DOE 193836 v. SEX OFFENDER REGISTRY BOARD (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Doe appeals from a Superior Court judgment affirming a decision of the Sex Offender Registry Board (SORB) to classify him as a level three sex offender. He was convicted in 2007 of one count of rape of a child with force, G. L. c. 265, § 22A, two counts of indecent assault and battery on a child under fourteen years of age, G. L. c. 265, § 13B, and one count of indecent assault and battery on a person fourteen years of age or older, G. L. c. 265, § 13H. The convictions arose from conduct that occurred in 2003 when Doe was thirty-one years old and lived in Fitchburg with his wife and two minor children. His two minor nieces, Irene and Laura,² slept over at his house to assist with babysitting his children. Irene, who was fifteen at the time, slept in a room with Doe's two minor children. Doe approached Irene inside his children's bedroom and began to rub her vagina over her clothing for about one to two minutes. Laura, who was approximately eleven years old at the time, also reported sexual assault by Doe inside his children's bedroom. Laura slept in the same bed as Doe's son. After Doe's children fell asleep, Laura did as well, only to awaken when Doe began to rub her breasts as well as her vagina over her underwear. Doe threatened to choke Laura if she screamed. He then moved his son over on the bed and raped Laura, forcing her to engage in penile vaginal intercourse which resulted in vaginal bleeding.

The hearing examiner undertook a detailed analysis of the facts and circumstances and the factors enumerated in G. L. c. 6, § 178K (1), and 803 Code Mass. Regs. § 1.33 (2016) for assessing risk of reoffense and level of dangerousness of a sex offender. He found that there had been additional sexual misconduct, in particular that allegations of sexual assault made by Doe's stepdaughter in April 1997 were true. The stepdaughter, Jane,³ then nine, wrote in a school journal that Doe always touched her “private and I don't like it ․ I hate that my dad touches my private the end.” Jane was interviewed by a social worker from what is now the Department of Children and Families (DCF) and described Doe entering her bedroom on several occasions and touching her vagina with his hands. Several of the assaults occurred over her clothing, and Jane also recalled one occasion in which Doe reached under her clothing and rubbed her vagina. Although Jane subsequently recanted her statements after being placed in foster care, DCF supported the allegations. In 2001, the investigation was reopened after Jane was placed in foster care for a second time. She revealed that, on several occasions between 1994 and 1997, Doe raped her.

Doe continues to deny that he sexually assaulted Irene and Laura. The prison in which he was incarcerated at the time of the hearing offered a sex offender treatment program, but he did not participate in it. He also received a disciplinary report in March 2009 after a female correction officer observed him masturbating in his prison cell.

Doe argues first that there is not substantial evidence supporting SORB's decision because the hearing examiner should not have concluded that the sexual abuse alleged in 1997 actually occurred, because the 1997 allegations were recanted and never resulted in any criminal charges.

“A hearing examiner may credit evidence of the facts underlying untried sex offense charges at a classification hearing where such facts are proven by a preponderance of evidence.” Soe, Sex Offender Registry Bd. No. 252997 v. Sex Offender Registry Bd., 466 Mass. 381, 396 (2013). We see no abuse of discretion, or other error of law, in the hearing examiner's determination that the evidence of the sexual abuse alleged in 1997 was sufficiently reliable to allow its admission, nor do we think that evidence was insufficient to support the hearing examiner's finding of fact with respect to that conduct by a preponderance of the evidence. Thus, we conclude that Doe's argument that the evidence should not have been admitted, and that, therefore, there was not substantial evidence to support the board's decision, must fail. There is also no merit to Doe's claim that the hearing examiner applied too much weight to this admissible evidence. The hearing examiner appropriately considered it in conjunction with the relevant regulatory factors.

Doe next argues that the hearing examiner erroneously applied three factors as aggravating, resulting in an incorrect assessment of his risk of reoffense and degree of dangerousness. Absent the erroneous application of these three aggravating factors Doe argues, the hearing examiner's ultimate conclusion that Doe poses a high risk of reoffense is unsupported by substantial evidence.

The first is repetitive and compulsive behavior, 803 Code Mass. Regs. § 1.33(2) (2016). Doe argues that the hearing examiner erred in giving this risk factor “full weight,” where the 1994 to 1997 conduct was something with which Doe was never charged or convicted. The text of 803 Code Mass. Regs. § 1.33(2)(a) (2016), entitled “repetitive and compulsive behavior,” as applicable to an adult male, provides:

“Repetitive and compulsive behavior is associated with the 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, committed 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 sexual offense.”

As this makes clear, the hearing examiner was permitted to give increased weight to this factor in this case. And indeed, the hearing examiner's analysis of this factor reads as follows:

“Pursuant to the Board's regulations, I may give increased weight to an offender who was investigated by an authority for sexual misconduct and, nonetheless, commit[s] a subsequent act of sexual misconduct. This factor is alarming and I find the evidence amply supports increased weight. The Petitioner's offending was repetitive and compulsive, increasing his risk to reoffend. I give this high risk factor full weight.”

This language makes clear that the hearing examiner understood the regulation and applied it as permitted, to give this factor “increased weight.” Given this context we do not view the hearing examiner's use of the phrase “full weight” to indicate that, despite the absence of a charge or conviction, the hearing examiner improperly gave this factor “the most weight.”

Doe next argues that factor sixteen “public place,” is inapplicable because the conduct took place in a private residence in a bedroom. The hearing examiner applied it because “both of [Doe's] children were asleep in the same room” where the sexual assaults and rape took place, and also because Jane reported that on one occasion her brother witnessed Doe rape her. The regulation provides, “[f]or purposes of factor 16, a ‘public place’ includes ․ any place that is open to the scrutiny of others ․” 803 Code Mass. Regs. § 1.33(16) (2016). This describes the bedroom in this case, and the evidence concerning Jane's brother witnessing her being raped.

With respect to the next factor raised by Doe on appeal, “behavior while incarcerated,” he next argues that he had only one disciplinary report in ten years of incarceration and that he adapted well to incarceration. We do not read the regulation to prohibit consideration of a single violation. The regulation permits the hearing examiner to consider not only the number of disciplinary reports, but also “the seriousness of the violation.” 803 Code Mass. Regs. § 1.33(12) (2016). The hearing examiner noted that there was only one disciplinary report during Doe's incarceration but found it “disturbing as it was sexual in nature.” We see no error in the hearing examiner's applying what he described as “some weight” to this factor due to the sexual nature of the report. In sum, the factors were not applied inappropriately, and there was substantial evidence to support the hearing officer's determination.

Finally, Doe argues that, as applied to him, the dissemination of his registry information pursuant to G. L. c. 6, §§ 178I -178K (2), is punitive and violates his Federal and State constitutional, statutory, and common-law rights not to be twice placed in jeopardy for the same offense, not to be subject to ex post facto laws, and not to be subjected to cruel or unusual punishment, as well as his State and Federal constitutional rights to family integrity and to liberty and privacy.

The hearing examiner's classification is supported by substantial evidence, and there is sufficient evidence to meet the clear and convincing evidence standard articulated by the Supreme Judicial Court in Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 298 (2015). As SORB describes, there is binding case law from the Supreme Judicial Court holding that in these circumstances, dissemination does not violate a sex offender's State or Federal constitutional rights. See Coe v. Sex Offender Registry Bd., 442 Mass. 250, 261 (2004) (Internet dissemination of level three sex offender information satisfies art. 12 of Massachusetts Declaration of Rights). See also Doe, Sex Offender Registry Bd. No. 3839 v. Sex Offender Registry Bd., 472 Mass. 492, 496 n.4 (2015) (level three sex offender registration is not punitive, and prohibitions against double jeopardy and ex post facto laws do not apply). Nor does the common law provide any greater protection where the Legislature has by statute explicitly provided for this dissemination.

Judgment affirmed.

FOOTNOTES

2.   The names are pseudonyms.

3.   A pseudonym.