Opinion
18-P-1467
04-06-2020
John DOE, Sex Offender Registry Board No. 285142 v. SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, John Doe, appeals from a Superior Court judgment affirming, on judicial review under G. L. c. 6, § 178M, and G. L. c. 30A, § 14, a final decision of the Sex Offender Registry Board (board) classifying Doe as a level three sex offender. Doe argues that the board's hearing examiner erred or abused her discretion (1) in failing to explain how public dissemination of Doe's information will serve a public safety interest; (2) in failing to give appropriate weight to various regulatory factors; and (3) in not classifying Doe as a level one sex offender. We conclude that a remand to the board is necessary, in order to allow the examiner to reconsider the classification in light of Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643 (2019), and for reconsideration of certain regulatory factors.
Background. In 2010, Doe pleaded guilty to four counts of rape and abuse of a child. The victim was Doe's half-sister; the offenses occurred over a two-year period when the victim was between the ages of twelve and fourteen and Doe was approximately twenty to twenty-two years old. The victim became pregnant as a result. Doe initially denied that the offenses took place at all, but later reported that he was under the influence of drugs when he had sex with the victim. At the hearing, Doe conceded that he ruined the victim's life but insisted that he neither forced nor coerced her to have sex with him.
In her final decision, the examiner, applying risk-elevating and risk-mitigating factors, found "by the clear and convincing evidence standard that [Doe] presents a high risk to re-offend and a high degree of dangerousness." She also found "that his risk and danger is such that ... a substantial public safety interest is served by active dissemination of sex offender registry information."
Discussion. A level three classification must be based upon clear and convincing evidence that Doe's "[1] risk of reoffense is high and [2] the degree of dangerousness posed to the public is such that [3] a substantial public safety interest is served by active dissemination (community notification) of sex offender registry information." 803 Code Mass. Regs. § 1.03 (2016). See 803 Code Mass. Regs. § 1.20(2) (2016) (hearing examiner shall determine [1] offender's risk of reoffense, [2] offender's degree of dangerousness, and [3] degree to which public access to offender's personal and sex offender information is in interest of public safety). See also Doe No. 496501, 482 Mass. at 656-657. Our review is limited, and "[w]e reverse or modify the board's decision only if we determine that the decision is unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with law." Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 633 (2011).
1. Active dissemination. First, Doe argues that the examiner failed to determine by clear and convincing evidence, as required by Doe No. 496501, 482 Mass. at 656-657, "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)(c). For classification matters (such as this one) where no such determination was made, and that were pending before an appellate court when Doe No. 496501 was released, a remand may not be necessary if the board's "existing findings are sufficiently explicit to enable proper review," or when "the underlying facts of the case ... so clearly dictate the appropriate classification level." Doe No. 496501, supra at 657 n.4.
Here, it is difficult to determine to what extent the examiner considered the active dissemination element in her analysis of the regulatory factors. It received little attention in her decision, and she merely stated, in somewhat conclusory fashion, that such dissemination is warranted. On this record, the force of the underlying facts regarding the need for active, let alone Internet, dissemination is an open question.
The consideration in the third prong "depends not only on the probability of reoffense and the danger posed by that potential reoffense, but also on the efficacy of online publication in protecting the public from being victimized by the offender." Doe No. 496501, 482 Mass. at 654. A hearing examiner must "separately evaluate[ ]" the efficacy of online publication of the offender's information and "make explicit his or her findings" regarding this prong. Id. at 654, 657. If online publication will not "realistically serve to protect the public" against the offender's potential reoffense, then a level two (or three) classification is unjustified. Id. at 655.
More specifically, "[t]he SORB regulations make clear that the determination of the degree to which public access to an offender's personal and sex offender information is in the interest of public safety must be made ‘in consideration’ of the offender's risk of reoffense and dangerousness." Doe No. 496501, 482 Mass. at 655, quoting 803 Code Mass. Regs. § 1.20(2). "Determining an individual's degree of dangerousness ... requires a hearing examiner to consider what type of sexual crime the offender would likely commit if he or she were to reoffend. Pragmatically, because past is prologue, a hearing examiner would make this determination based on the sexual crime or crimes that the offender committed in the past." Doe No. 496501, 482 Mass. at 651. Cf. Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 144-146 (2019) (focusing on characteristics of offender's past sex offenses in determining degree of dangerousness and efficacy of Internet dissemination).
In this case, Doe's only sex offenses were against an intrafamilial victim in the family home. On remand, therefore, the examiner should explicitly consider whether clear and convincing evidence proves that, to the extent Doe is likely to reoffend, a reoffense of this nature could be prevented, or its risk substantially reduced, by Internet and other active dissemination of Doe's sex offender registry information.
2. Regulatory factors. Doe's next argument is that the examiner abused her discretion in the weight she gave to four regulatory factors: factor 11 (violence unrelated to sexual assaults), factor 32 (sex offender treatment), factor 33 (home situation and support systems), and factor 34 (materials submitted by sex offender regarding stability in the community). See 803 Code Mass. Regs. § 1.33(11), (32)-(34) (2016). "A hearing examiner has discretion ... to consider which statutory and regulatory factors are applicable and how much weight to ascribe to each factor." Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 109-110 (2014). "Accordingly, our review does not turn on whether, faced with the same set of facts, we would have drawn the same conclusion as [the agency], but only whether a contrary conclusion is not merely a possible but a necessary inference" (quotations omitted). Id. at 110.
Doe's brief also challenged the application of factor 2 (repetitive and compulsive behavior), but at oral argument he withdrew this claim.
Doe first challenges the examiner's treatment of factor 11. See 803 Code Mass. Regs. § 1.33(11)(a) ("An offender is more likely to reoffend and present a greater danger if he has previously demonstrated that he can act violently and with no regard to the safety of others"). Doe claims that this factor should not have been applied, because Doe's violent acts took place long ago when he was a juvenile. But the examiner noted this and accordingly gave the factor minimal weight. This was within her discretion.
Doe has adjudications for assault and battery (in 2002) and assault and battery by means of a dangerous weapon (in 2003).
Second, Doe argues that the examiner abused her discretion in failing to give full mitigating weight to factor 32, and more specifically, in giving him no weight for his current participation in sex offender treatment and only minimal weight for his past participation. We see no error. The offender has the burden "to provide documentation from a treatment provider verifying his treatment participation or completion." 803 Code Mass. Regs. § 1.33 (32). This documentation must contain a minimum amount of information, including "a record of the offender's attendance, level of participation, and degree of progress." Id.
Here, the examiner reasonably found that the most recent documentation Doe provided lacked the information required under the regulations and thus failed to "meet[ ] the criteria for current participation in sex offender treatment." Regarding Doe's past participation, he withdrew from treatment while incarcerated and never reentered the program. The examiner was therefore justified in giving that aspect of factor 32 minimal weight. See 803 Code Mass. Regs. § 1.33(32)(a)(3) ("Offenders who participated in treatment while incarcerated ... but did not complete the sex offender treatment program, may receive less weight under factor 32").
Next, Doe argues that the examiner abused her discretion in giving only moderate weight to factor 33. He claims he should have received full mitigating weight because there was sufficient evidence that he was "residing in a positive and supportive environment," and his support network was "aware of [his] sex offense history." 803 Code Mass. Regs. § 1.33(33)(a). We conclude that a remand for further consideration of factor 33 is appropriate here. This is because the examiner, in mentioning Doe's girlfriend, stated that Doe "claims she is aware of his sex offense" (emphasis added), yet the examiner made no reference to -- and thus, we infer, did not carefully consider -- the detailed letter of support in which Doe's girlfriend explicitly acknowledged that she is aware of his sex offense history.
Although "[t]he decision by an agency ... not to refer in a decision to a particular piece of evidence does not imply the failure to consider that evidence when ruling on the issue" (quotation omitted), Attorney Gen. v. Commissioner of Ins., 450 Mass. 311, 322 (2008), the examiner's expressed doubt about the girlfriend's knowledge raises just such an implication here.
A board "classification decision will be deemed arbitrary or capricious ... if it fails to take into account reliable evidence that a factor relevant to a given offender affects the likelihood that the offender will recidivate" (quotations and citation omitted). Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender Registry Bd., 96 Mass. App. Ct. 738, 743 (2019). "While we express no opinion as to the weight, if any, to be given ..., the evidence should have been ... considered by the hearing examiner," and thus a remand is necessary to ensure that she does so. Id. at 744.
Similarly, Doe argues that the examiner abused her discretion in giving only minimal weight to factor 34 (stability in the community). The examiner did so based on her finding that Doe had contradicted himself in his testimony regarding his employment and living situations. Doe argues that the examiner's findings do not accurately reflect his testimony. We agree.
Regarding employment, the examiner characterized Doe as having testified both that he was working twenty hours per week and that he was unemployed. The record is otherwise. After Doe's stepfather testified that Doe worked with him "20 or 25 hours a week," the examiner directly asked Doe if he was currently working, to which Doe replied, "Like was already said, I'm mainly just going with him just for the educational experience but I generally don't get paid." The examiner followed up by asking if he was learning to be a plumber, and Doe responded, "Among other things, yeah." The examiner asked Doe if he received Social Security "just for being unemployed," and Doe answered, "No," and explained that he received it for medical reasons. Nowhere did Doe testify that he was unemployed.
Regarding Doe's living situation, the examiner erred in finding that Doe's "living situation is sporadic" and that his testimony conflicted "as to whether he spent most of his time alone or 98% of his time with his girlfriend at her home." In response to the examiner's question about where Doe presently lived, Doe said that he spends "98 percent of [his] time with [his] girlfriend at her house." The examiner later questioned Doe on why he had signed the hearing attendance sheet not only as living at his girlfriend's address but also as "homeless," to which Doe replied that he is only "technically" homeless because he is not on the lease to his girlfriend's apartment. Doe registers his girlfriend's address with the police and he updates them every 30 days "in case something does change." Doe "found it's easier that way for all the parties involved."
Although Doe also testified that he does not have any friends and is "by [him]self most of the time," that does not conflict with Doe's statement that he spends ninety-eight percent of the time with his girlfriend. Doe used the word "spend" in explaining his living situation. To view him as stating that he spends ninety-eight percent of his entire time with his girlfriend, and then to find a conflict between that statement and his testimony that he spends most of his time alone, appears either to impose a strained interpretation on Doe's testimony or simply to misunderstand it. We therefore conclude that a remand for further consideration of factor 34 is also appropriate. See Doe No. 22188, 96 Mass. App. Ct. at 743. On remand, the examiner has full discretion to take new evidence on the factors identified supra, in addition to any other factors as to which circumstances may have changed in the nearly three years since the hearing.
3. Doe's classification level. Lastly, in light of our decision to remand this matter, we need not address Doe's argument that the examiner erred in not giving Doe a level one classification. Nor do we address the examiner's findings on Doe's risk of reoffense and degree of dangerousness. We express no opinion as to the appropriate classification for Doe. See Doe No. 22188, 96 Mass. App. Ct. at 744 n.9.
As to Doe's claim that the level three classification was excessive because most of the risk-elevating and high-risk factors were inapplicable, we note that "neither the statute nor the regulations specify that the inapplicability of a certain factor weighs in the favor of an offender." Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 788 (2006).
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Conclusion. The judgment is vacated, and a new judgment shall enter remanding the case to the board for further proceedings consistent with this memorandum and order.
So ordered.