DOE 40665 v. SEX OFFENDER REGISTRY BOARD (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Nelson Doe appeals from a Superior Court judgment affirming the Sex Offender Registry Board's (board's) decision classifying him as a level two (moderate risk) sex offender. See G. L. c. 6, § 178K (2) (b). Doe claims that the board arbitrarily rejected his expert's opinion and updated scientific research showing that the risk of reoffense substantially decreases after offense-free time in the community. We conclude that the board failed to adequately explain why it rejected the uncontradicted expert's conclusion that Doe posed a low risk of reoffense. Accordingly, we vacate the judgment and remand the case to the board for additional explanation.

Background. In 1994, at age thirty-two, Doe pleaded guilty in New Jersey to sexually assaulting his ten-year-old stepdaughter (victim 1) and her eleven-year-old girlfriend (victim 2). Doe touched victim 1's buttocks with his penis, attempted to penetrate victim 1's vagina, and forced victim 2 to perform oral sex on him. Doe was sentenced to a term of incarceration and was released in 1998.

Four years later, Doe pleaded guilty in Massachusetts to five counts of indecent assault and battery on a child under fourteen and one count of open and gross lewdness. The evidence showed that he sexually assaulted four extrafamilial prepubescent females: victims 3 and 4 in 2002; and victims 5 and 6 in 2001. In these assaults, Doe touched the children's breasts, buttocks, and vaginas over their clothing. Doe was released from incarceration for these offenses in January 2005.

We summarize the lengthy procedural history of Doe's appearances before the board. In 2003, Doe was sent notice by the board of his obligation to register as a level three (high risk) sex offender. See G. L. c. 6, § 178K (2) (c). The board's initial level three classification was vacated because Doe did not receive proper notice of his right to a classification hearing. The board's second level three classification, in 2013, was vacated because Doe was improperly denied funds for an expert. Doe was subsequently classified as a level two sex offender after a hearing in 2015, which classification was vacated when the Supreme Judicial Court adopted a new standard of proof. See Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297 (2015).

The classification hearing at issue in this case took place in 2017. At the hearing, Doe presented the testimony of clinical forensic psychologist, Dr. Laurie Guidry. Dr. Guidry testified that, based on her evaluation of Doe, including consideration of his thirteen years of offense-free time in the community, he presented a low risk of reoffending and a low degree of dangerousness. Doe also presented an article by Dr. Karl Hanson, a leading researcher in the field of sex offender recidivism, titled “Reduction in Risk Based on Time Offense Free in the Community: Once a Sexual Offender, Not Always a Sexual Offender.” The article postdated the board's 2016 regulations, which were applied in this case, and summarized Hanson's updated research regarding the declining risk of sexual recidivism over time. Dr. Hanson's conclusion was that most categories of sexual offenders, depending on their Static-99R scores at the time of release, reach the level of “desistance”² once they have remained offense-free in the community for ten to fifteen years. Dr. Guidry testified that she was familiar with Dr. Hanson's updated research regarding the significance of offense-free time in the community, that the research was considered reliable, and that she applied it in her evaluation.³ Notwithstanding Dr. Guidry's expert opinion based in part on Dr. Hanson's research, the board ordered Doe to register as a level two (moderate risk) sex offender.

Doe sought judicial review of the board's decision pursuant to G. L. c. 30A, § 14. In 2019, a Superior Court judge allowed Doe's motion for judgment on the pleadings, vacated the level two classification, and remanded the matter to the board for specific findings regarding the need for Internet dissemination. See Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643 (2019) (Doe No. 496501). Without taking additional evidence, the board then issued a written decision explaining that it “agree[d] with Dr. Guidry's opinion that [Doe] is not a high risk to re-offend” but “weigh[ed] heavily the many high risk and risk elevating factors present in this case” and therefore “part[ed] ways” with Dr. Guidry's opinion that the risk presented by Doe is low.⁴ Doe was again ordered to register as a level two sex offender. Doe sought judicial review in the Superior Court, where a different judge denied Doe's motion for judgment on the pleadings, allowed the board's cross motion, and affirmed the level two classification.

Discussion. “A reviewing court may set aside or modify [the board's] classification decision where it determines that the decision is in excess of [the board's] statutory authority or jurisdiction, violates constitutional provisions, is based on an error of law, or is not supported by substantial evidence.” Doe No. 496501, 482 Mass. at 649. We “give due weight to [the board'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).

“[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). The board bears the burden of proof on each issue. 803 Code Mass. Regs. § 1.03 (2016).

In reaching the conclusion that Doe posed a moderate risk of reoffense, the hearing examiner stated, “Like Dr. Guidry, I also gave [Doe] the mitigating consideration of his advanced age, his [thirteen] years [of] offense-free time in the community, his stable living and approval for SSI assistance, and that he attends therapy, but I also weigh heavily the many high risk and risk elevating factors present in this case. Thus, I give Dr. Guidry's opinion limited mitigating weight” (emphasis added). It is well settled that “Doe is not entitled to a guarantee that [the board] will reach the same conclusion as his expert; he is entitled only to careful consideration of his expert's testimony.” Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 137 (2019) (Doe No. 23656). Where an expert opinion is uncontradicted, however, “an agency must ‘explain[ ] on the record its reasons for rejecting portions of [an expert's] testimony.’ ” Id. at 136, quoting Police Dep't of Boston v. Kavaleski, 463 Mass. 680, 694 (2012). The board must have an “explicit and objectively adequate reason” to reject uncontradicted expert evidence. Doe No. 23656, supra at 137, quoting New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 470 (1981).

Here, the board's six-page summary of Dr. Guidry's testimony reflects that it was given consideration. However, the board's reasoning for “part[ing] ways” with Dr. Guidry's ultimate conclusion that Doe presented a low risk of reoffense was limited. We agree with Doe that the board's general reference to the high risk and risk elevating factors and statement that it weighed those factors “heavily,” without specifying which factors or why, was not an explicit and objectively adequate explanation for rejecting Dr. Guidry's uncontradicted expert opinion. See Doe No. 23656, 483 Mass. at 137 (“That an expert's testimony spoke to some, but not all, of the relevant considerations is not an ‘objectively adequate reason’ to reject the testimony”). Accordingly, we remand the case for further explanation by the board. On remand, the board should address in greater detail whether, and if so why, the high risk and risk elevating factors outweigh the mitigating factors so as to warrant a level two classification. On remand, the board may consider whether Doe's offense-free time in the community has continued since the board's decision on August 22, 2019, and what impact, if any, that factor has on Doe's classification.

The judgment is vacated, and the case is remanded to the board for further proceedings consistent with this memorandum and order.

So ordered.

vacated and remanded

FOOTNOTES

2.   “Desistance” means that the individual's risk of future sexual offending has dropped below a level where there is no longer any public protection benefit to sexual offender specific interventions.

3.   Dr. Guidry also relied on evidence that Doe was fifty-eight years old with a job and stable housing, and that he was successfully participating in sex offender treatment.

4.   The examiner applied the following high-risk factors: factor two (repetitive and compulsive behavior); factor three (adult offender with child victim); factor seven (relationship between offender and victim); factor nine (alcohol and substance abuse); factor thirteen (non-compliance with community supervision); factor nineteen (level of physical contact); and factor twenty-two (number of victims). See 803 Code Mass. Regs. § 1.33 (2016).