DOE 3142 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 classification by the Sex Offender Registry Board (SORB) as a level three sex offender. Doe claims that the hearing examiner's decision was not supported by substantial evidence, and that the evidence failed to establish that Internet dissemination serves a public safety interest. We affirm.

Background. 1. Governing offenses. On January 31, 1983, Doe pleaded guilty to two counts of rape and abuse of a child. Doe admitted to having sexual intercourse when he was nineteen years old with a fourteen year old female (victim one) on two occasions. The first occasion occurred in his apartment and he believed that the victim was sixteen years old. The second occasion occurred in the woods near a sand and gravel company, and Doe admitted that, at that time, he was aware that the victim was fourteen years old.

On September 18, 2002, following a jury trial, Doe was convicted of rape of a thirty-two year old woman (victim two) who resided in his rooming house. Doe, who was thirty-nine years old at the time, asked victim two to perform oral sex, and when she declined, he slapped her, forced her to remove her clothing, shoved his penis into her mouth, and vaginally and anally raped her. She suffered extreme trauma to the vaginal and rectal area and required sutures. Doe was sentenced to fifteen to twenty years of incarceration and lifetime parole supervision.²

2. Hearing examiner's decision. The examiner held a hearing pursuant to G. L. c. 6, § 178L, and applied the regulatory risk factors as promulgated in 803 Code Mass. Regs. § 1.33 (2016). He concluded that Doe must register as a level three sex offender.

a. High-risk factors. The hearing examiner found two of the six high-risk factors applicable to Doe. He gave the most weight to factor 2 (repetitive and compulsive behavior) and limited weight to factor 3 (adult offender with a child victim).

b. Risk-elevating factors. The hearing examiner next considered the applicable risk-elevating factors. He applied factor 7 (relationship between the offender and victim) because both victims were extrafamilial, factor 22 (number of victims) because there were two victims, and factor 21 (diverse victim type) because there were a child and an adult victim.

The examiner applied factor 19 (level of physical contact) with increased weight because both offenses involved penile penetration. He applied factor 8 (weapons, violence, or infliction of bodily injury) and factor 9 (alcohol and substance abuse) because of the violent nature of the offense against victim two, which occurred while abusing substances. He also applied factor 16 (public place) because one of the offenses against victim one occurred in the woods near a sand and gravel company.

The hearing examiner applied factor 24 (less than satisfactory participation in sex offender treatment) because, while in sex offender treatment, Doe was discovered to be in possession of drawings depicting sexually violent acts and was suspended several times.³ The examiner applied factor 10 (contact with criminal justice system) because Doe had a lengthy criminal history spanning over multiple decades. The examiner applied moderate weight to factor 12 (behavior while incarcerated or civilly committed) because Doe had nine infractions while incarcerated, but most of them were minor offenses. Finally, the hearing examiner applied factor 13 (noncompliance with community supervision) because Doe had been charged with violating his probation six times, and two of these times were while he was on probation for the offenses against victim one.

c. Risk-mitigating factors. The hearing examiner next considered the risk-mitigating factors. He gave moderate weight to factor 30 (advanced age) because Doe was fifty-six years old at the time of the hearing, and had not yet reached the age of sixty. The hearing examiner gave full mitigating weight to factor 33 (home situation and support system) because Doe submitted letters from a priest and a member of the Boston release network who both agreed to provide financial assistance and support to Doe upon his release.

d. Additional factors. The hearing examiner considered additional factors 34 (psychological or psychiatric profiles regarding risk to reoffend) and 37 (other useful information related to the nature of the sexual behavior). He gave some weight to the test results from Doe's mental health therapy in prison, but he did not give much weight to articles submitted by Doe on recidivism and failure to register.

Discussion. 1. Substantial evidence. Doe contends that the hearing examiner improperly applied the regulatory factors, and as a result, his level three classification was not supported by substantial evidence. “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). “Substantial evidence” is “such evidence as a reasonable mind might accept as adequate to support a conclusion.” G. L. c. 30A, § 1 (6).

Our review of the Superior Court judge's decision is de novo, but our review of the underlying agency decision is more limited. See Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 88-89 (2019) (Doe No. 523391). The court must “give due weight to [SORB's] experience, technical competence, and specialized knowledge ․ as well as to the discretionary authority conferred upon it.” Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 109 (2014) (Doe No. 68549), quoting G. L. c. 30A, § 14 (7). SORB's guidelines “must be accorded all the deference due to a statute.” Id., quoting Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594, 602 (2013). While the classification decision must be supported by clear and convincing evidence, “subsidiary facts need be proved only by a preponderance of the evidence.” Doe No. 523391, supra at 86. “It is within the province of the hearing officer to assess the reliability of such evidence and to draw all reasonable inferences.” Id. at 88.

Doe claims that the hearing examiner improperly applied regulatory factor 21 (diverse victim type) because he was close in age to each of the victims. He argues that because he was nineteen when he committed the first offense against a fourteen year old, and thirty-nine when he committed the second offense against a thirty-two year old, the hearing examiner should not have applied this factor or should have given it less weight. However, this factor does not take into account the offender's age.⁴ Rather, the factor simply states that “[o]ffenders whose acts of sexual misconduct traverse victim types, such as multiple ages ․ present a greater risk of reoffense and danger to public safety because they have a broader victim pool.” 803 Code Mass. Regs. § 1.33(21)(a) (2016). Because Doe committed sexual offenses against both a juvenile and an adult, it was not improper for the hearing examiner to apply this factor.

Doe next contends that the hearing examiner should not have applied factor 16 (public place) because he attempted to conceal his conduct by going into the woods. The regulation states, “[t]he commission of a sex offense or engaging in sexual misconduct in a place where detection is likely reflects the offender's lack of impulse control.” 803 Code Mass. Regs. § 1.33(16)(a) (2016). For purposes of factor 16, a “ ‘public place’ includes any area maintained for or used by the public and any place that is open to the scrutiny of others or where there is no expectation of privacy.” 803 Code Mass. Regs. § 1.33(16)(a) (2016). Doe engaged in sexual conduct with victim one in the woods near a sand and gravel company. The woods is a location that is open to the public and subject to the scrutiny of others, and this is especially true when located near a business. It was not an abuse of the examiner's discretion to determine that Doe engaged in sexual misconduct in a public place.

Doe also argues that the hearing examiner misapplied factor 37 (other information related to the nature of the sexual behavior) because the examiner did not give weight to the two articles that he submitted. This factor allows the examiner to “consider any information that it deems useful in determining risk of reoffense and degree of dangerousness posed by any offender.” 803 Code Mass. Regs. § 1.33(37)(a) (2016). The first article submitted addressed recidivism rates and many of its conclusions were already incorporated in the regulatory factors. The second article discussed the rate of recidivism among sex offenders who fail to register after release from prison. It is within the discretion of the hearing examiner to consider how much weight to ascribe to each factor. Doe No. 68549, 470 Mass. at 109-110. A hearing examiner need not consider evidence that is “irrelevant, unreliable, and repetitive.” 803 Code Mass. Regs. § 1.18(1). The hearing examiner did not give much weight to the articles, but considered them to the extent that they were consistent with the regulatory factors. This was a proper exercise of his discretion.

Contrary to Doe's claims, his level three classification was supported by substantial evidence. A level three classification should be given “[w]here the board determines that the risk of reoffense is high and the degree of dangerousness posed to the public is such that a substantial public safety interest is served by active dissemination.” G. L. c. 6, § 178K (2) (c).

Here, the hearing examiner properly applied each of the relevant high-risk, risk-elevating, and risk-mitigating factors. The examiner took into account the extreme violence employed in the most recent offense, that it was carried out using substances, and occurred after Doe had already been convicted of sexual offenses. While he considered that Doe was sober at the time of the hearing, the examiner noted Doe's lengthy history of substance abuse and that his sobriety remained untested outside of incarceration. Finally, the hearing examiner considered Doe's extensive criminal history, his numerous violations of probation, and his suspensions from sex offender treatment. The examiner recognized the presence of risk-mitigating factors, but nevertheless determined that Doe presented a high risk of reoffense and posed a high degree of dangerousness to the public. We conclude that there was substantial evidence to support this determination.

2. Internet dissemination. The hearing examiner did not expressly address whether public safety is served by Internet dissemination of Doe's sex offender registry information. The decision was issued prior to the Supreme Judicial Court's decision in Doe No. 496501, 482 Mass. at 655-658. In that case, the Supreme Judicial Court held that, prospectively, the hearing examiner must explicitly determine by clear and convincing evidence that a public safety interest is served by Internet publication of the sex offender's registration. Id. at 656. However, the court has since noted that where “the underlying facts of the case ․ so clearly dictate the appropriate classification level,” a remand is not required. Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 145 (2019) (Doe No. 23656), quoting Doe No. 496501, supra at 657 n.4.

Here, because we conclude that the facts of the case so clearly support a level three classification, a remand is not warranted. Doe, undeterred by his first conviction, offended again, the second time employing a great deal of violence. Further, Doe's failure to adequately participate in sex offender treatment, his lengthy criminal record, and his history of violating probation all indicate that Doe is unable or unwilling to conform his conduct to the requirements of the law. Dissemination of Doe's sex offender registration information would allow the public to take precautions to avoid encountering Doe in situations where members of the public are vulnerable. See Doe No. 23656, 483 Mass. at 145-146.

Judgment affirmed.

FOOTNOTES

2.   The lifetime parole supervision portion of his sentence was subsequently vacated.

3.   Doe ultimately withdrew from sex offender treatment on May 5, 2017, and was subsequently suspended from treatment until May 2022.

4.   High-risk factor 3 addresses the age of the offender in relation to the age of the victim. The hearing examiner gave this factor limited weight because there was only a five year age difference between Doe and victim one, and there was evidence of consensual, although statutorily criminal, conduct.