment. The committee reviews, among other things, the prisoner’s criminal background and treatment history, including whether they’ve partaken in sex offender treatment.

If the group agrees that the person fits the parameters of a sexually violent predator and is likely to re-offend if not confined, prosecutors can file the petition. If a judge finds probable cause – which has happened in Gagne’s case – the prisoner can be held after their release date, pending a jury trial.

If Gagne is convicted, he would be sentenced to spend up to five years in the state prison’s secure psychiatric unit where he would undergo further treatment, according to Murray.

Murray said a date has not been set for Gagne’s trial. The file for his case is sealed from public view at Merrimack County Superior Court.

Only two people have been convicted under the sexual predator law since 2007: William Ploof in 2009 and Thomas Stephen Hurley in 2010. While Hurley admitted that he was still dangerous and agreed to remain committed, Ploof fought the process. But a jury didn’t buy the defense’s claim that Ploof, who has sexually assaulted between 20 and 50 people, including children, had changed his ways despite having not completed sex offender treatment.

Merrimack County prosecutors filed a petition under the law in 2007 against convicted rapist William Decato but ultimately dropped the case, saying they didn’t have enough evidence to prove Decato met the law’s standards. Less than two years later, he broke into the home of a Manchester woman and raped her over the span of two hours. He was convicted of that crime and sentenced to life in prison.

(Tricia L. Nadolny can be reached at 369-3306 or
tnadolny@cmonitor.com or on Twitter @tricia_nadolny.)

Correction: This story has been updated to reflect the correct date of Gagne’s upcoming arraignment.

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