DOE 356197 v. SEX OFFENDER REGISTRY BOARD (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe, Sex Offender Registry Board No. 356197 (Doe), appeals from a Superior Court judgment denying his motion for judgment on the pleadings and affirming his final classification by the Sex Offender Registry Board (SORB) as a level two sex offender. See G. L. c. 6, § 178K (2) (b). Doe contends that the hearing examiner improperly discounted his expert's opinion, and that it was error to apply factor nine (“Alcohol and Substance Abuse”), because the regulation does not apply to “time-limited experimentation during adolescence.” 803 Code Mass. Regs. § 1.33(9)(a) (2016). He further contends that Internet dissemination of the identities of juvenile sex offenders violates various constitutional protections under the United States Constitution and the Massachusetts Declaration of Rights. Finally, he maintains that the hearing examiner did not make an explicit finding that Internet dissemination was in the public interest. We affirm in part and reverse in part.

Background. We summarize the findings of the hearing examiner. On December 12, 2011, Doe pleaded guilty to two counts of rape and abuse of a child, G. L. c. 265, § 23, and three counts of indecent assault and battery on a child under the age of fourteen, G. L. c. 265, § 13B. Doe was between the ages of sixteen and seventeen at the time of the offenses. Doe's first victim was his brother's girlfriend's daughter, who was four years old. His second victim was his half-sister's daughter, who was eight years old when the offense occurred. At the time of the hearings before the SORB hearing examiner, Doe had been released from jail and was on probation.

Discussion. 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) (Doe No. 496501), citing G. L. c. 30A, § 14 (7). We “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), quoting G. L. c. 30A, § 14 (7).

2. Expert opinion. Doe contends that the hearing examiner improperly rejected the opinion of Doe's expert, Dr. Barbara Quinones, because she did not consider the same SORB factors utilized by the hearing examiner.

“Where offered by the individual, a hearing examiner must consider testimony ‘from a licensed mental health professional that discuss[es] psychological and psychiatric issues ․ as they relate to the offender's risk of reoffense.” Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 135 (2019) (Doe No. 23656), citing 803 Code Mass. Regs. § 1.33(35). “An expert need not examine every factor relevant to a fact finder's determination in order to provide helpful testimony.” Doe No. 23656, supra. “The 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, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 637 (2011). Nonetheless, “an agency must ‘explain[ ] on the record its reasons for rejecting portions of [an expert's] testimony.’ ” Doe No. 23656, supra at 136, quoting Police Dep't of Boston v. Kavaleski, 463 Mass. 680, 694 (2012).

Here, the examiner did not disregard Dr. Quinones's testimony and report; he reviewed her report with due care and attention to her observations and opinions. He concluded, however, that Dr. Quinones's conclusions were “only somewhat persuasive.” Doe focuses on a passage of the hearing examiner's decision that states, “Dr. Quinones's opinion appears shaped through analysis of risk factors identified in scientific research of ‘juvenile offenders’ and not based on the more comprehensive statutory factors applicable here (especially repetitive and compulsive sexual misconduct).”

Leaving aside the reference to repetitive and compulsive behavior,² this passage of the decision contains a broader “expla[nation] on the record [of his] reasons for rejecting portions of [Dr. Quinones's] testimony” (quotation and citation omitted). Doe No. 23656, 483 Mass. at 136. The hearing examiner explained that he found Dr. Quinones's testimony to be “only somewhat persuasive” because it “spoke to some, but not all, of the relevant considerations.” Id. at 137. The hearing examiner did not credit Dr. Quinones's opinion in all respects, stating, “In light of the fact that [Doe] sexually abused two extra-vulnerable prepubescent children for the duration of approximately 20 months, I conclude the doctor uncritically accepts [Doe's] assertion that he does not have a sexual interest in children.” However, he agreed with Dr. Quinones's conclusion that Doe posed a moderate risk of reoffense.³ Thus, the hearing examiner fully considered Dr. Quinones's expert testimony. There was no error in the hearing examiner's treatment of her opinion.

3. Factor nine. The hearing examiner gave “moderate weight” to factor nine because, as he stated, Doe's “history of alcohol abuse and consumption of alcohol during his offending periods played a significant role in the commission of the underlying offenses.” See 803 Code Mass. Regs. § 1.33(9) and (9)(c). See also G. L. c. 6, § 178K (1) (g). Doe contends that this was error because his alcohol “misuse was time-limited experimentation during adolescence,” which would render factor nine inapplicable.⁴ 803 Code Mass. Regs. § 1.33(9)(a).

Although Doe's use of alcohol appears to be limited to his adolescence,⁵ the hearing examiner permissibly found it rose above the level of mere “experimentation.” Dr. Quinones's expert report stated that Doe “admitted that he consumed alcohol excessively” during adolescence, and he “began drinking alcohol ([v]odka, [w]hisky) at the age of [thirteen] and eventually consumed on a daily basis beginning when he arrived home from school. He could not specify the amount of alcohol he consumed, but said that he often lost consciousness or blacked out ‘to forget the life’ he was living. This continued until his incarceration.”

Although “experimentation” is undefined in the regulations, its common meaning is “the act, process, or practice of making experiments”; experiments, in turn, is defined as “a test or trial.” Webster's Third New International Dictionary (2002). The hearing examiner permissibly found that Doe's six year history of daily alcohol use and regular blackouts went beyond the bounds of experimentation. The hearing examiner did not err in considering factor nine when deciding Doe's classification level.

4. Constitutionality of Internet dissemination as applied to juvenile offenders. Doe contends that Internet dissemination is punitive as applied to him, in violation of art. 1, § 9 (the ex post facto clause), and the Fifth Amendment (prohibition on double jeopardy) to the United States Constitution, as well as arts. 12 and 24 of the Massachusetts Declaration of Rights. Even if not considered punitive, Doe maintains that Internet dissemination violates the due process rights of juvenile offenders, who have a unique if not heightened interest in privacy. We decline to reach the issue at this time.

We begin by noting that many of Doe's arguments have been rejected in cases addressing the constitutionality of sex offender registration with respect to adults. For example, Doe maintains that the July 12, 2013 amendments to G. L. c. 6, § 178D, see St. 2013, c. 38, § 7, requiring Internet dissemination of level two offenders is an ex post facto law because he was convicted in 2011, even though he was not finally classified as a level two sex offender until October 18, 2017. In cases involving adults, classification occurring after July 12, 2013, is not a retroactive ex post facto law. See Doe No. 23656, 483 Mass. at 147 n.22; Moe v. Sex Offender Registry Bd., 467 Mass. 598, 616 (2014). The Supreme Judicial Court has extended this holding to a juvenile required to register as a level three offender. See Doe, Sex Offender Registry Bd. No. 3839 v. Sex Offender Registry Bd., 472 Mass. 492, 495 (2015) (Doe No. 3839).

Doe also maintains that Internet dissemination on the sex offender registry is punitive as applied to him because he was a juvenile at the time the offense was committed. “First, it is well settled that sex offender registration is a civil regulatory scheme, not punishment.” Ernest E. v. Commonwealth, 486 Mass 183, 189 n.10 (2020). See Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass. 780, 787-788 (2008). See also Doe No. 3839, 472 Mass. at 496 n.4. Doe concedes that the statute is civil, but argues that, as applied to the particular facts of his case, it is punitive because juvenile offenders have a heightened right to privacy that extends into adulthood. He draws parallels between a sentence of life without parole and the requirement that sex offenders register based on crimes committed as juveniles. Cf. Miller v. Alabama, 567 U.S. 460, 470-471 (2012). He also relies on cases from other jurisdictions involving different statutory schemes. See Doe v. Snyder, 834 F.3d 696 (6th Cir. 2016), cert. denied, 138 S. Ct. 55 (2017); United States v. Juvenile Male, 590 F.3d 924 (9th Cir. 2010), vacated as moot, 564 U.S. 932 (2011); In re J.B., 107 A.3d 1 (Pa. 2014). Lastly, Doe contends that Internet dissemination violates his due process rights as a juvenile.⁶

To the extent that Doe's emphasis on registration and Internet dissemination on account of offenses committed as a juvenile presents new constitutional issues, we decline to reach them. First, for the reasons stated below, we vacate the hearing examiner's decision regarding Internet dissemination on other grounds and remand for purposes of obtaining specific findings regarding Internet dissemination. Depending on the outcome of the review on remand, constitutional issues may or may not be presented. Second, as was the case in Ernest E., 486 Mass. at 189, the factual record before us (or lack thereof) is simply inadequate to evaluate the arguments presented.

5. Internet dissemination. Finally, Doe contends that the hearing examiner's decision does not contain explicit findings that Internet dissemination served an important public safety interest. “[I]n order to classify an individual as a level two sex offender, the hearing examiner is required to make three explicit determinations by clear and convincing evidence: (1) that the risk of reoffense is moderate; (2) that the offender's dangerousness ․ is moderate; and (3) that a public safety interest is served by Internet publication of the offender's registry information.” Doe No. 496501, 482 Mass. at 644. See G. L. c. 6, § 178K (2) (b); 803 Code Mass. Regs. § 1.20(2) (2016). Each of these elements must be established by clear and convincing evidence. See Doe No. 496501, supra at 656.

“An offender may not be given a level two classification unless ‘the degree of dangerousness posed to the public’ by the offender ‘is such that a public safety interest is served by public availability of registration information.” Doe No. 496501, 482 Mass. at 654, quoting G. L. c. 6, § 178K (2) (b). A determination that a public safety interest will be served “depends not only on the probability of reoffense and the danger posed by that potential reoffense, but also on the efficacy of online publication in protecting the public from being victimized by the offender.” Doe No. 496501, supra. The requirement of a separate finding for Internet dissemination “avoids due process concerns that could arise if an individual's information were published online in the absence of these determinations.” Id. at 644-645.

Doe's classification was adjudicated before Doe No. 496501, supra, was decided and the hearing examiner did not have the benefit of that decision. He determined that Doe “present[ed] a moderate risk of re-offense and dangerousness,” but did not make explicit findings that a public safety interest would be served by Internet dissemination of Doe's registry information.

We remand for a separate and explicit finding whether Internet dissemination serves a public interest. See Doe No. 496501, 482 Mass. at 657 n.4. The facts underlying the decision to disseminate are nuanced. The underlying offenses were against children with whom Doe had familial-like relationships; they occurred in the home while he was a juvenile, but they also occurred over a long period of time. While the record contains facts supporting findings that Internet dissemination would be in the public interest, the hearing examiner's own findings reflect that several mitigating factors are also present. For example, nearly a decade has passed since the offenses took place and no further criminal conduct has been alleged since his release in January 2015. The hearing examiner gave no aggravating weight to one probation violation that had been dismissed, but did not specifically address what appears to be a second violation. The weight to be accorded the evidence, and the ultimate finding regarding Internet dissemination is for the hearing examiner in the first instance. Accordingly, we remand to permit the hearing examiner to make a separate finding as to whether Internet dissemination serves a public safety interest.

Conclusion. So much of the judgment as pertains to the Internet dissemination of Doe's final classification as a level two sex offender is vacated, and the matter is remanded to the Superior Court for entry of an order of remand to SORB for further proceedings consistent with this memorandum and order. The remainder of the judgment is affirmed.

So ordered.

FOOTNOTES

2.   In his discussion of Dr. Quinones's report, the hearing examiner stated that factor two (“Repetitive and Compulsive Behavior”) was “applicable here.” See 803 Code Mass. Regs. § 1.33(2). He also noted that Dr. Quinones used a different standard for “repetitive and compulsive sexual offending” than that used by SORB. When discussing the applicable factors later in his decision, no mention is made of factor two. Yet when discussing Internet dissemination, the hearing examiner stated he found that Doe's “sexual offending was repetitive and compulsive in nature.” It is unclear whether the hearing examiner treated Doe, whose case was transferred to the Superior Court, as an adult or a juvenile when making this statement. As to adult males, a hearing examiner may give some weight to an offense where there has been “time or opportunity, between the episodes, for the offender to reflect on the wrongfulness of his conduct.” 803 Code Mass. Regs. § 1.33(2)(a). However, “[f]actor [two] applies only to juvenile offenders who continue to commit sex offenses after they have been detected for prior sexual misconduct.” 803 Code Mass. Regs. § 1.33(2)(c). Doe does not argue, however, that the hearing examiner's discussion of repetitive and compulsive behavior was in error. Accordingly, we do not address the question.

3.   Dr. Quinones concluded that Doe posed a low to moderate risk to reoffend under the test she applied, while the hearing examiner determined that Doe posed a moderate risk to reoffend based on statutory factors.

4.   Doe also contends that it was error to consider factor nine because he was not always intoxicated during the offenses and therefore “there was no evidence that alcohol and his offending were related.” However, Doe's own expert testified that “if you're drinking that heavily, even when you're not drunk, your thinking is impacted by this substance abuse that's going on, and if the behavior has already started, it's much easier to do it when you're not intoxicated ․”

5.   The hearing examiner found there was “no evidence in the record of any current alcohol abuse,” and weighed that in Doe's favor by giving factor nine only “moderate weight.”

6.   We do not reach the question whether Doe, whose case was heard in the Superior Court, should be treated as a juvenile or adult for purposes of registration or for constitutional purposes.