John Doe v. Sex Offender Registry Bd.

• Decision Date: 20 December 2019
• Docket Number: No. 18-P-423,18-P-423
• Citation: 96 Mass.App.Ct. 738,138 N.E.3d 459
• Parties: John DOE, Sex Offender Registry Board No. 22188 v. SEX OFFENDER REGISTRY BOARD.
• Court: Appeals Court of Massachusetts

96 Mass.App.Ct. 738

138 N.E.3d 459

John DOE, Sex Offender Registry Board No. 22188

v.SEX OFFENDER REGISTRY BOARD.

No. 18-P-423

Appeals Court of Massachusetts, Essex..

Argued October 2, 2019.

Decided December 20, 2019.

Brandon L. Campbell for the plaintiff.

John P. Bosse for Sex Offender Registry Board.

Present: Milkey, Sullivan, & Ditkoff, JJ.

SULLIVAN, J.

The plaintiff, John Doe, appeals from a Superior Court judgment affirming the Sex Offender Registry Board's (SORB) classification of Doe as a level three sex offender. See G. L. c. 6, § 178K(2)(c ). Doe contends, among other things, that the SORB hearing examiner incorrectly applied the agency's risk factor regulations, which define repetitive and compulsive behavior, and improperly excluded expert evidence that challenged the regulation. See G. L. c. 6, § 178K(1)(a )(ii) ; 803 Code Mass. Regs. § 1.33(2) (2016).¹ We conclude that the hearing examiner erred by applying full aggravating weight to factor 2, repetitive and compulsive behavior, in a situation where the repetitive behavior occurred without an intervening indictment or conviction, because granting full aggravating weight in these circumstances was inconsistent with SORB regulations. We also conclude that it was error to exclude expert testimony regarding the research on which the regulations describing repetitive and compulsive behavior are based. Accordingly, we vacate the judgment and remand the case for further proceedings.

Background. After an evidentiary hearing, the SORB hearing examiner found the following: On July 30, 1989, around 4:30 A.M. , Doe, then age twenty-five, broke into and entered the apartment of a thirty-two year old woman. He held her at knifepoint, robbed her of $900, and raped her. Doe then fled from the apartment.

Eight days later on August 7, 1989, Doe entered a second building at around 2:15 A.M. Doe found his second victim, a thirty-seven year old woman, asleep on the second floor of her in-law's house. Doe placed a knife at her throat and told her not to speak. He then robbed her of $400, led her downstairs to the kitchen, raped her, and fled. Doe was under the influence of crack cocaine during both attacks.

Doe was subsequently indicted. On June 7, 1990, a Superior Court jury found Doe guilty of aggravated rape, G. L. c. 265, § 22(a ), in connection with the second incident on August 7, 1989.² He was sentenced to a term of from twelve to thirty years in State prison. On March 12, 1991, Doe pleaded guilty to aggravated rape for his actions in the first incident on July 30, 1989.³ He was sentenced to a term of from fifteen to thirty years in State prison, to be served concurrently with the sentences imposed for the second incident. As his release date neared, SORB classified him as a level three offender, and Doe challenged the classification.

A hearing was held on July 19, 2016, at which time Doe was fifty-two years old. Only one statutory high risk factor was present in the case, that is, factor 2, repetitive and compulsive behavior. See G. L. c. 6, § 178K(1)(a )(i)-(vi). See also 803 Code Mass. Regs. § 1.33(1)-(6). The hearing examiner found that because the two offenses were committed eight days apart, Doe "had ample opportunity to reflect on the wrongfulness of his conduct." The hearing examiner gave this factor full aggravating weight, the highest weight under the applicable guidelines. See 803 Code Mass. Regs. § 1.33(2).

In rendering his decision, the hearing examiner also considered a number of risk-elevating factors, as described in the guidelines, including the fact that there were two stranger victims, threats, the use of a weapon and violence, the high level of physical contact (i.e., forcible penile penetration), and Doe's history of alcohol and drug abuse. See 803 Code Mass. Regs. § 1.33(7)-(27). The examiner gave full aggravating weight to these risk-elevating factors.⁴ In addition, the hearing examiner considered the fact that Doe had dropped out of sex offender treatment for several years while he pursued a college degree in prison, but acknowledged that he had actively participated since his return to treatment in 2014. The examiner gave Doe's treatment history only "minimal" weight. In a similar vein, Doe had had disciplinary reports in prison at one time, but had had none in the previous eight years.

The hearing examiner also weighed several risk-mitigating factors. See 803 Code Mass. Regs. § 1.33(28)-(34). He gave full weight to Doe's advanced age, to Doe's educational attainments, religious conversion, and regular participation in religious services as a Jehovah's Witness. He gave some mitigating weight to Doe's family and community support systems,⁵ but ultimately concluded that the mitigating factors were "far outweighed" by the aggravating factors, thus resulting in the level three classification. ⁶

Discussion. "In reviewing SORB's decisions, we ‘give due weight to the experience, technical competence, and specialized knowledge of the agency.’ " Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594, 602, 999 N.E.2d 478 (2013) ( Doe No. 205614 ), quoting G. L. c. 30A, § 14(7). However, "[a] reviewing court may set aside or modify SORB's classification decision where it determines that the decision is in excess of SORB's statutory authority or jurisdiction, violates constitutional provisions, is based on an error of law, or is not supported by substantial evidence." Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 649, 126 N.E.3d 939 (2019), citing G. L. c. 30A, § 14(7).

1. Repetitive and compulsive behavior. Doe contends that the hearing examiner erred by applying full aggravating weight to the second statutory risk factor, repetitive and compulsive behavior. As is more fully discussed below, the regulation permits SORB to give highest weight to this factor only when the sex offender reoffends after being "charged with or convicted of a sex offense." 803 Code Mass. Regs. § 1.33(2).⁷ See G. L. c. 6, § 178K(1)(a )(ii). Because Doe committed his second offense before being charged with or convicted of his first offense, he maintains that the hearing examiner's decision to give full aggravating weight to this factor was error. We agree.

It is true that "[a] hearing examiner has discretion ... to consider which statutory and regulatory factors are applicable and how much weight to ascribe to each factor ...." Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 109-110, 18 N.E.3d 1081 (2014) ( Doe No. 68549 ). The exercise of that discretion must, nevertheless, conform to applicable law. "We ‘accord an agency's interpretation of its own regulations considerable deference unless [it is] arbitrary, unreasonable, or inconsistent with the plain terms of the regulations themselves.’ " Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 623, 925 N.E.2d 533 (2010), quoting Rasheed v. Commissioner of Correction, 446 Mass. 463, 476, 845 N.E.2d 296 (2006).

Here, giving factor 2, repetitive and compulsive behavior, full aggravating weight was inconsistent with the plain terms of the SORB regulation, which sets forth the weight to be given in each of the three distinct factual scenarios. See 803 Code Mass. Regs. § 1.33(2). Factor 2 applies at its threshold weight any time an offender "engages in two or more separate episodes of sexual misconduct" where there is "time or opportunity, between the episodes, for the offender to reflect on the wrongfulness of his conduct." SORB may "give increased weight to offenders who have been discovered and confronted (by someone other than the victim) or investigated by an authority for sexual misconduct and, nonetheless, commit a subsequent act of sexual misconduct." The third and highest weight is given where "an offender ... engages in sexual misconduct after having been charged with or convicted of a sex offense." 803 Code Mass. Regs. § 1.33(2).

The hearing examiner found that Doe committed two sexual offenses, and that Doe had ample opportunity to reflect on the wrongfulness of his conduct in the eight days between those two offenses. These facts bring Doe within the scope of the first, threshold level of weight. However, there are no findings to support giving increased weight, let alone full aggravating weight, to factor 2. Doe was not "discovered and confronted" or "investigated ... for sexual misconduct" before his second offense, much less "charged with or convicted of a sex offense" prior to his second offense. 803 Code Mass. Regs. § 1.33(2). Consequently, the hearing examiner erred by giving factor 2, repetitive and compulsive behavior, full aggravating weight.

2. Excluded testimony. Doe sought to admit a transcript of the testimony of Dr. R. Karl Hanson from a previous SORB hearing held in January 2014. In that hearing, Hanson testified that SORB misunderstood and misapplied his research, and that of other researchers, in formulating its regulations regarding repetitive and compulsive behavior. The hearing examiner ruled (without elaboration) that a transcript of the testimony was inadmissible on "confidentiality grounds."

"[A] SORB classification decision will be deemed ‘[a]rbitrary or capricious,’ G. L. c. 30A, § 14(7)(g ), if it fails to take into account reliable evidence that a factor relevant to a given offender affects the likelihood that the offender will recidivate." Doe No. 68549, 470 Mass. at 112, 18 N.E.3d 1081. Here, the evidence offered was reliable, and was relevant to Doe's likelihood of recidivism. The evidence was reliable because Hanson is an authority on whose research SORB relies for its regulations in general, and this regulation in particular. See 803 Code Mass. Regs. § 1.33(2) (citing a 2004 study co-authored by Hanson). See also Doe No. 205614, 466 Mass. at 604, 999 N.E.2d 478 (noting Hanson's authoritative contribution to the SORB guidelines as in effect in 2008...