JOHN DOE SEX OFFENDER REGISTRY BOARD NO 407 v. SEX OFFENDER REGISTRY BOARD (2022)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

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. He argues that the SORB decision is erroneous for three reasons: SORB's level two classification was inadequately explained and unsupported by the evidence; SORB abused its discretion by rejecting scholarly articles presented by Doe discussing the relationship between time in the community offense free and community risk; and SORB erred in finding that Internet dissemination will serve to protect the public. Because we discern no error, we affirm.

Background. We summarize the facts 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).

Governing offenses. In January 1992, victim one, at that point a nineteen year old woman, told Somerville police officers that her former stepfather, Doe, first molested victim one when she was thirteen and he was approximately thirty four. He received a probation sentence. Victim one told officers she did not see him for many years after that, but in December 1991, she and Doe re-established contact. Doe would visit victim one frequently and often sleep over. Doe entered victim one's bedroom on several occasions when her husband was at work and woke her up to talk in the living room. Doe would then talk about how “screwed up” the family was, tell victim one how beautiful she was, put his hands inside his underpants, and masturbate, often to the point of ejaculation. Doe commented about the size of victim one's breasts and touched them and rubbed the inside of her upper thigh until she pulled his hand away. Victim one also reported that Doe told her that if she made love to him, he would give her the papers to his house in Virginia. After victim one reported additional incidents that occurred in Doe's home in Arlington, she was referred to that police department.

Three days after speaking with Somerville police officers, victim one told Arlington police officers that Doe had raped her in his apartment in Arlington. Victim one had gone to Doe's apartment with her small children to bathe them because her apartment had no tub. He asked her to step out of the bathroom while the children were bathing, and he then grabbed her from behind and put his hand into her pants. She told him to leave her alone, but he forced his finger into her vagina. She pushed him away, dressed the children, and left. Although Doe later apologized to victim one and said nothing like that would happen again, on at least one other occasion he came into the bathroom as she was drying off and getting dressed after showering at Doe's apartment.¹ He grabbed her from behind and felt her breasts and crotch. Although she told him to stop, he continued and eventually again put a finger into her vagina. She left the room, finished dressing, and left the apartment. He found her, apologized, and offered to drive her home.

Doe thereafter called victim one frequently. She did not want to talk to him. Victim one became depressed and began losing weight. After she disclosed the abuse to her husband, the couple taped two conversations with Doe and went to police. On one tape recording, Doe made threats to her that if she “opened her mouth” to her husband, it would ruin her marriage. Doe also told victim one that if she told anyone else, he would report to DSS ² that she allowed her children to be around a convicted child abuser and that DSS would remove her children. Doe was arrested shortly thereafter.

In 1994, Doe pleaded guilty to two counts of rape and two counts of indecent assault and battery on a person fourteen or over for his crimes against victim one. Doe was sentenced to five years in prison for the indecent assaults and batteries, with six months to serve and the balance suspended for three years with probation,³ and was sentenced to ten years' imprisonment from and after for the rapes, suspended with probation for three years.

Earlier offenses. Previously, in 1986, Doe was arraigned on charges of rape and assault and battery on a minor child. Victim two, a sixteen year old girl, told police officers that her mother's live-in boyfriend, Doe, who was twenty-eight to thirty-two years old at the time, repeatedly forced her to perform oral sex on him. On several occasions, he performed oral sex on her. The charge of rape was dismissed, but Doe was convicted of assault and battery of a minor child and given a one-year suspended sentence. SORB found that Doe did commit sexual misconduct against victim two as alleged.

In January 1990, Doe was charged with two counts of rape of a child with force. He was placed on pretrial probation with conditions that he have no contact with the victim or family. There is some evidence in the record that victim one was the child involved.⁴ SORB did not find that Doe raped victim one in relation to this earlier offense ⁵ but did find that these charges corroborated victim one's claim of earlier sexual abuse of her and found that Doe sexually assaulted victim one when she was thirteen.

Discussion. 1. Standard of review. Our review of the Superior Court judge's decision is de novo, but our review of the underlying agency decision is more limited. Doe, Sex Offender Registry Bd. No. 390261 v. Sex Offender Registry Bd., 98 Mass. App. Ct. 219, 224 (2020) (Doe No. 390261). “An agency decision should be set aside only if a court determines that the decision is unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with law.” Id., quoting Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 88 (2019) (Doe No. 523391). When reviewing a final SORB classification, we give “due weight to the experience, technical competence, and specialized knowledge of the agency.” Doe No. 390261, supra at 224, quoting Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 649 (2019) (Doe No. 496501). “Doe bears a heavy burden of establishing that the [board]'s decision was incorrect” (quotation and citation omitted). Doe, Sex Offender Registry Bd. No. 3177 v. Sex Offender Registry Bd., 486 Mass. 749, 757 (2021).

2. Sufficiency of evidence and adequacy of explanation. A level two classification is appropriate where the hearing examiner determines by clear and convincing evidence “that the risk of reoffense is moderate and the degree of dangerousness posed to the public is such that a public safety interest is served by public availability of registration information.” G. L. c. 6, § 178K (2) (b). The hearing examiner's reasoning is “guided by [several] statutory risk factors” and various “aggravating and mitigating considerations.” Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 134 (2019). See G. L. c. 6, § 178K (1) (a) - (l); 803 Code Mass. Regs. § 1.33 (2016). “This list is not exhaustive, however, and SORB also must take into account any other information that is 'useful in assessing the risk of reoffense and the degree of dangerousness posed to the public by the sex offender,' including information of this kind introduced by the offender.” Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 105 (2014) (Doe No. 68549), quoting G. L. c. 6, § 178L (1).

Doe does not take issue on appeal with any of the factual findings of the hearing examiner. Instead, Doe argues that the level two classification is not supported by the facts and that the hearing examiner did not make her reasoning and findings explicit. More particularly, Doe argues that the hearing examiner failed to specifically address what effect mitigating circumstances had on the hearing examiner's analysis and ultimate conclusion.

Doe is correct that a hearing examiner's decision must be supported by substantial evidence: evidence a reasonable mind might accept as adequate to support a conclusion. Doe No. 523391, 95 Mass. App. Ct. at 93. Doe is also correct that the hearing examiner must adequately explain his or her reasoning. See Doe No. 496501, 482 Mass. at 657 (hearing examiner required to “make explicit his or her findings” regarding risk of dangerousness and reoffense, and “make clear that each determination is supported by clear and convincing evidence”).

Here, the hearing examiner made detailed factual findings regarding Doe's governing and prior offenses, which we have previously discussed. The hearing examiner then carefully evaluated relevant statutory risk factors and any aggravating considerations. The hearing examiner considered all applicable mitigating factors, stating:

“I now consider that he has been in the community without any violent or sexual offending for 11 years (Factor 29) and he is now 68 years old (Factor 30), and he participated in sex offender treatment while incarcerated and while on probation, and continued in general psychotherapy until 2019 (Factor 32). I give little mitigating weight to his medical conditions[6] (Factor 31).”

The hearing examiner then explained how those mitigating factors affected Doe's classification:

“I find the new mitigating factors related to his improved behavior offset some of the very high risk to reoffend suggested by his criminal history and repetitive and compulsive offending against two children which, despite legal interventions, did not prevent him from reoffending against [v]ictim 1 when she was a young adult.”

The hearing examiner then concluded that Doe presented a moderate risk of reoffense and a moderate degree of dangerousness. Doe's classification was accordingly reduced from a level three sex offender to a level two sex offender.

The relatively extensive explanation the hearing examiner gave regarding the weight that was given to these mitigating considerations was adequate. Accordingly, we hold that the hearing examiner's explanation was adequate to support the level two classification. Doe's criminal history against victims one and two as children and against victim one as a young adult constitutes substantial evidence supporting a level two classification, even in light of mitigating factors such as Doe's extended period of time in the community without reoffending, his age, and his participation in treatment and therapy.

3. Scholarly articles. Doe next argues that the hearing examiner abused her discretion by rejecting four scholarly articles presented by Doe describing the risk reduction of offense-free time in the community. Doe is correct that SORB must take into account information that is useful in assessing Doe's current risk to reoffend and degree of dangerousness, including reliable studies. See Doe No. 68549, 470 Mass. at 105. But his argument fails for one central reason: The hearing examiner did not reject the scholarly articles. The hearing examiner was presented with the scholarly articles relating to offense-free time in the community and gave full mitigating weight to the relevant statutory factor, Factor 29. It is clear on this record that the hearing examiner was presented mitigating evidence by Doe and adjusted her analysis of relevant statutory factors accordingly. We see no abuse of discretion.

4. Internet dissemination. Doe's final argument is that the hearing examiner's finding that Internet dissemination of Doe's registry information will serve to protect the public was an abuse of discretion. As part of their decision, a hearing examiner is required to make a separate finding regarding whether public access to the offender's personal and sex offender information is in the interest of public safety. Doe No. 496501, 482 Mass. at 645. Doe argues that the hearing examiner failed to consider that Doe would not encounter members of his preferred victim pool given his present circumstances, including his disabilities, advanced age, and living arrangements in a rooming house for adult males.

The hearing examiner methodically explained how Internet publication of Doe's classification would be in the interest of public safety:

“In considering the need for Internet Publication, I consider that he sexually abused two different children. While in an abundance of caution, I considered these children to be intrafamilial for purposes of assessing his risk of reoffense, I cannot ignore that he moved from one family, where he abused [v]ictim 2, into another family, where he abused [v]ictim 1.”

After considering this context, the hearing examiner then made a final conclusion:

“As the Petitioner has shown a pattern of engaging with the [v]ictims' mothers to place himself in familial situations in which he then offends, I find by clear and convincing evidence that disclosure of his presence in the community via public access and Internet publication will help protect minors and other vulnerable persons from becoming victims of sex crimes.”

The hearing examiner's analysis was thorough and her conclusion reasonable based on Doe's previous offenses where he offended in familial situations. Accordingly, we affirm.

Judgment affirmed.

FOOTNOTES

1.   Victim one left the door to the bathroom unlocked because she was epileptic and wanted to ensure that help could enter if she had a seizure.

2.   We assume based on the context that Doe was referencing the Department of Social Services, now called the Department of Children and Families.

3.   Doe was also required to have no contact with the victim, have a sex offender evaluation, and receive treatment if deemed necessary.

4.   The first name of the child victim was the same first name as victim one and victim one told officers she had been molested by Doe when she was thirteen, which would have been around the time of the offense.

5.   SORB stated they did not find that Doe raped victim one in relation to this earlier offense because there was not a conviction or detail from any supporting documentation in the record.

6.   Doe presented the hearing examiner with evidence of several medical conditions resulting in a disability, including but not limited to paralysis, pain, weakness, and stiffness.