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Koe v. Commissioner of Probation

Supreme Judicial Court of Massachusetts, Suffolk

September 27, 2017

KRISTI KOE[1]
v.
COMMISSIONER OF PROBATION & another. [2]

          Heard: May 1, 2017.

         Civil action commenced in the Supreme Judicial Court for the county of Suffolk on March 18, 2016.

         The case was reported by Hines, J.

          Beth Eisenberg (Catherine J. Hinton also present) for the plaintiff.

          Susanne G. Reardon, Assistant Attorney General, for the defendants.

          Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ. [3]

          CYPHER, J.

         In this case, we confront part of a statute that retroactively prohibits the plaintiff from ever sealing the record of her sex offenses because she was once classified as a level two sex offender, even though the Sex Offender Registry Board (SORB) has determined that the plaintiff no longer poses any cognizable degree of dangerousness or risk of reoffending, no longer believes that she should be classified as a level two sex offender, and has relieved her of the obligation to register as a sex offender. The plaintiff argues that, as a applied to her, the retroactive statutory prohibition on sealing sex offenses violates her due process rights under the Massachusetts Declaration of Rights. Because we agree with the plaintiff that the challenged portion of this statute, as applied to her, is retroactive and unreasonable, we conclude that it cannot be enforced against her.

         Background.

         We summarize the following facts from findings made by a Superior Court judge and by a SORB hearing panel, as well as from other record materials.

         1. Underlying offense and classification.

         In 1995, Kristi Koe was found guilty by a Superior Court jury of one count of rape and abuse of a child, G. L. c. 265, § 23, and one count of indecent assault and battery on a child under age fourteen, G. L. c. 265, § 13B. The offenses occurred in 1990, when Koe was twenty-two years old. The victim was a twelve year old girl who was then living with Koe and Koe's sister. Over a ten-day period, Koe engaged in various sexual acts with the victim.

         As a result of her convictions, SORB recommended, and Koe accepted, a classification as a level two sex offender, pursuant to G. L. c. 6, §§ 178C-178Q, and applicable regulations. Her obligation to register as such commenced in 2003.[4]

         2. Reclassification hearing.

         In 2013, Koe petitioned a SORB hearing panel for reclassification and relief from the obligation to register. In its decision, the hearing panel considered the following evidence, which is incorporated into the record before this court.

         Koe herself was sexually abused as a child. At the time of her offenses in 1990, Koe suffered from drug and alcohol addiction, along with untreated head injuries and mental health issues. However, the 2003 death of her mother was a turning point for Koe. She promised her mother "she would turn her life around."

         Koe accepted responsibility for her sex offenses and expressed remorse over the harm that she had inflicted upon the victim. The events in 1990 were her only instance of sexual misconduct. Koe attended sex offender therapy in 1998 and again from 2010 to 2012, and completed a relapse prevention plan. One psychologist opined that Koe has "no deviant interests in children of any age" and does not otherwise fit the psychological profile of someone likely to reoffend. The hearing panel credited research showing an "extremely low" reoffense rate among female sex offenders.

         Koe has been sober since 2009, having completed several addiction and recovery programs. She has received "extensive services" from mental health and vocational rehabilitation providers. She has participated in various support group programs, has a stable ...


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