DOE 151564 v. SEX OFFENDER REGISTRY BOARD (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe, appeals from a Superior Court judgment affirming his final classification by the Sex Offender Registry Board (SORB) as a level one sex offender and the denial of his motion for relief from registration. Concluding that substantial evidence supported the examiner's finding that Doe poses a low risk of reoffense, we affirm.

1. 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), citing G. L. c. 30A, § 14 (7). “We ‘give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it.’ ” Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 88 (2019), quoting Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 76 (2015).

2. Relief from registration. “[I]n limited circumstances, certain sex offenders may be relieved of the obligation to register, either by the sentencing judge or by [SORB].” Doe, Sex Offender Registry Bd. No. 3839 v. Sex Offender Registry Bd., 472 Mass. 492, 495 n.2 (2015). SORB may grant relief from registration “upon making specific written findings that the circumstances of the offense in conjunction with the offender's criminal history do not indicate a risk of reoffense or a danger to the public and the reasons therefor.” G. L. c. 6, § 178K (2) (d). The offender has “the burden to prove by clear and convincing evidence that he or she is eligible for relief and that the circumstances of the sex offender's offense in conjunction with the offender's criminal history do not indicate a risk of reoffense or a danger to the public.” 803 Code Mass. Regs. § 1.29(6)(b) (2016).²

Here, the examiner found by clear and convincing evidence that Doe “presents a low risk to re-offend sexually.” We conclude that substantial evidence supported this determination. See Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 632 (2011), quoting G. L. c. 30A, § 1 (6) (“Substantial evidence is ‘such evidence as a reasonable mind might accept as adequate to support a conclusion’ ”). Doe repeatedly raped a six year old girl who was friends with his granddaughter. He “rubbed her vagina with his fingers, and fondled her breasts and buttocks.” He “took her from her bed during the night into his bed.” “He touched her vagina and on two occasions, put her hand on his penis, ejaculating into her hand once.” He threatened to harm her baby sister if she disclosed the abuse. Although he did this almost seventeen years before the classification decision, has been offense-free since, has a strong support system, is elderly, and faces some medical challenges (though none that would make reoffense impossible), it is hard to see how the conclusion that Doe poses some low risk of reoffense or danger to society is not supported by substantial evidence.

In any event, Doe's own expert testified that he would not consider that Doe posed “no risk to offend.”³ Indeed, the examiner explicitly agreed with the expert's conclusion that Doe presents a low risk of offense. The examiner's conclusion that Doe presented a low risk of reoffense was supported by substantial evidence.

3. Level one classification. Doe purports to challenge his classification as a level one sex offender. In the absence of relief from registration, however, there is no lower classification possible. In any event, for the reasons explained supra, the examiner's conclusion that Doe poses a low risk to reoffend was supported by substantial evidence. Doe's own expert's testimony supported this conclusion, and the examiner's application of the regulatory factors was well supported by the evidence.

Judgment affirmed.

FOOTNOTES

2.   By statute, a person convicted of a “sexually violent offense” is ineligible for relief from registration. G. L. c. 6, § 178K (2) (d). See Commonwealth v. Dalton, 467 Mass. 555, 558 (2014). As SORB does not rely on this ineligibility before us, and did not rely on it before the Superior Court, we assume without deciding that Doe is eligible for relief from registration.

3.   It is worth mentioning that Doe was challenging a recommendation of a level three classification, and that SORB objected to the examiner's consideration of the expert's testimony.