DOE 142258 v. SEX OFFENDER REGISTRY BOARD (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In 2006, John Doe pleaded guilty to one count each of rape of a child; aggravated rape of a child; and indecent assault and battery on a child under fourteen years old. He was sentenced to State prison for eight to ten years for aggravated rape of a child, and, for the other two convictions, concurrent terms of probation for seven years from and after his imprisonment. In 2012, the Massachusetts Sex Offender Registry Board (SORB) classified Doe as a level 3 (high risk) sex offender. Doe challenged this classification, and after a de novo hearing in 2017, the hearing examiner reclassified Doe as a level 2 (moderate risk) sex offender. Doe filed a complaint for judicial review, and in 2018, a Superior Court judge affirmed the level 2 classification and denied Doe's motion for judgment on the pleadings. We remand to SORB for reconsideration in light of Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643 (2019) (Doe No. 496501).

1. Background. We summarize the facts as set forth in the hearing examiner's 2017 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). In July 2005, an eighteen year old woman told her mother that the woman's former stepfather, John Doe, had sexually assaulted her when she was seven years old through ten years old. The report led, later that month, to his arrest by and confession to the Norton Police Department. Doe admitted performing oral sex on the victim, including after tying her to a bed with a clothes-line; rubbing her vagina; and touching her breasts with his mouth. He thought that the victim was between eleven and fourteen years old when he assaulted her. He assaulted her in both Massachusetts and Rhode Island.

2. Discussion. In making a sex offender level classification, a hearing examiner must consider “the relevant and credible evidence and reasonable inferences derived therefrom to determine: (a) the offender's risk of reoffense; (b) the offender's dangerousness as a function of the severity and extent of harm the offender would present to the public in the event of reoffense; and (c) in consideration of the foregoing, whether and to what degree public access to the offender's personal and sex offender information ․ is in the interest of public safety.” 803 Code Mass. Regs. § 1.20(2) (2016). The consideration in the third prong “depends not only on the probability of reoffense and the danger posed by that potential reoffense, but also on the efficacy of online publication in protecting the public from being victimized by the offender.” Doe No. 496501, 482 Mass. at 654. A hearing examiner must “separately evaluate[ ]” the efficacy of online publication of the offender's information and “make explicit his or her findings” regarding this prong. Id. at 654, 657.

“This requirement of explicit findings regarding all three elements” is prospective only. However, “where an appeal is pending ․ the court, in its discretion, may order that the classification decision be remanded to the hearing examiner.” Id. at 657.

The hearing examiner did not make a finding on the third prong, the efficacy of publishing Doe's information online. The single issue presented to us on appeal is whether substantial evidence existed to classify Doe as a level 2 offender. That issue is inextricably linked to the efficacy of publication. If online publication will not “realistically serve to protect the public” against Doe's potential reoffense, then a level 2 classification is unjustified. Id. at 655.

As a result, we cannot decide the substantial evidence issue without deciding the publication issue. For that reason, and because “the underlying facts of the case,” id. at 657 n.4, specifically, Doe's sexual offenses against a single family member, do not clearly indicate the efficacy of publishing Doe's information online, we exercise our “discretion ․ to remand the case for explicit findings.” Id.

The judgment is vacated, and a new judgment shall enter remanding the case to the Sex Offender Registry Board for further proceedings consistent with this memorandum and order.

So ordered.

Vacated and remanded.