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Doe v. Sex Offender Registry Board

Supreme Judicial Court of Massachusetts, Essex

July 17, 2019

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 496501
v.
SEX OFFENDER REGISTRY BOARD & others.[1]

          Heard: February 5, 2019.

         The case was heard by Jeffrey T. Karp, J., on a motion for partial judgment on the pleadings, and entry of final judgment was ordered by Timothy Q. Feeley, J.

         The Supreme Judicial Court granted an application for direct appellate review.

          Kate A. Frame for the plaintiff.

          John P. Bosse for the defendant.

          Rebecca Rose, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

          Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          GANTS, C.J.

         The plaintiff (Doe) appeals from a Superior Court judgment affirming a Sex Offender Registry Board (SORB or board) decision to classify him as a level two sex offender after he was convicted in 2015 of two counts of open and gross lewdness for displaying his genitals to a neighbor through the window of his home. Doe presents three challenges to the level two classification. First, he contends that SORB does not have jurisdiction to classify him as a "sex offender," as defined in G. L. c. 6, § 178C, because he has not previously been convicted of open and gross lewdness and only a "second and subsequent . . . conviction for open and gross lewdness" permits classification as a sex offender. Second, he contends that a hearing examiner cannot classify an individual as a level two sex offender based on a determination that the offender poses a moderate risk of reoffending, without also making an express determination that the degree of dangerousness posed by this individual is such that a public safety interest is served by having his or her registration information made publicly available on the Internet. See G. L. c. 6, §§ 178D, 178K (2) (b). Third, he contends that there was not substantial evidence to support his level two classification.

         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 were published online in the absence of these determinations.

         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.[2]

         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 G. L. c. 6, § 178K, is in the interest of public safety." 803 Code Mass. Regs. § 1.20(2) (2016). Based on these determinations, the hearing examiner must issue a final decision classifying the sex offender into one of three "levels of notification." Moe v. Sex Offender Registry Bd,, 467 Mass. 598, 601 (2014), quoting G. L. c. 6, § 178K (2). All sex offender risk classifications must be established by clear and convincing evidence. Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 314 & n.27 (2015) (Doe No. 380316) .

         "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 described infra, the parties disagree as to whether Doe was found guilty of this charge or whether the charge was continued without a finding. The 1991 charge was dismissed for lack of prosecution and was not considered by the hearing examiner. The 1996 charge arose out of a report by the victim that Doe, who was on the opposite side of a train platform from her, had his pants and underwear pulled down and was playing with his genitals as he walked across the tracks toward her. Doe testified before the hearing examiner that he was taking the train home after drinking with friends, and was seen by a woman after having pulled his pants and underwear down on the platform. This case was continued without a finding in 1997 and subsequently dismissed.

         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 evidence that Doe continued to expose himself in the time between his 1996 offense and his 2011 offense.

         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 the incident report relied upon by the hearing examiner, the officer informed Doe that his neighbor had seen him naked inside his home; Doe responded that this was "probably true." When the officer advised Doe that his neighbor believed the exposure to be purposeful, Doe responded that he "would agree with that." He likewise agreed that his neighbor had seen him masturbating in his kitchen. Doe stated that the victim -- whom he had seen changing her clothing and engaging in sexual acts on her living room couch -- was a "trigger" for him, and that he was having increasing difficulty controlling his urges. He agreed with the officer that the victim's exposure was likely accidental, but his exposure had been intentional. Doe further stated that he "had a problem" for which he had sought treatment in the past, that he had "been good for a long time," and that he now only exposed himself when he was indoors. He said that he was "just an exhibitionist," and that he had never touched or hurt anybody. He further stated that he was building a house on several acres of land in New Hampshire to get away from any potential "triggers."

         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 ...


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