Doe v. Sex Offender Registry Bd.
| Decision Date | 11 December 2013 |
| Docket Number | SJC–11328. |
| Parties | John DOE, Sex Offender Registry Board No. 205614 v. SEX OFFENDER REGISTRY BOARD. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Catherine J. Hinton, Boston, for the plaintiff.
David L. Chenail, Assistant Attorney General, for the defendant.
Andrew S. Crouch, Committee for Public Counsel Services, & Elizabeth A. Lunt, for Committee for Public Counsel Services & another, amici curiae, submitted a brief.
Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.
John Doe, a female, pleaded guilty to several Federal charges arising from her prior management of an escort service, including one count of sex trafficking of children, 18 U.S.C. § 1591 (2006).1 That conviction is a “like violation” to the Massachusetts offense of living off of or sharing earnings of a minor prostitute, G.L. c. 272, § 4B, an enumerated offense requiring registration as a sex offender. See G.L. c. 6, § 178C.
A hearing examiner of the Sex Offender Registry Board (SORB) determined after a hearing that Doe presented a low risk of reoffense and attendant degree of dangerousness, and classified her as a level one sex offender. Doe appealed, claiming both that it was arbitrary and capricious for the hearing examiner not to have evaluated proffered authoritative evidence on recidivism in females, and that it was an abuse of discretion to have denied her motion for funds for an expert witness to testify on the subject. We conclude that it was arbitrary and capricious for the hearing examiner to classify Doe's risk of reoffense and degree of dangerousness without considering the substantial evidence presented at the hearing concerning the effect of gender on recidivism, and that, in the circumstances, the hearing examiner abused his discretion by denying the motion for funds for an expert witness. Therefore, we remand the matter to SORB for further proceedings.
1. Statutory and regulatory framework. The requirement to register as a sex offender is governed by a set of statutes enacted in 1999, which were designed “to protect ... the vulnerable members of our communities from sexual offenders.” St. 1999, c. 74, preamble. In enacting the sex offender registration statute, the Legislature was concerned primarily with “the danger of recidivism posed by sex offenders, especially sexually violent offenders who commit predatory acts characterized by repetitive and compulsive behavior.” St. 1999, c. 74, § 1. To address this problem, the Legislature created a regime of registration and “classification of such offenders on an individualized basis according to their risk of reoffense and degree of dangerousness.” Id. An offender may be classified into one of three categories of dangerousness, with differing attendant duties and implications for the public dissemination of the offender's information. See G.L. c. 6, § 178K (2) (a )-(c ).
The statute requires that SORB transmit registration information on all offenders to the “police departments in the municipalities where such sex offender lives, has a secondary address and works and attends an institution of higher learning or, if in custody, intends to live and work and attend an institution of higher learning upon release and where the offense was committed and to the Federal Bureau of Investigation.”Id. Information pertaining to level one sex offenders is not disseminated to the general public.
G.L. c. 6, § 178K (2) (a ). The duty to comply with registration requirements persists for twenty years, at a minimum, from the date of conviction of the underlying offense or release from custody. G.L. c. 6, § 178G.
As we have emphasized, the sex offender registration law implicates constitutionally protected liberty and privacy interests. See, e.g., Doe v. Attorney Gen., 426 Mass. 136, 144, 686 N.E.2d 1007 (1997). Because of the breadth of the statute, and to safeguard these interests, “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, but who are nonetheless caught in the statute's far-flung net of registration.” 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).
To facilitate individualized determinations of the likelihood of recidivism, and to serve the public's interest in the accurate identification of potential risk, the statute directs SORB to promulgate regulations for classifying sex offenders into one of the three categories of dangerousness. See G.L. c. 6, § 178K (1) -(2). The statute sets forth a nonexhaustive list of factors to consider, G.L. c. 6, § 178K (1) (a )-(l ), which the regulations augment by formulating specific guidelines for the application of each factor. See 803 Code Mass. Regs. § 1.40 (2002) (guidelines). The guidelines list twenty-four factors to consider in making a determination of potential risk. See id. Each factor includes a discussion of the reasons it is germane to predicting recidivism; almost all of the factors are supported by citations to relevant scientific studies. See id. This grounding in “the available literature,” id., ensures that an offender's ultimate classification is the product of reasoned application of validated empirical studies. The guidelines provide that “the definitions, explanations, principles, and authorities contained in these Factors shall guide the Hearing Examiner in reaching a Final Classification decision.” Id. SORB bears the burden of justifying the appropriateness of its classification determination by a preponderance of the evidence. 803 Code Mass. Regs. § 1.10(1) (2002). See Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass. 780, 782 n. 4, 882 N.E.2d 298 (2008).
Here, Doe argues that SORB did not meet this burden, particularly in light of compelling scientific evidence that female offenders generally pose a much lower risk of reoffense. Doe argues that the hearing examiner arbitrarily ignored this evidence on female recidivism and reached a classification determination without having considered the effect of Doe's gender on her risk of dangerousness and likelihood of reoffense. She contends further that the hearing examiner abused his discretion in denying her motion for funds for an expert who would have testified to current knowledge on females' risk of sexually reoffending and to the application of the guidelines to one in Doe's circumstances.
2. Factual background. We summarize the facts found by the SORB hearing examiner, supplemented by Doe's testimony at the hearing, referenced throughout the examiner's decision.
In 2006, Doe pleaded guilty in the United States District Court for the District of Massachusetts to two counts of conspiracy, 18 U.S.C. § 371 (2006) ; one count of transporting a minor to engage in prostitution, 18 U.S.C. § 2423 (2006) ; one count of transporting an individual to engage in prostitution, 18 U.S.C. § 2421 (2006) ; and one count of sex trafficking of children, 18 U.S.C. § 1591 (2006). The convictions arose from Doe's management of an escort service in New England from approximately 2000 to 2002.2
Doe started the escort service after ceasing to work as a prostitute for various “pimps,” at whose hands she had suffered a number of serious physical assaults.3 The service, which employed up to twenty individuals at any given time, primarily offered erotic full-body massages; Doe instructed her employees that they had the “option” of having sexual relations with clients if the employees were so inclined and if they felt they could do so safely. Doe collected a fixed dollar amount from each payment that an employee received, and the employee kept the remainder, whatever the nature of the services performed.
Although she asked potential employees for identification documents before hiring them, Doe employed four minors in her escort service between 2001 and 2002. One of the minors, Minor A, began working for Doe when she was fourteen years old, using a false New York identification card that listed her age as nineteen. Doe sent Minor A on multiple client calls, in Massachusetts, New Hampshire, and Rhode Island, and sometimes drove her to these calls. In July of 2001, Doe saw Minor A's picture on a National Center for Missing and Exploited Children poster and learned the girl's actual age. Shortly thereafter, she directed another employee to telephone the center to report Minor A's location.
The resulting criminal investigation by the Federal Bureau of Investigation revealed the employment of Minors B, C, and D in Doe's escort service. Approximately three years after she ceased operation of the service, Doe was arrested; she was indicted for and pleaded guilty to sexually offending only against Minor A.4 Doe was sentenced to a term of incarceration for the crime of transporting a minor to engage in prostitution, deemed served while she spent seventeen months incarcerated awaiting trial, prior to entry of her plea. She was sentenced to a three-year period of supervised release for the other offenses.
3. Sex offender classification proceedings. In April, 2008, SORB notified Doe of its preliminary recommendation that she be classified as a level two sex offender, pursuant to G.L. c. 6, § 178K (2) (b ). Doe timely requested a hearing to challenge that recommendation, pursuant to G.L. c. 6, § 178L (1) (a ). She submitted several prehearing motions addressing the applicability of SORB's guidelines to female sex offenders. A hearing was held on October 8, 2008. After the hearing, but before rendering a decision, the hearing examiner recused himself with the agreement of the parties. A second hearing examiner was appointed to assume the case and issue a decision on the basis of the record and the previous examiner's findings.
Prior to the hearing, Doe moved for...
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Doe v. Sex Offender Registry Bd.
...466 Mass. 594999 N.E.2d 478John DOE, Sex Offender Registry Board No. 205614v.SEX OFFENDER REGISTRY BOARD.SJC–11328.Supreme Judicial Court of Massachusetts, Suffolk.Submitted Oct. 7, 2013Decided Dec. 11, Judgment vacated and case remanded. Cordy, J., issued concurring opinion. [999 N.E.2d 48......