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Doe v. Sex Offender Registry Board

Appeals Court of Massachusetts, Suffolk

October 15, 2019

John DOE, Sex Offender Registry Board No. 36870
v.
SEX OFFENDER REGISTRY BOARD

         Argued June 12, 2019.

         [135 N.E.3d 218] CIVIL ACTION commenced in the Superior Court Department on February 13, 2017., A motion for judgment on the pleadings was heard by Joseph F. Leighton, Jr., J.

         Ilse Nehring, Boston, for the plaintiff.

         David L. Chenail, for the defendant.

         Present: Blake, Kinder, & Desmond, JJ.

          Opinion

         BLAKE, J.

          At issue in this appeal is the question whether D.C. Code Ann. � 22-3501(a), defining the crime of taking indecent liberties with a minor child, is a "like violation" [135 N.E.3d 219] of G. L. c. 265, � 13B, indecent assault and battery on a child under the age of fourteen, thus requiring the plaintiff, John Doe, to register as a sex offender pursuant to G. L. c. 6, � � 178C-178P.

          Doe appeals from a Superior Court judgment denying his motion for judgment on the pleadings and affirming the Sex Offender Registry Board’s (board) classification of Doe as a level two sex offender. Doe argues that the board did not have jurisdiction to

Page 247

require him to register as a sex offender because the board failed to establish that Doe’s index out-of-State crime was a "like violation" of a Massachusetts sex offense requiring registration. We affirm.

         Background.

         In 1985, Doe visited family in Washington, D.C. An eight or nine year old[1] girl reported to police that, during his stay, Doe entered her bedroom, "[took her] into the living room, placed [her] on the couch[,] ... pulled her panty’s [sic ] down and then pulled his pants down to his knees. He then turned her over onto her stomach and placed his penis (wing-wing) into her butt (rectum)." Doe was charged in the Superior Court of the District of Columbia with sodomy of a child under the age of sixteen, in violation of D.C. Code Ann. � 22-3502, and subsequently pleaded guilty to taking indecent liberties with a minor child, in violation of D.C. Code Ann. � 22-3501(a) (District of Columbia offense).[2]

         [135 N.E.3d 220] In 2005, the board moved to classify Doe as a level two sex

Page 248

offender. At that time, the board had before it only Doe’s interstate criminal history record, which showed that Doe had pleaded guilty to "rectal sodomy." The board finally classified Doe as a level two sex offender, designating rape, in violation of G. L. c. 265, � 22, as the Massachusetts "like violation" requiring that Doe register as a sex offender, which Doe did not challenge. Soon after, the board notified Doe that it intended to reclassify him as a level three sex offender pursuant to 803 Code Mass. Regs. � 1.37C (2004).[3] Doe challenged the reclassification, and after a de novo hearing in 2011, the board again classified him as a level two sex ...


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