DOE 28963 v. SEX OFFENDER REGISTRY BOARD (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a hearing in 2017, the defendant Sex Offender Registry Board (SORB) classified Doe, then aged sixty-eight, as a moderate risk, or level two, sex offender. Doe committed his sex offenses thirty years ago, in 1990; he thereafter was convicted and served twenty-three years in prison, and he was released in 2015. On appeal Doe argues that (1) the hearing examiner erroneously applied factor twenty-four (failure to participate in sex offender treatment), (2) the hearing examiner's application of factor two (repetitive and compulsive behavior) was not based on clear and convincing evidence, and (3) the hearing examiner's finding that Doe presents as a level two offender is unsupported by substantial evidence, and that the hearing examiner failed to make certain necessary findings. We conclude that substantial evidence supports the hearing examiner's decision, except that we remand so that a hearing examiner can make more specific findings as to whether or not Internet publication is appropriate in Doe's case.

Background. In 1991 Doe was found guilty, after a jury trial, on two counts of rape and abuse of a child, G. L. c. 265, § 23, and two counts of indecent assault and battery on a child under the age of fourteen, G. L. c. 265, § 13B.² The charges against Doe arose from allegations made by Doe's five year old niece (victim). As reflected in a police report, one of the victim's preschool teachers noticed that she was “acting out with [inappropriate] sexual advances towards other students.” The teacher asked the victim why “she was doing these things” and the victim responded to the effect that Doe was molesting her. The teacher notified the victim's mother and a worker with the Department of Social Services (DSS); DSS in turn notified the police; a detective interviewed the victim, in the presence of her mother and a DSS employee, that same day.

As set forth in the detective's report, the victim stated that in mid-April 1990, about two months earlier, she and her mother had moved in to live with Doe. Shortly after moving in Doe began sexually abusing the victim “almost every day,” “in all the rooms of the house,” and “always when her mother was in [another] room and [Doe] was alone with her in a different room.” Doe would “most often” “tickle her” -- an act the victim demonstrated on a doll by “rubb[ing] the top portion of the [doll's] vagina with her finger ․ the [clitoral] area of the vagina.” Doe also would “use his hands and fingers on her [vagina] and would sometimes put a broom handle inside her [vagina] and sometimes put pebbles in her” rectum.³ Doe also “rubbed his penis on her back and once on her vagina but ․ he didn't put it into her [vagina] or her” rectum. Doe warned the victim “not to tell anyone about what was happening.”

Doe, as he continues to do, denied the victim's allegations but he was charged, found guilty by a jury, and served twenty-three years in prison. In April 2013, anticipating Doe's eventual January 2015 release date, SORB notified Doe of his obligation to register as a high risk, or level three, sex offender. After an administrative hearing in 2014, a hearing examiner classified Doe as a moderate risk offender. While that decision was under review the Supreme Judicial Court decided Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297 (2015) (Doe No. 380316), clarifying that “sex offender risk classifications must be established by clear and convincing evidence.” Id. at 314. Doe then had a second de novo hearing, which took place in September 2017.

The 2017 hearing again resulted in a moderate risk level two classification. The hearing examiner applied several factors specified in 803 Code Mass. Regs. § 1.33 (2016), including two “high risk” factors,⁴ four “risk elevating” factors,⁵ and three “risk mitigating” factors.⁶ The hearing examiner also considered expert evidence submitted by Doe, in the form of Dr. Leonard Bard's testimony and report, in which Dr. Bard concluded that Doe “should be considered a Level 1 or low risk offender at the present time” (emphasis omitted). Balancing these several considerations, the hearing examiner summarized that he was “well aware that [Doe's] convictions for committing sexual offenses were [twenty-six] years ago.” He further stated:

“However, I must consider that [Doe] has had limited opportunity around children in those years, given his lengthy sentence, and that he has been in the community for less than three years.

“By the clear and convincing evidence standard, I find that [Doe] presents a moderate risk of reoffense and a degree of dangerousness to the children such that public safety does require public access to his registry information.”

A Superior Court judge affirmed the hearing examiner's decision.

Discussion. The law and procedure applicable to SORB proceedings is discussed in depth in Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 645-646, 649 (2019) (Doe No. 496501). In general, a hearing examiner “has discretion ․ to consider which statutory and regulatory factors are applicable and how much weight to ascribe to each.” Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender Registry Bd., 96 Mass. App. Ct. 738, 742 (2019) (Doe No. 22188), quoting Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 109-110 (2014) (Doe No. 68549). Our review is limited to determining whether the hearing examiner's findings are “unsupported by substantial evidence or [are] 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 Doe No. 380316, 473 Mass. at 300. Substantial evidence is “such evidence as a reasonable mind might accept as adequate to support a conclusion.” G. L. c. 30A, § 1 (6).

1. Factor twenty-four. We reject Doe's argument, raised for the first time on appeal, that the hearing examiner misapplied factor twenty-four -- less than satisfactory participation in sex offender treatment. Doe relies upon the Supreme Judicial Court's recent decision in Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131 (2019) (Doe No. 23656), which held that if a sex offender declines to participate in sex offender treatment because he would first be required to waive the confidentiality of discussions with the therapist, a hearing examiner cannot, from that refusal, “infer an unwillingness to be treated.” Id. at 141. Doe now argues that the hearing examiner improperly applied factor twenty-four because prison rules purportedly required him to waive confidentiality before he could participate in sex offender treatment.

Passing the point that this argument was waived, see Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006); Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803, 814 (2006), Doe's reliance on Doe No. 23656 is misplaced. To begin, the record does not support Doe's assertion that he could obtain sex offender treatment while incarcerated only by waiving the confidentiality of his statements during treatment. Rather, the evidence before the hearing examiner was silent on the point, presumably because, as noted, Doe did not raise the issue. In any event, and unlike the offender in Doe No. 23656, Doe claimed below that he refused to participate in sex offender treatment not because he would be required to waive confidentiality, but because “he could not admit to an offense he did not commit.” The hearing examiner's negative inference, and resulting application of factor twenty-four as an aggravating consideration, was thus appropriate.

2. Factor two. Doe next challenges the hearing examiner's application of factor two (repetitive and compulsive behavior). He argues (1) that the evidence as to this factor was not clear and convincing, and (2) that the hearing examiner did not separately find that Doe's offending behavior was compulsive. Factor two applies whenever an offender “engages in two or more separate episodes of sexual misconduct” if the offender has had “time or opportunity, between the episodes, ․ to reflect on the wrongfulness of his conduct.” 803 Code Mass. Regs. § 1.33(2)(a). In this case the hearing examiner found that Doe “sexually assaulted the [v]ictim multiple times between April and June 1990.”

The hearing examiner's findings were amply supported by the evidence, which included that Doe was convicted on four distinct charged counts, two for rape and abuse of a child and two for indecent assault and battery of a child. The victim also stated, as set forth in the police report,⁷ in effect that Doe sexually assaulted her on a daily or near daily basis over a roughly two-month period. These facts supported the conclusion that Doe's offending acts were repetitive. See Doe, Sex Offender Registry Bd. No. 3839 v. Sex Offender Registry Bd., 472 Mass. 492, 500-501 (2015), quoting Doe No. 68549, 470 Mass at 110 (“review of a hearing examiner's decision does not turn on whether, faced with the same set of facts, we would have drawn the same conclusion, ․ but only ‘whether a contrary conclusion is not merely a possible but a necessary inference’ ”).

Substantial evidence also supports the conclusion that Doe's behavior was compulsive. Once again, that inference is supported by not one or even a few offending episodes, see Doe No. 22188, 96 Mass. App. Ct. at 739, but by the evidence that Doe sexually offended on a daily or near daily basis over an extended period. Moreover, as noted, the hearing examiner found that Doe warned the victim not to tell anyone what was going on, from which the hearing examiner properly could infer that Doe had the time and the opportunity to reflect on the wrongfulness of his conduct, and in fact knew that his repeated offending behavior was wrongful. Finally, in light of Doe's knowledge and opportunity for reflection, the hearing examiner could infer that Doe was unable or unwilling to refrain from, moderate, or control his wrongful behavior until police intervened. The record thus more than sufficiently supports the inference that Doe's offending behavior was “compulsive” in the ordinarily understood sense of that term. See Webster's Third New International Dictionary 468 (2002) (“compulsion,” “2: an irresistible impulse to perform an irrational act”). See also Doe, Sex Offender Registry Bd. No. 1211 v. Sex Offender Registry Bd., 447 Mass. 750, 752-753, 763-764 & n.10 (2006) (hearing examiner properly could conclude that offender's conduct was repetitious and compulsive where offender committed two distinct episodes of indecent assault and battery on single eight year old victim).

3. Moderate risk, degree of dangerousness, and Internet publication findings. Doe next argues that the classification decision must be vacated because the record does not support findings that he presently presents a moderate risk of reoffense, a moderate degree of dangerousness, or that “public safety ․ require[s] public access to [Doe's] registry information.” See Doe No. 496501, 482 Mass. at 650. To the contrary, we are satisfied, giving “due weight” to SORB's “experience, technical competence, and specialized knowledge” (citation and quotation omitted), id. at 649, that the hearing examiner's findings with respect to risk of reoffense and degree of dangerousness are well supported. As noted, substantial record evidence supports that Doe raped and otherwise sexually abused his five year old niece on a daily or near daily basis. It is true that the offenses occurred many years ago, but Doe was incarcerated for all but a relatively short period preceding his 2017 hearing. Doe refused to participate in available sex offender therapy while incarcerated. Moreover, Doe does not now appear to enjoy significant postrelease familial or other social support, such as might help to inhibit future offending. See and compare Doe No. 23656, 483 Mass. at 142-145.

The record is less clear, however, “that a public safety interest is served by Internet publication of [Doe's] registry information.” Doe No. 496501, 482 Mass. at 656. To reach that conclusion the hearing examiner must consider “not only ․ the probability of reoffense and the danger posed by that potential reoffense, but also ․ the efficacy of online publication in protecting the public from being victimized by the offender.” Id. at 654. The recent decision in Doe No. 496501 teaches that the hearing examiner's findings must be both explicit and particularized. See id. at 656. Simple recitation that the issue was considered does not suffice. Cf. Prenaveau v. Prenaveau, 75 Mass. App. Ct. 131, 148, 149 (2009) (“a boilerplate recitation” that judge addressed all statutorily mandated considerations “does not provide an adequate explanation for the particular path that the judge chose”).

Since Doe's 2017 SORB hearing predates Doe No. 496501, it is not surprising that the hearing examiner did not make specific findings regarding the need for Internet publication. Compare Doe, Sex Offender Registry Bd. No. 524553 v. Sex Offender Registry Bd., 98 Mass. App. Ct. 525, 527-529 (2020) (Doe No. 524553). Nonetheless, we need not remand for additional findings if the “underlying facts of the case ․ so clearly dictate the appropriate classification level that [we] may determine that a remand for explicit findings is not necessary.” Doe No. 496501, 482 Mass. at 657 n.4.⁸ SORB urges that this is the case here -- that the record before us compellingly demonstrates that Internet dissemination is required.

We are not persuaded that this result was “clearly dictate[d]” here. Doe No. 496501, 482 Mass. at 657 n.4. Beyond stating that Internet publication was required to protect “children,” the hearing examiner does not appear to have considered “what type of sexual crime the offender would likely commit if he or she were to reoffend. Pragmatically, because past is prologue, a hearing examiner would make this determination based on the sexual crime or crimes that the offender committed in the past.” Id. at 651. In this case, Doe's only sexual offenses were against a very young family member.

Given these circumstances, a remand is appropriate to address whether making Doe's registry information broadly available would serve to protect any potential victims. Doe is now over seventy years old and apparently no longer has sustained contact with family members. Even if the type of sexual crime Doe might commit could involve children generally, not limited to family members, is it not clear how Doe might encounter them. From the record it appears that Doe is unemployed and living on social security and a small disability pension, resides alone in what might be characterized as an adult male-only rooming house, and has few if any contacts in the larger community.

Whether Internet publication is warranted in this case is a question for the hearing examiner, and we express no opinion on it. Instead, we remand to SORB to “consider explicitly whether clear and convincing evidence proves that, to the extent Doe is likely to reoffend, a reoffense in the nature of his previous offenses could be prevented, or its risk substantially reduced, by Internet dissemination of Doe's sex offender registry information.” Doe No. 524553, 98 Mass. App. Ct. at 529.

4. Additional matters. Finally, we observe that the hearing examiner did not apply factor twenty-nine, providing, relevant here, that the “risk of reoffense ․ after [an offender has lived] in the community offense-free for five to ten years” is reduced. 803 Code Mass. Regs. § 1.33(29)(a). At the time of the 2017 hearing and as the hearing examiner observed, Doe had “been in the community for less than three years.” The hearing examiner may wish to consider factor twenty-nine's application on rehearing.

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

So ordered.

Vacated.

FOOTNOTES

2.   A Superior Court judge entered required findings of not guilty on an additional count of rape and abuse of a child and two additional counts of indecent assault and battery on a child under the age of fourteen. The jury also found Doe not guilty on an additional count of rape and abuse of a child.

3.   When describing Doe's acts the victim used the words “crotch” and “bumm” but identified those parts on a doll as the vagina and rectum, respectively.

4.   Factors two (repetitive and compulsive behavior, which hearing examiner “considered”), and three (adult offender with child victim, afforded “full aggravating weight”).

5.   Factors sixteen (offenses in public place, given only “minimal aggravating weight”), eighteen (extravulnerable victim, given “aggravating weight”), nineteen (high level of physical contact, given “aggravating weight”), and twenty-four (unsatisfactory participation in sex offender treatment, given “aggravating consideration”). The hearing examiner also reviewed Doe's behavior while and since incarcerated for the purposes of a factor twelve analysis but, ultimately, afforded this factor “no aggravating weight.”

6.   Factors thirty (Doe's age at time of hearing, in this case sixty-eight, afforded “full mitigating weight”), thirty-three (home situation and support systems, afforded “minimal weight”), and thirty-four (stability in community, given “mitigating consideration”)

7.   The hearing examiner reasonably determined that the police report bore sufficient indicia of reliability. Compare Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89-91 (2019). We note in particular that the report contained a detailed, plausible factual recitation and was corroborated by Doe's criminal convictions.

8.   Although this matter predates Doe No. 496501 because it was pending when Doe No. 496501 issued, we retain discretion to “order that the classification decision be remanded to the hearing examiner.” Doe No. 496501, 482 Mass. at 657.