DOE 524454 v. SEX OFFENDER REGISTRY BOARD (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

John Doe, Sex Offender Registry Board No. 524454 (Doe), appeals from a decision of the Sex Offender Registry Board (SORB) classifying him as a level two sex offender. See G. L. c. 6, § 178K (2) (b). After the Department of Children and Families (DCF) received an anonymous report under G. L. c. 119, § 51A (§ 51A report), alleging that Doe had indecently touched his sister, DCF investigated and determined that Doe had sexually abused his sister on three occasions.² Doe was charged with three counts of indecent assault and battery on a child under fourteen, G. L. c. 265, § 13B. He pleaded guilty, and was sentenced to two and one-half years of probation with conditions, including a requirement that he be evaluated as a sex offender. After an initial classification, which was appealed, SORB classified Doe as a level two sex offender.³ See G. L. c. 6, § 178K (2) (b). On appeal to the Superior Court and to this court, Doe argues that the hearing examiner erred by (1) disregarding expert testimony about Doe's risk to reoffend and danger to the public; (2) finding that the victim was “extravulnerable” based on anonymous hearsay in the § 51A report; and (3) failing to make explicit findings regarding the public safety benefit of Internet publication. Concluding that the second and third contentions have merit, we vacate the judgment and remand for entry of a new judgment remanding the case to SORB for further proceedings.

Discussion. Standard of review. “A reviewing court may set aside or modify SORB's classification decision where it determines that 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, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 649 (2019) (Doe No. 496501), citing G. L. c. 30A, § 14 (7). “In reviewing SORB's decisions, we ‘give due weight to the experience, technical competence, and specialized knowledge of the agency.’ ” Doe No. 496501, quoting Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594, 602 (2013).

1. Expert Testimony. At his classification hearing Doe presented expert testimony from Leo Keating, LICSW, who had evaluated Doe and administered three diagnostic tests.⁴ Keating found that Doe was “essentially a well functioning adult” who “currently [had] no interest in children of either gender.” See 803 Code Mass. Regs. § 1.33(35) (2016). Keating concluded that Doe “never represented a risk to the community overall” because he had abused his younger sister rather than extrafamilial or stranger victims, and that he had a “very low risk to reoffend,” based on “his clinical presentation, psychological testing, actuarial data, and his history.”

Doe contends that the hearing examiner's decision failed to adequately consider his expert's opinion. The “opinion of a witness testifying on behalf of a sex offender need not be accepted by the hearing examiner even where the board does not present any contrary expert testimony.” Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 112 (2014), quoting Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 637 (2011). While we agree that the hearing examiner's ultimate rationale was sparse, the overall decision was more detailed and was responsive to Keating's testimony in several respects. Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 137 (2019) (Doe, No. 23656). The hearing examiner rejected Keating's opinion that Doe did not fit the diagnostic criteria for pedophilia, based on Keating's acknowledgment that conduct alone could form the basis of such a diagnosis. However, while the hearing examiner found Keating's testimony ambiguous, she nonetheless, on the basis of Keating's opinion, gave “minimal weight” to high risk factor 1, mental abnormality. Where the hearing examiner rejected Keating's conclusions, she provided an explanation. See id. at 136 (“Unlike the fact finder at a trial, a hearing examiner is not free to accept or reject all or part of the expert testimony simply because it did not address all the factors. ․ Rather, an agency must explain[ ] on the record its reasons for rejecting portions of [an expert's] testimony” [quotations omitted] ). The hearing examiner disagreed with Keating's finding that Doe presented a low risk of reoffense, because he had an average score on the Static-99R, and because Doe offended as “a juvenile and continued that offending behavior into his adulthood.”

The hearing examiner did consider the expert's opinion, and we therefore reject Doe's argument that she committed reversible error by discounting it. However, the hearing examiner's treatment of certain high risk and risk elevating factors, factors which she considered in rejecting the expert's opinion, was in error. For that reason, as is discussed more fully below, we remand for further consideration.

2. Extravulnerable victim. A sexual assault on an extravulnerable victim is a risk elevating factor. See 803 Code Mass. Regs. § 1.33(18) (2016). Doe submits, and SORB concedes, that the hearing examiner erred by relying on the anonymous § 51A report to conclude that Doe's sister was an “extravulnerable victim” because she was sleeping at the time the first assault took place. Id. It was error to consider this factor.

“A hearing examiner is not bound by the rules of evidence applicable to court proceedings. Instead, an examiner may admit and give probative effect to that evidence [on] which reasonable persons are accustomed to rely in the conduct of serious affairs. In the context of a sex offender classification hearing, hearsay evidence may be admissible if it bears sufficient indicia of reliability” (citations and quotations omitted). Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89 (2019). “Indicia of unreliability include failure to identify the source of information, a lack of detail, and a lack of information about the circumstances in which the statements were made.” Id. at 89-90.

We agree with the parties that this third-level hearsay from an anonymous source lacks sufficient indicia of reliability. A § 51A report is an allegation of suspected abuse, not the product of an agency investigation. Compare G. L. c. 119, § 51A, with G. L. c. 119, § 51B. In child welfare proceedings a § 51A report is inadmissible for the truth of the matter, and may be considered only to “set[ ] the stage.” Mass. G. Evid. § 1115(b)(2)(A) (2019). See Care & Protection of Inga, 36 Mass. App. Ct. 660, 663-664 (1994). There is no other suggestion in the record, which includes interview notes of the child and police reports stating that Doe had admitted to the offenses, that the child was sleeping at the time of the first offense. It was error for the hearing examiner to rely on the uncorroborated hearsay report that the child was sleeping.

SORB contends that this error was immaterial because the evidence nevertheless supported a finding of both a moderate risk to reoffend and a moderate degree of dangerousness. We reject this contention because the hearing examiner's other findings either appear to depart from the regulatory scheme, or are too general and conclusory to permit meaningful review by this court. On this record we cannot say that the evidence is otherwise sufficient, or that the hearing examiner's calibration of risk would have remained the same had the improper considerations not been taken into account. We explain.

The examiner found that Doe had no other history of offense, no other involvement with law enforcement, was gainfully employed by a relative, had a stable living arrangement with his grandparents, had successfully completed sex offender treatment, was under ongoing supervision on probation, had no history of drug or alcohol abuse, had completed an associate's degree in automotive engineering, and had community support. The examiner's assessment of dangerousness and likelihood of reoffense relied primarily on her assessment of two high risk factors and the risk elevating factor previously discussed. The hearing examiner gave “minimal weight” to high risk factor 1, mental abnormality. See 803 Code Mass. Regs. § 1.33(1) (2016). In making her ultimate determination she applied high risk factor 2, repetitive and compulsive behavior, factors 3 and 27, adult offender and child victim and age of victim, and risk elevating factor 18, extravulnerable victim. See 803 Code Mass. Regs. § 1.33(2), (3), (18), (27) (2016). Once the risk elevating factor finding is excised, the hearing examiner's determination of moderate risk of reoffense and moderate risk of dangerousness relies on the remaining high risk factors -- repetitive and compulsive behavior, adult offender and child victim, and age of the victim.

Our assessment of whether these findings would otherwise support a finding of moderate risk of reoffense and moderate degree of dangerousness is complicated by two aspects of the hearing examiner's decision. First, in discussing these factors, she did not say whether she ascribed a threshold, moderate, or high degree of weight to each. For example, in discussing factors 3 and 27, the hearing examiner said, “Both factors address his sexual interest in a younger child, therefore I consider this.” To what extent she considered it, particularly in light of her previous decision to give a diagnosis of pedophilia “minimal weight,” is not explained. Nor did the hearing examiner discuss at any point in her decision how she weighed the mitigating and aggravating factors.

Second, the hearing examiner's treatment of factor 2, repetitive and compulsive behavior, did not contain detailed and specific findings that tracked the regulations. See Doe No. 23656, 483 Mass. at 142-143. The hearing examiner concluded that Doe's behavior was repetitive, but made no finding whether his behavior was compulsive.⁵ Both findings are required to support a finding of moderate risk of reoffense and/or a moderate degree of dangerousness. See G. L. c. 6, § 178K (2) (b); 803 Code Mass. Regs. § 1.33(2)(a). The regulations permit the assignment of threshold weight when an offender engages in two or more acts of sexual misconduct, acts which are sufficiently separated in time or circumstance to permit an opportunity for reflection. Under the regulations, however, a hearing officer may assign moderate weight only where the offender has been discovered or confronted by a person other than the victim, and subsequently reoffends. 803 Code Mass. Regs. § 1.33(2)(a).⁶ The highest weight is reserved for those situations in which an offender reoffends after being charged with or convicted of a sex offense. See generally Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender Registry Bd., 96 Mass. App. Ct. 738, 741-743 (2019). There are no facts supporting a moderate or high degree of weight present here.

In addition, the regulations state that a finding of repetitive and compulsive behavior may not be made with respect to a juvenile unless the juvenile's conduct has been discovered and he or she has been cautioned, warned, disciplined, charged, or otherwise sanctioned. See 803 Code Mass. Regs. § 1.33(2)(c).⁷ While the hearing officer could permissibly consider the fact that Doe's offenses continued into adulthood, see id., she found only that the behavior was repetitive, did not analyze the offenses under the regulatory rubric, and did not distinguish between the adult and juvenile offenses.

We therefore conclude that Doe's “substantial rights ․ may have been prejudiced” by the hearing examiner's consideration of the risk elevating factor of an extravulnerable victim, because the hearing examiner's finding that Doe had sexually assaulted the child while sleeping was a material factor in her decision. We cannot reliably conclude that the remaining portions of the decision support the level two designation because the decision lacks the detailed findings grounded in the regulatory scheme necessary to permit meaningful review. See G. L. c. 30A, § 14 (7). See also Doe No. 496501, 482 Mass. at 649.

3. Specificity of findings on public dissemination. Doe contends, and the SORB agrees, that the hearing examiner did not make specific findings supporting her determination that public dissemination of Doe's sex offender registry status serves the public interest. “We ․ require hearing examiners to ask whether, in light of the particular risks posed by the particular offender, Internet access to that offender's information might realistically serve to protect the public against the risk of the offender's sexual reoffense. If the answer to this question is ‘no,’ classification as a level two offender is unjustified even where the offender poses a moderate risk to reoffend and a moderate degree of dangerousness.” Doe No. 496501, 482 Mass. at 655.⁸

Here there were no explicit findings on public dissemination. SORB contends that remand is not required, because “[w]here a sexually violent offender presents a moderate risk to reoffend and a moderate degree of dangerousness, Internet publication will almost invariably serve a public safety interest by notifying potential victims of the risks presented by the offender in their geographic area.” Doe No. 496501, 482 Mass. at 655.⁹ Because, as we have discussed, the hearing examiner improperly applied a risk elevating factor, we cannot say that the hearing examiner's conclusions would be the same, or that the record “so clearly dictate[s]” Internet dissemination and a level two classification, “that a remand for explicit findings is not necessary.” Id. at 657 n.4.

Conclusion. The judgment is vacated, and a new judgment shall enter vacating the decision of SORB and remanding the matter to SORB for further proceedings consistent with this memorandum and order.

So ordered.

FOOTNOTES

2.   The first incident, in which Doe touched his sister's breast over her clothing, occurred when Doe was about fourteen years old and his sister was about eight years old. The second incident, in which Doe touched his sister's breast and vagina over her clothing, occurred when Doe was about sixteen and his sister was ten or eleven. The third incident, in which Doe rubbed his sister's vagina over and under her clothing, occurred when Doe was twenty and his sister was thirteen.

3.   The hearing examiner gave “minimal weight” to high risk factor 1 (“mental abnormality”), 803 Code Mass. Regs. § 1.33(1) (2016); and applied high risk factors 2 (“repetitive and compulsive behavior”), 803 Code Mass. Regs. § 1.33(2) (2016), and 3 (“adult offender and child victim”), 803 Code Mass. Regs. § 1.33(3) (2016). The examiner also applied risk elevating factor 18 (“extravulnerable victim”), 803 Code Mass. Regs. 1.33(18) (2016).The hearing examiner also applied risk mitigating factors 28 (“supervision by probation or parole”), 803 Code Mass. Regs. § 1.33(28) (2016), 32 (“sex offender treatment”), 803 Code Mass. Regs. § 1.33(32) (2016), 33 (“home situation and support systems”), 803 Code Mass. Regs. § 1.33(33) (2016), and 34 (“materials submitted by the sex offender regarding stability in the community”), 803 Code Mass. Regs. § 1.33(34) (2016).The hearing examiner further considered factors 35 (“psychological or psychiatric profiles indicating risk to reoffend”), 803 Code Mass. Regs. § 1.33(35) (2016), and 37 (“other information related to the nature of the sexual behavior”), 803 Code Mass. Regs. § 1.33(37) (2016).

4.   Specifically, Keating administered the Millon Clinical Multiaxial Inventory -- III, the Abel Assessment of Sexual Interest -- 3, and the Static-99R.

5.   The hearing examiner found only that Doe “sexually assaulted his sister on separate occasions including when he was an adult. Therefore, this factor applies.” In rejecting the expert's opinion, she relied solely on the repetitive nature of the offenses, stating that because his offenses spanned a five year period, the passage of time “would have allowed him plenty of time to reflect on the wrongfulness of his conduct.”

6.   803 Code Mass. Regs. § 1.33(2)(a) provides:“Factor 2: Repetitive and Compulsive Behavior. (a) Adult Male. Repetitive and compulsive behavior is associated with a 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, commit 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 sex offense. (Harris et al., 2003; Harris and Hanson, 2004).”

7.   With respect to juveniles, 803 Code Mass. Regs. § 1.33(2)(c) provides:“Juvenile. Factor 2 applies only to juvenile offenders who continue to commit sex offenses after they have been detected for prior sexual misconduct. Detection includes: being cautioned, warned, disciplined, criminally charged, or otherwise sanctioned by an adult authority (e.g. police, parent, or teacher).“An offender who engages in sexual misconduct after having been charged with or convicted of a prior sex offense presents an even higher risk to reoffend.“803 [Code Mass. Regs. §] 1.33(2)(c) includes adults whose only sex offense(s) were committed as a juvenile. (ATSA, 2012; Curwen and Costin, 2007; Epperson et al., 2009; Nisbet, et al., 2004; Powers-Sawyer and Miner, 2009; Prentky and Righthand, 2003; Stetson School, 2012; Worling and Curwen, 2001; Worling and Langstrom, 2003 and 2006).”

8.   Neither the hearing examiner nor the Superior Court judge had the benefit of the Supreme Judicial Court's analysis in Doe No. 496501.

9.   A sexually violent offense, as defined in G. L. c. 6, § 178C, includes Doe's index offenses. See G. L. c. 265, § 13B.