Doe 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

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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

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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 ...