John Doe No. 321579
Sex Offender Registry Board Opinion No. 132276
Filed Date December 22, 2015
MEMORANDUM OF DECISION AND ORDER
DENNIS J. CURRAN, Associate Justice.
This case is before me under G.L.c. 6, § 178M and G.L.c. 30A, § 14 for review of a hearing examiner's decision that plaintiff should be classified as a Level 3 sex offender.
The facts of the underlying sex crime are as follows.
On the morning of August 16, 2009, the victim, a 37-year-old woman, kisses her husband goodbye and leaves for an early morning run on a jogging/rail trail in Ayer, Massachusetts. While on that run, a man approaches her on a bicycle from the opposite direction and passes her, knocking her to the ground. The woman screams, struggles with her attacker, and tries to pull away. Instead, the perpetrator assaults her again, grabs and throws her to the ground. He hits her repeatedly while she screams that he stop. She fights and claws, struggling to get free, but the assailant grabs her again from behind, and drags her to the side of the trail. He then throws her to the ground and kneels on top of her, pinning her down completely. He moves his face next to the woman's. Her screams for help are heeded by neighbors who call the police. The attacker gets off of the woman, retreats for his bike and escapes from the scene. He sees a neighbor calling the police, turns his bicycle around and flees in another direction.
The victim provides a detailed description of the assailant to the police, who immediately broadcast it and apprehend the assailant. He is identified. A police search of his backpack reveals the following:
a pair of little girl's underpants;
a digital camera.
Mr. " Doe" pleaded guilty to assault with intent to rape, three counts of assault and battery and kidnapping. He was sentenced to a five-and-a-half- to six-year state prison sentence, with concurrent eight-year probation terms to commence from and after imprisonment.
The Massachusetts Sex Offender Registry Board classified Mr. " Doe" as a Level 3 Sex Offender, a finding he appealed to a SORB hearing examiner who conducted a de novo hearing. Mr. Doe was afforded counsel and had a full opportunity to challenge the Board's evidence and present his own version of events by testimony and documentation.
That hearing revealed the following.
Among the statutory factors that the hearing examiner found were that the crime occurred in a " public place, " underscoring the deviant's lack of impulse control, his two prior adult incarcerations: one for arson and breaking and entering with intent to commit a felony, and another for breaking and entering in the nighttime with intent to commit a felony; his two parole failures: for example, after being sentenced to a ten-year commitment for arson and breaking and entering, he was released on parole the very next year, only to be re-arrested and convicted of yet another charge of breaking and entering in the nighttime.
He began participating in prison sex offender treatment, but was terminated because of poor attendance. Upon reinstatement, his social worker described his attitude as " indifferent, " that he had " boundary" ...