DOE 216697 v. SEX OFFENDER REGISTRY BOARD (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe, appeals from a Superior Court judgment affirming the final decision of the Sex Offender Registry Board (SORB) classifying him as a level one sex offender. He argues for the first time on appeal that requiring him to register as a sex offender, pursuant to G. L. c. 6, § 178K (2) (a), violated his substantive due process rights. We affirm.

Background. In April 1994, when Doe was thirty years old and living in Ohio, he raped a thirteen year old girl who lived next door to his apartment. Doe offered the girl fifty dollars to clean his apartment; he supplied her with beer until she was “very intoxicated”; and he forcibly raped her. The girl's fourteen year old sister reported to the police that, around the same period of time, Doe had sexually assaulted her as well. The fourteen year old sister stated that Doe invited her inside of his apartment, gave her beer, and trapped her inside of his bathroom where he kissed her and fondled her buttocks. During a police interview, Doe admitted to also sucking on the fourteen year old girl's breasts. In October 1994, Doe pleaded guilty in Ohio to one count of sexual battery against the thirteen year old girl,² and one count of gross sexual imposition for the assault on the fourteen year old girl.³

In January 2019, approximately twenty-five years after Doe's convictions, SORB notified Doe of its recommendation that he be required to register as a level two sex offender. Doe requested a de novo hearing before a hearing examiner challenging SORB's recommendation. Following the hearing, where Doe submitted documentary evidence on his behalf, the hearing examiner determined that Doe presented a “low risk to reoffend and a low degree of dangerousness,” and accordingly classified him as a level one sex offender.

Doe sought judicial review in the Superior Court, arguing that the hearing examiner misapplied the regulatory factors set forth in 803 Code Mass. Regs. § 1.33 (2016), and erred in denying his request for expert assistance. Upon cross motions for judgment on the pleadings, judgment was entered in favor of SORB and Doe's level one classification was affirmed. This appeal followed.

Discussion. Doe contends that it is a violation of substantive due process to require him to register as a sex offender where the governing sex offense was committed twenty-five years prior to his classification and he has lived in the community for twenty-three years without committing any new sex offenses. Doe, however, did not raise this argument in the Superior Court. Therefore, it is waived. See Boss v. Leverett, 484 Mass. 553, 563 (2020) (“issues not raised below cannot be argued for the first time on appeal”).

Even if we were to address the argument on the merits, we are satisfied that Doe's substantive due process rights were not violated. Because Doe does not have a fundamental privacy or liberty interest involved, the statute and regulation need only “bear[ ] a reasonable relation to a permissible legislative objective.” Doe, Sex Offender Registry Bd. No. 1211 v. Sex Offender Registry Bd., 447 Mass. 750, 759 (2006) (Doe No. 1211), quoting Rushworth v. Registrar of Motor Vehicles, 413 Mass. 265, 268 (1992). The purpose of the registry law is “to protect ‘the vulnerable members of our communities from sexual offenders,’ ” Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass. 780, 784 n.8 (2008) (Doe No. 8725), quoting St. 1999, c. 74, emergency preamble, which the State has a compelling interest in doing. See Doe No. 1211, 447 Mass. at 761.

Doe nevertheless argues that, as applied to him, the registry law is unconstitutional because, at the time of the hearing, his risk of reoffense and dangerousness to the public was so low that the purpose of the registry law would not be served by requiring him to register. To be sure, “registration can be required only based on an assessment ‘of the person's current level of dangerousness and risk of reoffense.’ ” Doe, Sex Offender Registry Bd. No. 24341 v. Sex Offender Registry Bd., 74 Mass. App. Ct. 383, 387 (2009) (Doe No. 24341), quoting Doe. No. 8725, 450 Mass. at 787. As a result, “due process requires that a sex offender be given the opportunity to demonstrate that he poses no current risk of reoffense or threat to the public.” Doe No. 24341, supra at 385.

Here, Doe was indeed afforded the opportunity to argue that he posed no present risk of reoffense or danger to the public. Doe submitted a letter from his wife, whom he had been married to since 2016, as well as three letters from his current employers. The hearing examiner credited the letters as evincing Doe's support system and stability in the community and considered them as mitigating factors. The hearing examiner also specifically considered as mitigating evidence the fact that Doe had not committed any sex offenses since 1994. However, Doe had been charged in 2018 with assault and battery on a household or family member, and although the charge had been nolle prossed, the hearing examiner found substantial evidence that the assault in fact occurred. Further, in 2018, two civil restraining orders had been issued against Doe by two different women, one being his current wife. The hearing examiner considered both events, as well as Doe's extensive criminal history,⁴ as risk-elevating factors, and determined that, while Doe's current risk of reoffense and dangerousness to the public was low, it was not nonexistent. The hearing examiner did not classify Doe as a level one sex offender “simply because he was -- however long ago in the past -- convicted of a sexually violent offense.” Doe No. 24341, 74 Mass. App. Ct. at 385-386. Rather, the examiner appropriately considered the risk-elevating and risk-mitigating factors, including the evidence presented by Doe, and concluded that Doe posed “a low risk to reoffend and a low degree of dangerousness such that a public safety interest [was] not served by public access” to Doe's registration information. There was no substantive due process violation.

Judgment affirmed.

FOOTNOTES

2.   Sexual battery is akin to the Massachusetts offense of rape. See G. L. c. 265, § 22. This conviction was the governing sex offense for which Doe was required to register.

3.   Though the hearing examiner found that this charge had been dismissed, that finding was clearly erroneous. Doe's record indicates that he was convicted of gross sexual imposition and sentenced to eighteen months' confinement.

4.   Doe has a lengthy record of criminal charges spanning from 1980 to 2018. In addition to the governing offenses, the charges for which he was convicted include driving under the influence of alcohol, assault with a dangerous weapon, and infliction of corporal injury on a spouse/cohabitant.