Opinion
18-P-802
03-31-2020
John DOE, Sex Offender Registry Board No. 523617 v. SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, John Doe, appeals from a Superior Court judgment affirming his final classification by the Sex Offender Registry Board (SORB) as a level two sex offender. We conclude that the SORB hearing examiner's conclusion, that there was clear and convincing evidence that Doe's risk of reoffense and dangerousness was moderate, is supported by substantial evidence. Because, however, the examiner did not make a specific finding whether there was clear and convincing evidence that a public safety interest is served by Internet publication of Doe's registry information, we remand for findings on that issue.
A pseudonym.
1. Background. The underlying offenses span from May 2009 until May 2011. In 2014, the victim reported that, when the victim was between the ages of six and eight, Doe watched pornographic videos on the television in their shared bedroom. Doe admitted that he let the victim watch pornographic videos on multiple occasions although he knew it was wrong. He also admitted that he lay in bed with the victim while they masturbated together. Doe denied touching the victim's penis, but he said he rubbed the victim's arm and belly area many times. Doe said that the victim kissed him once. In 2015, Doe pleaded guilty to two counts of indecent assault and battery on a child, three counts of open and gross lewdness, and three counts of providing obscene material to a minor.
2. Standard of review. "A reviewing court may set aside or modify SORB's classification decision where it determines that the decision is in excess of SORB's statutory authority or jurisdiction, violates constitutional provisions, is based on an error of law, or is not supported by substantial evidence." Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 649 (2019) (Doe No. 496501 ), citing G. L. c. 30A, § 14 (7). "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.’ " Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 88 (2019), quoting Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 76 (2015). "Substantial evidence is ‘such evidence as a reasonable mind might accept as adequate to support a conclusion.’ " Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 632 (2011), quoting G. L. c. 30A, § 1 (6).
3. Substantial evidence to support the classification. "A level two classification requires a finding, by clear and convincing evidence, that ‘(1) the offender's risk of reoffense is moderate; (2) the offender's dangerousness 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. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 138 (2019) (Doe No. 23656 ), quoting Doe No. 496501, 482 Mass. at 656. See G. L. c. 6, § 178K (2) (b ). "Where the SORB regulation itself calls for three separate determinations and where classification decisions affect substantial privacy and liberty interests, we conclude that it is appropriate to require the hearing examiner to make explicit his or her findings regarding each of these three elements, and to make clear that each determination is supported by clear and convincing evidence." Doe No. 496501, 482 Mass. at 657.
a. Application of factors. i. Repetitive and compulsive behavior (factor 2). "Factor 2 applies at its threshold weight any time an offender ‘engages in two or more separate episodes of sexual misconduct’ where there is ‘time or opportunity, between the episodes, for the offender to reflect on the wrongfulness of his conduct.’ " Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender Registry Bd., 96 Mass. App. Ct. 738, 742 (2019), quoting 803 Code Mass. Regs. § 1.33(2) (2016). Here, Doe engaged in multiple incidents of viewing pornographic videos and masturbating in bed with the victim over two years. The hearing examiner noted that Doe admitted to knowing it was wrong to show pornographic videos to a child. Thus, the examiner properly determined that there was a sufficient opportunity for the plaintiff to reflect on the wrongfulness of the conduct and thus assigned aggravating weight to this factor.
ii. Relationship between offender and victim (factor 7). Doe argues that factor 7 should have been treated as a risk mitigating factor, because he offended against an interfamilial victim. The examiner accepted that the relationship here was interfamilial. See 803 Code Mass. Regs. § 1.33(7) (2016) ("Interfamilial Victim includes ... [a]ny persons who are family member substitutes [e.g., foster, step-relatives, or any other type of familial household ‘live-in’ relationship]"). The examiner, however, properly declined to treat this factor as risk mitigating, because "having an interfamilial victim is not a risk mitigating, nor a risk elevating, factor." 803 Code Mass. Regs. § 1.33(7) (2016).
iii. Male offender against male victim (factor 17). "Factor 17 applies when a[n adult] male offender commits any sexual misconduct against a non-consenting male or a male child younger than 16 years old." 803 Code Mass. Regs. § 1.33(17) (2016). As the victim was between the ages of six and eight at the time of the offense, the examiner properly applied this factor and gave it full aggravating weight. Because application required a determination that the victim was younger than sixteen years old, the examiner properly recognized that he was "prepubescent." Contrary to Doe's argument, the regulations contain no prohibition on a risk-elevating factor being afforded full aggravating weight, and there is no indication that the examiner treated it as a high-risk factor.
For that same reasons, Doe's challenge to the application of factor 18 (extravulnerable victim) fails as well. See 803 Code Mass. Regs. § 1.33(18) (2016).
iv. Advanced age (factor 30). "[T]he Board considers advanced age to have a significant mitigating effect ... for those with child victims, when the offender is 60 years of age or older." 803 Code Mass. Regs. § 1.33(30) (2016). At the time of the hearing, the plaintiff was only fifty-three years old. Accordingly, as the victim was a child and Doe was not yet sixty years old, the examiner properly assigned this factor "minimal mitigating weight."
v. Other information related to the nature of the sexual behavior (factor 37). "The board's regulations state that the examiner is to be ‘guided by the definitions, explanations, principles, and authorities’ contained in the board's regulations." Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 622 (2010), quoting 803 Code Mass. Regs. § 1.22(3) (2002). The plaintiff submitted four articles regarding advanced age and recidivism; three of which are already incorporated in the updated regulations. The articles do not contradict the examiner's consideration of the factors; indeed, the articles undermine the proposition that reoffense among child molesters drops dramatically in an offender's fifties. The only article which is not cited in the regulations specifically qualifies that the sample size and low base rate of sexual recidivism "limit the power of these analyses" on sexual recidivism, and the "safest conclusion is that, consistent with more general literature, the present results support a general decline in sexual recidivism with older age but do not tell us much about the exact shape of this relationship." The examiner acknowledged the articles and determined that "[t]he Board's new regulatory factors contain similar research on these issues." Accordingly, the examiner properly gave these articles limited weight.
Doe did not raise any issues concerning the examiner's application of factors 10 (contact with criminal justice system), 32 (sex offender treatment), 33 (home situation and support systems), 34 (materials submitted by the sex offender regarding stability in the community), or 38 (victim impact statement) before the Superior Court judge, and thus he cannot raise such issues here. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006), quoting Century Fire & Marine Ins. Corp. v. Bank of New England-Bristol County, N.A., 405 Mass. 420, 421 n.2 (1989).
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b. Qualitative analysis. Ultimately, "[t]he final classification level is not based on a cumulative analysis of the applicable factors, but rather a qualitative analysis of the individual sex offender's history and personal circumstances." Noe, Sex Offender Registry Bd. No. 5340 v. Sex Offender Registry Bd., 480 Mass. 195, 197 (2018), quoting 803 Code Mass. Regs. § 1.33 (2016). Contrary to Doe's argument, the examiner ultimately engaged in such a qualitative analysis. The examiner explained that Doe "exhibited repetitive and compulsive behavior by showing a prepubescent, extravulnerable male child pornography, touching him and masturbating in his presence on multiple occasions." The examiner then acknowledged that Doe was "subject to supervised probation until 2020 and ... employed," but that "the nature and extent of the high risk and risk elevating factors present here outweigh these considerations." We discern no error.
c. Internet publication. "An offender may not be given a level two classification unless ‘the degree of dangerousness posed to the public’ by the offender ‘is such that a public safety interest is served by public availability of registration information,’ that is, by the availability of registration information on SORB's website." Doe No. 496501, 482 Mass. at 654, quoting G. L. c. 6, § 178K (2). The examiner must determine "whether and to what degree public access to the offender's personal and sex offender information ... is in the interest of public safety." 803 Code Mass. Regs. § 1.20(2) (2016). "[E]ven where the findings are not explicit, 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." Doe No. 496501, 482 Mass. at 657 n.4.
Here, the examiner stated that "dissemination of his personal information [was] appropriate," but failed to make any specific findings that a public safety interest is served by Internet publication of Doe's registry information. Doe's sole victim was a child with whom Doe had a familial-like relationship and shared a bedroom. Contrast Doe No. 23656, 483 Mass. at 145 (no remand necessary when offenses were "committed against strangers in public locations"). We are unable to say that these facts "clearly dictate" that internet publication serves a public safety interest. Doe No. 496501, 482 Mass. at 657 n.4.
4. Conclusion. We remand the classification decision to the hearing examiner for further findings on whether Internet publication of Doe's registry information serves a public safety interest in accordance with procedures set forth in Doe No. 496501, 482 Mass. at 657-658.
So ordered.