John Doe v. Sex Offender Registry Bd.John Doe v. Sex Offender Registry Bd.
We conclude, first, that SORB has jurisdiction to classify Doe as a sex offender because a previous charge of open and gross lewdness against Doe was resolved through a conviction and not a continuance without a finding.
Second, we conclude that in order to classify an individual as a level two sex offender, the hearing examiner is required to make three explicit determinations by clear and convincing evidence: (1) that the risk of reoffense is moderate; (2) that the offender's dangerousness, as measured by the severity and extent of harm the offender would present to the public in the event of reoffense, is moderate; and (3) that a public safety interest is served by Internet publication of the offender's registry information. This holding is consistent with the relevant statutes and regulations, and avoids due process concerns that could arise if an individual's information
Third, having examined the evidence and the hearing examiner's findings in light of this three-prong test, we conclude that there was not substantial evidence to support her decision to classify Doe as a level two sex offender by clear and convincing evidence. Doe's dangerousness could not reasonably be characterized as moderate, and it was not reasonable to conclude, based on the hearing examiner's findings, that Internet publication of Doe's registry information would serve a public safety interest. We therefore vacate and set aside the decision of the Superior Court judge affirming SORB's classification of Doe as a level two sex offender, and remand this matter to the Superior Court for further proceedings consistent with this opinion.
Background. 1. Sex offender classification process. The sex offender registry law, as amended in 1999, established a sex offender registration system for those in the Commonwealth convicted of a "sex offense," as defined in G. L. c. 6, § 178C. See G. L. c. 6, §§ 178C - 178Q ; St. 1999, c. 74. The purpose of the law was "to protect ... the vulnerable members of our communities from sexual offenders," and particularly from "sexually violent offenders who commit predatory acts characterized by repetitive and compulsive behavior." St. 1999, c. 74, emergency preamble & § 1.
Pursuant to the sex offender registry law, the board prepares a recommended classification for every sex offender. See G. L. c. 6, § 178L (1). Where a sex offender challenges SORB's recommended classification, he or she is entitled to request an evidentiary hearing. See G. L. c. 6, § 178L (1) (a ). After this hearing, a SORB-designated hearing examiner "shall consider the relevant and credible evidence and reasonable inferences derived therefrom to determine: (a) the offender's risk of reoffense; (b) the offender's dangerousness as a function of the severity and extent of harm the offender would present to the public in the event of reoffense; and (c) in consideration of the foregoing, whether and to what degree public access to the offender's personal and sex offender information, pursuant to
"Where the board determines that the risk of reoffense is low and the degree of dangerousness posed to the public is not such that a public safety interest is served by public availability, it shall give a level [one] designation to the sex offender." G. L. c. 6, § 178K (2) (a ). Level one offenders' registry information is not disseminated to the general public or published on the Internet. See G. L. c. 6, §§ 178D, 178K (2) (a ). "Where the board determines that the risk of reoffense is moderate and the degree of dangerousness posed to the public is such that a public safety interest is served by public availability of registration information, it shall give a level [two] designation to the sex offender." G. L. c. 6, § 178K (2) (b ). Level two offenders' registry information is "available for inspection by the general public in the form of a comprehensive database published on the [I]nternet." G. L. c. 6, § 178D. And "[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, it shall give a level [three] designation to the sex offender." G. L. c. 6, § 178K (2) (c ). Level three offenders' registry information is available for public inspection on the Internet and also subject to "active[ ] dissemination" by the police or the board. See G. L. c. 6, §§ 178D, 178K (2) (c ). See also 803 Code Mass. Regs. § 1.28(1) (2016).
Any individual who disagrees with the board's final classification is entitled to file a complaint for judicial review in the Superior Court. See G. L. c. 6, § 178M ; G. L. c. 30A, § 14.
2. Doe's offenses. Prior to his 2015 guilty plea, Doe had been charged with open and gross lewdness on three occasions: once in 1990, once in 1991, and once in 1996. At the hearing, the police report regarding the 1990 charge was not in the record; the criminal complaint alleged only that Doe committed the crime of open and gross lewdness in the presence of two women. But Doe testified before the hearing examiner that the charge arose out of an incident during which he exposed his genitals to two strangers who were walking by while he sat inside his motor vehicle. As
During his classification hearing, Doe admitted that he had exposed himself on six or seven other occasions between 1991 and 1996, none of which resulted in an arrest or a court proceeding. There is no
In June 2014, Doe's nineteen year old female neighbor reported to the police that, while she was inside her home, Doe had exposed himself to her from inside his home on multiple occasions, three of which she described in further detail. The first reported incident took place in 2011, when Doe's neighbor was approximately fifteen years old. At this time, she observed Doe standing nude beside a window. She reported that she was able to see Doe's genitals because the window shade "was only [three-quarters] of the way down." Doe denied any recollection of this incident. He was initially charged with open and gross lewdness, but pleaded guilty to the lesser included offense of indecent exposure, in violation of G. L. c. 272, § 53. Indecent exposure is not a sex offense under the sex offender registry law. See G. L. c. 6, § 178C (listing all offenses that qualify as "[s]ex offense" under sex offender registry law).
The second incident occurred in May 2014. Again, the neighbor observed Doe standing nude beside a partially-covered window and exposing his penis. The third incident took place the following month, when the neighbor saw Doe standing nude in his kitchen and touching his penis in a manner consistent with masturbation. Doe's neighbor stated that each of these events occurred at night, and that she could see the defendant because his lights were on.
In response to his neighbor's allegations, Doe voluntarily spoke with a Haverhill police detective on June 18, 2014. According to
In March 2015, Doe pleaded guilty to two counts of open and gross lewdness arising out of the two incidents that took place in May and June 2014. He was sentenced to two years of supervised probation with conditions that he abstain from using drugs and alcohol and that he participate in a sex offender therapy program, which, according to his therapist, he successfully completed.
3. Doe's classification and appeals. In June 2015, SORB recommended that Doe be classified as a level two sex offender. Doe challenged the recommended classification, and an evidentiary hearing took place on May 3, 2016. On July 15, the hearing examiner concluded that Doe "presents a moderate risk to reoffend and that a public safety interest is served by public access to his sex offender registry information." She therefore ordered that Doe register as a level two sex offender. In reaching her conclusion, the hearing examiner
Doe filed a notice of appeal from the Superior Court judge's decision denying his motion for judgment on the pleadings, as well as a motion to extend the preliminary injunction pending appeal. A single justice of the Appeals Court stayed Internet publication of his information pending resolution of this case. We granted Doe's application for direct appellate review.
Discussion. 1. Standard of review. 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. See G. L. c. 30A, § 14 (7) (listing these and other reasons for vacating decision of agency). 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.,
2. SORB jurisdiction over Doe. A single conviction of open and gross lewdness, in violation of G. L. c. 272, § 16, is not a "sex offense" that permits classification of an individual as a sex offender; only a "second and subsequent adjudication or conviction" of that offense permits such classification. G. L. c. 6, § 178C. Doe argues, and SORB concedes, that Doe's two 2015 convictions of open and gross lewdness would not themselves trigger an obligation to register because those convictions occurred in the same judicial proceeding. See Commonwealth v. Wimer,
We conclude that the hearing examiner and the Superior Court judge correctly determined that Doe qualifies as a sex offender because he was found guilty of open and gross lewdness in 1991. The
3. Required determinations for level two classification. General Laws c. 6, § 178K (2) (b ), provides that, to classify an individual as a level two sex offender, the board must determine (1) "that the risk of reoffense is moderate" and (2) that "the degree of dangerousness posed to the public is such that a public safety interest is served by public availability of registration information." SORB's regulations recognize that fulfilling this statutory mandate requires the hearing examiner, based on "the relevant and credible evidence and reasonable inferences derived therefrom[,] to determine: (a) the offender's risk of reoffense; (b) the offender's dangerousness as a function of the severity and extent of harm the offender would present to the public in the event of reoffense; and (c) in consideration of the foregoing, whether and to what degree public access to the offender's personal and sex offender information ... is in the interest of public safety." 803 Code Mass. Regs. § 1.20(2). The SORB regulations therefore require a hearing examiner to make three distinct and explicit determinations in classifying a sex offender. We now consider each of the three determinations necessary to support a level two classification.
b. Degree of dangerousness. An offender's dangerousness, as described in 803 Code Mass. Regs. § 1.20(2), is measured by "the severity and extent of harm" that would result if the offender were to commit a new sex offense. Determining an individual's degree of dangerousness therefore requires a hearing examiner to consider what type of sexual crime the offender would likely commit if he or she were to reoffend. Pragmatically, because past is prologue, a hearing examiner would make this determination based on the sexual crime or crimes that the offender committed in the past. Where there is a history of different sexual offenses, the primary focus would likely be on the crime or crimes recently committed by the offender. See
Neither the statute nor the regulations specify the degree of dangerousness required for a level two classification. We conclude, based on the statutory and regulatory context, the adverse consequences of Internet publication for an offender, and our presumption that the Legislature intends its statutes to pass constitutional muster, that a moderate degree of dangerousness is required for the hearing examiner to classify an individual as a level two sex offender.
From the statute, we know that the board can impose a level two sex offender classification only where it finds that the offender
As this court has previously recognized, Internet publication of an individual's sex offender registry information "poses a risk of serious adverse consequences to that offender, including the risk that the sex offender will suffer discrimination in employment and housing, and will otherwise suffer from the stigma of being identified as a sex offender, which sometimes means the additional risk of being harassed or assaulted." Moe,
Due process concerns could be implicated if we were to interpret the statute to allow Internet publication of registry information
Our conclusion that a moderate degree of dangerousness is required for classification as a level two sex offender does not appear to be in tension with SORB's current practices -- hearing examiners who conclude that an individual is a level two sex offender often already find that the individual poses a moderate degree of dangerousness to the public, as well as a moderate risk to reoffend. See, e.g., id. at 767,
c. Efficacy of Internet publication. A hearing examiner's job is not complete upon determining an individual's risk to reoffend
Our conclusion that the efficacy of online publication must be separately evaluated in light of a particular offender's risk of reoffense and degree of dangerousness is supported not only by the governing statute and regulations, but also by the court's reasoning in Moe,
The SORB regulations make clear that the determination of the degree to which public access to an offender's personal and sex offender information is in the interest of public safety must be made "in consideration" of the offender's risk of reoffense and dangerousness. 803 Code Mass. Regs. § 1.20(2). Where a sexually violent offender presents a moderate risk to reoffend and a moderate degree of dangerousness, Internet publication will almost invariably serve a public safety interest by notifying potential victims of the risks presented by the offender in their geographic area. But where a sexually nonviolent offender poses a moderate risk of committing moderately dangerous sexual offenses, there may be cases where Internet publication -- with its attendant consequences -- might not be justified because, in light of the particular public safety risk posed by the offender, it would not serve a public safety interest. Cf. Doe v. Attorney Gen.,
We therefore require hearing examiners to ask whether, in light of the particular risks posed by the particular offender, Internet access to that offender's
d. Need for explicit determinations supported by clear and convincing evidence. In Doe No. 380316,
In determining whether these elements have been established by clear and convincing evidence, a hearing examiner may consider subsidiary facts that have been proved by a preponderance of the evidence. See Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd.,
Even though the SORB regulation requires a hearing examiner to make three determinations before classifying a sex offender, see 803 Code Mass. Regs. § 1.20(2), SORB contends that the third of these determinations ("whether and to what degree public access to the offender's personal and sex offender information ... is in the interest of public safety") need not be made explicitly because it is implicit in the board's ultimate classification. We agree that, where a hearing examiner classifies an individual as a level two sex offender, it should be implicit in that decision that the hearing examiner has found by clear and convincing evidence that a public safety interest is served by Internet publication of the offender's registry information. See G. L. c. 6, § 178K (2) (b ) ; Moe,
This requirement of explicit findings regarding all three elements applies not only to level two classifications, but also to level three classifications.
We apply this requirement prospectively only; it does not apply to classifications that have been finally adjudicated. Where a prior classification decision fails to meet this requirement, and where an appeal is pending before the Superior Court or an appellate court, the court, in its discretion, may order that the classification decision be remanded to the hearing examiner.
4. Hearing examiner's findings. The hearing examiner in this case classified Doe as a level two sex offender by clear and convincing evidence after concluding (1) that Doe posed a moderate risk of reoffense and (2) that online publication of his registry information was "necessary for public safety." We now consider whether the hearing examiner's conclusion that clear and convincing evidence supports a level two classification is itself supported by substantial evidence, that is, "such evidence as a reasonable mind might accept as adequate to support a conclusion." G. L. c. 30A, § 1 (6).
a. Risk of reoffense. With regard to the first element, we conclude that the hearing examiner's determination that Doe's risk of reoffense is moderate was supported by substantial evidence. The
b. Degree of dangerousness. Although SORB claims in its brief that the hearing examiner found Doe to present "a moderate degree of dangerousness to the public," we discern no such determination. Rather, as to the issue of dangerousness, the hearing examiner found that Doe's offenses "are not gravely dangerous," but "are quite upsetting to his multiple [v]ictims." We decline SORB's invitation to characterize this as a determination of moderate dangerousness. We note that a required element of the crime of open and gross lewdness is that the defendant has engaged in conduct that actually alarmed or shocked another person. See Commonwealth v. Maguire,
We need not remand the matter to the hearing examiner to clarify her finding on this issue because, even if she were to find Doe's degree of dangerousness to be moderate, as the board claims she did, we conclude that such a determination is not supported by substantial evidence on this record.
"[O]ur decisions recognize that the registration statute requires SORB to base its classification determinations on a sex offender's 'current' risk to the community, in order to protect the offender's right to due process." Doe No. 7083,
Therefore, while we agree with SORB that under some circumstances the danger posed by noncontact offenses such
Doe has never been accused or convicted of a contact sex offense. Nor has he been accused of committing any offense that was sexual in nature between 1996 and 2014, apart from a single instance of indecent exposure in 2011. During this incident, Doe's fifteen year old neighbor saw Doe's genitals through his bedroom window. Based on this offense alone, the hearing examiner found that Doe was an "Adult Offender with [a] Child Victim." The presence of this "high-risk" factor "is indicative of a high risk of reoffense and degree of dangerousness" under SORB's regulations. See 803 Code Mass. Regs. § 1.33. See
The hearing examiner erred in relying on the "Adult Offender with a Child Victim" high-risk factor when classifying Doe as a level two sex offender. The sex offender registry law identifies six "criminal history factors indicative of a high risk of reoffense and degree of dangerousness posed to the public," including "whether the sex offender was an adult who committed a sex offense on a child." G. L. c. 6, § 178K (1) (a ) (iii). "Sex offense" and "sex offense involving a child" are both defined terms under the sex offender registry law, and neither definition includes the offense of indecent exposure. See G. L. c. 6, § 178C. Where the offense of indecent exposure is not a "sex offense," and where there is no evidence that Doe committed a crime involving a child at any other time, there is no statutory authority to support the hearing examiner's finding that this high-risk factor was applicable. And although the SORB regulations refer broadly to "Adult Offender[s] with a Child Victim," and not specifically to adult offenders
Doe's two convictions of open and gross lewdness in 2015, like his conviction of indecent exposure, arose out of conduct that occurred when he was alone in his home, viewable to his neighbor only through a window. At the time of these offenses, Doe's neighbor was no longer a child; she was eighteen years old at the time of the first offense of open and gross lewdness, and nineteen years old at the time of the second offense. See 803 Code Mass. Regs. § 1.33(3) ("the Board shall
Where Doe's sex offenses were limited to open and gross lewdness, where there is no evidence that Doe committed any act of open and gross lewdness outside of his home in approximately twenty years, where the recent acts of open and gross lewdness that triggered his classification hearing occurred only within his own home, and where Doe has never been found to have committed or attempted a contact sex offense, there is not substantial evidence to support a finding by clear and convincing evidence that Doe currently poses a moderate degree of dangerousness to the public.
The hearing examiner's focus on the "modesty" of the victims, as opposed to their protection, was misplaced. Furthermore, there is no reason to believe that Internet publication of Doe's registry information would have been effective in warning Doe's neighbors to be "more modest in the rooms facing [Doe's] home." Pursuant to G. L. c. 6, § 178D, SORB's website provides the public with only certain information: the offender's name; the offender's home address and any secondary addresses; the offender's work address; the offender's age, sex, race, height,
6. Conclusion. Because we conclude that classification as a level two sex offender is not supported by substantial evidence on this record, we vacate the Superior Court's judgment affirming SORB's level two classification and remand the matter to the Superior Court for issuance of a judgment declaring that there is substantial evidence only to support a level one classification.
So ordered.
Notes
We acknowledge the amicus brief submitted by the Committee for Public Counsel Services.
Although determinations regarding three separate elements are required for all classifications, including level one, see 803 Code Mass. Regs. § 1.20(2) (2016), the determination regarding the third element is a foregone conclusion once a hearing examiner determines that the risk of reoffense or the degree of dangerousness is low. See G. L. c. 6, § 178K (2) (a ) ("Where the board determines that the risk of reoffense is low and the degree of dangerousness posed to the public is not such that a public safety interest is served by public availability, it shall give a level [one] designation to the sex offender"). This is because, to be classified as a level two sex offender, an individual must pose a moderate risk to commit new sex offenses and at least a moderate degree of dangerousness. See G. L. c. 6, § 178K (2) (b ).
We grant the court where the appeal is pending the discretion to determine whether to remand the case for explicit findings for two reasons. First, whether SORB's existing findings are sufficiently explicit to enable proper review is a question best left to the reviewing court. Second, even where the findings are not explicit, the underlying facts of the case may so clearly dictate the appropriate classification level that a reviewing court may determine that a remand for explicit findings is not necessary.
We are likewise unconvinced that the other aggravating factors considered by the hearing examiner -- namely, the repetitive and compulsive nature of Doe's behavior, the fact that Doe's early offenses took place in public places, the fact that Doe's recent offenses took place in view of his neighbors, who were in "the public sphere," the relationship between Doe and his victims, the diversity of Doe's victims, and the number of victims -- could reasonably be considered adequate to support a determination that Doe is moderately dangerous based on the discussion supra. See 803 Code Mass. Regs. § 1.33 (2016). Because we conclude that a determination of moderate dangerousness was unsupported by the evidence, we need not consider Doe's specific arguments concerning the hearing examiner's "cherry-picking" of the evidence and her failure to afford proper weight to the expert evidence presented and to Doe's support system and stability in his community.
We note that we are able to evaluate whether the hearing examiner's determination regarding the third element is supported by substantial evidence only because she made particularized findings as to how a public safety interest might be served by Internet publication of Doe's registry information. This illustrates the importance of requiring hearing examiners to make explicit findings as to each of the three required elements.
Where the hearing examiner's explicit findings regarding the efficacy of Internet publication are not supported by substantial evidence, we do not consider whether other explicit factual findings reasonably could have been made in these circumstances that would support a determination by clear and convincing evidence that "a public safety interest is served by public availability of registration information." G. L. c. 6, § 178K (2) (b).
Although we conclude that a level two classification was not supported by substantial evidence, the hearing examiner's findings, as described supra, do support a level one classification. Because we conclude that there was substantial evidence to support a level one classification by clear and convincing evidence, we need not address Doe's argument that SORB regulations improperly place the burden of proof on the sex offender where the offender seeks relief from the obligation to register. See 803 Code Mass. Regs. § 1.29(1) (2016).