Opinion
19-P-1459
03-19-2021
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 524402 v. SEX OFFENDER REGISTRY BOARD.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2016, John Doe pleaded guilty to two counts of indecent assault and battery on a person over the age of fourteen. Following a hearing in 2018, SORB required Doe to register as a level two sex offender. Doe appeals, contending (1) that the hearing examiner erroneously applied factor two -- repetitive and compulsive behavior; (2) that the hearing examiner erred when she failed to ascribe a specific weight to other risk elevating factors; (3) that the hearing examiner failed to make specific and individualized findings that a public safety interest is served by Internet dissemination of Doe's information; and (4) that dissemination of Doe's information violates several of his statutory and constitutional rights. We affirm Doe's classification as a level two sex offender.
Background. Doe's governing offenses occurred over a span of several months between December 2015 to March 2016. The victim and Doe lived together and had been in a tumultuous relationship, marked by a pattern of "physically, mentally and sexually abusive" conduct by Doe, particularly when he was under the influence of alcohol. The victim first contacted the police regarding an assault by Doe in September of 2015; that event was not sexual, but it culminated in Doe's arrest on a charge of strangulation pursuant to G. L. c. 265, § 15D (b). Doe admitted to sufficient facts on that charge, and the matter was continued without a finding for one year.
Doe and the victim reconciled for a brief time, but approximately six months after the strangulation incident the victim went to a nearby police station, and this time reported a series of three sexual assaults perpetrated by Doe. The incidents, which occurred in December 2015, February 2016, and March 2016, all included violence and the forced penetration of the victim's vagina with Doe's penis.
Doe was charged with rape, assault with intent to commit rape, and indecent assault and battery on a person over the age of fourteen, and Doe eventually pleaded guilty to two counts of indecent assault and battery on a person over the age of fourteen, see G. L. c. 265, § 13H; and one count of assault, see G. L. c. 265, § 13M (a). Doe was sentenced to eighteen months in the house of correction.
Following Doe's incarceration, SORB recommended that he register as a level three sex offender. Doe sought administrative review, and following the April 2018 hearing, the hearing examiner concluded that Doe "presents a moderate risk to reoffend, a moderate degree of dangerousness," and ordered that "he register as a [level two] sex offender." In her decision, the hearing examiner applied high-risk factor two, repetitive and compulsive behavior, along with several other risk-elevating factors., See 803 Code Mass. Regs. § 1.33 (2016). The hearing examiner found that factor two applied because Doe had committed three separate sex offenses against the victim, and gave that factor the "most weight" because Doe had been previously charged with rape, in 2013, and thereafter committed the governing offenses. The 2013 rape charge involved a different woman than the victim, and was dismissed. None of the other applicable factors were specifically weighted, but the decision discussed the basis for each factor in detail. A Superior Court judge affirmed Doe's classification.
The hearing examiner applied the following seven risk-elevating factors: factor seven -- relationship between the offender and the victim (extrafamilial victim); factor nine -- alcohol and substance abuse (Doe was intoxicated during all of the alleged incidents and had prior operating under the influence of liquor [OUI] and drug convictions); factor ten -- contact with criminal justice system (Doe's criminal history, including that he had admitted to sufficient facts on the suffocation charge just prior to the governing offenses); factor eleven -- violence unrelated to sexual assaults (the strangulation); factor thirteen -- noncompliance with community supervision (Doe violated probation in 1987 and additionally violated the community supervision terms of his continuance without a finding on the strangulation charge); factor eighteen -- extravulnerable victim (first offense occurred while victim was unconscious); factor nineteen -- level of physical contact (all incidents involved penile penetration).
The following two risk mitigating factors were also applied: factor thirty -- advanced age (Doe was fifty-six at the time of the hearing); factor thirty-three -- home situation and support systems (Doe had the support of his daughter, who lived a short distance away at the time).
Discussion. 1. Factor two. Doe argues that factor two cannot apply where no finding was made that his conduct was driven by compulsion; he also challenges the finding that his behavior was repetitive. Factor two states:
"Repetitive and compulsive behavior is associated with a high risk of reoffense. Factor 2 is applied when a sex offender engages in two or more separate episodes of sexual misconduct. To be considered separate episodes there must be time or opportunity, between the episodes, for the offender to reflect on the wrongfulness of his conduct.803 Code Mass. Regs. § 1.33 (2).
"The Board may give increased weight to offenders who have been discovered and confronted (by someone other than the victim) or investigated by an authority for sexual misconduct and, nonetheless, commit a subsequent act of sexual misconduct. The most weight shall be given to an offender who engages in sexual misconduct after having been charged with or convicted of a sex offense."
The three governing offenses detailed by the hearing examiner were very serious incidents, spanning several months and separated by time and opportunity for Doe to consider the wrongfulness of his conduct. We are satisfied that this factor applies on that basis. See Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender Registry Bd., 96 Mass. App. Ct. 738, 742 (2019).
Doe cites a concurring opinion from a justice of this court, which argues that a temporal separation between sex offenses is not by itself sufficient to show "compulsive" behavior. See Doe No. 22188 , 96 Mass. at 745-746 (Milkey, J., concurring). Based upon the concurrence, Doe argues that factor 2 cannot be applied absent a specific finding of compulsive behavior, and that there was not an adequate showing of compulsive behavior in his case. No controlling authority has determined that a specific finding of compulsivity is required to apply factor two, however, and here we are satisfied that Doe's three separate and violent sexual acts are sufficient to meet the compulsivity requirement of factor two. See 803 Code Mass. Regs. § 1.33.
2. Failure to ascribe weight to factors. Doe next argues that the hearing examiner should be required to ascribe specific weights to each factor that she applied, and that her failure to do so means that a remand is necessary. We disagree.
A hearing examiner's determination must be supported by clear and convincing evidence, and any subsidiary findings supporting the application of risk elevating factors must be proved by a preponderance of the evidence. Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 310-315 (2015); Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 86 (2019). A hearing examiner's ultimate decision, as well as the decision to apply any applicable factors, must be sufficiently reasoned and explained to enable effective review of the decision. See Doe, Sex Offender Registry Bd. No. 136652 , 81 Mass. App. Ct. 639, 651-652 (2012). Here the hearing examiner's findings as to each factor are accompanied by reasoned explanations, and the application of each factor is well supported by the record. While it may be valuable in some circumstances for the hearing examiner to assign specific weights to each factor that she applies, or to designate which factors are most important in her reasoning, we decline to impose as a rote requirement that such weights must be assigned in each examiner's written decision.
Doe also challenges the examiner's decision to apply the highest weight -- or "most weight" -- to factor two. The examiner applied "most weight" by relying upon the prior rape charge that had been levied against Doe, and later dismissed in 2013; the hearing examiner reasoned that the dismissed charge satisfied the regulation's requirement that in order to apply "most weight" for factor two, Doe must have previously been charged with a sex offense.
We are inclined to agree that the examiner should not have relied upon the prior rape charge, where the evidence indicated that the prior charge may have been fabricated, and where the examiner herself stated, "I cannot find that the sexual assault allegations occurred." We are satisfied, however, that any error in applying elevated weight to factor two did not materially affect the outcome here. The facts underlying the governing offenses, and the applicable regulatory factors found by the examiner, substantially support the level two classification. See G. L. c. 30A, § 14 (7); Doe, Sex Offender Registry Bd. No. 10800 , 459 Mass. 603, 639 (2011).
3. Internet dissemination. Doe also argues that the hearing examiner's decision failed to include specific findings that a public safety interest would be served by the dissemination of his information over the Internet. Doe's hearing occurred before the Supreme Judicial Court decided Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 650-655 (2019), which held that such a specific finding is necessary where SORB classifies an individual as a level two or three sex offender. In these circumstances we have the "discretion to determine whether to remand the case for explicit findings," or instead to conclude that "the underlying facts of the case . . . so clearly dictate the appropriate classification level . . . that a remand for explicit findings is not necessary." Id. at 657 n.4. Here we believe that the facts of record, including the repeated and violent index offenses, as well as Doe's criminal history and his violations while under community supervision, "clearly dictate" the level two classification and the conclusion that Internet access to Doe's information "serves a public safety interest," so no remand is necessary. Id. at 656 & 657 n.4.
Additionally, Doe variously claims that the public dissemination of his information, where no specific finding was made that it would serve a permissible legislative purpose, is punitive, violates principles of double jeopardy and his rights to privacy, and constitutes an ex post facto punishment. Doe's arguments fail, in light of prior case law. See, e.g., Smith v. Doe, 538 U.S. 84, 105-106 (2003) (civil sex offender registration act is regulatory not punitive); Seling v. Young, 531 U.S. 250, 267 (2001) (civil regulatory scheme cannot be deemed punitive as applied and does not violate double jeopardy or ex post facto clauses); Doe, Sex Offender Registry Bd. No. 3839 v. Sex Offender Registry Bd., 472 Mass. 492, 495 n.4 (2015) (registration statute is "'regulatory, rather than punitive[,]' . . . [a]ccordingly, the prohibitions against ex post facto punishments and double jeopardy do not apply" [citation omitted]); Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass. 780, 788-793 (2008) (public interest in dissemination of sex offender information may trump privacy rights when properly supported by record and offender afforded procedural due process).
Judgment affirmed.
By the Court (Green, CJ; Kinder & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: March 19, 2021.