Opinion
20-P-998
11-05-2021
John DOE, Sex Offender Registry Board No. 526197 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 classification by the Sex Offender Registry Board (SORB) as a level three sex offender. On appeal, he contends that the hearing examiner erred in (1) applying regulatory factor 2 (repetitive and compulsive behavior), (2) failing to specify the weight given to certain regulatory factors, and (3) failing to make explicit findings that a public safety interest is served by Internet dissemination of his registry information. He further contends that active public dissemination of his registry information violates his constitutional rights. We affirm.
Background. On February 3, 2009, Doe, then twenty-four years old, was charged with two counts of attempted murder, two counts of rape, five counts of assault and battery by means of a dangerous weapon, four counts of assault and battery, and one count each of aggravated assault, threat to commit a crime, and larceny over $250. The victim (victim 1) of these charges was a twenty-four year old woman with whom Doe was in a dating relationship.
The hearing examiner found that Doe was charged with only four counts of assault and battery by means of a dangerous weapon, but the criminal docket, which was included in the record, reflects that there were five counts.
The police interviewed victim 1, and, during the interview, she provided them a journal she kept that memorialized several incidents of domestic abuse and rape committed upon her by Doe. She reported to the police that Doe raped her on two different occasions -- once in November 2008 and once in December 2008. She stated that, in November 2008, Doe threw her on a bed, strangled her, pulled down her pants, and told her that if she screamed, he would "beat the shit out of her." Even still, victim 1 did scream and attempted to physically resist the attack, but Doe effectuated the rape and penetrated her vagina with his penis. In December 2008, Doe again threw victim 1 on the bed, and pulled off her clothes while she repeatedly told him "no." Doe then threatened to kill victim 1, raped her, and choked her. Victim 1 reported that Doe physically assaulted her on numerous occasions between December 1, 2008, and January 29, 2009. On the day she reported these incidents to the police, victim 1 obtained an abuse prevention order against Doe.
Victim 1's journal entries were before the hearing examiner and are included in the record on appeal.
On March 26, 2009, a probable cause hearing was held on the charges against Doe, and victim 1 invoked her Fifth Amendment privilege and refused to testify. The sixteen charges against Doe were accordingly dismissed for lack of probable cause. The hearing examiner, nevertheless, found that, based on the police reports, victim 1's journal entries, and victim 1's affidavit in support of the abuse prevention order, there was sufficient evidence that Doe physically abused and raped victim 1 as she alleged.
Although the hearing examiner found that the charges were dismissed for lack of prosecution, the criminal docket clearly reflects that the charges were dismissed upon a finding of no probable cause.
Approximately nine years later, on February 2, 2018, Doe pleaded guilty to six counts of indecent assault and battery on a child under the age of fourteen, G. L. c. 265, § 13B. The victims of these crimes -- the governing sex offenses -- were Doe's two daughters. The younger daughter (victim 2) was four years old when she disclosed the sexual abuse, and the older daughter (victim 3) was six years old. Five of the six counts to which Doe pleaded were amended from the charge of aggravated rape. Despite the amendments, the hearing examiner found that there was substantial reliable evidence -- specifically, detailed statements by the two girls to authorities, a day care provider, and their grandmother -- to conclude that Doe vaginally and anally raped both daughters, and orally raped victim 2.
The hearing examiner applied several high-risk and risk-elevating factors, pursuant to 803 Code Mass. Regs. § 1.33 (2016). He gave "the most weight" to high-risk factor 2 (repetitive and compulsive behavior) and "greater weight" to high-risk factor 3 (adult offender with child victim). The hearing examiner also applied risk-elevating factor 7 (extrafamilial victim), factor 8 (weapons, violence, or infliction of bodily injury), factor 10 (contact with criminal justice system), factor 11 (violence unrelated to sexual assaults), factor 13 (noncompliance with community supervision), factor 18 (extravulnerable victims), factor 21 (diverse victim type), and factor 22 (number of victims), without denoting the level of weight given. The hearing examiner gave "consideration" to factor 15 (hostility toward women), and applied "with increased weight in terms of dangerousness" factor 19 (level of physical contact). The hearing examiner additionally gave "moderate weight" to risk-mitigating factor 28 (supervision by probation). See 803 Code Mass. Regs. § 1.33.
As stated, the hearing examiner ultimately classified Doe as a level three sex offender. Doe then filed a complaint in the Superior Court for judicial review of the hearing examiner's decision. On cross motions for judgment on the pleadings, a Superior Court judge denied Doe's motion and affirmed his classification. Doe appealed.
Discussion. 1. Application of factor 2 (repetitive and compulsive behavior). Factor 2(a), applicable to adult males, provides in full:
"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.
"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."
803 Code Mass. Regs. § 1.33(2)(a). The second and third sentences of factor 2, which address multiple episodes of unconfronted or uncharged sexual misconduct, have been declared invalid by a Middlesex Superior Court judge to the extent, in pertinent part, that they attribute a high risk of reoffense without regard to whether the offender was discovered, confronted, or investigated between episodes. See Doe, Sex Offender Registry Bd. No. 22188 vs. Sex Offender Registry Bd., Middlesex Sup. Ct., No. 20-1130-B, slip op. at 1, 9-22 (Apr. 16, 2021) (Wilkins, J.). The reasoning of the judge's decision in that case was that there is insufficient scientific support that an offender poses a higher risk of reoffending when he has not been confronted, charged with, or convicted of a sex offense prior to committing additional sex offenses. See id. at 11-17. SORB has not appealed that decision and has acknowledged to this court in other cases that the Superior Court memorandum and order in that case is binding on it. Indeed, other panels of this court have treated the decision as binding. See Doe, Sex Offender Registry Bd. No. 372711 v. Sex Offender Registry Bd., 100 Mass. App. Ct. 1104 (2021) ; Doe, Sex Offender Registry Bd. No. 526277 v. Sex Offender Registry Bd., 100 Mass. App. Ct. 1102 (2021) ; Doe, Sex Offender Registry Bd. No. 2453 v. Sex Offender Registry Bd., 99 Mass. App. Ct. 1132 (2021). Because the plaintiffs in those cases were not confronted, charged, or apprehended between sex offenses, each of those panels considered whether, without the application of factor 2, the classifications of the plaintiffs were supported by substantial evidence. Lacking confidence that factor 2 did not materially affect the outcome in those cases, the panels remanded each of those matters to the hearing examiner.
Doe argues that his case dictates the same result. However, here, Doe was charged with twice raping victim 1 prior to committing multiple sex offenses against victim 2 and victim 3. While an opportunity for reflection between sex offenses alone does not scientifically suggest that an offender poses a higher risk of reoffense, engaging in sexual misconduct after being charged with a sexual offense does. See Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender Registry Bd., 96 Mass. App. Ct. 738, 743 & n.8 (2019) (Doe No. 22188 ) (citing testimony of Dr. R. Karl Hanson, "an authority on whose research SORB relies"). Indeed, the last sentence of factor 2, which has not been invalidated, states that "[t]he most weight shall be given to an offender who engages in sexual misconduct after having been charged." 803 Code Mass. Regs. § 1.33(2)(a). That is precisely what the hearing examiner did here.
Doe claims that the hearing examiner improperly considered the charges against victim 1 in applying factor 2 because those charges were dismissed upon a finding of no probable cause. The claim is unavailing. A conviction is not required for the application of factor 2. See 803 Code Mass. Regs. § 1.33(2)(a). The fact that Doe was charged and reoffended is sufficient because, as Dr. Hanson previously testified, it suggests that the criminal justice system does not inhibit Doe's conduct. Doe No. 22188 , 96 Mass. App. Ct. at 743 n.8. Moreover, hearing examiners are permitted to consider conduct that, even if charged, did not ultimately result in a conviction. See Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 79 (2015) (hearing examiner permitted to consider police report, despite fact that plaintiff was acquitted of conduct at criminal trial). We therefore discern no error in the hearing examiner's application of factor 2.
Doe's contention that the hearing examiner was required, but failed, to make a specific finding that his offending behavior was "compulsive" is unavailing. See Doe, Sex Offender Registry Bd. No. 356315 v. Sex Offender Registry Bd., 99 Mass. App. Ct. 292, 295-298 (2021) (board's regulation permissibly treats reoffense after time or opportunity to reflect as indicative of compulsion).
2. Failure to ascribe weight to certain factors. Doe next argues that the hearing examiner is required to specify the level of weight given to each regulatory factor, and without doing so, we are prevented from conducting a meaningful review of Doe's level three classification. We are not persuaded.
Doe contends that the hearing examiner failed to specify the amount of weight he gave to ten of the regulatory factors: factor 2, factor 7, factor 8, factor 10, factor 11, factor 13, factor 18, factor 19, factor 21, and factor 22. However, as discussed supra, the hearing examiner explicitly applied factor 2 with "the most weight" and factor 19 with "increased weight." As a result, our discussion of this claim focuses on the remaining eight contested factors. Unlike factors 2 and 19, none of those eight factors, as set forth in the board's regulations, expressly provides for different weights to be accorded in different circumstances.
A hearing examiner has broad discretion to consider how much weight to ascribe each factor, and "a reviewing court is required to ‘give due weight to [the examiner's] experience, technical competence, and specialized knowledge.’ " Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 109-110 (2014) (Doe No. 68549 ), quoting G. L. c. 30A, § 14 (7). The hearing examiner's ultimate decision must be supported by "substantial evidence," Doe No. 68549 , supra at 109, and further "must show that the classification is based on a sound exercise of informed discretion rather than the mechanical application of a checklist or some other reflex." Doe, Sex Offender Registry Bd. No. 136652 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 639, 651 (2012). The decision, as well as the application of regulatory factors, must be sufficiently reasoned and explained to enable effective review. Id. at 651-652.
As noted supra, in applying eight of the regulatory factors, the hearing examiner did not explicitly specify the amount of weight given to each factor. While not required, it would certainly be helpful for our review if a hearing examiner explicitly stated whether he or she was ascribing a threshold, moderate, high, or some other degree of weight to each applied factor. See, e.g., Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 143 (2019). Nevertheless, in the circumstances of this case, we are satisfied that Doe's level three classification was supported by substantial evidence, which is "such evidence as a reasonable mind might accept as adequate to support a conclusion." Doe No. 68549 , 470 Mass. at 109, quoting G. L. c. 30A, § 1 (6).
The hearing examiner did not merely list the eight factors at issue; he provided an account of the evidence he considered and explained why each factor was applicable. Specifically, for factor 7 (extrafamilial victim), the hearing examiner stated that Doe and victim 1 were in a dating relationship at the time of the sexual misconduct, and as such, victim 1 was extrafamilial. In applying factor 8 (weapons, violence, or infliction of bodily injury), the hearing examiner noted that Doe beat, strangled, and threatened to kill victim 1 during the commission of the sexual assaults against her. For factors 10 (contact with criminal justice system) and 11 (violence unrelated to sexual assaults), the hearing examiner relied on Doe's extensive criminal history, including multiple charges of assault and battery. In applying factor 13 (noncompliance with community supervision), the examiner considered that Doe violated his probation in June 2010 by incurring new charges for the violation of an abuse prevention order, assault and battery, threatening to commit a crime, and malicious destruction of property. For factor 18 (extravulnerable victims), the hearing examiner explained that both victim 2 and victim 3 were under the age of eight, which SORB considers "to be extravulnerable by virtue of their age." 803 Code Mass. Regs. § 1.33(18)(a). Finally, in applying factors 21 (diverse victim type) and 22 (number of victims), the hearing examiner considered that Doe offended against three victims, two of whom were his daughters and were children, and one of whom was an adult who was in a dating relationship with him. The application of these factors was sufficiently explained to permit an effective review of the hearing examiner's decision, which we conclude was supported by substantial evidence.
The record suggests that Doe and victim 1 lived together at the time of the sexual offenses, but does not specifically reflect that they lived together "for two or more years prior to the offending behavior" such that victim 1 should have been considered intrafamilial under the regulation. 803 Code Mass. Regs. § 1.33(7)(a). Indeed, Doe does not argue that the factor was inapplicable because victim 1 was intrafamilial. He argues only that the hearing examiner should not have considered the offenses against victim 1 because those charges were dismissed upon a finding of no probable cause, and that the examiner erred in failing to ascribe how much weight he gave to the factor. For the reasons stated, both arguments fail.
3. Internet dissemination. The hearing examiner's decision in this case precedes Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 650-657 (2019), where the Supreme Judicial Court held that, prior to ordering Internet dissemination of a sex offender's registration information, a hearing examiner must make explicit findings that a public safety interest is served by the Internet dissemination. That requirement applies "prospectively only," and, as a result, we have the "discretion to determine whether to remand the case for explicit findings" or 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, given the serious and violent nature of Doe's sex offenses, Doe's extensive criminal record, which includes violating probation, and the fact that he targeted victims of varying relationships and age, we conclude that the facts in the record "clearly dictate" the assigned level three classification. A remand is therefore unnecessary.
4. Constitutional arguments. Finally, Doe argues that active public dissemination of his registration information violates his State and Federal constitutional, statutory, and common law rights against double jeopardy, ex post facto laws, cruel and unusual punishment, and infringes upon his State and Federal constitutionally protected rights to family integrity and interest in liberty and privacy. Doe did not raise these arguments below, and as a result they are waived. See Boss v. Leverett, 484 Mass. 553, 563 (2020) ("issues not raised below cannot be argued for the first time on appeal"). In any event, given prior case law and our conclusion that Doe's level three classification was supported by substantial evidence, his arguments fail. See Doe, Sex Offender Registry Bd. No. 1211 v. Sex Offender Registry Bd., 447 Mass. 750, 762 (2006) (as applied constitutional challenge to sex offender registration statute failed where "substantial evidence" supported decision); Commonwealth v. Olaf O., 57 Mass. App. Ct. 918, 919 (2003) ("community notification is deemed not to be punishment for ex post facto or for cruel and unusual punishment analysis, but rather to be a collateral, regulatory measure"). See also 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).
Judgment affirmed.