DOE 523671 v. SEX OFFENDER REGISTRY BOARD (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 1993 the plaintiff, John Doe No. 523671, was convicted in Oregon of sex offenses involving two children, his stepdaughters. Twenty-two years later he moved to Massachusetts, whereupon the defendant Sex Offender Registry Board (board) informed him of his obligation to register as a sex offender, preliminarily classifying him as a level two (moderate risk) offender. Doe requested a hearing to challenge the classification. He also filed a motion for funds to hire an expert and a motion to be relieved from his obligation to register. The hearing examiner denied the request for expert funds, denied the motion for relief from registration, and classified Doe as a level one (low risk) offender. Doe sought judicial review of the classification decision, which was affirmed by a judge of the Superior Court. Doe appeals, claiming that the board's decision that he presented a low risk of reoffending was not supported by substantial evidence.² We agree. Accordingly, we vacate the judgment and direct that the board relieve Doe from his obligation to register as a sex offender.

Background. The administrative record contained scant information about Doe's Oregon offenses. As the hearing examiner noted, “There are no police reports or other official documents to provide specific details of [Doe's] sex offenses,” and Doe himself was “silent on the matter” in the affidavit he submitted at the classification hearing. The record did show that on January 11, 1993, he pleaded guilty to one count of sodomy in the first degree, see Or. Rev. Stat. § 163.405 (1993), and two counts of sexual abuse in the first degree, see Or. Rev. Stat. § 163.427 (1993). The hearing examiner concluded, and Doe concedes, that the sodomy conviction constituted the “like violation” of rape and abuse of a child, G. L. c. 265, § 23, and that the sexual abuse convictions were the equivalent of indecent assault and battery on a child under fourteen years of age, G. L. c. 265, § 13B. The Oregon prosecutor dismissed a number of other sexual assault charges as part of Doe's plea agreement.³

The victims included Doe's two stepdaughters, who resided with him and their mother when the offenses occurred. The sodomy conviction was based on conduct that occurred between October 1987 and May 1992, involving the younger stepdaughter, who was about seven years old when the abuse began. Based on the statutory definition, the hearing examiner inferred that the offense involved “deviate sexual intercourse,” Or. Rev. Stat. § 163.405 (1993), which means “contact between the sex organs of one person and the mouth or anus of another,” Or. Rev. Stat. § 163.305 (1993). The record does not disclose the specific nature of the contact. One count of sexual abuse occurred between October 1987 and September 1990; it involved the older stepdaughter, who was between eight and nine years old when Doe began abusing her. Based on the statutory definition, the hearing examiner concluded that it involved “sexual contact,” but again the record sheds no light on the nature of the touching. The other count of sexual abuse occurred between September 1991 and September 1992. The record does not establish the identity of the victim. For these crimes, the defendant was sentenced to a total of 360 days in jail, with work release, followed by 240 months of probation.

Doe completed his sentence and probation without incident. Indeed, the record does not contain any information to suggest that Doe has been anything but a law-abiding citizen since he pleaded guilty in 1993. He successfully completed sex offender treatment and complied with all program requirements. The record suggested that alcohol may have been a contributing factor in Doe's sex crimes, but contained no evidence of current substance use or abuse.

Doe was a law-abiding member of the community since his release from prison in 1994. Since arriving in Massachusetts he lived in the small basement apartment of his sister's house. The sister's letter of support acknowledged Doe's past sex offenses, commended him for how he handled the situation, and added that he “rarely goes out at night at all and does not consume alcohol.”

Doe was sixty-five years old at the time of the hearing. He suffered from depression, heart disease, and other ailments, and stated that his health condition and medications caused him to experience “significant sexual dysfunction,” specifically, “I can no longer obtain an erection and I lack any sexual drive.” He stated in his affidavit that he had not been sexually active since 2009, the year before his last romantic partner (described by Doe and his sister as Doe's “soulmate”) died of cancer. He reported being unable even to remain standing for very long because he experienced numbness and pain in his legs and feet and became easily fatigued. He sought funds for an expert witness to provide information about how his physical condition, medications, and sexual dysfunction affected his risk of reoffending. The hearing examiner denied the motion on the ground that “there is sufficient evidence to consider his medical conditions to be mitigating. No further evidence from a medical expert is necessary.”

The hearing examiner found that two high-risk factors and three risk-elevating factors, all stemming solely from the Oregon offenses, applied: “Repetitive and Compulsive Behavior” (factor two), to which she gave “limited weight”; “Adult Offender with a Child Victim” (factor three), to which she accorded “increas[ed] ․ weight” because the children were prepubescent; “Extravulnerable Victim” (factor eighteen), which the hearing examiner “consider[ed],” because one victim was under eight years of age at the onset of the abuse; “Level of Physical Contact” (factor nineteen), which the hearing examiner “consider[ed] ․ indicative of dangerousness” because the sodomy charge “implicate[d] penetration”; and “Number of Victims” (factor twenty-two), which she considered “risk elevating.” See 803 Code Mass. Regs. §§ 1.33(2), (3), (18), (19), (22) (2016). The hearing examiner found that Doe “exhibit[ed] no other risk factors beyond those implicated in his governing offense, which occurred over twenty-seven years ago.”⁴

On the other side of the ledger, the hearing examiner gave “full mitigating weight” to Doe's then twenty-three years of “Offense Free Time in the Community” (factor twenty-nine), “Advanced Age” of sixty-five (factor thirty), and completion of “Sex Offender Treatment” (factor thirty-two); she also considered his “Home Situation and Support Systems” and “Stability in the Community” (factors thirty-three and thirty-four) to be mitigating factors. See 803 Code Mass. Regs. §§ 1.33(29), (30), (32), (33), (34) (2016). With respect to “Physical Condition” (factor thirty-one), see 803 Code Mass. Regs. § 1.33 (31) (2016), she gave “mitigating consideration” to Doe's “considerable and serious medical issues and numerous medications,” but “d[id] not find his medical conditions to be dispositive, as there [was] no evidence to suggest he is so physically impaired that he could not, at minimum, indecently assault a child if he was so inclined.”

The hearing officer noted that the mitigating factors “significantly reduced,” but “[did] not necessarily eliminate his ability to reoffend.” Because she “[could] not ignore the dangerousness and deviancy his repetitive sexual abuse of two prepubescent children over the course of four to five years represents,” the hearing examiner concluded that Doe presented a low risk of reoffense and ordered him to register as a level one sex offender.⁵

Discussion. To satisfy due process, the board must establish a sex offender's risk classification by clear and convincing evidence. See Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 314 (2015). Clear and convincing evidence is evidence “sufficient to convey a ‘high degree of probability’ that the contested proposition is true” (citation omitted). Id. at 309. “Under that standard, [t]he requisite proof must be strong and positive; it must be full, clear and decisive” (quotations and citation omitted). Doe, Sex Offender Registry Bd. No. 11204 v. Sex Offender Registry Bd., 97 Mass. App. Ct. 564, 570 (2020).

Due process concerns are acute in cases such as this, where Doe's sex offenses predated the enactment of the sex offender registration law. See Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass. 780, 785 (2008) (Doe No. 8725) (explaining that registration law was first enacted in 1996, its implementation was enjoined on constitutional grounds in 1997, and it was rewritten in 1999). The retroactive imposition of the registration requirement, though not considered punitive, nonetheless imposes new legal consequences on past acts. See id. at 787-788. If a former sex offender poses no risk of reoffense and is not a danger to the community, requiring him to register would violate his State due process rights, even if he is statutorily ineligible for relief from registration. See id. at 793; Doe, Sex Offender Registry Bd. No. 24341 v. Sex Offender Registry Bd., 74 Mass. App. Ct. 383, 385-386 (2009) (Doe No. 24341).

The hearing examiner determined that Doe posed a “low” risk of reoffense, and the board accordingly required him to register as a level one offender. A “low” risk of reoffense is “not merely a hypothetical or speculative potential risk.” Doe No. 24341, 74 Mass. App. Ct. at 388. “Rather, it is a risk that is ‘cognizable’ -- i.e., ‘perceptible’; ‘[c]apable of being known, perceived, or apprehended by the senses or intellect’ -- and one that can and indeed must be able to be articulated and described based on affirmative evidence” (footnotes and citations omitted). L.L. v. Commonwealth, 470 Mass. 169, 179 (2014).

In reviewing the board's classification decision, we must determine “whether the hearing examiner's conclusion that clear and convincing evidence supports a level [one] classification is itself supported by substantial evidence, that is, ‘such evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 658 (2019), quoting G. L. c. 30A, § 1 (6). See Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 109 (2014) (Doe No. 68549), quoting Cobble v. Commissioner of Dep't of Social Servs., 430 Mass. 385, 390-391 (1999) (“A decision does not satisfy the ‘substantial evidence’ requirement if ‘the evidence points to no felt or appreciable probability of the conclusion or points to an overwhelming probability of the contrary’ ”).

We are mindful that we must give due weight to the board's specialized knowledge and experience and its discretionary authority. See Doe No. 68549, 470 Mass. at 109. Nonetheless, the facts on which the classification decision is based must “be specifically found, particularly identifying any facts that postdate Doe's offense, as well as the evaluative process used to balance the characteristics of Doe's offense against Doe's life for the past twenty-five years.” Doe No. 24341, 74 Mass. App. Ct. at 387.

According due deference, we conclude that the hearing examiner's decision was not supported by substantial evidence. As she frankly acknowledged, all of the evidence on which she based her conclusion that Doe still posed some degree of risk of reoffense was at least twenty-five years old. As she also candidly stated, there was no evidence of the specific details of Doe's offenses. Indeed, the board was able to establish the identities of the victims of only two of Doe's crimes. The hearing examiner appeared to be critical of Doe's failure to describe the offenses in his affidavit.⁶ Even if, as the Superior Court judge concluded, “the hearing examiner was merely laying out what facts were available regarding Doe's governing offenses,” the law remains that “the offender bears no burden of proof.” Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594, 605 (2013). It is incumbent on the board to supply evidence on which the hearing examiner may base her findings.

The board produced no evidence that Doe continued to present anything but a speculative risk of reoffense or danger to the community. To be sure, the hearing examiner was not required to accept Doe's assertions that he lacked any sexual drive or that his physical condition made it impossible for him to reoffend. But a former sex offender is not required to prove the complete absence of any risk. See L.L., 470 Mass. at 178. Indeed, he is not required to prove anything at all. The hearing examiner's comment that “there [was] no evidence to suggest he is so physically impaired that he could not, at minimum, indecently assault a child if he was so inclined,” was problematic for several reasons. It suggested both that Doe had a burden to provide such evidence and that he was required to negate all risks, even hypothetical ones. It also relied on the absence of evidence that the expert witness sought by Doe might have provided.⁷ To make a finding that Doe presented a low risk of reoffense, the hearing examiner must rely on facts that are cognizable and perceptible, not hypothetical and speculative. See id. at 179; Doe No. 24341, 74 Mass. App. Ct. at 388.

Here, the only evidence on which the hearing examiner based her finding of risk was the fact that Doe pleaded guilty to sex offenses in 1993 and, with “no ․ specific details” available, “the dangerousness and deviancy” that his convictions “represent[ed].” “[A] sex offender cannot be required to register simply because he was -- however long ago in the past -- convicted of a sex[ ] ․ offense if he poses no current risk.” Doe No. 24341, 74 Mass. App. Ct. at 385-386. The clear and convincing standard requires proof that is strong and positive, full, clear, and decisive. The evidence before the hearing examiner was not.

Conclusion. Because the board's decision was not supported by substantial evidence, we vacate the judgment and remand the matter to the Superior Court for entry of a judgment directing the board to relieve Doe of any further obligation to register, remove his registration information from the registry, and so notify the relevant police department or departments. See G. L. c. 6, § 178K (2) (d).

So ordered.

Vacated and remanded.

FOOTNOTES

2.   Doe also claims that the hearing examiner wrongly denied his motion for expert funds and impermissibly shifted the burden to him to provide evidence of the nature of his crimes.

3.   According to the Interstate Identification Index, Doe had previously been convicted of misdemeanor sexual abuse in the second degree and sentenced to thirty days in jail. The administrative record does not establish the identity of the victim of that crime; indeed, the hearing examiner noted the absence of any court documents to corroborate this conviction.

4.   The hearing examiner rendered her decision in December 2017. Doe's offenses occurred between October 1987 and September 1992.

5.   The hearing examiner simultaneously denied Doe's motion for relief from registration, stating that he did not carry his burden of proving by clear and convincing evidence that he presented no risk of reoffense or danger to the public. Doe does not challenge this aspect of the hearing examiner's decision on appeal. We note that Doe, Sex Offender Registry Bd. No. 76819 v. Sex Offender Registry Bd., 480 Mass. 212 (2018), issued after the hearing examiner's decision, suggests that it was error to place the burden on Doe in this regard. See id. at 213-214 (“due process requires that the appropriate quantum of proof in termination proceedings ․ is clear and convincing evidence, and that the burden is imposed on the board, not the sex offender”).

6.   The hearing examiner was similarly critical of a letter of support submitted by Doe's ex-wife, the mother of the victims.

7.   Given our disposition of this appeal, we need not address whether the hearing examiner abused her discretion in denying Doe's request for expert funds.