Opinion
19-P-1303
04-23-2021
John DOE, Sex Offender Registry Board No. 225048 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. See G. L. c. 6, § 178K (2) (b ). On appeal, he argues that the SORB lacked jurisdiction to classify him because, while in prison, he intended to move to Rhode Island upon his release. Doe also contends that a remand is necessary to determine the need for Internet dissemination of his registry information. We conclude that the SORB had jurisdiction to classify him but agree that a remand is necessary for further findings on the issue of Internet dissemination and whether it serves a public safety interest.
Background. We summarize the relevant 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).
The victims of the governing sex offenses are Doe's daughter and two sisters of Doe's wife. When Doe's daughter was thirteen years old, she reported that Doe had sexually assaulted her numerous times over a five-year period. After Doe's daughter reported the assaults, Doe's wife's sister, who was seventeen years old at the time, reported that she had also been sexually assaulted by Doe from the time that she was eight years old until she was thirteen years old. Another of Doe's wife's sisters, who was twenty years old when she came forward with allegations against Doe, reported that she was assaulted by him on two occasions when she was eight years old. When the assaults initially began, Doe and his wife were dating, but had not yet married. However, at some point, Doe and the victims' sister married.
Doe was convicted in the Superior Court of seven counts of indecent assault and battery on a child under the age of fourteen, in violation of G. L. c. 265, § 13B, and eight counts of rape and abuse of a child, in violation of G. L. c. 265, § 23. He was sentenced to serve nine to twelve years in prison, and five years' probation to be served from and after his term of commitment.
While incarcerated, Doe expressed his intent to move to Rhode Island following his release. He submitted a letter to the hearing examiner detailing his plans to reside with his mother in Rhode Island, and also submitted certain research he had conducted regarding, among other things, a parole board location in Rhode Island, a counseling center in the State, and Rhode Island public transportation information. The hearing examiner found this information to be "potentially useful toward future stability," but ultimately determined that the information was speculative given Doe's present incarceration.
The hearing examiner concluded that SORB possessed jurisdiction over Doe, who resided in the Commonwealth and was convicted of sex offenses under G. L. c. 6, § 178C, prior to his incarceration. Doe sought review of the hearing examiner's decision in the Superior Court, again arguing that the SORB lacked jurisdiction to classify him as a sex offender. Doe, however, had remained in the Commonwealth after his release from commitment, and as a result, a Superior Court judge affirmed the hearing examiner's decision. This appeal followed.
Discussion. 1. SORB's jurisdiction. Doe argues that, because he intended to move to Rhode Island following his release from incarceration, SORB lacked the necessary authority to make a final classification. To have the authority to classify Doe, the SORB must establish that Doe is a "sex offender," which is "a person who resides, has secondary addresses, works or attends an institution of higher learning in the commonwealth and who has been convicted of a sex offense." G. L. c. 6, § 178C. See Doe, Sex Offender Registry Bd. No. 3974 v. Sex Offender Registry Bd., 457 Mass. 53, 57 (2010) (Doe No. 3974 ). Doe claims that, because he had the intent to move to Rhode Island, his incarceration in the Commonwealth was insufficient to establish that he resided in the State. A similar argument was advanced and rejected in Doe No. 3974. There, the plaintiff argued that the SORB lacked authority to classify him because his presence in Massachusetts resulted from temporary incarceration, and an incarcerated person resides in the State only if the person intends to live there after release. See id. at 56. In that case, however, there were many additional facts that established the plaintiff's residency. The plaintiff was born in Massachusetts; he committed the governing sex offenses in the State; he was adjudicated for those offenses in the State; and he was married and living in Massachusetts when he was arrested for his most recent, albeit nonsexual offense. The Supreme Judicial Court concluded that those facts, coupled with the plaintiff's incarceration in Massachusetts, were sufficient to establish residency under G. L. c. 6, § 178C. The same is true for Doe.
Prior to his incarceration, Doe was a long-time resident of Massachusetts. Each of the underlying sex offenses, which were committed over a twelve-year period, were committed in the State. The offenses were adjudicated in Massachusetts, and Doe was convicted under Massachusetts statutes. Like the plaintiff in Doe No. 3974, these facts, taken together with Doe's incarceration in the State, were sufficient to establish Doe's residency in Massachusetts. Most significantly, however, Doe did not actually move to Rhode Island after his release. Rather, he continued to live and work in the Commonwealth, placing him directly within the purview of G. L. c. 6, § 178C. As a result, we have no concern that SORB properly exercised authority over Doe in assigning him a final classification.
2. Internet publication. In Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643 (2019) (Doe No. 496501 ), the Supreme Judicial Court held that, 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, as measured by the severity and extent of harm the offender would present to the public in the event of reoffense, is moderate; and (3) that a public safety interest is served by Internet publication of the offender's registry information." Id. at 644. Doe's adjudication as a level two sex offender predated the decision in Doe No. 496501, and, as a result, the hearing examiner did not have the benefit of that decision. While the hearing examiner made explicit findings addressing Doe's risk of reoffense and degree of danger to the public, she did not separately address whether a public safety interest would be served by Internet dissemination of Doe's registry information.
The decision in Doe No. 496501 applies prospectively to cases pending on judicial review, and it is within the discretion of the reviewing court to determine whether "the underlying facts of the case ... so clearly dictate the appropriate classification level ... that a remand for explicit findings is not necessary." See id. at 657 n.4. We conclude that, in the circumstances of this case, a remand is necessary to determine if a public safety interest will be served by Internet dissemination of Doe's registry information.
"Whether a public safety interest will be ‘served' by Internet publication 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." Id. at 654. In classifying Doe, the hearing examiner, without making explicit findings as to her reasoning, concluded that all three victims were intrafamilial. While a sister-in-law is considered "intrafamilial" for the purpose of factor 7, see 803 Code Mass. Regs. 1.33(7)(a) (2017), Doe sexually assaulted at least one of the victims prior to marrying his wife. Moreover, while a victim may also be considered "intrafamilial" if the victim is a "family member substitute[ ] ... who lived in the same household with the offender for two or more years prior to the offending behavior," see id., there were no findings that indicate whether and for how long two of the victims, who were not related to Doe by blood, resided with Doe.
The hearing examiner's findings indicate that the oldest of those two victims lived with Doe for some period of time. However, the findings also reflect that the youngest of those two victims was assaulted by Doe at an apartment in which she did not live and while Doe was still only dating her sister.
The distinction between intrafamilial and extrafamilial is important because "[o]ffenders who only target intrafamilial victims may be at a lower risk to reoffend as compared to offenders who target unrelated victims." 803 Code Mass. Regs. 1.33(7)(a). Therefore, "[h]aving victims outside the family relationship is empirically related to an increased risk of reoffense." Id. On remand, the hearing examiner should make further findings regarding Doe's relationship with the victims as those relationships existed at the time the offenses occurred, and consider this information in determining "whether and to what degree public access to the offender's personal and sex offender information ... is in the interest of public safety." Doe No. 496501, 482 Mass. at 654, quoting 803 Code Mass. Regs. § 1.20(2) (2017).
Whether Internet publication is warranted in this case is a question for the hearing examiner, and we express no opinion on it.
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Conclusion. The judgment is vacated, and a new judgment shall enter remanding the matter to the SORB for further proceedings consistent with this memorandum and order.
So ordered.
Vacated