Doe v. Sex Offender Registry Bd.

98 Mass.App.Ct. 525

157 N.E.3d 625

John DOE, Sex Offender Registry Board No. 524553

v.SEX OFFENDER REGISTRY BOARD.

No. 19-P-369

Appeals Court of Massachusetts, Essex..

Argued July 15, 2020.

Decided September 29, 2020.

Kate A. Frame, Boston, for the plaintiff.

Rachael A. Michaud for the defendant.

Present: Blake, Sacks, & Ditkoff, JJ.

SACKS, J.

The plaintiff, John Doe, appeals from a Superior Court judgment affirming, on judicial review under G. L. c. 6, § 178M, and G. L. c. 30A, § 14, a final decision of the Sex Offender Registry Board (board) classifying Doe as a level two sex offender. Doe argues that the board's hearing examiner (examiner) erred or abused his discretion (1) in declining to consider whether public dissemination of Doe's information will serve a public safety interest, (2) in excluding a transcript of assertedly relevant expert testimony from another case, and (3) in failing to give appropriate weight to various regulatory factors. We conclude that a remand to the board is necessary, in order to allow the examiner to reconsider the public dissemination issue in light of Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 126 N.E.3d 939 (2019) ( Doe No. 496501 ), to consider the expert testimony, and to reconsider certain regulatory factors.

Background. In 2017, Doe pleaded guilty to four counts of indecent assault and battery on a child. The victims were Doe's two stepdaughters; the offenses occurred in 2011 or 2012, when the victims were between the ages of eleven and thirteen. Three of the offenses occurred on the steps by the back door of their family home; the other offense occurred in Doe's bedroom.

Victim 1 reported that on one occasion Doe, while intoxicated, had touched her vagina over her clothes. On a second occasion they were watching television on his bed and, after he caused her to put her hand on his erect penis, he inserted his fingers into her vagina. Victim 2 reported that, on the same day of the first offense against Victim 1, Doe, intoxicated, twice touched her breasts over her clothes.

In his final decision, the examiner applied two "[h]igh [r]isk" factors to Doe: factor 2 (repetitive and compulsive behavior) and factor 3 (adult offender with child victim). See 803 Code Mass. Regs. § 1.33(2), (3) (2016). He also found that the following factors elevated Doe's risk: factor 9 (alcohol and substance abuse), factor 10 (contact with criminal justice system), factor 16 (commission of offense in public place), factor 19 (level of physical contact), and factor 22 (number of victims).¹ See 803 Code Mass. Regs. § 1.33(9), (10), (16), (19), (22) (2016). The examiner assigned varying degrees of risk-mitigating weight to factor 28 (supervision on probation or parole), factor 33 (home situation and support systems), and factor 34 (stability in the community), but gave no weight to factor 32 (sex offender treatment) and essentially no weight to factor 37 (other useful information -- here, scholarly articles submitted by Doe regarding recidivism). See 803 Code Mass. Regs. § 1.33(28), (32), (33), (34), (37) (2016). He ultimately determined that Doe presented a moderate risk of reoffense and a moderate degree of dangerousness. The examiner declined to assess the efficacy of Internet dissemination, stating that he did "not have the statutory authority to make dissemination determinations."²

Discussion. "[T]o find that an offender warrants a level two classification, the board must find by clear and convincing evidence that (1) the offender's risk of reoffense is moderate; (2) the offender's dangerousness is moderate; and (3) a public safety interest is served by Internet publication of the offender's registry information." Doe No. 496501, 482 Mass. at 656, 126 N.E.3d 939. Our review is limited, and "[w]e reverse or modify the board's decision only if we determine that the decision is unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with law."³ Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 633, 947 N.E.2d 9 (2011).

1. Active dissemination. First, Doe argues that the examiner failed to separately evaluate and explicitly determine by clear and convincing evidence, as required by Doe No. 496501, 482 Mass. at 656-657, 126 N.E.3d 939, "whether and to what degree public access to the offender's personal and sex offender information ... is in the interest of public safety." 803 Code Mass. Regs. § 1.20(2)(c). For classification matters (such as this one) where no such determination was made, and that were pending before an appellate court when Doe No. 496501 was released, a remand may not be necessary if the board's "existing findings are sufficiently explicit to enable proper review," or when "the underlying facts of the case ... so clearly dictate the appropriate classification level." Doe No. 496501, supra at 657, 126 N.E.3d 939 n.4.

Here, the examiner did not make explicit findings regarding the need for Internet dissemination, or consider that issue in his analysis of the regulatory factors, stating instead that he did "not have the statutory authority to make dissemination determinations." This leaves unanswered the question "whether, in light of the particular risks posed by the particular offender, Internet access to that offender's information might realistically serve to protect the public against the risk of the offender's sexual reoffense." Doe No. 496501, 482 Mass. at 655, 126 N.E.3d 939. "If the answer to this question is ‘no,’ classification as a level two offender is unjustified even where the offender poses a moderate risk to reoffend and a moderate degree of dangerousness."⁴ Id.

"Determining an individual's degree of dangerousness ... requires a hearing examiner to consider 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." Doe No. 496501, 482 Mass. at 651, 126 N.E.3d 939. See Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 144-146, 130 N.E.3d 778 (2019) (focusing on characteristics of offender's past sex offenses in determining degree of dangerousness and efficacy of Internet dissemination).

In this case, Doe's sex offenses were against intrafamilial victims. The board agreed at oral argument that the record does not suggest that Doe (who has a supportive spouse to whom he has been married since 2009 and with whom he has two sons) is likely to enter into additional familial relationships for the purpose of gaining access to additional intrafamilial victims -- a scenario that might tend to support Internet dissemination in order to warn such other families about Doe. Also, while we need not go so far as to accept Doe's claim that he offended only "within the confines of his home," neither does the record support the examiner's finding that three of the offenses occurred "in an area open to public scrutiny" -- a scenario that might tend to support Internet dissemination in order to warn the general public.⁵

Thus this is not a case in which "the underlying facts ... clearly dictate" whether Internet dissemination is warranted and thus make a remand unnecessary. Doe No. 496501, 482 Mass. at 657 n.4, 126 N.E.3d 939. Instead, we remand to the examiner 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.

2. Expert testimony. Doe argues that the examiner erred by excluding a transcript of the testimony of Dr. R. Karl Hanson from a previous, unrelated board hearing. We agree. The same hearing transcript was at issue in Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender Registry Bd., 96 Mass. App. Ct. 738, 743-744, 138 N.E.3d 459 (2019) ( Doe No. 22188 ). "In that hearing, Hanson testified that [the board] misunderstood and misapplied his research, and that of other researchers, in formulating its regulations regarding repetitive and compulsive behavior." Id. at 743, 138 N.E.3d 459. Here, as in Doe No. 22188, the transcript is "directly relevant to the hearing examiner's assessment of the weight to be given factor 2 [repetitive and compulsive behavior], because Hanson's testimony addressed whether there is predictive value in considering multiple offenses when the sexual offender has not been confronted, apprehended, or charged before the subsequent offense occurs." Id. "While we express no opinion as to the weight, if any, to be given to this testimony, the evidence should have been admitted and considered by the hearing examiner," and a remand is therefore necessary.⁶ Id. at 744, 138 N.E.3d 459. 3. Regulatory factors. Doe argues that the examiner abused his discretion in determining the weight to give certain regulatory factors. We address most of these contentions relatively briefly, before turning to one that requires more extended discussion, concerning certain scholarly articles submitted by Doe. We keep in mind that "[a] hearing examiner has discretion ... to consider which statutory and regulatory factors are applicable and how much weight to ascribe to each factor." Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 109-110, 18 N.E.3d 1081 (2014). "Accordingly, [o]ur review does not turn on whether, faced with the same set of facts, we would have drawn the same conclusion as [the board], but only whether a contrary conclusion is not merely a possible but a necessary inference" (quotations and citation omitted). Id. at 110, 18 N.E.3d 1081.

First, Doe challenges the examiner's treatment of factor 10 (contact with criminal justice system)...