Opinion
20-P-1102
02-11-2022
John DOE, Sex Offender Registry Board No. 6729 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 three sex offender. With one exception, we discern no error in the hearing examiner's application of the relevant classification factors, and, even without considering the erroneously-applied factor, conclude that the hearing examiner's classification determination was well supported. We are not persuaded that, in this case, which predates the Supreme Judicial Court's decision in Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 649 (2019) (Doe No. 496501 ), the hearing examiner's failure to make detailed findings supporting her conclusion that a substantial public safety interest is served by Internet dissemination of Doe's sex offender registry information requires a remand. Accordingly, we affirm.
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) (Doe No. 10800 ). In 1998, when Doe was twenty-five years old, he pleaded guilty in District Court to indecent assault and battery on a child under fourteen and accosting or annoying a person of the opposite sex; he was sentenced to eighteen months in the house of correction, six months to be served, and the balance suspended with probation and counselling. As a result of that conviction, in 2003 Doe was classified as a level two sex offender.
Following his release from incarceration, Doe was convicted of subsequent sex crimes involving two different minors. In the first case, Doe was convicted of two counts of rape and abuse of a child, and three counts of indecent assault and battery; the crimes occurred in 2005 and the victim was a fourteen year old girl whom Doe met when the child began babysitting for Doe's family. In the second case, Doe was convicted of repeatedly raping another fourteen year old, a girl whom he encountered at a house party, in 2007. As a result, in 2008, SORB reclassified Doe as a level three sex offender, see G. L. c. 6, § 178K (2) (c ) ; Doe requested a hearing to challenge the reclassification.
The charges related to the offenses at the house party were dismissed pursuant to the speedy trial rule after an appeal. See Mass. R. Crim. P. 36 (b) (1) (D), as amended, 422 Mass. 1503 (1996). The hearing examiner was nonetheless permitted to consider that conduct in reaching her decision here. See Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 79 (2015).
After a de novo hearing, at which both SORB and Doe introduced evidence, the hearing examiner classified Doe as a level three offender, finding by clear and convincing evidence that Doe "present[ed] a high risk to reoffend and [of] danger[ousness to the public], and the degree of dangerousness posed to the public is such that a substantial public safety interest is served by active dissemination of [Doe's] sex offender registry information." Doe sought judicial review of that decision in the Superior Court pursuant to G. L. c. 30A, § 14, and G. L. c. 6, § 178M. The parties filed cross motions for judgment on the pleadings; a judge ruled in favor of SORB and against Doe, and Doe now appeals from the judgment against him.
Discussion. 1. Standard of review. "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). We may, however, "set aside or modify SORB's classification decision where ... 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 No. 496501 , 482 Mass. at 649.
To support a level three sex offender classification, SORB bears the burden of showing, by clear and convincing evidence, see Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 300 (2015), "that the risk of reoffense is high and the degree of dangerousness posed to the public is such that a substantial public safety interest is served by active dissemination [of registration information]." Doe No. 496501 , 482 Mass. at 646, quoting G. L. c. 6, § 178K (2) (c ). The hearing examiner is required to make express findings as to each of the required elements, see Doe No. 496501 , supra at 656-657, and is required to consider a nonexhaustive list of twelve statutory factors, see G. L. c. 6, § 178K (1) (a )-(l ), as well as any other information "useful" to the examiner's determinations of risk and dangerousness. G. L. c. 6, § 178L (1 ). See Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 105 (2014). SORB's guidelines govern the application of each statutory factor, setting out thirty-eight relevant aggravating and mitigating considerations. See Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 134 (2019) (Doe No. 23656 ), citing 803 Code Mass. Regs. § 1.33 (2016).
2. "Repetitive" and "compulsive" behavior. Doe argues that the hearing examiner's "full weight" application of factor 2 (repetitive and compulsive behavior) was error because the factor's application is precluded by the hearing examiner's failure to make discrete findings that Doe's behavior was both "repetitive" and "compulsive." See G. L. c. 6, § 178K (1) (a ) (ii) ; 803 Code Mass. Regs. § 1.33(2)(a). We do not agree.
SORB argues that neither this argument nor Doe's challenges to the hearing examiner's failure to denote the weight she gave to individual factors she applied to Doe's classification or to the hearing examiner's application of factor 24 to his case were raised in his motion for judgment on the pleadings and are therefore waived. We assume without deciding that Doe's claims are properly before us, and address the merits of his arguments.
Pursuant to the regulations, factor 2 is applied "when a sex offender engages in two or more separate episodes of sexual misconduct" where there is "time or opportunity, between the episodes, for the offender to reflect on the wrongfulness of his conduct." 803 Code Mass. Regs. § 1.33(2)(a). SORB may "give increased weight" to factor 2 where the offender "ha[s] been discovered and confronted (by someone other than the victim) or investigated by an authority for sexual misconduct and, nonetheless, commit[s] a subsequent act of sexual misconduct." Id. "[T]he most weight shall be given to an offender who engages in sexual misconduct after having been charged with or convicted of a sex offense." Id.
Here, the hearing examiner found that Doe committed sexual assaults in 1993, 2005, and 2007, the latter two of which occurred after he had pleaded guilty to indecent assault and battery on a child under fourteen and accosting or annoying a person of the opposite sex for the 1993 offense. The hearing examiner found this behavior to be "repetitive and compulsive," and we discern no error in the hearing examiner's application of this factor at its "full weight." See 803 Code Mass. Regs. § 1.33(2)(a).
Doe relies on the concurrence in Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender Registry Bd., 96 Mass. App. Ct. 738, 745-746 (2019) (Doe No. 22188 ), to support his contention that the hearing examiner's failure to find his behavior "compulsive" precludes the application of factor 2. Our reading of the regulations, however, is consistent with the majority opinion in that case.
3. Specificity of hearing examiner's findings. The hearing examiner identified each of the statutory factors that she considered in reaching her final classification decision in Doe's case. As to some, but not all, of the factors she considered, the hearing examiner ascribed specific weight. Doe argues that absent an explicit weighing of each of the factors that the hearing examiner considered, the hearing examiner's findings are too general and conclusory for meaningful review. While our task is complicated by the absence of specific guidance from the hearing examiner about the weight given to each factor, we conclude that, even had the hearing examiner weighed each of the eight factors most favorably to Doe, there is clear and convincing evidence supporting his level three classification.
While the regulations provide guidance to hearing examiners and judges about the weight that may be accorded to particular factors in particular circumstances -- as our discussion of the hearing examiner's treatment of factor 2 in this case, supra, highlights -- they do not require the hearing examiner to specify how the examiner weighs each factor. See Doe, Sex Offender Registry Bd. No. 136652 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 639, 651 (2012) (hearing examiner's decision and application of regulatory factors must be sufficiently reasoned and explained to enable effective review). We note, however, that specific findings are helpful to both the parties and reviewing judges in assessing the soundness of a hearing examiner's classification determination.
Of the statutory factors that the hearing examiner considered, she ascribed "full weight" to "high-risk" factors 2 (repetitive and compulsive behavior) and 3 (adult offender with child victim); "moderate weight" to risk-elevating factors 10 (contact with criminal justice system) and 11 (violence unrelated to sexual assaults); and "some consideration" or "minimal weight" to high-risk factor 21 (diverse victim type). See G. L. c. 6, § 178K (1) (a ) (ii)-(iii), (b ) (iii) ; 803 Code Mass. Regs. §§ 1.33(2)(a), (3)(a), 10(a), 11(a), 21(a). The hearing examiner considered, but gave "only minimal weight" to risk-mitigating factors 30 (advanced age), and 34 (stability in community). See G. L. c. 6, § 178K (c ), (d ) ; 803 Code Mass. Regs. §§ 1.33(30)(a), 34(a). The examiner "consider[ed]" eight other factors -- four "high-risk" factors (factors 7, 16, 19, and 22), two "additional factor[s]" (factors 37 and 38), and one "risk-mitigating" factor (factor 33) -- without assigning specific weights to any of them. See G. L. c. 6, § 178K (a ), (b ) (i) & (iii), (c ), (k ), (l ) ; 803 Code Mass. Regs. §§ 1.33(7)(a) (relationship between offender and victim), (16)(a) (public place), (19)(a) (level of physical contact), 22(a) (number of victims), 33(a) (home situation and support systems), 37(a) (other information related to nature of sexual behavior), 38(a) (victim impact statement). "[T]he hearing examiner carefully considered and weighed all the evidence that was presented. [She] found that multiple statutory and regulatory factors indicated that Doe presented a high risk of reoffense and a high degree of dangerousness, and that evidence in mitigation was insufficient to lower these risks." Doe No. 10800 , 459 Mass. at 637. Even if we were to assume for the purposes of argument that the hearing examiner gave minimal weight to the factors unfavorable to Doe and "full weight" to the unweighted mitigating factors, we are still satisfied that the hearing examiner's conclusion was supported by substantial evidence and was not arbitrary, capricious, or an abuse of discretion, and that it was in accordance with the law. See G. L. c. 30A, § 14 (7) (e ), (g ).
Doe challenges the hearing examiner's application of factor 24. Given our conclusion, infra, that factor 24 should not have been applied, we have reviewed the hearing examiner's conclusion without consideration of that factor.
4. Sex offender treatment. While incarcerated, Doe refused sex offender treatment because he "d[id] not want anything to be used against him at his civil commitment hearing." In his affidavit to SORB, Doe recognized his need for therapy and addressed his plan to seek treatment upon release; there is no suggestion that the hearing examiner discredited this affidavit. Despite that, however, the hearing examiner weighed factor 24 (less than satisfactory participation in sex offender treatment) against Doe. Doe argues that where his decision to decline participation was based on the treatment's mandatory waiver of confidentiality, the hearing examiner's consideration of factor 24 was error.
We understand the "civil commitment hearing" to refer to a hearing under G. L. c. 6, § 178K (2) (c ), concerning the classification of sexually dangerous persons.
"[W]here, as here, ‘sex offender treatment is conditioned on a waiver of confidentiality, refusal of treatment alone is insufficient to support an inference that the [individual] does not want to be treated’. Doe No. 23656 , 483 Mass. at 140-141, quoting Commonwealth v. Hunt, 462 Mass. 807, 819 (2012). "[T]he refusal to receive nonconfidential treatment cannot be used to infer an unwillingness to be treated." Id. at 141. Accordingly, it was error for the hearing examiner to apply this factor. Because the record adequately supports Doe's classification even in the absence of this factor, however, we discern no prejudice in its erroneous application to Doe, and do not remand on this basis.
5. Internet dissemination. The hearing examiner's decision, which predated the Supreme Judicial Court's decision in Doe No. 496501 , and its prospective requirement that hearing examiners make an explicit finding that "a public safety interest is served by Internet publication of the offender's registry information" in classifying an offender as a level two or level three sex offender, nonetheless included that finding. Doe No. 496501 , 482 Mass. at 644, 656-657. Doe argues that the hearing examiner's treatment of the need for Internet dissemination of Doe's registry information was "perfunctory" and lacked supporting subsidiary findings. Even assuming that, as Doe contends, subsidiary findings "concerning ‘public safety’ or ‘community notification’ " as they related to Doe were required, we conclude that, in this case, all necessary findings were implicit in the hearing examiner's final decision. Accordingly, we are satisfied that a remand to the hearing examiner for express findings on this element is not required. See id. at 651, 657 & n.4 (for cases predating Doe No. 496501 , reviewing court has discretion to consider remand because "whether SORB's existing findings are sufficiently explicit to enable proper review is a question best left to the reviewing court" and, "even where the findings are not explicit, the underlying facts of the case may ... clearly dictate the appropriate classification level"). Cf. Doe, Sex Offender Registry Bd. No. 524553 v. Sex Offender Registry Board, 98 Mass. App. Ct. 525, 527-528 (2020) (remand for determination of whether Internet dissemination useful in preventing future offenses).
The hearing examiner found "by clear and convincing evidence that [Doe] present[ed] a high risk to reoffend and danger, and the degree of dangerousness posed to the public is such that a substantial public safety interest is served by active dissemination of his sex offender registry information."
We are unpersuaded that the online dissemination of Doe's registration information violates Doe's rights under the United States Constitution or the Massachusetts Declaration of Rights -- specifically the prohibitions against ex post facto laws, double jeopardy, and cruel and unusual punishment -- or any similar common-law protections. The Supreme Judicial Court has previously held Internet dissemination to be constitutional. See Moe v. Sex Offender Registry Bd., 467 Mass. 598, 613 (2014) (Internet dissemination permissible under art. 12 of Massachusetts Declaration of Rights because "the Legislature's choice of Internet dissemination of only level three sex offender registration information bears a real and substantial relation to protecting the public health and safety by notifying the public about dangerous offenders who live and work in the Commonwealth"); Coe v. Sex Offender Registry Bd., 442 Mass. 250, 257 (2004) (same). We decline to depart from that precedent, subject to the refinements in Doe No. 496501 .
To the extent that Doe argues violations of statutorily-protected rights, he has not identified the statutes on which he relies.
"[I]t is well settled that sex offender registration is a civil regulatory scheme, not punishment." Ernest E. v. Commonwealth, 486 Mass. 183, 189 n.10 (2020). See Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass. 780, 787-788 (2008) (Massachusetts sex offender registration law is "generally regulatory rather than punitive"). The law is not ex post facto, nor does it violate Doe's other constitutional rights. Doe, Sex Offender Registry Bd. No. 3839 v. Sex Offender Registry Bd., 472 Mass. 495, 496 n.4 (2015) (as statute is regulatory, "the prohibitions against ex post facto punishments and double jeopardy do not apply"); Doe No. 23656 , 483 Mass. at 147 n.22. Accordingly, we affirm the judgment of the Superior Court.
So ordered.
Affirmed