Doe v. Sex Offender Registry Bd.

• Decision Date: 05 June 2009
• Docket Number: No. 07-P-1940.,07-P-1940.
• Citation: 907 N.E.2d 233,74 Mass. App. Ct. 383
• Parties: John DOE, Sex Offender Registry Board No. 24341 v. SEX OFFENDER REGISTRY BOARD.
• Court: Appeals Court of Massachusetts

907 N.E.2d 233

74 Mass. App. Ct. 383

John DOE, Sex Offender Registry Board No. 24341 v. SEX OFFENDER REGISTRY BOARD.

No. 07-P-1940.

Appeals Court of Massachusetts, Norfolk.

Argued April 2, 2009.

Decided June 5, 2009.

Elizabeth Caddick, Newton, for the plaintiff.

Jennifer K. Zalnasky for the defendant.

Present: LENK, SIKORA, & WOLOHOJIAN, JJ.

WOLOHOJIAN, J.

In the early morning of July 2, 1984, Doe came staggering out of a bar in Quincy and began to follow a woman whom he did not know. After she rebuffed his offer to walk her home, he pushed her into some nearby bushes. A struggle ensued during which Doe tried to kiss the woman, slapped her several times, hit her head against the ground, pinned her arms down, reached under her shirt, and tore her bra. The woman was able to break away, passersby called the police, and Doe was found hiding in the bushes. Doe was convicted (by plea) of assault with intent to rape and indecent assault and battery and was sentenced to one year in the house of correction.

Twenty-one years later, the Sex Offender Registry Board (SORB) preliminarily classified Doe as a level two sex offender based exclusively on his convictions from the 1984 incident. Pursuant to G.L. c. 6, § 178L, Doe requested a de novo hearing before a hearing examiner, which he received. The hearing brought out the following additional information, none of which was controverted: Doe has no convictions other than those arising from the 1984 attack, and has had no criminal involvement of any sort since then. He began drinking in 1967, developed into an alcoholic, and had trouble controlling his anger and behavior when drunk. Shortly after the attack, he attended a detoxification program and recognized and addressed his alcoholism. He has not had a drink for more than two decades. The hearing examiner found that Doe expressed "sincere remorse for his behavior," and recognized the role that alcohol played in it. Doe has been continuously employed as a pressman for a Massachusetts newspaper since 1983, and has been a member of the pressman's union since 1977. He is currently on medical disability leave and has reduced mobility. He was married to his first wife for eleven years and had four children with whom he maintains good relationships. His second marriage produced a child with whom he also has a good relationship. His living situation is stable. In short, there was no evidence apart from the 1984 attack upon which to base a finding that Doe posed any risk of committing a sex offense. Based solely on the characteristics of that more than twenty year old crime,¹ the hearing examiner classified Doe as a level one sex offender.

Doe sought judicial review² in the Superior Court where, upon a motion for judgment on the pleadings, judgment was entered in favor of SORB and his level one classification was affirmed.

Both before the hearing examiner and in the Superior Court, Doe argued (among other things) that he posed no risk of reoffense and, hence, should be relieved of any registration obligation under G.L. c. 6, § 178K(2)(d), as amended by St.1999, c. 74, § 2, which provides:

"The board may, upon making specific written findings 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 and the reasons therefor, relieve such sex offender of any further obligation to register."³

General Laws c. 6, § 178K(2)(d), on its face excludes from its protection those who have been convicted of a "sexually violent offense," regardless of whether they pose any current risk of reoffense. Assault with intent to commit rape is a "sexually violent offense" for purposes of the section. G.L. c. 6, § 178C. Based on these provisions, SORB argued (both to the hearing examiner and to the Superior Court) that Doe, because he had been convicted of assault with intent to commit rape, was not entitled to the provisions of § 178K(2)(d), was mandatorily "subject to lifetime registration," and "relief of registration is not an option." Doe argues that mandatory registration for those who pose no current threat to the public or risk of reoffense violates substantive due process.⁴

In Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass. 780, 793, 882 N.E.2d 298 (2008) (Doe No. 8725), the Supreme Judicial Court held that due process requires that a sex offender be given the opportunity to demonstrate that he poses no current risk of reoffense or threat to the public.⁵ In other words, a sex offender cannot be required to register simply because he was—however long ago in the past—convicted of a sexually violent offense if he poses no current risk. Doe No. 8725 was not available to either the hearing examiner or the Superior Court judge at the time of their decisions. As a result, both the hearing examiner and the Superior Court judge understandably appear to have considered Doe ineligible to claim the benefit of G.L. c. 6, § 178K(2)(d).⁶

Here, unlike in Doe No. 8725, Doe was afforded a hearing at which he was permitted to introduce evidence, including presenting witnesses. However, as noted above, it is not apparent that the hearing officer considered herself free to consider whether Doe—despite having been convicted of a sexually violent offense—was eligible to be relieved of all registration requirements if he demonstrated that he currently poses no risk of reoffense or current danger to the public. As noted above, SORB argued that Doe was automatically excluded from consideration under § 178K(2)(d), and the hearing officer does not mention or discuss that section at all. The due process required by Doe No. 8725, supra, does not simply require that Doe receive a hearing, but that the hearing entail meaningful consideration of his claim that he presents no current risk of reoffense or threat to the public. See id. at 791-792, 882 N.E.2d 298, quoting from Roe v. Attorney Gen., 434 Mass. 418, 449, 750 N.E.2d 897 (2001) (Marshall, C.J., concurring in part and dissenting in part) (person must be given "opportunity to show what he likely could: that he is not a danger to children or other vulnerable persons").

It is true that the hearing officer found that Doe presented a "low" risk to reoffend and a "low" degree of danger to the public and classified him as a level one offender. Therefore, it could be argued that the hearing examiner concluded that Doe had not shown that he presented no risk of reoffense or threat to the community. This inferential leap, however, is not sustainable where SORB argued that such a finding was legally foreclosed by the statute, the language of the statute appeared to support SORB's position, the record does not show that the hearing examiner considered the issue, and the hearing examiner did not have the benefit of Doe No. 8725 at the time she considered or decided the issue.

In light of the above, we conclude that the hearing examiner must explicitly consider, and make written findings pertaining to, whether Doe currently presents a risk of reoffense or danger to the public. In this regard, we note that the Supreme Judicial Court has emphasized that retroactivity and due process concerns are...