Opinion
20-P-1422
03-21-2022
John DOE, Sex Offender Registry Board No. 526596 v. SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
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. On appeal, Doe contends that (1) the hearing examiner improperly applied factor 38 (victim impact statement), and (2) SORB failed to prove, by clear and convincing evidence, that a public safety interest is realistically served by Internet publication of his registry information. We discern no error in the hearing examiner's application of factor 38, but we vacate the judgment and a new judgment shall enter remanding the matter for further findings demonstrating that Internet publication of Doe's registry information serves a public safety interest.
At oral argument, Doe withdrew his argument on appeal that the hearing examiner improperly applied factor 7 (extrafamilial victim).
Background. We summarize the facts as set forth in the hearing examiner's decision, "supplemented by undisputed facts from the record." Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 606 (2011). On August 12, 2017, Doe's ex-girlfriend (victim), with whom Doe shared a child, went to the police to report an incident involving Doe. At the time, police observed the victim to have an injury to her right eye and cheek area, which she indicated was part of the incident she came to report. The victim had an active restraining order against Doe, and first stated that Doe flagged her down while she was driving, but later admitted that she went to Doe's home to ask him for money to support their child.
The victim explained that she parked outside Doe's apartment and told him that she was there to obtain money. Doe responded that he would not give her money unless she had sex with him. The victim informed Doe that she would not have sex with him, and she refused to enter his apartment. Doe then grabbed the victim's cell phone, keys, and wallet, and ran inside his apartment. The victim followed him in an effort to retrieve her belongings, and once she was in his apartment, Doe dragged her into his bedroom and stated, "You want money? You are giving me ass." The victim observed that Doe appeared to be under the influence of a substance.
At this point, Doe threw the victim on the bed, held her arms down with his knees, and began punching her in the face. Doe covered the victim's mouth with his fist to muffle her screams, and the victim bit his hand and fought back. She attempted to flee the room, but Doe blocked the door. Doe removed his clothing, and told the victim that she would be raped. Doe then pulled the victim's pants down. The victim resisted while Doe groped her from behind and put his hand on her vagina. The victim screamed Doe's landlord's name, which caused Doe to let go of her, and she was able to escape. After the victim reported this incident, Doe was arrested.
Doe spoke to the police and, while his version of events varied from the victim's, he corroborated the victim's account in several key ways. Doe admitted to slapping the victim, throwing her on the bed, holding her down, covering her mouth, and pulling her pants down. He, however, claimed that the victim arrived at his apartment while he was sleeping, accused him of drinking alcohol and cheating on her, and the two got into a mutual physical altercation. Doe claimed that he tackled the victim on the bed to prevent her from assaulting him, and further claimed that he pulled her pants down and off only to show her what a real rape looked like.
On September 13, 2018, following a jury trial, Doe was convicted of indecent assault and battery on a person fourteen or over, G. L. c. 265, § 13H ; violating an abuse prevention order, G. L. c. 209A, § 7 ; and assault and battery on a family or household member, G. L. c. 265, § 13M (a ). The judge imposed a split sentence of two and one-half years in a house of correction, with two years to serve and the balance suspended with probation until September 13, 2021.
Doe was acquitted of one count of assault and battery on a family or household member and one count of witness intimidation. Doe was also charged with attempt to commit a crime and assault to rape, but those charges were dismissed at the request of the Commonwealth.
In January 2019, Doe was notified of his duty to register as a level two sex offender, and he requested a hearing challenging SORB's recommendation. Following a de novo hearing, the hearing examiner found that Doe presented a moderate risk of reoffense and a moderate degree of dangerousness "such that a public safety interest [was] served by public access and Internet publication of his registry information." Accordingly, Doe was classified as a level two sex offender. See G. L. c. 6, § 178K (2) (b ). Doe sought review of the hearing examiner's decision in Superior Court. A Superior Court judge affirmed the classification, and this appeal followed.
Discussion. "In reviewing SORB's decisions, we ‘give due weight to the experience, technical competence, and specialized knowledge of the agency.’ " Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594, 602 (2013), quoting G. L. c. 30A, § 14 (7). "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 ).
To support a level two sex offender classification, SORB must prove "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), quoting Doe No. 496501 , 482 Mass. at 656. The hearing examiner must make express findings as to each element. See Doe No. 496501 , supra at 656-657.
1. Application of factor 38. Doe contends that the hearing examiner's decision was arbitrary and capricious, and amounted to an abuse of discretion because, in assessing Doe's risk of reoffense, the hearing examiner improperly applied factor 38 by failing to consider the totality of the victim impact statement. We disagree.
Under factor 38, because SORB "recognizes the substantial impact sex offenses have on victims," a hearing examiner "shall consider any written statement authored by the victim." 803 Code. Mass. Regs. § 1.33(38) (2016). Here, the victim submitted a letter requesting that Doe not be required to register as a sex offender, or alternatively that he be classified as a level one sex offender, because she had undergone "enough mental guidance and support to move on," she feels safe and did not want their child to learn that Doe was a registered sex offender, and because she still had active restraining orders in place to protect her.
It is undisputed that the hearing examiner considered the victim's statement. The hearing examiner specifically noted that the victim "had received the appropriate mental guidance to overcome the abusive experience," but he was not persuaded by other aspects of the victim's letter. "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). Though the hearing examiner commented on only portions of the letter in reaching his ultimate determination, we defer to his "experience, technical competence, and specialized knowledge" in doing so. Id., quoting G. L. c. 30A, § 14 (7). As a result, we perceive no abuse of discretion in the hearing examiner's application of this factor in determining that Doe posed a moderate risk of reoffense.
2. Internet publication. Doe also argues that SORB failed to adequately demonstrate the need for Internet publication of his registry information by clear and convincing evidence, and that the hearing examiner failed to address "the efficacy of online publication in protecting the public from being victimized by the offender." Doe No. 496501 , 482 Mass. at 654. We agree that the hearing examiner's findings on this point were insufficient.
To classify an offender as a level two, the hearing examiner must explicitly find, by clear and convincing evidence, that "a public safety interest is served by Internet publication of the offender's registry information." Doe No. 496501 , 482 Mass. at 656. The hearing examiner here, relying on several risk-elevating factors, found that Internet publication was warranted "to protect adult females like the [v]ictim here from becoming [v]ictims of sex offenses." Although the Supreme Judicial Court has stated that "[w]here 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," id. at 655, an individualized determination based on the facts of a particular case is necessary. Here, where Doe committed one index offense against someone whom he was formerly in a romantic relationship with and shared a child, the pool of potential victims "like the [v]ictim here" is not so large as to so obviously support the need for Internet publication of his registry information, particularly where the record reflects that Doe was engaged at the time of the hearing. On remand, the hearing examiner, as mandated, shall carefully evaluate the need for publication on an individualized basis and "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."Id.
Factor 7 (extrafamilial victim); factor 8 (weapon, violence or infliction of bodily injury); factor 9 (alcohol or substance abuse); factor 10 (contact with criminal justice system); factor 11 (violence unrelated to sexual assaults; and factor 13 (non-compliance with community supervision).
The judgment is vacated, and a new judgment shall enter remanding the case to SORB for further proceedings consistent with this memorandum and order.
So ordered.
Vacated and remanded