Opinion
18-P-356
05-07-2019
JOHN DOE, SEX OFFENDER BOARD NO. 282253 v. SEX OFFENDER REGISTRY BOARD.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, John Doe, appeals from a Superior Court judgment affirming his final classification as a level two sex offender by the Sex Offender Registry Board (SORB). Doe contends that his level two classification was not supported by substantial evidence. The hearing examiner considered the applicable factors and weighed them with permissible discretion. We therefore affirm.
"We review a judge's consideration of an agency decision de novo." Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89 (2019).
Discussion. Doe's level two classification was based on a finding of a moderate risk of reoffense. See G. L. c. 6, § 178K (2) (b). A sex offender's classification level must be proven "by clear and convincing evidence." Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 300 (2015). See G. L. c. 30A, § 14 (7). "The evidence must be sufficient to convey a 'high degree of probability' that the contested proposition is true." Doe, Sex Offender Registry Bd. No. 380316 , supra at 309, quoting Callahan v. Westinghouse Broadcasting Co., 372 Mass. 582, 588 n.3 (1977). "A hearing examiner has discretion to consider which regulatory factors to apply and how to weigh those factors based on the evidence at the hearing." Doe, Sex Offender Registry Bd. No. 291554 v. Sex Offender Registry Bd., 87 Mass. App. Ct. 210, 212 (2015).
Doe asserts that the hearing examiner's decision is unsupported by substantial evidence because none of the six statutory "high-risk factors" apply, and many of the "risk-elevating factors" are absent from his case. See G. L. c. 6, § 178K (1) (a); 803 Code Mass. Regs. § 1.33(1)-(6) (high-risk factors) & (7)-(27) (risk-elevating factors) (2016). The absence of high-risk factors does not, however, "reduce an offender's risk of reoffense or lower his degree of dangerousness." 803 Code Mass. Regs. § 1.33. Neither the statute nor the regulation suggest that SORB must account for the absence of certain high-risk or risk-elevating factors. See id. See also Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass 779, 788 (2006) ("The inapplicable factors do not count against an offender's risk level as they are not considered or weighed in the classification process"); Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803, 813 (2006) (board has "considerable leeway" in interpreting G. L. c. 6, § 178K, and related regulations).
The hearing examiner weighed each applicable risk-elevating factor. Doe met the victim for the first time on the day of the offense. See 803 Code Mass. Regs. § 1.33(7)(a)(3) (stranger victim). The victim had used alcohol and cocaine prior to the sexual assault and her level of intoxication rendered her "more susceptible to sexual assault or unable to effectively defend . . . herself." 803 Code Mass. Regs. § 1.33(18) (extravulnerable victim). The sexual offense involved penile-vaginal penetration, giving rise to a risk factor based on the type of contact. 803 Code Mass. Regs. § 1.33(19) (level of physical contact).
All but one of the risk-elevating factors were given full aggravating weight. The hearing examiner "temper[ed] the aggravating weight" of alcohol and substance abuse "because there [was] no evidence to support an on-going substance abuse problem." Doe attempts to downplay two risk-elevating factors, claiming that the victim was voluntarily intoxicated as opposed to being drugged, and that Doe penetrated the victim briefly. The extravulnerable victim risk factor makes no distinction between voluntary or involuntary intoxication. See 803 Code Mass. Regs. § 1.33(18). The factor addressing the level of physical contact focuses on the type of contact, not its duration. See 803 Code Mass. Regs. § 1.33(19).
In § 1.33(18), the term "extravulnerable victim" includes a circumstance which "(1) renders a victim more susceptible to sexual assault or unable to effectively defend himself or herself; or (2) compromises his or her ability to effectively report the abuse or provide testimony in court."
803 Code Mass. Regs. § 1.33(19) states, "The offender who engages in penetration, especially penile penetration, as part of the sexual assault poses an increased degree of dangerousness."
Two risk-mitigating factors -- Doe's advanced age and his support system -- were considered and given limited mitigating weight. Doe was forty-nine when he committed the offense and fifty-seven at the time of the hearing. The hearing examiner discounted advanced age as a factor, finding that Doe offended at age forty-nine and therefore "continues to demonstrate an active sex drive." 803 Code Mass. Regs. § 1.33(30). He noted that Doe's supporters believed that the sexual contact was consensual, decreasing the likelihood that his supporters would be vigilant in monitoring future transgressive behavior.
Although there was no direct evidence of Doe's level of sexual activity, the hearing examiner was permitted to draw the inference that Doe was sexually active from the fact that he was engaged.
The hearing examiner considered the complete record and weighed each factor with permissible discretion. See Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 94 (2019). "The weight that [the hearing examiner] afforded each of those factors was [his] to determine, and fell within the bounds of [his] discretion." Doe, Sex Offender Registry Bd. No. 291554 , 87 Mass. App. Ct. at 214. "[W]e discern substantial evidence to support the examiner's classification decision" and "can discern no error in the examiner's weighting" of factors. Doe, Sex Offender Registry Bd. No. 523391 , supra.
Even though the hearing examiner's explanations were brief, he followed the statutory and regulatory scheme. Accordingly, "[g]reater quantification of specific risk, even if possible to imagine, is not required." Doe, Sex Offender Registry Bd. No. 291554 , 87 Mass. App. Ct. at 215. The classification was supported by clear and convincing evidence.
Judgment affirmed.
By the Court (Green, C.J., Sullivan & Ditkoff, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 7, 2019.