Doe v. Sex Offender Registry Bd.

96 Mass.App.Ct. 246

135 N.E.3d 216

John DOE, Sex Offender Registry Board No. 36870

v.SEX OFFENDER REGISTRY BOARD.

No. 18-P-509

Appeals Court of Massachusetts, Suffolk..

Argued June 12, 2019.

Decided October 15, 2019.

Ilse Nehring, Boston, for the plaintiff.

David L. Chenail, for the defendant.

Present: Blake, Kinder, & Desmond, JJ.

BLAKE, J.

At issue in this appeal is the question whether D.C. Code Ann. § 22-3501(a), defining the crime of taking indecent liberties with a minor child, is a "like violation" of G. L. c. 265, § 13B, indecent assault and battery on a child under the age of fourteen, thus requiring the plaintiff, John Doe, to register as a sex offender pursuant to G. L. c. 6, §§ 178C - 178P.

Doe appeals from a Superior Court judgment denying his motion for judgment on the pleadings and affirming the Sex Offender Registry Board's (board) classification of Doe as a level two sex offender. Doe argues that the board did not have jurisdiction to require him to register as a sex offender because the board failed to establish that Doe's index out-of-State crime was a "like violation" of a Massachusetts sex offense requiring registration. We affirm.

Background. In 1985, Doe visited family in Washington, D.C. An eight or nine year old¹ girl reported to police that, during his stay, Doe entered her bedroom, "[took her] into the living room, placed [her] on the couch[,] ... pulled her panty's [sic ] down and then pulled his pants down to his knees. He then turned her over onto her stomach and placed his penis (wing-wing) into her butt (rectum)." Doe was charged in the Superior Court of the District of Columbia with sodomy of a child under the age of sixteen, in violation of D.C. Code Ann. § 22-3502, and subsequently pleaded guilty to taking indecent liberties with a minor child, in violation of D.C. Code Ann. § 22-3501(a) (District of Columbia offense).²

In 2005, the board moved to classify Doe as a level two sex offender. At that time, the board had before it only Doe's interstate criminal history record, which showed that Doe had pleaded guilty to "rectal sodomy." The board finally classified Doe as a level two sex offender, designating rape, in violation of G. L. c. 265, § 22, as the Massachusetts "like violation" requiring that Doe register as a sex offender, which Doe did not challenge. Soon after, the board notified Doe that it intended to reclassify him as a level three sex offender pursuant to 803 Code Mass. Regs. § 1.37C (2004).³ Doe challenged the reclassification, and after a de novo hearing in 2011, the board again classified him as a level two sex offender. The board was still under the assumption that Doe had been convicted of "rectal sodomy," and Doe did not challenge this conclusion.

In 2014, the board again notified Doe that it intended to reclassify him as a level three sex offender pursuant to 803 Code Mass. Regs. § 1.37C (2013). Doe requested a hearing to challenge the board's proposed reclassification. A de novo reclassification hearing was held in 2015, where the hearing examiner ordered the board "to attempt again to get" archived records of Doe's index offense.

Before the hearing examiner issued her decision, the Supreme Judicial Court changed the standard of proof in reclassification proceedings to proof by clear and convincing evidence. See Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 298, 41 N.E.3d 1058 (2015) ( Doe No. 380316 ). In light of this, the hearing examiner conducted another de novo hearing in 2016 in accordance with Doe No. 380316, supra. By the date of the hearing, new information as to Doe's index offense had been "unearth[ed]" showing that Doe pleaded guilty in 1985 to taking indecent liberties with a minor child, and not to rectal sodomy.⁴ At the hearing, Doe filed a request for relief from registration, asserting that the board did not have jurisdiction to require him to register as a sex offender. He argued that the board could not demonstrate which District of Columbia offense he had been convicted of and therefore could not examine the elements of a District of Columbia offense to determine whether there was a "like violation" to any Massachusetts crime requiring registration.⁵

The hearing examiner issued a written decision in 2017 denying Doe's request for relief from registration, concluding that Doe's District of Columbia offense⁶ was a "like violation" of the Massachusetts crime of indecent assault and battery on a child under fourteen (Massachusetts offense), and classifying him as a level two sex offender.⁷ Doe sought judicial review pursuant to G. L. c. 30A, § 14, and G. L. c. 6, § 178M, and filed a motion for judgment on the pleadings in the Superior Court, which the judge denied.⁸ The judge affirmed the board's classification, and this appeal followed.

Standard of review. "An offender may seek judicial review ... of the board's ... reclassification and registration requirements." G. L. c. 6, § 178M. We "give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it." G. L. c. 30A, § 14 (7). "We reverse the board's decision if it was (a) [i]n violation of constitutional provisions; (b) [i]n excess of the statutory authority or jurisdiction of the board; (c) [b]ased upon an error of law; (d) [m]ade upon unlawful procedure; (e) [u]nsupported by substantial evidence; (f) [u]nwarranted by facts found by the court ... where the court is constitutionally required to make independent findings of fact; or (g) [a]rbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law" (quotations and emphases omitted). Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 614-615, 925 N.E.2d 533 (2010) ( Doe No. 151564 ), citing G. L. c. 30A, § 14 (7).

The board's jurisdiction. General Laws c. 6, § 178C, states that a sex offense requiring registration includes "a like violation of the laws of another state."

"A ‘like violation’ is a conviction in another jurisdiction of an offense of which the elements are the same or nearly the same as an offense requiring registration in Massachusetts. The elements of the offense in another jurisdiction need not be precisely the same as the elements of a Massachusetts sex offense in order for it to constitute a ‘like violation.’ In drafting the statute, the Legislature chose the word ‘like’ rather than the word ‘identical’ to describe the required relationship between an offense from another jurisdiction and a Massachusetts sex offense."

Doe No. 151564, 456 Mass. at 615-616, 925 N.E.2d 533. Where "the essence of the two crimes [is] the same" and the crimes "prohibit essentially the same conduct," the crimes may properly be deemed "like violation[s]." Id. at 615, 617, 925 N.E.2d 533. The "like violation" assessment must be conducted "in terms of offenses and not conduct" by comparing the elements alone, without consideration of the underlying acts. Id. at 619, 925 N.E.2d 533. This does not prohibit the board from considering an offender's conduct when evaluating his or her level of dangerousness, see G. L. c. 6, § 178K (1) (b ) (iii), but ensures "notice and clarity" to criminal defendants convicted of offenses in other jurisdictions about whether registration will be required in Massachusetts. Id. at 618, 925 N.E.2d 533. Because criminal penalties are authorized for failing to register as a sex offender, "we apply the ‘rule of lenity’ and resolve any ambiguities in the ‘like violation’ provision against the board." Id., citing Commonwealth v. Wotan, 422 Mass. 740, 742-743, 665 N.E.2d 976 (1996). See id. at 742, 665 N.E.2d 976 ("When a statute is found plausibly to be ambiguous, the defendant is given the benefit of the ambiguity").

Doe argues that the board failed to establish that he was convicted of an offense that is a "like violation" of a Massachusetts sex offense requiring registration because the age and consent elements differ between the two offenses, and because the board did not establish that the offenses prohibited essentially the same conduct. Consequently, Doe asserts, the board lacked jurisdiction to require him to register as a sex offender.

a. Age. i. Doe contends that the hearing examiner's use of the police report to determine the age of the victim in Doe's case constituted a consideration of the conduct and facts in the underlying case, and not merely the elements of the offense which, he says, violates the Supreme Judicial Court's holding in Doe No. 151564. While we agree with Doe that Doe No. 151564 prohibits the board from considering the underlying conduct and acts, we conclude that the age of a victim (or of an offender) is neither conduct nor an act. Rather, age is an element, and one which varies considerably among criminal statutes with the same or similar purposes from jurisdiction to jurisdiction. To properly evaluate an offender's registration duties, or lack thereof, the board must be permitted to make a factual determination as to the victim's age (and, at times, the offender's age -- see, e.g., G. L. c. 265, § 23A ), where the age difference between the defendant and the victim may serve as an aggravating factor.

In addition, Doe No. 151564 cautioned against considering conduct and acts out of concern that doing so "could expand the registration requirement to include crimes beyond those that explicitly encompass sexual conduct"⁹ and could also deprive a criminal defendant of proper notice that he or she could be required to register as a sex offender in Massachusetts even where the underlying conviction did not require proof of sexual conduct. Doe No. 151564, 456 Mass. at 619, 925 N.E.2d 533. However, the board's ability to consider the age of a victim (or of an offender) in determining a "like violation" does not, on its own, expand the registration requirement to include crimes beyond those involving sexual...