Doe 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 ...