Opinion
20-P-905
01-28-2022
John DOE, Sex Offender Registry Board No. 526105 v. SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court judgment affirming the Sex Offender Registry Board's (board) classification of Doe as a level two sex offender. Because the board concedes that the hearing examiner misapplied one of two high-risk factors underlying the classification decision, we vacate the judgment. A new judgment shall enter remanding the matter to the board for a new hearing to reconsider Doe's classification and whether public safety will be served by Internet publication.
Background. We summarize the facts as set forth by the hearing examiner in his decision, supplemented by materials included in the administrative record. Doe was convicted after a jury trial in the Boston Municipal Court of two counts of indecent assault and battery on a child under the age of fourteen and was sentenced to a two and one-half year term in the house of correction, followed by two years of probation. The victim was his eleven year old stepdaughter, who had lived with Doe (and her mother) for at least eight years.
The hearing examiner found that two high-risk factors applied: factor 2 (repetitive and compulsive behavior) and factor 3 (adult offender with child victim). See G. L. c. 6, § 178K (1) (a ) (ii)-(iii) ; 803 Code Mass. Regs. §§ 1.33(2)(a), (3)(a) (2016). Because the victim was a prepubescent child, the hearing examiner gave factor 3 "greater weight," consistent with the regulations. See 803 Code Mass. Regs. § 1.33(3)(a) ("Offenders who target prepubescent children, generally younger than 13 years old, are more likely to have a deviant sexual interest and, therefore, pose an even higher risk of reoffense and degree of dangerousness and are given greater weight"). Doe also had some other minor contact with the criminal justice system, including one violation of probation. Due to the lack of severity and age of these other offenses, the hearing officer gave risk-elevating factors 10 (contact with criminal justice system) and 13 (noncompliance with community supervision) only "minimal weight." See 803 Code Mass. Regs. §§ 1.33(10)(a), (13)(a) (2016).
The hearing examiner found that while Doe was on probation for a controlled substance offense that had been continued without a finding, he was charged with operating a motor vehicle after suspension of his driver's license and that, as a result, "he was reprobated with a three-month extension of his probation." While the hearing officer was mistaken about the disposition of the probation violation, the administrative record does reflect that Doe was found in violation.
With respect to risk-mitigating factors, the hearing examiner found that Doe's family and friends were aware of his sex offenses and supportive of his efforts not to reoffend. Accordingly, the hearing examiner gave "greater mitigating weight" to factor 33 (home situation and support system). See 803 Code Mass. Regs. § 1.33(33)(a) (2016). The hearing examiner found factors 28 (supervision by probation or parole) and 34 (materials submitted by offender regarding stability in the community) to be applicable. 803 Code Mass. Regs. §§ 1.33(28)(a), (34)(a) (2016).
Considering the above factors, the hearing examiner found that Doe presented a moderate risk of reoffense and a moderate degree of dangerousness in the event of reoffense and that, accordingly, Internet publication would serve a public safety interest. The hearing examiner classified Doe as a level two sex offender.
Discussion. Doe argues that the hearing examiner erred in applying factor 2, and the board concedes the point. The board argues, however, that even without factor 2, the hearing examiner's decision would have been the same. To be sure, Doe must make some showing of prejudice to justify vacating the board's decision. See Doe, Sex Offender Registry Bd. No. 209081 v. Sex Offender Registry Bd., 478 Mass. 454, 459 (2017). Because the error invalidated one of two high-risk factors necessary to provide clear and convincing evidence of the level two classification, and the hearing examiner gave the only other risk-elevating factors minimal weight and the risk-mitigating factors substantial weight, we "cannot say, with fair assurance, ... that the judgment was not substantially swayed by the error" (quotation and citation omitted). Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). Therefore, Doe's substantial rights may have been prejudiced, and he is entitled to a new hearing. See Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender Registry Bd., 96 Mass. App. Ct. 738, 744 (2019).
Addressing Doe's other contentions that may recur on rehearing, we discern no error in the hearing officer's decision not to discount factor 3 based on studies submitted by Doe indicating that adult offenders with child victims are one-half as likely to reoffend if the victim was female. The Legislature requires the board to consider offenses against children as a high-risk factor. See G. L. c. 6, § 178K (1) (a ) (iii) (board's regulations shall include as factor "indicative of a high risk of reoffense and degree of dangerousness posed to the public ... whether the sex offender was an adult who committed a sex offense on a child"). Moreover, the regulations do incorporate the very studies and authorities that Doe submitted -- not in factor 3, but in factor 17 (male offender against male victim). See 803 Code Mass. Regs. § 1.33(17)(a) (2016) (male offenders who target male victims "reoffend at a higher rate"). The hearing examiner effectively recognized the lower recidivism rate associated with female victims by not applying factor 17.
Likewise, the hearing examiner did not err in applying factor 7 (relationship between offender and victim). See 803 Code Mass. Regs. § 1.33(7)(a)(1) ("Offenders who only target intrafamilial victims may be at a lower risk to reoffend as compared to offenders who target unrelated victims. However, having an intrafamilial victim is not a risk mitigating, nor a risk elevating, factor. It is included for definitional purposes only"). The hearing examiner recognized that Doe's victim was intrafamilial, and that offending against an intrafamilial victim "does not increase risk." Therefore, the hearing examiner gave the relationship between Doe and the victim no weight. As with factors 3 and 17, the regulations recognize the significance of the intrafamilial relationship not by assigning less risk to offenders with intrafamilial victims, but rather by assigning greater risk to offenders with extrafamilial victims and victims who are strangers. See 803 Code Mass. Regs. § 1.33(7)(a)(2)-(3).
We discern no error in the hearing examiner's application of factor 13. Doe failed to comply with community supervision by violating the terms of probation, even if the judge chose not to extend the duration of the probationary period. See note 1, supra. In any event, the hearing examiner assigned this factor minimal weight.
Having found a moderate risk of reoffense and a moderate degree of dangerousness based factors 2, 3, 10, and 13, and relying on dicta from Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 655 (2019) ("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"), the hearing examiner determined that Internet publication was warranted. The hearing examiner's almost mechanical application of his classification decision to the issue of Internet publication is troubling. On remand, we expect the hearing examiner to carefully evaluate the need for publication on an individualized basis and, as required by Doe No. 496501 , supra, "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."
In performing this evaluation, the hearing examiner should take the intrafamilial relationship into account. While having an intrafamilial victim is not a risk-mitigating or risk-elevating factor with respect to the classification decision, it is, according to the regulations, "an important variable," 803 Code Mass. Regs. § 1.33(7), and it has bearing on "the efficacy of online publication in protecting the public from being victimized by the offender." Doe No. 496501 , 482 Mass. at 654.
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.
vacated and remanded