JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 36870
v.
SEX OFFENDER REGISTRY BOARD.
Heard: June 12, 2019.
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.
Use
Nehring for the plaintiff.
David
L. Chenail for the defendant.
Present: Blake, Kinder, & Desmond, JJ.
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"
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 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]
In
2005, the board moved to classify Doe as a level two sex
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. § l.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 offender. The
board was still under the assumption that Doe had been
convicted of "rectal sodomy," and Doe did not
challenge this conclusion.
In
2014, the board again notified Doe that it intended to
reclassify him as a level three sex offender pursuant to 803
Code Mass. Regs. § l.37C (2013). Doe requested a hearing
to challenge the board's proposed reclassification. A de
novo reclassification hearing was held in 2015, where the
hearing examiner ordered the board "to attempt again to
get" archived records of Doe's index offense.
Before
the hearing examiner issued her decision, the Supreme
Judicial Court changed the standard of proof in
reclassification proceedings to proof by clear and convincing
evidence. See Doe, Sex Offender Registry Bd. No. 380316
v. Sex Offender Registry Bd,, 473 Mass. 297, 298 (2015)
(Doe No. 380316). In light of this, the hearing
examiner conducted another de novo hearing in 2016 in
accordance with Doe No. 380316, supra. By
the date of the hearing, new information as to Doe's
index offense had been "unearth[ed]" showing that
Doe pleaded guilty in 1985 to taking indecent liberties with
a minor child, and not to rectal sodomy.[4] At the hearing,
Doe filed a request for relief from registration, asserting
that the board did not have jurisdiction to require him to
register as a sex offender. He argued that the board could
not demonstrate which District of Columbia offense he had
been convicted of and therefore could not examine the
elements of a District of Columbia offense to determine
whether there was a "like violation" to any
Massachusetts crime requiring registration.[5]
The
hearing examiner issued a written decision in 2017 denying
Doe's request for relief from registration, concluding
that Doe's District of Columbia offense[6] was a "like
violation" of the Massachusetts crime of indecent
assault and battery on a child under fourteen (Massachusetts
offense), and classifying him as a level two sex
offender.[7] Doe sought judicial review pursuant to G.
L. c. 3OA, § 14, and G. L. c. 6, § 178M, and filed
a motion for judgment on the pleadings in the Superior Court,
which the judge denied.[8] The judge affirmed the board's
classification, and this appeal followed.
Standard
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