Opinion
18-P-1068
12-19-2019
John DOE, Sex Offender Registry Board No. 102660 v. SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a June 14, 2017, de novo hearing before a hearing examiner, the Sex Offender Registry Board (board) classified the plaintiff as a level two sex offender. The plaintiff sought judicial review of the board's decision, pursuant to G. L. c. 30A, § 14, and G. L. c. 6, § 178M. A Superior Court judge denied the plaintiff's motion for judgment on the pleadings and affirmed the board's decision. On appeal, the plaintiff argues that the classification must fail because (1) the hearing examiner's findings on risk to reoffend and dangerousness were insufficient to support a level two classification, and (2) there was no finding regarding the appropriate degree of public access to the plaintiff's sex offender registry information. We affirm.
In 2004, the thirty-four year old plaintiff appeared at the home of his seventy-one year old neighbor at 10 p.m. and raped her vaginally and orally with his penis. In 2005, after a jury trial, the plaintiff was convicted of two counts of rape and one count of assault and battery on a person sixty years of age or older. He was sentenced to a concurrent term of from fourteen to fifteen years on the rape convictions and a concurrent term of from five to seven years on the remaining conviction. The defendant was released from incarceration in 2017, at which time the classification hearing took place.
Discussion. In order to classify a person as a level two sex offender, the hearing examiner must make three determinations by clear and convincing evidence: (1) the risk of reoffense is moderate; (2) the offender's dangerousness, as measured by the severity and extent of harm the offender would present to the public in the event of reoffense, is moderate; and (3) a public safety interest is served by Internet publication of the offender's registry information. Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 644 (2019) (Doe No. 496501 ).
We will not disturb the board's classification decision unless the decision is in excess of the board's statutory authority or jurisdiction, violates constitutional provisions, is based on an error of law, or is not supported by substantial evidence. See Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 134 (2019) (Doe No. 23656 ). In reviewing the board's decision, we give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it. See id. at 138.
1. Findings on risk of reoffense and dangerousness. The plaintiff contends that the hearing examiner's findings with respect to the plaintiff's risk to reoffend and dangerousness were deficient in that they did not reflect a fair consideration of empirically-based risk assessments, they were based on stale evidence, and they were not sufficiently explained.
To the extent that the plaintiff complains about the analysis of the Superior Court judge, we note that our review is de novo. See Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 108 n.3 (2014) ; Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89 (2019).
In making the required determinations, the hearing examiner was guided by the statutory risk factors. See G. L. c. 6, § 178K (1) (a)-(l) ; 803 Code Mass. Regs. § 1.33 (2016). The examiner specifically considered that the index offense supported three risk elevating factors: extrafamilial victim (factor 7), extravulnerable victim (factor 18), and level of physical contact (factor 19). The examiner also considered that the plaintiff's poor record of behavior while incarcerated elevated his risk (factor 12). With respect to risk mitigating factors, the hearing examiner considered the plaintiff's age (factor 30), his completion of sex offender treatment (factor 32), his home situation and support system (factor thirty-three), and stability in the community (factor thirty-four). The hearing examiner additionally considered psychological or psychiatric profiles of the plaintiff (factor thirty-five).
The plaintiff argues nevertheless that the examiner failed to consider empirically-based risk assessments. Contrary to this claim, the examiner explicitly considered the 2014 and 2016 Static-99R and Stable-2007 assessments. It appears that the hearing examiner did not reject the assessments altogether but weighted them less, in comparison with other indicia of recidivism. See Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 637 (2011) (Doe No. 10800 ) (hearing examiner permitted to discount utility of assessment that does not take into account significant factors).
The hearing examiner gave the assessments "minimal weight" because they did not "take into account all of the factors considered by the Board" and did not "address the Board's collateral inquiry of dangerousness." We agree with the plaintiff that an assessment as to recidivism should not be rejected because it does not also address the issue of dangerousness. See G. L. c. 6, § 178K (1) (a)-(l) ; 803 Code Mass. Regs. § 1.33(35) (2016) ("The Board shall consider ... empirically-based risk assessment instruments ... as they relate to the offender's risk of reoffense"). Cf. Doe No. 23656, 483 Mass. at 136-137 (that expert's testimony speaks to one, but not all, relevant considerations not objectively adequate reason to reject testimony).
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Likewise, the plaintiff's claim that the assessment was based on stale evidence is not supported in the record. To be sure, the plaintiff's 2004 index offense played a large role in the 2017 classification in that it implicated three risk elevating factors. The fact that the crimes took place years before the assessment, however, does not necessarily diminish the relevance of those events on the over-all assessment, particularly where the plaintiff was incarcerated for most of the intervening time. See Doe No. 496501, 482 Mass. at 651 (hearing examiner may consider offender's older sex offenses "where they are relevant to a holistic assessment of the offender's current degree of dangerousness, or where the offender has not had recent opportunity to commit sexual offenses because he or she has been in custody"). In any event, the hearing examiner did consider more current evidence, including the plaintiff's disciplinary records while incarcerated, participation in sex offender treatment, and support system.
The plaintiff's primary grievance appears to be the lack of detail in the hearing examiner's decision. Yet, the decision identified the factors taken into consideration, the relative weight given to each factor, and the reason for such determination. For example, the examiner reviewed the plaintiff's history of disciplinary sanctions while incarcerated and gave it moderate weight, in light of the fact that there were no such sanctions within the prior three years. Likewise, the examiner gave the advanced age factor moderate weight because he had not yet attained the age of fifty, when this factor is noted to begin to have a significant effect. See 803 Code Mass. Regs. § 1.33(30) (2016). Similarly, after detailing the plaintiff's history of participation in and success with sex offender treatment, the examiner gave the factor full mitigating weight. See 803 Code Mass. Regs. § 1.33(32) (2016) ; Doe No. 23656, 483 Mass. at 138-139 (hearing examiner has discretion to determine how much weight to ascribe to each factor under consideration). The examiner was not required to explain the scientific principles upon which the factors were based, as the plaintiff suggests. See Doe No. 10800, 459 Mass. at 627 n.26 (factors are based on scientific literature in field of sex offender studies). The hearing examiner's determination that the plaintiff presented a moderate risk to reoffend and a moderate level of dangerousness was supported by clear and convincing evidence. See Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 309 (2015).
2. Degree of public access determination. The hearing examiner did not have the benefit of the Supreme Judicial Court's decision in Doe No. 496501, 482 Mass. at 655-656, which held that the degree of public access finding is a distinct determination that must explicitly be made by the hearing examiner upon clear and convincing evidence. See G. L. c. 6, § 178K (2) (b). Although the requirement was to be applied prospectively only, the court indicated that, where an appeal was pending, the appellate court would have the discretion to remand for explicit findings on the appropriate degree of public access. Doe No. 496501, supra at 657-658.
In our discretion, we decline to remand. The hearing examiner's determination that the plaintiff had a moderate risk to reoffend and posed a moderate degree of dangerousness was supported by clear and convincing evidence. See id. at 655 ("Where a sexually violent offender presents a moderate risk to reoffend and a moderate degree of dangerousness, Internet publication will almost invariably serve a public safety interest by notifying potential victims of the risks presented by the offender in their geographic area"). Upon any remand, the hearing examiner would simply have to ask "whether, in light of the particular risks posed by the particular offender, Internet access to that offender's information might realistically serve to protect the public against the risk of the offender's sexual reoffense." Id. We believe that the record dictates the answer to that question. See id. at 657 n.4 ("the underlying facts of the case may so clearly dictate the appropriate classification level that a reviewing court may determine that a remand for explicit findings is not necessary").
Judgment affirmed.