Doe v. Sex Offender Registry Bd., SJC-13274
| Docket Number | SJC-13274 |
| Decision Date | 07 November 2022 |
| Parties | John DOE, Sex Offender Registry Board No. 6729 v. SEX OFFENDER REGISTRY BOARD. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
490 Mass. 759
197 N.E.3d 392
John DOE, Sex Offender Registry Board No. 6729
v.
SEX OFFENDER REGISTRY BOARD.
SJC-13274
Supreme Judicial Court of Massachusetts, Middlesex.
Argued September 9, 2022
Decided November 7, 2022
Ashley M. Green, Boston, for the plaintiff.
David L. Chenail, for the defendant.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.
KAFKER, J.
This case concerns the reclassification of John Doe, Sex Offender Registry Board No. 6729 (Doe), from a level two to a level three sex offender. The Sex Offender Registry Board (board) initiated an upward reclassification of Doe when he was charged with additional sex offenses. After an evidentiary hearing, the board ordered Doe to register as a level three offender.
Doe challenges the board's determination, arguing that it was unsupported by substantial evidence, based on legal error, and arbitrary and capricious. Doe argues that the board hearing examiner erred in applying factor two of the regulations governing classification in the absence of a finding of compulsive behavior and failed to assign a specific weight to eight other factors, while erroneously relying on factor twenty-four, which addresses the failure to participate in sex offender treatment.
Upon review of the hearing examiner's decision, we conclude that there was clear and convincing evidence supporting the level three classification. Specifically, the element of compulsive behavior in factor two was satisfied by Doe's continuing to engage in sex offenses while being investigated for such offenses with another victim and having been convicted and imprisoned for sex offenses previously. We also conclude that the hearing examiner properly applied the other factors on which she relied, except for factor twenty-four, which should not have been considered. Considering this factor, however, was not prejudicial error, given the overwhelming evidence supporting the level three classification. We therefore affirm the board's decision to upwardly reclassify Doe.
1. Background. a. Sex offenses and allegations. There are multiple reported instances of Doe's sexual misconduct involving three different victims. First, on August 19, 1998, Doe sexually assaulted an eight year old girl (victim one),1 looking up her shorts at her vagina when she was not wearing underwear, rubbing her back and legs, pushing his penis against her buttocks while she sat on his lap,
and suggesting to her that she could see his penis if she asked. On October 29, 1998, Doe pleaded guilty to this first sex offense, indecent assault and battery on a child under the age of fourteen, which required him to register as a sex offender. On July 30, 2003, the board classified the plaintiff as a level two sex offender.
Second, a fourteen year old girl (victim two) alleged that, from June to November of 2005, Doe sexually assaulted her on numerous occasions when she babysat for him and his wife. Doe began by touching her legs, groin, and breasts and by kissing her. He then penetrated her vagina digitally. In late October or early
November of 2005, Doe had sexual intercourse with the victim. The victim's mother reported these incidents to the police on March 7, 2007, after the victim disclosed the rape to her. On March 12, 2009, a jury found Doe guilty on two counts of rape and abuse of a child without force and three counts of indecent assault and battery on a person age fourteen or older.2
Third, after police in April of 2007 questioned Doe about the allegations brought by victim two, a fourteen year old girl (victim three) reported to police that Doe, then thirty-four, sexually assaulted her at a house party in July of 2007. While sleeping in a bed alongside victim three, her friend, and another man, Doe kissed the victim, rubbed her breasts over her clothes, and "dry hump[ed]" her before having intercourse with her. He then had intercourse with her in the shower. On January 20, 2010, a jury found Doe guilty of two counts of rape of a child, and a judge sentenced him to from twelve to fifteen years of incarceration on each count, to run concurrently to one another but after his sentences for his convictions with regard to victim two. In 2012, the Appeals Court reversed the convictions with regard to victim three and set aside the verdicts for failure to prosecute within the time frame set forth by Mass. R. Crim. P. 36 (b) (1), 378 Mass. 909 (1979). The hearing officer nonetheless determined, regarding victim three, "I find there to be substantial evidence, including the [v]ictim's detailed account, told consistently to police at the hospital and during a later [sexual abuse intervention network] interview, ... to conclude that [Doe] did commit the rapes of [v]ictim [three] as alleged." See Soe, Sex Offender Registry Bd. No. 252997 v. Sex Offender Registry Bd., 466 Mass. 381, 396, 995 N.E.2d 73 (2013) (explaining that conviction is not required for board to find that sex offense has occurred, as lower standard of proof and different evidentiary requirements apply).
b. Procedural history. In January of 2008, the board notified Doe of his duty to register as a level three sex offender after he was charged with the additional sex offenses related to victims two and three. Doe requested a hearing challenging the recommendation, and following the hearing, the examiner found "by clear and convincing evidence ... that [Doe] presents a high risk to reoffend and danger, and the degree of dangerousness posed to
the public is such that a substantial public safety interest is served by active dissemination of his sex offender registry information." In addressing factor two, the hearing examiner explained that Doe had engaged in additional sexual assaults after being convicted of one sexual assault and while being investigated for another. The
hearing examiner also considered factor twenty-four -- Doe's failure to engage in sex offender therapy -- despite Doe's concerns about confidentiality and the use of this information against him in civil commitment proceedings. The hearing examiner ordered Doe to register as a level three sex offender on May 6, 2019.3
Doe sought judicial review, pursuant to G. L. c. 30A, § 14, and G. L. c. 6, § 178M, and a Superior Court judge upheld the board's decision on July 30, 2020. Doe appealed from the Superior Court's decision, and the Appeals Court affirmed the board's decision. See Doe, Sex Offender Registry Bd. No. 6729 v. Sex Offender Registry Bd., 100 Mass. App. Ct. 1124, 2022 WL 414143 (2022). Although the Appeals Court found that the hearing examiner applied risk factor twenty-four in error, the court determined that "the record adequately supports Doe's classification even in the absence of this factor," and this error resulted in "no prejudice" to Doe. Id. We allowed Doe's application for further appellate review to address uncertainty in the case law regarding the application of factor two's requirement of repetitive and compulsive behavior.
2. Discussion. a. Standard of review. "A reviewing court may set aside or modify the board's classification decision where it determines that the decision is in excess of the board's statutory authority or jurisdiction, is based on an error of law, is not supported by substantial evidence,[4 ] or is an arbitrary and capricious abuse of discretion." Doe, Sex Offender Registry Bd. No. 339940 v. Sex Offender Registry Bd., 488 Mass. 15, 30, 170 N.E.3d 1143 (2021) ( Doe No. 339940 ), quoting Doe, Sex Offender Registry Bd. No. 3177 v. Sex Offender Registry Bd., 486 Mass. 749, 754, 162 N.E.3d 35 (2021) ( Doe No. 3177 ). When evaluating the board's decision, however, 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." Doe No. 339940, supra, quoting Doe No. 3177, supra. See G. L. c. 30A, § 14 (7).
b. Sex offender classification and reclassification. Per the board's enabling statute, the board must "promulgate guidelines for determining the level of risk of reoffense and the degree of dangerousness posed to the public" that then inform the "three levels of notification depending on such risk ... and ... dangerousness." G. L. c. 6, § 178K (1). The statute provides a nonexhaustive list of "[f]actors relevant to the risk of reoffense," beginning with those "indicative of a high risk of reoffense and degree of dangerousness posed to the public," including factor two on "repetitive and compulsive behavior." Id. "A level three classification is appropriate ‘[w]here the board determines that the risk of reoffense is high and the degree of dangerousness posed to the public is such that a substantial public safety interest is served by active dissemination’ of information about the offender to the public." Doe No. 339940, 488 Mass. at 30, 170 N.E.3d 1143, quoting Doe No. 3177, 486 Mass. at...
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