Argued September 3, 2014.
Civil action commenced in the Supreme Judicial Court for the county of Suffolk on July 7, 2014.
The case was reported by Spina, J.
Beth L. Eisenberg, Committee for Public Counsel Services ( Susan Oker, Committee for Public Counsel Services, with her) for the juvenile.
Catherine Langevin Semel, Assistant District Attorney, for the Commonwealth.
Eric Tennen, for Children's Law Center of Massachusetts & others, amici curiae, submitted a brief.
Present: Gants, C.J., Spina, Botsford, Cordy, & Hines, JJ.
[20 N.E.3d 932] Botsford, J.
After admitting to sufficient facts before a Juvenile Court judge with respect to two counts of indecent assault and battery on a person fourteen or older, the juvenile filed a motion seeking relief from the obligation to register as a sex offender pursuant to G. L. c. 6, § 178E ( f ) (§ 178E [ f ]). After a hearing, the judge denied the motion, thereby requiring the juvenile to register with the Sex Offender Registry Board (board). We consider here the juvenile's petition for relief pursuant to G. L. c. 211, § 3. The principal issue he raises concerns the standard by which a Juvenile Court judge determines the risk of reoffense on the part of a juvenile under § 178E ( f ), an issue that this court considered in Commonwealth
v. Ronald R., 450 Mass. 262, 267-268, 877 N.E.2d 918 (2007). We seek to provide additional guidance concerning that standard in this opinion. We affirm the order denying the juvenile's motion for relief from registration.
On the afternoon of May 9, 2013, the juvenile, who was then sixteen years old, approached an adult woman from behind as she was walking her dog in Lynn and pulled down the sweatpants she was wearing to her thighs. The juvenile then made a vulgar comment about the victim's private parts, grabbed his own genitals, and ran away. The woman described her assailant to the Lynn police.
Eight days later, on the afternoon of May 17, 2013, a different woman was walking four children home from school in Lynn when she felt the juvenile touch her buttocks and pull her pants to the ground. The woman called the police and provided a description of her assailant, and soon thereafter, a Lynn police officer observed the juvenile, who fit this description, on a different street from where the incident had occurred. Lynn police patrol units then stopped the juvenile. At a showup identification
procedure soon thereafter, the second woman identified the juvenile as the person who had pulled her pants down. The juvenile was placed under arrest and taken to the Lynn police station.
After having the opportunity to speak with his mother, the juvenile agreed to speak with the police. He admitted that he had pulled down the second woman's pants and, when the police mentioned the first woman to the juvenile, he admitted [20 N.E.3d 933] that he had pulled down her pants as well. Discussing the second incident, the juvenile explained that he had bought and smoked some marijuana that morning (May 17), and then, while walking, he " just went up to [the second woman] and pulled down her pants." The juvenile did not give a reason for pulling down the second woman's pants, saying only that he " just felt the excitement." The juvenile also did not give a reason for targeting the first woman.
On May 20, 2013, two complaints issued from the Essex County Division of the Juvenile Court Department charging the juvenile with two counts of indecent assault and battery on a person fourteen years of age or older and one count of disorderly conduct. On January 21, 2014, at a hearing before a Juvenile Court judge, the juvenile admitted to sufficient facts with regard to each charge and entered a plea that the judge accepted. Between this hearing and the final disposition of the case, the juvenile filed a motion for relief from the obligation to register with the board, and an evidentiary hearing on the motion was held on February 27, 2014.
At that hearing, the juvenile sought to establish that he did not " pose a risk of reoffending or a danger to the public," and therefore should be relieved of the obligation to register. G. L. c. 6, § 178E ( f ).
He offered the report and testimony of his expert witness, Dr. Barbara Quiñones, a forensic psychologist. Quiñones testified to having administered a " guided clinical instrument" called the Estimate of Risk of Adolescent Sexual Offense Recidivism (ERASOR), a test that she described as " strongly validated" by substantial research as an appropriate risk assessment tool for juvenile sex offenders. According to Quiñones, the ERASOR enumerates twenty-five factors that have been " consistently shown to be associated with risk of re-offense," and in administering the test to the juvenile, she scored each factor as " present, not present, [or] partially present." She found that in the juvenile's case, four of the twenty-five risk factors were present, twenty risk factors were not present, no risk factors were partially [20 N.E.3d 934] present, and the presence of one factor was " unknown." Based on her evaluation of the juvenile, which included a lengthy interview with him, a discussion with the juvenile's mother, the administration of the ERASOR test, and other evaluative processes, Quiñones saw no sign of deviant sexual behavior in the juvenile, in part because in her opinion such a diagnosis requires a finding of six months of deviant behavior -- a period of time far longer than that involved in the juvenile's case. She also stated that in her opinion, based on research she described, the juvenile's lack of insight into why he committed the two offenses was not indicative of a higher risk of reoffense. Based on her evaluation, Quiñones concluded that the juvenile's " risk to reoffend sexually is low," adding that, in forensic psychology, " there is no category of no risk," and that " [o]nce someone has committed a sexual offense, the lowest category would be low." She opined that the juvenile's risk of reoffense was so low that he should not be required to register as a sex offender.
At a hearing in April, 2014, the judge denied the juvenile's motion for relief from registration and proceeded to set out oral findings and reasons. She described in some detail the facts of the two assaults on the two women, and stated that she found ...