Doe v. Sex Offender Registry Bd.

• Decision Date: 04 June 2020
• Docket Number: No. 18-P-1067,18-P-1067
• Parties: John DOE, Sex Offender Registry Board No. 11204 v. SEX OFFENDER REGISTRY BOARD.
• Court: Appeals Court of Massachusetts

97 Mass.App.Ct. 564

148 N.E.3d 453

John DOE, Sex Offender Registry Board No. 11204

v.SEX OFFENDER REGISTRY BOARD.

No. 18-P-1067

Appeals Court of Massachusetts, Suffolk..

Argued November 6, 2019.

Decided June 4, 2020.

Eric Tennen, Boston, for the plaintiff.

Christopher M. Bova, for the defendant.

Present: Milkey, Singh, & Hand, JJ.

MILKEY, J.

The plaintiff challenges his classification as a level three sex offender. At issue is whether the hearing examiner for the Sex Offender Registry Board (SORB) adequately engaged with certain evidence that the plaintiff claims demonstrates his low current risk of reoffending. Our consideration of this question calls for us to revisit the extent to which a hearing examiner can and should consider expert reports prepared outside of the SORB classification process. For the reasons set forth below, we vacate the Superior Court judgment affirming the hearing examiner's classification decision and remand the matter for further proceedings.

Background. 1. Plaintiff's sex offenses. In 1995, the plaintiff pleaded guilty to one count of assault with intent to rape a child under sixteen, kidnapping, and assault and battery. The convictions were based on an incident that took place the prior year when the plaintiff was eighteen. According to police reports, the plaintiff confined a ten year old boy (victim 1) in the attic of a bicycle shop where the plaintiff worked, coerced the boy into performing fellatio on him, and then threw the boy against the wall after he refused to perform another sex act and attempted to leave. Before allowing victim 1 to leave, the plaintiff threatened to kill him if he told anyone of the incident. Based on his convictions, the plaintiff was sentenced to two years in the house of correction, followed by five years of probation.

The plaintiff was convicted of another sex offense; it involved the son of his employer (victim 2). According to police reports, when the plaintiff was approximately eighteen and victim 2 was around nine, the plaintiff fellated victim 2 and threatened to beat him up if he told anyone. Two years later, the plaintiff again fellated victim 2, paying him twenty dollars to do so. This assault, which took place on a camping trip in Maine, occurred after the plaintiff was released from his initial incarceration for his convictions related to victim 1, but while he remained on probation. Shortly thereafter, the plaintiff asked victim 2 if he wanted to repeat what happened in Maine and, over victim 2's objections, proceeded to fellate him.

The new offenses resulted in the revocation of the plaintiff's probation, and in his pleading guilty to one count of rape of a child under sixteen. He was sentenced to a term of five to seven years on the earlier offenses, and five to nine years on the new conviction (to be served concurrently). In 2007, before his incarceration ended, the plaintiff was civilly committed as a sexually dangerous person (SDP).

2. Plaintiff's sex offender treatment. While confined as an SDP, the plaintiff went through extensive sex offender treatment and individual therapy. For example, as one of the qualified examiners (QEs) who evaluated the plaintiff observed, he "completed all five of the Understanding Pathways to Offending psychoeducational classes, which signifies the completion of the class curriculum offered in the Sex Offender Treatment Program." In 2013, the plaintiff was released from SDP confinement after two QEs and the five-member community access board (CAB) unanimously concluded that he no longer met the criteria of an SDP. In their respective reports, the QEs and the CAB explained in detail the basis of their conclusions that the plaintiff was no longer likely to reoffend despite his diagnosed pedophilia and history of offenses. As QE Dr. Gregg Belle put it in summarizing his conclusions: "[the plaintiff's] continued progress in sex offender treatment, ability to integrate what he has learned in treatment and make significant connections to his sex offending history offsets many of the static and dynamic risk factors noted [earlier in the report]." Dr. Belle relied in part on a "phallometric assessment" done in 2012 that indicated that the plaintiff was aroused by "appropriate scenes involving consensual sex" between adults, but "showed no sexual arousal to inappropriate scenes" involving prepubescent children.¹

The CAB drew similar conclusions, highlighting not only that the plaintiff "complet[ed] the sex offender treatment program," but also the specific progress he made in doing so. As the CAB stated in its report:

"[The plaintiff] no longer minimizes and distorts his sexual interests and offending. He has developed a comprehensive understanding of his tendency to identify with children through a treatment experience. [The plaintiff] has explored sufficiently his appropriate sexual interests and healthy sexual behavior. He has demonstrated the ability to offer and discuss a reliable version of his sexual offenses in a therapeutic setting. He has developed skills designed to address his deviant sexual arousal. Based on [his] performance on the [phallometric assessment] he took in September 2012, he appears to have some ability to control his sexual interest in prepubescent males."

3. Plaintiff's support network. After he was released from SDP confinement, the plaintiff moved in with his mother, and he became active in the Methodist church that she had been a member of for several decades. The pastor of the church testified on the plaintiff's behalf at the SORB hearing, and several members of the congregation did so as well or wrote letters of support. They all spoke both to the church's openness to having the plaintiff in their congregation and to the program that the church had implemented to try to prevent any reoffending. Specifically, the church's "safe sanctuaries committee" -- a body created in the aftermath of the sex abuse scandal involving the Catholic Church -- drafted a "limited access covenant" that the plaintiff agreed in writing to follow. That covenant includes various precautionary measures, such as requiring that the plaintiff be actively monitored by a designated, trained member of the congregation whenever there is an activity at the church that may involve children. One such monitor, who initially was unhappy with a sex offender joining the church, now considers the plaintiff a friend and testified on his behalf.

4. SORB process. In 2009, the SORB notified the plaintiff that it intended to classify him as a level three offender. A hearing examiner upheld that classification in 2010, but the matter was remanded for a new hearing in the wake of Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 300, 41 N.E.3d 1058 (2015) ( Doe No. 380316 ) (requiring that SORB classifications be based on clear and convincing evidence). At the hearing held in 2017, the SORB presented no witnesses and instead relied solely on various documents, principally the police reports about the plaintiff's prior sex offenses. At the plaintiff's request, and without any objection by the SORB, the hearing examiner admitted the reports prepared by the QEs and the CAB, the phallometric assessment referenced in the reports of Dr. Belle and the CAB, evaluations from the sex offender treatment classes that the plaintiff took, one letter of support from the plaintiff's former cellmate, five letters of support from members of the plaintiff's church, and a copy of the limited access covenant that the plaintiff had executed with his church. Four live witnesses testified on the plaintiff's behalf:

the pastor of his church, his mother, and two other members of the church.

The hearing examiner upheld the SORB's recommended level three classification and issued a twenty-five page decision. Most of his decision consisted of a recitation of the facts underlying the plaintiff's past sex offenses and a discussion of which statutory "high risk" factors and regulatory risk elevating factors were implicated by those facts. The hearing examiner noted what degree of weight he assigned to those factors (mere "aggravating consideration" versus "increased aggravating weight"). His opinion also reviewed applicable risk mitigating factors and stated that the hearing examiner was assigning "full mitigating weight" to two of them ("sex offender treatment" and "home situation and support systems") and "mitigating consideration" to another ("stability in the community").

Of special note is the hearing examiner's treatment of the four reports on which the plaintiff substantially relied: the two QE reports, the CAB report, and the phallometric assessment. The hearing examiner treated the material included in those reports in various ways. With respect to those aspects of the reports that potentially supported the plaintiff's case, the hearing examiner indicated that he was affording some "no weight," and others not "much" weight. He made no mention of some of the reports altogether. Finally, the hearing examiner relied in part on certain "useful information" from the reports to support his decision to classify the plaintiff as a level three offender. Further details are reserved for later discussion.

After discussing the individual statutory and regulatory criteria, the hearing examiner ended his twenty-five page decision with a page-and-a-half "discussion" section. After again walking through the aggravating and mitigating factors -- this time in summary form -- the discussion section set forth the hearing examiner's reasoning in a single sentence: "Considering the nature of and extent of the risk aggravating and risk mitigating factors before me, I find by the clear and convincing evidence standard that the [plaintiff] presents a high risk to reoffend, that his dangerousness is such that active dissemination of his personal information is warranted and order that he register as a Level 3 sex offender."

Discussion. At the...