DOE 97438 v. SEX OFFENDER REGISTRY BOARD (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0.

In 2004, John Doe pleaded guilty in Federal court to knowingly possessing a visual depiction of a minor engaging in sexually explicit conduct, 18 U.S.C. § 2252(a)(4)(B), and production of child pornography, 18 U.S.C. § 2251(a). Based on those convictions, the Sex Offender Registry Board (board) notified Doe of his obligation to register as a level three (high risk) sex offender pursuant to G. L. c. 6, § 178K (2) (c). Doe challenged the classification and requested a hearing.² A hearing examiner found by clear and convincing evidence that Doe posed a high risk to reoffend and a high degree of dangerousness. She also concluded that “a substantial public interest is served by active dissemination of his sex offender registry information” and classified Doe as a level three sex offender. See G. L. c. 6, § 178K (2) (c).

Doe sought judicial review of the examiner's decision pursuant to G. L. c. 30A, § 14, arguing that the classification was not supported by substantial evidence and that the examiner improperly considered privileged information. A Superior Court judge denied Doe's motion for judgment on the pleadings and affirmed the level three classification. The plaintiff challenges that conclusion on appeal. We affirm.

Background. We summarize the facts as set forth in the hearing examiner's decision, which Doe does not dispute. In 1994, while living in Hungary, Doe took sexually explicit photos of himself and a boy between twelve and fourteen years of age. In 1997, the Boston police discovered the photos when they searched Doe's residence in Boston during an unrelated investigation of Doe's cotenant. A few weeks after the search, Doe fled to Mexico where he remained until he returned to California in 2003. Doe was arrested in California and returned to Massachusetts to face Federal charges. In 2004, Doe pleaded guilty in the United States District Court to knowingly possessing a visual depiction of a minor engaging in sexually explicit conduct and production of child pornography. He was sentenced to a sixty-three month prison term followed by two years of probation. While incarcerated, Doe successfully completed sex offender treatment and mentored other inmates in the treatment program.

In support of its argument for a level three classification, the board introduced Doe's deposition testimony taken in connection with a civil commitment proceeding.³ During the deposition, Doe disclosed that from 1992 to 1993, while teaching at an elementary school in Slovakia, he sexually assaulted boys between the ages of eight and thirteen by engaging in oral and anal sex with them. Doe also stated that in 1993, he moved to Hungary where he sexually assaulted two boys. He served a two and one-half year prison sentence before returning to Massachusetts. Doe also admitted that he possessed 10,000 images of child pornography when he fled to Mexico in 1997.

The examiner also considered the testimony of Doe's expert, Dr. Joseph Plaud, a clinical and forensic psychologist who evaluated Doe. Dr. Plaud testified regarding the plaintiff's history of sex offenses and statements the plaintiff made in the course of his evaluation. Dr. Plaud's testimony confirmed Doe's admissions of sexual misconduct during the deposition. Doe acknowledged 300 instances of sexual assault on sixty-six victims. He also admitted that he collected child pornography. Dr. Plaud found that Doe suffered from pedophilia for which there is no cure. However, relying on actuarial tests, Doe's age, his six years of offense-free time in the community, and his completion of sex offender treatment, Dr. Plaud opined that Doe posed a low to moderate risk of reoffending. Dr. Plaud recommended that Doe be classified as a level two sex offender.

Discussion. Before classifying an individual as a level three sex offender, the board must prove by clear and convincing evidence (1) that the offender's risk of reoffense is high; (2) that the offender's degree of dangerousness to the public is high; and (3) that “a substantial public safety interest is served by active dissemination (community notification) of sex offender registry information.” 803 Code Mass. Regs. § 1.03 (2016). See G. L. c. 6, § 178K (2) (c); Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 133-134 (2019) (Doe, No. 23656).

Our review of the judge's decision is de novo. Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89 (2019). We review the administrative record to determine whether the hearing examiner's decision is “unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with law.” Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 633 (2011). See G. L. c. 30A, § 14 (7). Doe has the burden to show that one of these conditions has been met in his case. Id.

1. Expert testimony. Doe claims that the hearing examiner improperly “rejected [his] expert evidence without a proper basis.” It is well settled that “[t]he 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” (alteration in original) (citation omitted). Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 112 (2014) (Doe, No. 68549). The hearing examiner may reject portions of the expert's testimony and is not required to “wholly adopt” the expert's conclusions, as long as the she explains her objectively adequate reasons for doing so on the record. Doe, No. 23656, 483 Mass. at 137 (“[The plaintiff] is not entitled to a guarantee that [the examiner] will reach the same conclusion as his expert; he is entitled only to careful consideration of his expert's testimony”).

Here, the hearing examiner explicitly considered Dr. Plaud's opinion and the factors on which he relied. She accepted portions of his testimony, including the existence of risk-mitigating factors such as the plaintiff's limited criminal history, completion of sex offender treatment, advanced age, and six years of offense-free time in the community. However, she disagreed with Dr. Plaud's conclusion that the plaintiff posed a low to moderate risk of reoffending, and concluded instead that the plaintiff posed a high risk.

The reasons for the examiner's disagreement with Dr. Plaud's conclusion were adequately documented in her decision. The examiner considered the plaintiff's “repetitive and compulsive offending over 16 years involving multiple young boys (some of whom were prepubescent) as well as his history of committing contact and non-contact offenses.” The examiner also explained that the instruments used by Dr. Plaud in evaluating the plaintiff's risk of reoffense “d[id] not take into account all of the factors considered by the [b]oard, and d[id] not address the [b]oard's collateral inquiry of dangerousness.” Doe was entitled to careful consideration of his expert's testimony, but not that it would be wholly adopted. Doe, No. 23656, 483 Mass. at 137. Mindful that we are to “give due weight to [the examiner's] experience, technical competence, and specialized knowledge,” G. L. c. 30A, § 14 (7), we discern no abuse of her discretion.^{4  5}

2. Privileged information. The plaintiff claims that the hearing examiner improperly considered and credited privileged information he disclosed during treatment. He first argues that the examiner should not have considered his admissions of sexual misconduct made during his 2012 deposition testimony. He asserts that the admissions are the product of statements he made during treatment and therefore are protected by the psychotherapist-patient privilege. We disagree.

The psychotherapist-patient privilege prevents a psychotherapist from disclosing communications made by a patient in connection to the diagnosis or treatment of the patient's mental condition. G. L. c. 233, § 20B. However, here, the plaintiff's sex offender treatment provider did not disclose statements made by the plaintiff during treatment. Rather, the plaintiff volunteered his sex offense history during the 2012 deposition. In these circumstances, the examiner's consideration of the plaintiff's admissions did not violate the privilege.

Nor are we persuaded by the plaintiff's claim that the psychotherapist-patient privilege protected the statements he made to Dr. Plaud during his evaluation. The record indicates, and the plaintiff does not dispute, that prior to evaluating the plaintiff, Dr. Plaud gave the plaintiff the so-called “Lamb warnings.” See Commonwealth v. Lamb, 365 Mass. 265, 270 (1974). Specifically, Dr. Plaud informed the plaintiff of the purpose of the evaluation, that any confidential information given by the plaintiff could be included in Dr. Plaud's report, that the information could be given to either a court or the board, and that the plaintiff's participation in the evaluation was “entirely voluntary.” Thereafter, the plaintiff knowingly and intelligently waived the psychotherapist-patient privilege and agreed to speak with Dr. Plaud.

3. Sufficiency of the evidence. Doe claims that the level three classification was arbitrary, capricious, and unsupported by substantial evidence, and that the board failed to meet its burden of proof by clear and convincing evidence. We are not persuaded. Doe does not dispute that he was diagnosed with pedophilia (high-risk factor 1); that he engaged in sexual misconduct with sixty-six boys on over 300 occasions during a sixteen-year period (high-risk factor 2); that he engaged in sexual misconduct with child victims (high-risk factor 3); that the relationships between the plaintiff and the victims were extrafamilial (risk-elevating factor 7); that the governing offenses were committed by a male offender against male victims (risk-elevating factor 17); that the level of physical contact involved oral, anal, and digital penetration (risk-elevating factor 19); that he engaged in a broad range of sexually deviant conduct with the victims (risk-elevating factor 20); and that he sexually assaulted sixty-six prepubescent and pubescent boys (risk-elevating factor 22). See 803 Code Mass. Regs. § 1.33 (2016). All of these high-risk and risk elevating factors were properly applied.

Nor does Doe contest the examiner's application of the risk-mitigating factors for the plaintiff's offense-free time in the community (risk-mitigating factor 29); advanced age (risk-mitigating factor 30);⁶ his completion of sex offender treatment (risk-mitigating factor 32); his home situation and support system (risk-mitigating factor 33); and his stability in the community (risk-mitigating factor 34). Doe claims error only in the minimal consideration given to Dr. Plaud's opinion regarding the plaintiff's risk of reoffense (risk-mitigating factor 35).

“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’ ” (alteration in original). Doe, No. 68549, 470 Mass. at 109-110, quoting G. L. c. 30A, § 14 (7). “Accordingly, [o]ur review does not turn on whether, faced with the same set of facts, we would have drawn the same conclusion as [the hearing examiner], but only whether a contrary conclusion is not merely a possible but a necessary inference” (first alteration in original) (quotations and citations omitted). Id. at 110.

Mindful of these principles, we discern no error in the hearing examiner's conclusion that the board met its burden of proof by clear and convincing evidence. The hearing examiner ultimately determined that “the high-risk and risk elevating factors in this case outweigh the mitigating factors.” She properly exercised her discretion in considering which regulatory factors were applicable and how much weight to give each of them, Doe, No. 68549, supra, and she provided a detailed, well-reasoned explanation of her application of the regulations. In short, we agree with the Superior Court judge's conclusion that “the hearing examiner's selection of factors to weigh most heavily in this case (coupled with other in-depth analysis of individual factors elsewhere in the decision) faces the troublesome facts and satisfies legal requirements.” See Adoption of Stuart, 39 Mass. App. Ct. 380, 382 (1995) (clear and convincing standard requires that troublesome facts be faced rather than ignored).

Judgment affirmed.

FOOTNOTES

2.   A classification hearing was first held in 2016. Doe sought judicial review of the hearing examiner's classification and a Superior Court judge remanded the case to the board, concluding that the hearing examiner erred in denying the plaintiff's motion for expert funds. That issue is not before us in this appeal.

3.   In 2012, prior to Doe's release from prison, Federal authorities petitioned to have him committed as a sexually dangerous person.

4.   Although the Superior Court judge affirmed Doe's level three classification, in dicta he expressed concern that the hearing examiner was empowered to weigh conflicting risk and mitigation factors without the support of expert testimony. We note that in Doe, No. 23656, which was decided after the judge rendered his opinion in this case, the Supreme Judicial Court reaffirmed that Doe was only entitled to careful consideration of his expert's testimony. Doe, No. 23656, 483 Mass. at 137. The record reflects that the hearing examiner carefully considered the testimony of Doe's expert.

5.   In light of our conclusion, we need not resolve the board's contention that Dr. Plaud erred in his application and scoring of Doe in the Static-99R and SVR-20 actuarial tests.

6.   At the time of the classification hearing, the plaintiff was fifty-nine years old.