DOE 72250 v. SEX OFFENDER REGISTRY BOARD (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff was convicted in 2003 of four counts of rape and abuse of a child under sixteen. The convictions were based on evidence that between approximately 1986 and 1990, the plaintiff, then in his late thirties, and a codefendant repeatedly raped a teenage male victim. The plaintiff was sentenced to imprisonment for not less than ten and not greater than twelve years followed by ten years of probation.

In 2010, the Sex Offender Registry Board (the board) notified the plaintiff of his obligation to register as a level three sex offender. The plaintiff objected to his registration obligation but, following an evidentiary hearing, a board hearing examiner affirmed the level three classification shortly before the plaintiff's release in 2015. While judicial review of that decision was pending, the Supreme Judicial Court issued a decision that changed the burden of proof required in risk classification hearings before the board to “clear and convincing evidence.” See Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 314 (2015). Based on that change, the plaintiff was afforded a new classification hearing which resulted in a finding that the plaintiff presented a moderate risk of reoffense requiring him to register as a level two sex offender.

The plaintiff again sought judicial review pursuant to G. L. c. 30A, § 14, arguing that the hearing officer's decision was not supported by substantial evidence. The plaintiff's motion for judgment on the pleadings was denied by a Superior Court judge who concluded that the hearing officer's decision was “supported by clear and convincing evidence and by substantial evidence in the record.” We agree and affirm.

Discussion. In the first instance, the board has the burden of proving the offender's risk of reoffense by clear and convincing evidence, which is evidence “sufficient to convey a high degree of probability that the contested proposition is true” (quotation omitted). Doe, Sex Offender Registry Bd. No. 380316, 473 Mass. at 309. “The burden is on the appealing party to demonstrate the invalidity of the board's decision,” and we defer to the board's “experience, technical competence, and specialized knowledge” in conducting our review. See Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 632-633 (2011), quoting G. L. c. 30A, § 14 (7). “We reverse or modify the board's decision only if we determine that the decision is unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with law.” Id. at 633. Substantial evidence is that which “a reasonable mind might accept as adequate to support a conclusion.” Id. at 632, quoting G. L. c. 30A, § 1 (6).

Here, the plaintiff claims that the board's determination that he posed a moderate risk of reoffense was not supported by substantial evidence because the board improperly weighed the risk elevating and risk mitigating factors. First, the plaintiff argues that he should have received mitigating factor credit for offense-free time in the community from 1990 to 2003. See 803 Code Mass. Regs. § 1.33(29) (2016) (“risk of reoffense decreases for most offenders after living in the community offense-free for five to ten years”). That regulation, however, unambiguously provides that “the offense-free time begins on the date of an offender's most recent release from custody for a sex offense.” 803 Code Mass. Regs. § 1.33(29)(a). Since the plaintiff had only been offense-free in the community after release for two years at the time of his classification hearing, there was no abuse of discretion in the hearing examiner's conclusion that he had “not been offense-free in the community long enough to invoke [f]actor 29.”

Next, the plaintiff claims his sex offender treatment should have been given greater weight. See 803 Code Mass. Regs. § 1.33(32) (2016). However, the examiner concluded that this factor deserved only minimal weight because of “[the plaintiff's] ongoing denial and that the treatment is not directly addressing his sexual misconduct.” Such reasoning was sound and well-supported by the record. Indeed, the plaintiff's own expert testified that “[i]f someone is in sex offender treatment and they are denying any sexual offending, then they can't really go that far in sex offender treatment.” On this record, we cannot reasonably say that the hearing examiner improperly discounted this factor.

Nor are we persuaded by the plaintiff's contention that the hearing examiner “ignored” his expert's evaluation. First, contrary to the plaintiff's assertion, the record suggests that the hearing examiner carefully considered the expert's assessment. Indeed, the expert's psychological assessment was the basis for the hearing examiner's conclusion that the evidence showed a moderate risk of reoffense rather than a high risk. Moreover, it is well settled that a hearing examiner need not accept the opinion of an expert testifying on behalf of an offender. Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 112 (2014). A factor is not misapplied merely because the hearing examiner assigned less weight to the psychological assessment than the plaintiff would like.²

Finally, the plaintiff argues that the hearing examiner gave too much weight to two high risk factors. The hearing examiner applied a risk elevating factor for repetitive and compulsive behavior, see 803 Code Mass. Regs. § 1.33(2)(a) (2016), and for an adult offender with a child victim, see 803 Code Mass. Regs. § 1.33(3)(a) (2016). Where the evidence showed that the defendant “had sex with [the victim] at least ten to twenty times” and that the sexual acts began when the victim was thirteen years old, we discern no error in the application of these risk elevating factors.

Simply put, the extent to which the plaintiff poses a risk of reoffending may be subject to reasonable debate, but the plaintiff has not shown that in addressing that question, the hearing examiner misapplied the applicable risk factors. See Doe, Sex Offender Registry Bd. No. 68549, 470 Mass. at 109–110, quoting G. L. c. 30A, § 14 (7) (“A hearing examiner has discretion ․ to consider which statutory and regulatory factors are applicable and how much weight to ascribe to each factor ․ [and] a reviewing court is required to ‘give due weight to [the examiner's] experience, technical competence, and specialized knowledge’ ”). Nor has he shown that the hearing examiner's decision was unsupported by clear and convincing evidence. We discern no abuse of discretion in the hearing officer's conclusion that the plaintiff posed a moderate risk of reoffense.

Judgment affirmed.

FOOTNOTES

2.   We note that the hearing officer gave the plaintiff credit for several other risk mitigating factors: the plaintiff was under probation supervision until 2025 (factor 28), the plaintiff was sixty-six years old (factor 30), that he had a stable home situation and support system (factor 33), that he had stability in the community (factor 34), and that there were no known allegations of sexual misconduct in the eight years after his contact with the victim ended (factor 37).