Doe v. Sex Offender Registry Bd.

• Decision Date: 05 November 2014
• Docket Number: SJC–11562.
• Citation: 18 N.E.3d 1081,470 Mass. 102
• Parties: John DOE, Sex Offender Registry Board No. 68549 v. SEX OFFENDER REGISTRY BOARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

470 Mass. 102

18 N.E.3d 1081

John DOE, Sex Offender Registry Board No. 68549

v.SEX OFFENDER REGISTRY BOARD.

SJC–11562.

Supreme Judicial Court of Massachusetts, Suffolk.

Submitted Sept. 3, 2014.

Decided Nov. 5, 2014.

Francis J. DiMento (Dana Alan Curhan with him), Boston, for the plaintiff.

Jennifer K. Zalnasky for the defendant.

Eric Tennen, Boston, for Youth Advocacy Division of the Committee for Public Counsel Services & others, amici curiae, submitted a brief.

Robert E. McDonnell, Jeff Goldman, Nathaniel P. Bruhn, & Saia M. Smith, Boston, for American Civil Liberties Union Foundation of Massachusetts & another, amici curiae, submitted a brief.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.

Opinion

LENK

, J.

Over a three-year period ending in 1988, when he was sixteen years old, John Doe No. 68549 repeatedly subjected two of his cousins to sexual assaults, including rape. His victims came forward many years after the fact and, in October, 2003, when Doe was thirty-one years old, he pleaded guilty to a number of sex offenses committed when he was a juvenile.

In March, 2006, a hearing examiner of the Sex Offender Registry Board (SORB) determined that Doe posed a moderate risk of reoffense and a moderate degree of dangerousness, and classified Doe as a level two sex offender. A Superior Court judge, determining that this classification was not supported by substantial evidence, remanded for further proceedings. In May, 2010, a successor hearing examiner (successor examiner) concluded that Doe poses a low risk of reoffense and a low degree of dangerousness. Doe was therefore classified as a level one sex offender, a classification that was upheld by a different judge of the Superior Court. Doe appealed, and we granted his application for direct appellate review.

Doe contends that he should not be required to register as a sex offender. See G.L. c. 6, § 178K (2) (a )-(d )

. He argues that, in light of scientific research showing that adolescent brains are different from adult brains, and in light of the long period of time that has elapsed since his last offense, the successor examiner's decision was not supported by substantial evidence. Doe contends also that the regulations enacted and applied by SORB are outmoded, in that they predate recent studies concerning adolescent brains and adolescent behavior.

We conclude that, although Doe presented considerable information suggesting that he is no longer dangerous, the successor examiner took this information into account and reached a decision that was supported by substantial evidence in determining that Doe should be classified as a level one sex offender. We therefore conclude that there was no error in the successor examiner's classification of Doe as a level one sex offender, and affirm the Superior Court judge's decision upholding the successor examiner's classification determination. We emphasize, however, as we have done previously, that it is incumbent upon SORB to update its guidelines at reasonable intervals in order to take proper account of current scientific knowledge.¹

1. Statutory framework. In prior cases, we described in detail the tapestry of statutes and regulations that governs the registration requirement imposed on sex offenders. See, e.g., Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594, 595–597, 999 N.E.2d 478 (2013)

(Doe No. 205614 ); 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 ); Doe, Sex Offender Registry Bd. No. 3844 v. Sex Offender Registry Bd., 447 Mass. 768, 768–772, 857 N.E.2d 485 (2006) (Doe No. 3844 ). Here we reprise the essential elements of that scheme.

An individual is a “sex offender” if he or she has been convicted of one or more statutorily enumerated offenses. G.L. c. 6, § 178C

. Sex offenders are classified into levels of dangerousness, increasing in severity from level one to level three. Each level is attended by different implications. Although SORB transmits information about all sex offenders to specific authorities, information about level one offenders is not available to the general public. G.L. c. 6, § 178K (2) (a ). Information about level two and level three offenders is entered into a publicly accessible Internet database. G.L. c. 6, § 178D. See Moe v. Sex Offender Registry Bd., 467 Mass. 598, 600–606, 616 (2014) (declaring unconstitutional the retroactive application of this provision to individuals classified as level two sex offenders on or before July 12, 2013). In addition, SORB and local police departments “actively disseminate” information about level three offenders to individuals and

organizations who are likely to encounter those offenders. G.L. c. 6, § 178K (2) (c )

.

SORB is required to consider a list of statutory factors in making its classification determinations. See G.L. c. 6, § 178K (1) (a )-(l )

. This list is not exhaustive, however, and SORB also must take into account any other information that is “useful in assessing the risk of reoffense and the degree of dangerousness posed to the public by the sex offender,” including information of this kind introduced by the offender. G.L. c. 6, § 178L (1). See Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 787, 857 N.E.2d 492 (2006) (Doe No. 10216 ), citing Doe, Sex Offender Registry Bd. No. 1211 v. Sex Offender Registry Bd., 447 Mass. 750, 762 n. 9, 857 N.E.2d 473 (2006) (Doe No. 1211 ); 803 Code Mass. Regs. § 1.38(2) (2013).

As mandated by statute, SORB has promulgated “guidelines for determining the level of risk of reoffense and the degree of dangerousness posed to the public or for relief from the obligation to register.” See G.L. c. 6, § 178K (1)

. These guidelines describe the manner in which SORB is to apply twenty-four factors increasing or decreasing risk, which are derived from the factors enumerated in the statute. See 803 Code Mass. Regs. § 1.40 (2013) (guidelines)

. The guidelines require SORB to be guided by the “definitions, explanations, principles, and authorities” contained in the guidelines. See id. We have read the term “authorities” to encompass studies conducted by researchers whose work is cited in the guidelines. See Doe No. 205614, 466 Mass. at 604, 999 N.E.2d 478 ; Doe No. 151564, 456 Mass. at 622, 925 N.E.2d 533.

“The registration and classification process is, essentially, a two stage process.” 803 Code Mass. Regs. § 1.38(3) (2013)

. First, SORB makes an initial “recommendation” concerning an offender's classification level. Id. See G.L. c. 6, § 178L (1) (a ). The offender may then object to SORB's recommendation, in which case he or she “is provided an individualized hearing ... at which all relevant evidence is evaluated anew by a disinterested Hearing Examiner.” 803 Code Mass. Regs. § 1.38(4) (2013). See Doe No. 3844, 447 Mass. at 772, 857 N.E.2d 485 ; G.L. c. 6, § 178L (1), (2). At this hearing, SORB bears the burden of demonstrating by a preponderance of the evidence that the offender has a duty to register, and what the offender's classification should be. 803 Code Mass. Regs. § 1.10(1) (2013).

SORB “may ... relieve [a] sex offender of any further obligation to register” if the offender establishes that “the circumstances

of the offense in conjunction with the offender's criminal history do not indicate a risk of reoffense or a danger to the public.” G.L. c. § 178K (2) (d ). The decision as to whether this provision should be applied must take into account “factors, including but not limited to, the presence or absence of any physical harm caused by the offense and whether the offense involved consensual conduct between adults.” Id.

We have emphasized that the sex offender registration requirement “implicates constitutionally protected liberty and privacy interests.” See Doe No. 205614, 466 Mass. at 596, 999 N.E.2d 478

, citing Doe v. Attorney Gen., 426 Mass. 136, 144, 686 N.E.2d 1007 (1997). Accordingly, “careful and individualized due process is necessary to sort sexual predators likely to repeat their crimes from large numbers of offenders who pose no danger to the public.” Doe No. 205614, supra, citing Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90, 105, 697 N.E.2d 512 (1998) (Marshall, J., concurring in part and dissenting in part).

2. Facts. We recite the facts found by the successor examiner. These facts were relied upon by the Superior Court judge, and Doe does not dispute them.

Doe's cousins, a boy and a girl, emigrated from Ireland to the United States with their family. The cousins' family was, at first, dependent on Doe's family. During the years from 1986 through 1988, Doe, then a teenager, engaged in repeated sexual assaults against his male cousin and in one sexual assault against his female cousin. At the end of this period, Doe and the female cousin were sixteen years old. The male cousin was two years younger.

Doe's assaults against the male cousin, which began when the cousin was eleven years old, escalated in violence over time, from masturbation to digital and then penile rape. Doe's assault against his female cousin occurred when they were both sixteen years old. On that occasion, the female cousin was swimming in Doe's family's swimming pool, when Doe swam over and raped her digitally.²

Doe's cousins first disclosed the sexual assaults in 2000, twelve years after the assaults had ceased. The cousins explained that

they had been afraid to complain earlier because of their parents' dependency on Doe's family, and because Doe had threatened that he would cause their family to be deported if they complained. Doe initially told police that he had engaged only in consensual acts with his male cousin. In October, 2003, however, he pleaded guilty to five counts of rape of a child, G.L. c. 265, § 22A

; five counts of rape and abuse of a child, G.L. c. 265, § 23 ; and two counts of rape, G.L. c....