DOE 213490 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. He contends that the hearing examiner's decision was not supported by substantial evidence and Internet dissemination is not warranted. We affirm.

1. Background. In May 2008, Doe pleaded guilty in Franklin Superior Court to four counts of rape and abuse of a child and five counts of indecent assault and battery on a child under the age of fourteen. In June 2008, he pleaded guilty in Worcester Superior Court to four counts of rape and abuse of a child and six counts of indecent assault and battery on a child under the age of fourteen. Doe was sentenced to State prison, followed by ten years of probation. Doe was released from prison in February 2015.

The convictions stem from a series of sexual assaults on a young boy, who was a family friend. In 2007, the victim, who had “limited cognitive abilities,” disclosed that Doe sexually assaulted him multiple times between September 2005 and December 2006, when he was aged twelve or thirteen. He disclosed that during overnight visits, Doe and the victim touched each other's penises, over and under their clothing, masturbated one another, and performed oral sex on each other. When questioned by the police, Doe admitted to mutual masturbation and oral sex between him and the victim.

Many decades prior, in September 1961, Doe pleaded guilty to one count of rape and abuse of a child in the Worcester Superior Court. The victim was a fourteen year old girl who knew Doe. He was sentenced to two years of probation.

2. Hearing examiner's decision. The examiner considered both risk aggravating and risk mitigating factors in concluding that Doe posed a high risk to reoffend such that he be required to register as a level three sex offender.

a. High risk factors. The examiner determined that two of the six statutory high risk factors applied to Doe. She gave full aggravating weight to factor 2 (repetitive and compulsive behavior) because Doe engaged in repeated sexual misconduct with the male victim after having been convicted of sexual assault against the female victim in 1961. The examiner also found that factor 3 (adult offender with child victim) applied to Doe. She gave this factor full aggravating weight because the male victim was twelve years of age when the sexual assaults began.

b. Risk elevating factors. The examiner next considered risk elevating factors. She gave factor 7 (relationship between offender and victim) aggravating weight because both victims were extrafamilial. The examiner applied factor 17 (male offender against male victim) and gave it full aggravating weight because Doe's most recent victim was a young male. She gave full aggravating weight to factor 18 (extra vulnerable victim) because the male victim had “limited cognitive abilities.” The examiner also gave full aggravating weight to factor 19 (level of physical contact) because the sexual assaults of the male victim involved oral penetration. Given that Doe offended against both a fourteen year old girl and a twelve year old boy, the examiner also gave full aggravating weight to factor 21 (diverse victim type).²

c. Risk mitigating factors. The examiner next considered risk mitigating factors. She gave full mitigating weight to factor 28 (supervision by probation or parole). Doe is on probation until 2025 and has remained offense free since his release in 2015. The examiner gave tempered mitigating weight to factor 30 (advanced age). At the time of the hearing, Doe was seventy-six years of age. The examiner tempered factor 30's mitigating effect because Doe was sixty-four years of age when he sexually assaulted the male victim, demonstrating evidence of both an active sex drive and continued criminality. The examiner also gave tempered mitigating weight to factor 32 (sex offender treatment) and factor 33 (home situation and support systems).

Doe submitted a number of articles to the examiner regarding advanced age as a mitigating factor, sex offender recidivism, and incest offenders. The examiner considered these submissions pursuant to factor 37, but gave them limited consideration. As to advanced age, the examiner concluded that the SORB regulations already take into consideration advanced age, and that the article concerning recidivism had been considered in updating the regulations. Given that Doe's victims were extrafamilial, the articles Doe submitted regarding incest offenders were not applicable. The examiner also considered Doe's letter to SORB wherein he took full responsibility for his actions, but the examiner noted that in 2014, Doe told prison staff that the sexual assaults on the male victim were consensual.

Doe hired Dr. Joseph J. Plaud as an expert witness. Dr. Plaud opined that Doe was at a low risk to reoffend because of his age and that a level one classification was appropriate. The examiner weighed Dr. Plaud's testimony, but discounted his ultimate risk opinion. In so doing, the examiner concluded that the high risk and risk elevating factors outweighed the mitigating factors, resulting in a level three classification.

3. Discussion. a. Substantial evidence. “An agency decision should be set aside only if a court determines that the 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 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 88 (2019) (Doe No. 523391), quoting Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 76 (2015) (Doe No. 356011). We “give due weight to the experiences, technical competence, and specialized knowledge of the agency.” Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 649 (2019) (Doe No. 496501), quoting Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594, 602 (2013). The classification decision must be supported by clear and convincing evidence; however, “subsidiary facts need be proved only by a preponderance of the evidence.” Doe No. 523391, supra at 86. The underlying evidence must bear “sufficient indicia of reliability,” such that “ ‘it was reasonable for the examiner to admit and credit the facts’ described in the [challenged] evidence.” Id. at 89, quoting Doe No. 356011, supra at 76.

Doe contends that the examiner's decision is not supported by substantial evidence. Indeed, Doe does not argue that the examiner considered the wrong factors. Instead, Doe contends that the examiner erred in the weight she assigned to the relevant factors in making her ultimate conclusion. However, “a hearing examiner has discretion ․ to consider which statutory and regulatory factors are applicable and how much weight to ascribe to each factor.” Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 109-110 (2014) (Doe No. 68549). “[A] reviewing court is required to ‘give due weight to [the examiner's] experience, technical competence, and specialized knowledge.” Id. at 110, quoting G. L. c. 30A, § 14 (7).

Doe's argument as to the examiner's treatment of Dr. Plaud's testimony overlooks the fact that she considered and weighed his testimony, before ultimately discounting his opinion. See Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 136-138 (2019) (Doe No. 23656). Like Dr. Plaud, the examiner considered Doe's age, his support in the community, current status on probation, and sex offender treatment as risk mitigating factors, but she disagreed with his ultimate conclusion. Indeed, “Doe is not entitled to a guarantee that SORB will reach the same conclusion as his expert; he is entitled only to careful consideration of his expert's testimony.” Id. at 137. That is precisely what happened here. Moreover, “[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.” Doe No. 68549, 470 Mass. at 112, quoting Doe, Sex Offender Registry Bd., No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 637 (2011).

Doe's further assertion that the examiner did not adequately explain her reason for rejecting Dr. Plaud's conclusion is unconvincing, because it is belied by the record. See Doe No. 23656, 483 Mass. at 136 (“Unlike the fact finder at trial, a hearing examiner is not ‘free to accept or reject all or part of the expert testimony[;]’ [r]ather, an agency must ‘explain[ ] on the record its reasons for rejecting portions of [an expert's] testimony’ ” [citations omitted] ).

b. Internet dissemination. Doe argues that his registration information should not be subject to Internet publication. Prior to his classification hearing, the Supreme Judicial Court decided Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643 (2019) (Doe No. 496501), and held that in addition to determining a petitioner's risk of reoffense and degree of dangerousness, “[a] third and distinct determination is required by SORB regulations: ‘whether and to what degree public access to the offender's personal and sex offender information ․ is in the interest of public safety.’ ” Id. at 654, quoting 803 Code Mass. Regs. § 1.20(2). This third prong must be evaluated “ ‘in consideration’ of the offender's risk of reoffense and dangerousness.”³ Doe No. 496501, supra at 655, quoting 803 Code Mass. Regs. § 1.20(2). The Supreme Judicial Court explained that this new requirement is to be applied prospectively only, but, if a case currently is pending on appeal, the appellate court has discretion to remand the classification. See Doe No. 496501, supra at 657.

Here Doe, then aged twenty, sexually assaulted a fourteen year old female. Decades later, at age sixty-four, Doe, over the course of a year, repeatedly sexually assaulted a young boy with cognitive limitations. Both victims were extrafamilial. The serial assaults on the male victim involved a high degree of physical contact at a time when, based on Doe's age, his risk to reoffend and his dangerousness should have lessened. Internet dissemination will allow the public to take precautions to avoid encountering Doe in situations where members of the public are vulnerable to a sexual offense. See Doe No. 23656, 483 Mass. at 145-146. And, to the extent we have discretion to remand this case for further findings in light of Doe No. 496501, we would not do so in the circumstances presented here. See Doe No. 496501, 482 Mass. at 657-658 & n.4.

Judgment affirmed.

FOOTNOTES

2.   The examiner gave no weight to factor 10 (contact with the criminal justice system) because other than the sex offenses discussed above, Doe had a limited criminal history.

3.   Further, the Supreme Judicial Court clarified that in sex offender classification cases, each element of the ultimate classification requires a separate finding, and each must be established by clear and convincing evidence. See Doe No. 496501, 482 Mass. at 655-656.