Opinion
20-P-1350
01-24-2022
John DOE, Sex Offender Registry Board No. 526924 v. SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
John Doe, who is deaf and mute, pleaded guilty to indecent assault and battery on a person over fourteen and was classified by the Sex Offender Registry Board (board) as a level two (moderate risk) sex offender. See G. L. c. 6, § 178K (2) (b ). After the board affirmed its decision following an evidentiary hearing, Doe sought judicial review pursuant to G. L. c. 30A, § 14. A Superior Court judge denied Doe's motion for judgment on the pleadings, affirmed the level two classification, and dismissed the action.
On appeal, Doe challenges the board's (1) denial of his motion for funds to retain an expert, (2) application of certain statutory and regulatory risk factors, and (3) finding that a public interest is served by Internet access to Doe's sex offender registry information. We affirm.
Background. On July 2, 2018, Doe, then twenty-five years old, followed a twenty-three-year-old female whom he did not know (victim one) as she walked from her car to the entrance of an apartment building. As she opened the door, Doe placed his body against hers, reached around her left side, and grabbed her breast. Victim one broke free and pushed Doe away. Doe fled but was immediately apprehended. He provided the police with the following written statement: "at first I was going to ask this girl if she would like to have a drink or something with me but I was too shy to ask so I decided to just grab her ass...." Based on this conduct, Doe pleaded guilty to indecent assault and battery on a person over fourteen and was placed on probation for two years.
During Doe's term of probation he was arrested for enticing a child under sixteen. See G. L. c. 265, § 26C (b ). The victim, a fifteen-year-old girl (victim two), reported to police that she was approached by a man in a car who communicated using his cell phone to offer her a ride. The man, later identified as Doe, made sexual gestures and used sign language to indicate he wanted victim two to engage in oral sex with him. Doe initially denied the conduct, but then explained that the gestures were only intended to offer marijuana to victim two.
Discussion. "[I]n order to classify an individual as a level two sex offender, the hearing examiner is required to make three explicit determinations by clear and convincing evidence: (1) that the risk of reoffense is moderate; (2) that the offender's dangerousness ... is moderate; and (3) that 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). See G. L. c. 6, § 178K (2) (b ) ; 803 Code Mass. Regs. § 1.20(2) (2016). The board bears the burden of proof on each issue. 803 Code Mass. Regs. § 1.03.
All citations to the Code of Mass. Regs. are to the 2016 version.
Our review of the judge's conclusion that the board's decision was supported by substantial evidence is de novo. Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89 (2019). Like the judge, we review the administrative record to determine whether the board's 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). See G. L. c. 30A, § 14 (7). We "give due weight to [the board's] experience, technical competence, and specialized knowledge ... as well as to the discretionary authority conferred upon it." Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 109 (2014), quoting G. L. c. 30A, § 14 (7).
1. Expert funds. Before the hearing, Doe sought funds for an evaluation of Doe by Leo Keating, LICSW, citing Doe's deafness as a condition or special circumstance that required expert assistance to determine Doe's risk of reoffense. Doe's motion was supported by Keating's curriculum vitae and a scholarly source, Dennis & Baker, Evaluation and Treatment of Deaf Sexual Offenders, A Multicultural Perspective, Sourcebook of Treatment Programs for Sexual Offenders, at 287 (W.L. Marshall, ed. 1998). The board denied Doe's motion, reasoning there was no evidence that Doe's deafness affected his risk of reoffending.
"The board has discretion to grant funds to indigent offenders for an expert witness or report." Doe, Sex Offender Registry Bd. No. 339940 v. Sex Offender Registry Bd., 488 Mass. 15, 28 (2021). See Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 770-771 (2008). A motion for expert funds must:
"1. identify a condition or circumstance special to the sex offender and explain how that condition is connected to his or her risk of reoffense or level of dangerousness; 2. identify the particular type of Expert Witness who would provide testimony to assist the Hearing Examiner in his or her understanding and analysis; and 3. include supporting documentation or affidavits verifying the specific condition or circumstance that the offender suffers from." 803 Code Mass. Regs. § 1.16 (4) (a).
A motion seeking expert funds for a general opinion on the sex offender's risk to reoffend and degree of dangerousness is insufficient and should be denied. Id. at § 1.16 (4) (b).
Doe argues that funds for an evaluation by Keating were necessary because "[t]he nature and characteristics of a Deaf society and Deaf culture are complicated and can only be understood and communicated by those educated in the field." Even assuming that is true, Doe's motion for expert assistance did not adequately explain how his risk of reoffense is related to his deafness. Moreover, nothing before the board indicated that Keating had any experience with deaf offenders. Indeed, Doe acknowledged prior to the classification hearing that Keating had no expertise in deaf culture. On this record, we see no abuse of discretion in the denial of Doe's request for expert funds.
2. Application of risk factor two. The board applied high risk factor two, repetitive and compulsive behavior, G. L. c. 6, § 178K 1 (a ) (ii) ; 803 Code Mass. Regs. § 1.33 (2), reasoning that "there [were] two separate sexual incidents involving two victims ... [and] the second incident occurred after the [p]etitioner was already investigated and charged for the first offense." In a letter filed pursuant to Mass. R. A. P. 16 (l), as appearing in 481 Mass. 1628 (2019), the petitioner claims that the case should be remanded for reconsideration without the application of factor two because it is invalid and unconstitutional as applied to him.
Doe relies on a recent Superior Court judgment declaring invalid the second and third sentences of factor two. See Doe, Sex Offender Registry Bd. No. 22188 vs. Sex Offender Registry Bd., Middlesex Sup. Ct., No. 20-1130-B, slip op. at 26 (Apr. 16, 2021) (Wilkins, J.) (Doe No. 22188 ). We are not persuaded that the reasoning of that decision applies in this case. That declaratory judgment invalidated factor two only to the extent that it "attribut[es] a high risk of reoffense whenever an offender committed two or more episodes of sexual misconduct," even when the offender had not been "discovered, confronted or investigated between episodes." Doe No. 22188 , supra. The judgment explicitly did not affect the last sentence of 803 Code Mass. Regs. § 1.33 (2) (a), which states, "[t]he most weight shall be given to an offender who engages in sexual misconduct after having been charged with ... a sex offense." Here, there is no dispute that Doe was investigated, charged, and placed on probation between episodes of sexual misconduct. In these circumstances, we discern no error or abuse of discretion in the application of factor two for repetitive and compulsive behavior.
3. Application of other factors. The board also applied high risk factor three (adult offender with child victim), and risk-elevating factors seven (relationship between offender and victim); sixteen (public place); twenty-one (diverse victim type); and twenty-two (number of victims). See 803 Code Mass. Regs. § 1.33 (3), (7), (16), (21), and (22). Doe does not argue that these factors should not have been applied. Rather, he claims that the board erred in failing to ascribe threshold, moderate or a high degree of weight to each of these factors, rendering the board's decision "general and conclusory." While we agree, as a general matter, that the board should be as detailed as possible in its application of the aggravating and mitigating factors, Doe cites no authority, and we have found none, for the proposition that attribution of particular weight to each risk factor is required, unless the risk factor itself so provides. We decline to adopt a new rule that would mandate assignment of a particular weight to each factor.
We note that the application of weight to some risk factors is required by the language of the regulation itself. For example, pursuant to risk-elevating factor sixteen, a heightened risk applies when sexual misconduct occurs in a place where detection is likely; but less weight is given if the "offender made a clear and concerted effort to conceal his offending behavior from others." See 803 Code Mass. Regs. § 1.33 (16) (a).
Doe also argues that the board should have given full mitigating weight to factor thirty-two for sex offender treatment. We disagree. The regulation specifically provides that the application of factor thirty-two "varies in degrees" based on the status of an offender's treatment. 803 Code Mass. Regs. § 1.33 (32). The lowest weight is given to offenders who do not participate in treatment or deny their offenses; moderate weight is given to those who have or currently are participating in treatment; and the most weight is given to offenders who have completed a program. See id. at § 1.33 (32) (1)-(4). Here, Doe's sex offender treatment was delayed due to his insurance coverage and the difficulty of finding a sign language interpreter. We do not fault him for that delay. Nevertheless, where the attribution of weight to this factor is dependent upon the record of progress in treatment, and Doe's treatment had only recently begun, we see no abuse of discretion in the attribution of minimal weight to that mitigating factor.
We note that nothing precludes Doe from seeking reclassification under 803 Code Mass. Regs. §§ 1.31, 1.32, if he completes sex offender treatment.
4. Internet dissemination. Finally, we discern no error in the board's finding that Internet dissemination was "in the interest of public safety to prevent stranger child [v]ictims and stranger women such as the [v]ictims here from becoming [v]ictims of sex offenses." Because there was clear and convincing evidence that Doe posed a moderate risk of reoffense, his claim that Internet dissemination "bears no reasonable relation to a permissible legislative objective," is not persuasive.
Internet dissemination does not violate the constitutional prohibitions on double jeopardy, ex post facto laws, and cruel and unusual punishment, as Doe claims, because community notification is not punishment. See Opinion of the Justices, 423 Mass. 1201, 1227 (1996). It is a collateral, regulatory measure. See Olaf O. v. Commonwealth, 57 Mass. App. Ct. 918, 919 (2003). Nor does dissemination deprive Doe of due process. "That there may be additional adverse consequences to [Doe] resulting from Internet dissemination of [his] sex offender registration information does not increase the State due process protection due to [him]." Coe v. Sex Offender Registry Bd., 442 Mass. 250, 257 (2004).
Judgment affirmed.