Doe, Sex Offender Registry Board No. 68549 v. Sex Offender Registry Board , 470 Mass. 102 ( 2014 )

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SJC-11562
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 68549 vs. SEX
OFFENDER REGISTRY BOARD.
Suffolk. September 3, 2014. - November 5, 2014.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Sex Offender. Sex Offender Registration and Community
Notification Act. Administrative Law, Substantial
evidence, Regulations. Evidence, Sex offender, Expert
opinion. Practice, Civil, Sex offender. Witness, Expert.
Regulation. Minor.
Civil action commenced in the Superior Court Department on
June 15, 2010.
The case was heard by Robert C. Cosgrove, J., on a motion
for judgment on the pleadings.
The Supreme Judicial Court granted an application for
direct appellate review.
Francis J. DiMento (Dana Alan Curhan with him) for the
plaintiff.
Jennifer K. Zalnasky for the defendant.
Eric Tennen, for Youth Advocacy Division of the Committee
for Public Counsel Services & others, amici curiae, submitted a
brief.
2
Robert E. McDonnell, Jeff Goldman, Nathaniel P. Bruhn, &
Saia M. Smith, for American Civil Liberties Union Foundation of
Massachusetts & another, amici curiae, submitted a brief.
LENK, J. Over a three-year period ending in 1988, when he
was sixteen years old, John Doe No. 68549 repeatedly subjected
two of his cousins to sexual assaults, including rape. His
victims came forward many years after the fact and, in October,
2003, when Doe was thirty-one years old, he pleaded guilty to a
number of sex offenses committed when he was a juvenile.
In March, 2006, a hearing examiner of the Sex Offender
Registry Board (SORB) determined that Doe posed a moderate risk
of reoffense and a moderate degree of dangerousness, and
classified Doe as a level two sex offender. A Superior Court
judge, determining that this classification was not supported by
substantial evidence, remanded for further proceedings. In May,
2010, a successor hearing examiner (successor examiner)
concluded that Doe poses a low risk of reoffense and a low
degree of dangerousness. Doe was therefore classified as a
level one sex offender, a classification that was upheld by a
different judge of the Superior Court. Doe appealed, and we
granted his application for direct appellate review.
Doe contends that he should not be required to register as
a sex offender. See G. L. c. 6, § 178K (2) (a)-(d). He argues
that, in light of scientific research showing that adolescent
3
brains are different from adult brains, and in light of the long
period of time that has elapsed since his last offense, the
successor examiner's decision was not supported by substantial
evidence. Doe contends also that the regulations enacted and
applied by SORB are outmoded, in that they predate recent
studies concerning adolescent brains and adolescent behavior.
We conclude that, although Doe presented considerable
information suggesting that he is no longer dangerous, the
successor examiner took this information into account and
reached a decision that was supported by substantial evidence in
determining that Doe should be classified as a level one sex
offender. We therefore conclude that there was no error in the
successor examiner's classification of Doe as a level one sex
offender, and affirm the Superior Court judge's decision
upholding the successor examiner's classification determination.
We emphasize, however, as we have done previously, that it is
incumbent upon SORB to update its guidelines at reasonable
intervals in order to take proper account of current scientific
knowledge.1
1
We acknowledge the amicus briefs submitted by the Youth
Advocacy Division of Committee for Public Counsel Services, the
Children's Law Center of Massachusetts, and Citizens for
Juvenile Justice; and by the American Civil Liberties Union
Foundation of Massachusetts and Citizens for Juvenile Justice in
support of John Doe.
4
1. Statutory framework. In prior cases, we described in
detail the tapestry of statutes and regulations that governs the
registration requirement imposed on sex offenders. See, e.g.,
Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender
Registry Bd., 466 Mass. 594, 595-597 (2013) (Doe No. 205614);
Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender
Registry Bd., 456 Mass. 612, 614-615 (2010) (Doe No. 151564);
Doe, Sex Offender Registry Bd. No. 3844 v. Sex Offender Registry
Bd., 447 Mass. 768, 768-772 (2006) (Doe No. 3844). Here we
reprise the essential elements of that scheme.
An individual is a "sex offender" if he or she has been
convicted of one or more statutorily enumerated offenses. G. L.
c. 6, § 178C. Sex offenders are classified into levels of
dangerousness, increasing in severity from level one to level
three. Each level is attended by different implications.
Although SORB transmits information about all sex offenders to
specific authorities, information about level one offenders is
not available to the general public. G. L. c. 6,
§ 178K (2) (a). Information about level two and level three
offenders is entered into a publicly accessible Internet
database. G. L. c. 6, § 178D. See Moe v. Sex Offender Registry
Bd., 467 Mass. 598, 600-606, 616 (2014) (declaring
unconstitutional the retroactive application of this provision
to individuals classified as level two sex offenders on or
5
before July 12, 2013). In addition, SORB and local police
departments "actively disseminate" information about level three
offenders to individuals and organizations who are likely to
encounter those offenders. G. L. c. 6, § 178K (2) (c).
SORB is required to consider a list of statutory factors in
making its classification determinations. See G. L. c. 6,
§ 178K (1) (a)-(l). This list is not exhaustive, however, and
SORB also must take into account any other information that is
"useful in assessing the risk of reoffense and the degree of
dangerousness posed to the public by the sex offender,"
including information of this kind introduced by the offender.
G. L. c. 6, § 178L (1). See Doe, Sex Offender Registry Bd. No.
10216 v. Sex Offender Registry Bd., 447 Mass. 779, 787 (2006)
(Doe No. 10216), citing Doe, Sex Offender Registry Bd. No. 1211
v. Sex Offender Registry Bd., 447 Mass. 750, 762 n.9 (2006) (Doe
No. 1211); 803 Code Mass. Regs. § 1.38(2) (2013).
As mandated by statute, SORB has promulgated "guidelines
for determining the level of risk of reoffense and the degree of
dangerousness posed to the public or for relief from the
obligation to register." See G. L. c. 6, § 178K (1). These
guidelines describe the manner in which SORB is to apply twenty-
four factors increasing or decreasing risk, which are derived
from the factors enumerated in the statute. See 803 Code Mass.
Regs. § 1.40 (2013) (guidelines). The guidelines require SORB
6
to be guided by the "definitions, explanations, principles, and
authorities" contained in the guidelines. See id. We have read
the term "authorities" to encompass studies conducted by
researchers whose work is cited in the guidelines. See Doe No.
205614, 466 Mass. at 604; Doe No. 151564, 456 Mass. at 622.
"The registration and classification process is,
essentially, a two stage process." 803 Code Mass. Regs.
§ 1.38(3) (2013). First, SORB makes an initial "recommendation"
concerning an offender's classification level. Id. See G. L.
c. 6, § 178L (1) (a). The offender may then object to SORB's
recommendation, in which case he or she "is provided an
individualized hearing . . . at which all relevant evidence is
evaluated anew by a disinterested Hearing Examiner." 803 Code
Mass. Regs. § 1.38(4) (2013). See Doe No. 3844, 447 Mass. at
772; G. L. c. 6, § 178L (1), (2). At this hearing, SORB bears
the burden of demonstrating by a preponderance of the evidence
that the offender has a duty to register, and what the
offender's classification should be. 803 Code Mass. Regs.
§ 1.10(1) (2013).
SORB "may . . . relieve [a] sex offender of any further
obligation to register" if the offender establishes that "the
circumstances of the offense in conjunction with the offender's
criminal history do not indicate a risk of reoffense or a danger
to the public." G. L. c. § 178K (2) (d). The decision as to
7
whether this provision should be applied must take into account
"factors, including but not limited to, the presence or absence
of any physical harm caused by the offense and whether the
offense involved consensual conduct between adults." Id.
We have emphasized that the sex offender registration
requirement "implicates constitutionally protected liberty and
privacy interests." See Doe No. 205614, 466 Mass. at 596,
citing Doe v. Attorney Gen., 426 Mass. 136, 144 (1997).
Accordingly, "careful and individualized due process is
necessary to sort sexual predators likely to repeat their crimes
from large numbers of offenders who pose no danger to the
public." Doe No. 205614, supra, citing Doe, Sex Offender
Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90,
105 (1998) (Marshall, J., concurring in part and dissenting in
part).
2. Facts. We recite the facts found by the successor
examiner. These facts were relied upon by the Superior Court
judge, and Doe does not dispute them.
Doe's cousins, a boy and a girl, emigrated from Ireland to
the United States with their family. The cousins' family was,
at first, dependent on Doe's family. During the years from 1986
through 1988, Doe, then a teenager, engaged in repeated sexual
assaults against his male cousin and in one sexual assault
against his female cousin. At the end of this period, Doe and
8
the female cousin were sixteen years old. The male cousin was
two years younger.
Doe's assaults against the male cousin, which began when
the cousin was eleven years old, escalated in violence over
time, from masturbation to digital and then penile rape. Doe's
assault against his female cousin occurred when they were both
sixteen years old. On that occasion, the female cousin was
swimming in Doe's family's swimming pool, when Doe swam over and
raped her digitally.2
Doe's cousins first disclosed the sexual assaults in 2000,
twelve years after the assaults had ceased. The cousins
explained that they had been afraid to complain earlier because
of their parents' dependency on Doe's family, and because Doe
had threatened that he would cause their family to be deported
if they complained. Doe initially told police that he had
engaged only in consensual acts with his male cousin. In
October, 2003, however, he pleaded guilty to five counts of rape
of a child, G. L. c. 265, § 22A; five counts of rape and abuse
of a child, G. L. c. 265, § 23; and two counts of rape, G. L.
c. 265, § 22 (b).
2
As discussed infra, evidence of a sexual assault by Doe on
another female victim was excluded by the successor hearing
examiner in the more recent Sex Offender Registry Board (SORB)
proceedings. In addition, the successor examiner made no
findings concerning other sexual assaults reported to police by
Doe's female cousin.
9
3. Classification proceedings. On March 1, 2005, SORB
notified Doe that it was recommending that he be classified as a
level two sex offender. Doe objected to this classification,
and his matter was considered de novo by a SORB hearing examiner
(original examiner). The original examiner held a hearing and
heard testimony from two experts proffered by Doe, Dr. Bernard
Katz and Dr. Barbara K. Schwartz. He also received from Doe an
expert report of Dr. Joseph J. Plaud. On March 17, 2006, the
original examiner ordered, as SORB had recommended, that Doe
register as a level two offender.
Doe sought judicial review in the Superior Court. A
Superior Court judge determined that the original examiner's
classification decision was not supported by substantial
evidence. He therefore entered judgment on the pleadings in
Doe's favor, and remanded the matter to SORB.
On remand, two additional hearings were conducted by the
successor examiner. The successor examiner took additional
evidence, including an updated report and oral testimony from
Schwartz, one of Doe's expert witnesses. The successor examiner
made new, independent rulings and factual findings. Among other
things, he excluded from the record a police report, which the
original examiner had considered, describing a complaint against
Doe by another woman, unrelated to Doe.
10
The successor examiner noted that Doe had been "a juvenile"
and "an adolescent" when he committed his offenses. The
examiner accepted the opinion of another of Doe's experts, Katz,
that at the time of the offenses, Doe was "an unhappy,
overweight and maladjusted teenager." In his decision, the
successor examiner also considered as risk reducing the facts
that Doe had not committed his offenses against strangers; had
not reoffended since 1988; had enjoyed success in high school,
in college, and in his work at a car dealership; was in a
romantic relationship with an age-appropriate woman; had not
abused alcohol in recent years; and had participated
successfully in sex offender treatment. The successor examiner
noted also that the experts proffered by Doe opined that the
risk he presented was "extremely low" or none. In view of these
facts, the successor examiner determined that Doe "has made
substantial progress towards 'no risk' status."
On the other hand, the successor examiner found that Doe's
sex offenses, which included "high contact" acts that had
escalated "over a three-year period," had been "repetitive and
compulsive." The successor examiner determined that there had
been "a disparity between [Doe] and his [v]ictims as regards
age, size, strength, economic status, and citizenship"; that Doe
had been "controlling" and "hostile"; and that Doe had
"victimized his male cousin in an escalating, repetitive and
11
predatory pattern." In addition, the successor examiner noted
that when, as a twenty-eight year old, Doe was confronted by his
aunt about his actions, he "wondered . . . how many times he
needed to apologize" and then "told his aunt, 'I never liked you
or your family. You're weak and you're stupid. As a matter of
fact, that made it all the more enjoyable.'" The successor
examiner concluded that Doe presents "cognizable low risk of
reoffense and a low degree of dangerousness," and ordered Doe to
register as a level one sex offender.
Doe again sought judicial review. This time, a different
Superior Court judge affirmed the classification determination,
stating that "[a]lthough . . . if considering the matter de
novo, [the judge] might place more weight on the factors
emphasized by Doe," the successor examiner's decision
nevertheless was supported by substantial evidence.
4. Standard of review. SORB's final classification of a
sex offender is subject to judicial review under G. L. c. 30A,
§ 14. See G. L. c. 6, § 178M.3 This review is "confined to the
record, except that in cases of alleged irregularities in
3
Our inquiry on appeal is similar to the inquiry conducted
by a Superior Court judge in an action for judicial review of
SORB's decision. See Doe, Sex Offender Registry Bd. No. 205614
v. Sex Offender Registry Bd., 466 Mass. 594, 601-602 (2013);
Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender
Registry Bd., 456 Mass. 612, 614-615 (2010).
12
procedure before the agency, not shown in the record, testimony
thereon may be taken in the court." G. L. c. 30A, § 14 (5).
A reviewing court will not disturb SORB's decision unless
that decision was (a) in violation of constitutional provisions;
(b) in excess of SORB's authority; (c) based upon an error of
law; (d) made upon unlawful procedure; (e) unsupported by
substantial evidence; (f) unwarranted by facts found by the
court, where the court is constitutionally required to make
independent findings of fact; or (g) arbitrary or capricious, an
abuse of discretion, or otherwise not in accordance with law.
G. L. c. 30A, § 14 (7). See Doe No. 151564, 456 Mass. at 614-
615. The court must "give due weight to [SORB's] experience,
technical competence, and specialized knowledge . . . as well as
to the discretionary authority conferred upon it." G. L.
c. 30A, § 14 (7). In addition, SORB's guidelines "must be
accorded all the deference due to a statute." Doe No. 205614,
466 Mass. at 602, quoting Massachusetts Fed'n of Teachers, AFT,
AFL-CIO v. Board of Educ., 436 Mass. 763, 771 (2002).
5. Analysis. a. Substantial evidence of Doe's
dangerousness. Doe's primary argument is that the successor
examiner's decision to classify him as a level one sex offender
was not supported by substantial evidence, particularly since
"the offenses he committed occurred while he was a juvenile more
13
than twenty years ago." In the circumstances, this argument is
unavailing.
A decision of a SORB hearing examiner will not be upheld if
it is "[u]nsupported by substantial evidence." G. L. c. 30A,
§ 14 (7) (e). See Doe No. 10216, 447 Mass. at 787, citing Flint
v. Commissioner of Pub. Welfare, 412 Mass. 416, 420 (1992).
"Substantial evidence" is "such evidence as a reasonable mind
might accept as adequate to support a conclusion." G. L.
c. 30A, § 1 (6). A decision does not satisfy the "substantial
evidence" requirement if "the evidence points to no felt or
appreciable probability of the conclusion or points to an
overwhelming probability of the contrary." Cobble v.
Commissioner of Dep't of Social Servs., 430 Mass. 385, 390-391,
(1999), quoting New Boston Garden Corp. v. Assessors of Boston,
383 Mass. 456, 466 (1981). Any evidence may be considered and
relied upon by the examiner "if it is the kind of evidence on
which reasonable persons are accustomed to rely in the conduct
of serious affairs." G. L. c. 30A, § 11 (2).
A classification decision should not be based solely on the
fact that an offender's underlying crime was sexual in nature.
See Doe, Sex Offender Registry Bd. No. 24341 v. Sex Offender
Registry Bd., 74 Mass. App. Ct. 383, 387 (2009), citing Doe, Sex
Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450
Mass. 780, 787, 790 (2008) (Doe No. 8725). A hearing examiner
14
has discretion, however, to consider which statutory and
regulatory factors are applicable and how much weight to ascribe
to each factor, and, as stated, a reviewing court is required to
"give due weight to [the examiner's] experience, technical
competence, and specialized knowledge." G. L. c. 30A, § 14 (7).
See Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender
Registry Bd., 459 Mass. 603, 633 (2011) (Doe No. 10800), citing
Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803, 812-
813 (2006). Accordingly, "[o]ur review does not turn on
whether, faced with the same set of facts, we would have drawn
the same conclusion as an agency or local board, but only
'whether a contrary conclusion is not merely a possible but a
necessary inference.'" Goldberg v. Board of Health of Granby,
444 Mass. 627, 638 (2005), quoting Commissioner of Revenue v.
Houghton Mifflin Co., 423 Mass. 42, 43 (1996).
As noted, the successor examiner took account of various
factors that tended to alleviate the concern that Doe will
reoffend. He considered, among other things, Doe's age at the
time of the offenses; the fact that Doe knew his victims; Doe's
subsequent educational, professional, and personal successes;
and his completion of sex offender treatment. The successor
examiner also considered, as required by the guidelines, "the
length of time [that Doe] has had access to the community
without committing any new offenses," see 803 Code Mass.
15
Regs. § 1.40(9)(a), finding that, "since 1988, [Doe] has not
reoffended." Cf. Doe No. 8725, 450 Mass. at 790.
Nonetheless, the successor examiner's ruling was supported
by evidence concerning multiple factors that did tend to
indicate Doe's dangerousness. Much of this evidence is set
forth above, including the repetitive, protracted, escalating,
and "high contact" nature of Doe's offenses. These are factors
that, according to the guidelines, the successor examiner was
required to consider. The guidelines state that offenders who
"manifest their compulsive behavior by engaging in a continuing
course of sexual misconduct involving separate incidents . . .
present[] a greater risk to reoffend and . . . pos[e] an
increased degree of dangerousness." 803 Code Mass. Regs.
§ 1.40(2). See G. L. c. 6, § 178K (1) (a) (ii). "[T]he level
of physical contact between the offender and the victim during
the sex offense is another important element to be considered in
understanding the nature of the offense and in determining a
level of dangerousness." 803 Code Mass. Regs. § 1.40(9)(c)(7).
Finally, "SORB also considers the length or duration of the sex
offending behavior as important and useful information in
determining dangerousness." 803 Code Mass. Regs.
§ 1.40(9)(c)(8). See G. L. c. 6, § 178K (1) (b) (iii)
(mandating consideration of "the number, date and nature of
prior offenses").
16
The successor examiner also noted the following facts as
indications, under the guidelines, of an increased risk of
reoffense and degree of dangerousness: that Doe offended
against both a male victim and a female victim, see 803 Code
Mass. Regs. § 1.40(9)(c)(2), (9)(c)(11); that his victims were
children, see 803 Code Mass. Regs. § 1.40(9)(c)(12); that he
engaged in a variety of different offending behaviors, see 803
Code Mass. Regs. § 1.40(9)(c)(10); that he has, in the past, had
difficulties with substance abuse, see 803 Code Mass. Regs.
§ 1.40(16) and G. L. c. 6, § 178K (1) (g); and that, as
evidenced by his remarks to his aunt twelve years after the
offenses, Doe's acceptance of responsibility has been less than
complete. See 803 Code Mass. Regs. § 1.40(9)(c)(13).
In sum, in the context of the record as a whole, the
successor examiner's ruling was based on evidence that "a
reasonable mind might accept as adequate to support a
conclusion" that Doe poses a low risk of reoffense and a low
degree of dangerousness. G. L. c. 30A, § 1 (6). Cf. Doe No.
10800, 459 Mass. at 637.
b. Other issues concerning Doe's classification. We have
noted previously that, in some cases, a SORB hearing examiner
"might greatly benefit from testimony or a report by an
appropriately trained and qualified mental health professional."
Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender
17
Registry Bd., 452 Mass. 764, 776 (2008). See Doe No. 151564,
456 Mass. at 623-624. Expert testimony is likely to be
particularly valuable where a substantial period of time "has
elapsed since the guidelines were last revised," and where
significant, relevant research has been conducted in the
intervening period. See Doe No. 205614, 466 Mass. at 609.
In this case, the hearing examiner heard evidence
concerning Doe's degree of dangerousness from three experts.
One of these experts, Schwartz, presented an updated report and
updated testimony on remand. The successor examiner considered
this evidence and, in large part, found it cogent. For
instance, he was persuaded by Katz's opinion that "the sex
offenses were causally related to the fact that during the
offending era, [Doe] was an overweight, teased and maladjusted
adolescent."4
Ultimately, the successor examiner did not adopt the
position advocated by Doe's experts, namely that Doe's risk of
4
The successor examiner concluded, however, that Doe's
difficulties as an adolescent were not "the exclusive cause of
the offending behavior." In support of this conclusion, the
successor examiner noted that Doe "not only sexually offended
while a younger adolescent at [thirteen] but continued to do so
when he was just four months shy of [seventeen]; did so in an
escalating rather than diminishing fashion as regards level of
contact; graduated from [a Catholic high school] as reflects
some measure of positive adjustment, self control and social
adaptation in that environment; and [had a] relationship with
his parents [that] appears by the record to not have been
unusual or extreme."
18
reoffense and his degree of dangerousness were less than "low."
The successor examiner's decision on this score was not
erroneous. SORB is "not statutorily required to present expert
testimony in support of its position before the examiner," Doe
No. 10216, 447 Mass. at 786, and "[t]he opinion of a witness
testifying on behalf of a sex offender need not be accepted by
the hearing examiner even where the board does not present any
contrary expert testimony." Doe No. 10800, 459 Mass. at 637,
citing Doe No. 1211, 447 Mass. at 764. The successor examiner's
reasons for reaching a conclusion not shared by Doe's experts
were, as described above, supported by the evidence before him.
We have held also that a SORB classification decision will
be deemed "[a]rbitrary or capricious," G. L. c. 30A,
§ 14 (7) (g), if it fails to take into account reliable evidence
that a factor relevant to a given offender affects the
likelihood that the offender will recidivate. For instance, Doe
No. 151564 involved an offender who was sixty-one years old at
the time of the hearing and where "[t]here was substantial
evidence presented at the hearing concerning the effect of age
on recidivism." 456 Mass. at 622. The SORB hearing examiner
declined to take this evidence into account, reasoning that "age
is not considered as a factor in [the guidelines]." Id. We
concluded that the examiner's decision was arbitrary and
capricious, noting that the studies submitted by the offender in
19
that case were "written by many of the same authorities on whom
the board relies in its [guidelines]." Id. Similarly, in Doe
No. 205614, the offender, a woman, presented "current, validated
evidence demonstrating the relevance of gender in assessing the
risk of reoffense." 466 Mass. at 607. Two hearing examiners
disregarded this evidence, and we held their decisions, too, to
be arbitrary and capricious. Id. at 608.
Doe argues that the successor examiner in his case also
ignored, in essence, a scientifically relevant factor, namely,
that Doe was an adolescent when he committed his offenses. Doe
cites recent scientific studies that, he asserts, establish that
teenagers are more limited than adults in the soundness of their
judgment in complex situations, in their capacity to control
impulses, and in their ability to plan effectively. These
limitations are due, in part, to organic differences between
adult brains and adolescent brains.
Although the studies now cited by Doe were referred to
briefly, and in general terms, in Schwartz's April, 2009,
report, these studies were not relied upon or offered into
evidence before SORB. Because our review is "confined to the
record," the successor examiner's failure to address evidence
that was not presented to him would not be grounds for
disturbing his decision. G. L. c. 30A, § 14 (5). See Doe No.
20
205614, 466 Mass. at 608 n.11, citing Commonwealth v. Vega, 449
Mass. 227, 234 (2007).
Nonetheless, it would not have been proper for the
successor examiner to disregard the fact that Doe was a youth
when he offended, because the applicable statute and the
guidelines require that this fact be considered. General Laws
c. 6, § 178K (1) (e), provides that one of the "[f]actors
relevant to the risk of reoffense" is "whether the sex offender
was a juvenile when he committed the offense." The guidelines,
in turn, cite research pointing to "numerous differences between
[juvenile offenders] and their adult counterparts." 803 Code
Mass. Regs. § 1.40(14). Accordingly, the guidelines specify
whether each of the factors enumerated in them applies in whole,
in part, or not at all to a "[j]uvenile [o]ffender," namely "any
sex offender who was younger than [seventeen] years old at the
time he [or she] committed all of his or her sex offenses." 803
Code Mass. Regs. § 1.39(4) (2013). See, e.g., 803 Code Mass.
Regs. § 1.40(1) ("[m]ental [a]bnormality" factor does not apply
to juvenile offenders); 1.40(6) (same for maximum term of
incarceration); 1.40(9)(c)(6) (same for convictions of nonsexual
violent offenses); 1.40(3) ("[c]hild [v]ictim" factor applies
differently to adults and to juveniles); 1.40(7) (same for
relationship between offender and victim).
21
As noted, the successor examiner took into consideration
Doe's young age at the time of his offenses. Implicitly, he did
so by applying only those factors that, according to the
guidelines, appropriately are considered with regard to juvenile
offenders. The successor examiner also specifically applied the
factor concerning an offender's relationship with his victim(s)
in the manner that the guidelines deem appropriate for juvenile
offenders. See 803 Code Mass. Regs. § 1.40(7). More
explicitly, the successor examiner made repeated references to
the fact that Doe was an "adolescent" and a "juvenile" at the
time of his offenses, and rested one of his evidentiary rulings
on his "appreciation of the fact that [Doe] was a juvenile at
the time he committed the sex offenses." We do not conclude,
therefore, that the successor examiner failed to take into
account the mandatory consideration that Doe committed his
offenses at a young age.5
c. Validity of the guidelines. Doe asserts that the
factors and presumptions incorporated in the guidelines are "out
of date," in that they were developed prior to recent studies
concerning the differences between adolescents and adults.6 In
5
As explained, the successor examiner also did not ignore
the fact that many years had passed since Doe last offended.
6
The amici curiae present additional information concerning
current research into the development of the adolescent brain.
They also provide information about the deleterious effects that
22
none of the proceedings below did Doe argue that these
scientific developments render the guidelines invalid. Nor
would such a request have been proper at the current juncture.
A challenge to the validity of a general regulation "cannot be
resolved by requesting declaratory relief in an appeal from an
administrative agency decision because judicial review is
confined to the administrative record." Doe No. 10800, 459
Mass. at 630, citing G. L. c. 30A, § 14 (5). See Doe No.
205614, 466 Mass. at 608 n.11. We nevertheless make the
following observations concerning the effect of the passage of
time on the guidelines' validity.
As noted, the guidelines "must be accorded all the
deference due to a statute" (citation omitted). Doe No. 205614,
466 Mass. at 602. "A party challenging the validity of a
regulation must prove in a judicial proceeding 'that the
regulation is illegal, arbitrary, or capricious.'" Doe No.
10800, 459 Mass. at 629, quoting Borden, Inc. v. Commissioner of
Pub. Health, 388 Mass. 707, 722, cert. denied sub nom.
Formaldehyde Inst., Inc. v. Frechette, 464 U.S. 936 (1983). We
have cautioned that "guidelines that fail to heed growing
scientific consensus in an area may undercut the individualized
nature of the hearing to which a sex offender is entitled, an
the registration requirement can have on the lives of adolescent
offenders.
23
important due process right." Doe No. 205614, supra at 608,
citing Doe No. 10800, supra at 626. See Doe No. 151564, 456
Mass. at 623 n.6.
The United States Supreme Court has described "three
significant gaps between juveniles and adults," namely:
"First, children have a '"lack of maturity and an
underdeveloped sense of responsibility,"' leading to
recklessness, impulsivity, and heedless risk-taking. . . .
Second, children 'are more vulnerable . . . to negative
influences and outside pressures,' including from their
family and peers; they have limited 'contro[l] over their
own environment' and lack the ability to extricate
themselves from horrific, crime-producing settings. . . .
And third, a child's character is not as 'well formed' as
an adult's; his traits are 'less fixed' and his actions
less likely to be 'evidence of irretrievabl[e]
deprav[ity].'"
Miller v. Alabama, 132 S. Ct. 2455, 2464 (2012), quoting Roper
v. Simmons, 543 U.S. 551, 569, 570 (2005). The Court explained
that its view of juvenile behavior rests
"not only on common sense -- on what 'any parent
knows' -- but on science and social science as well. . . .
In Roper, we cited studies showing that '"[o]nly a
relatively small proportion of adolescents"' who engage in
illegal activity '"develop entrenched patterns of problem
behavior."' . . . And in Graham [v. Florida, 560 U.S. 48,
68 (2010)], we noted that 'developments in psychology and
brain science continue to show fundamental differences
between juvenile and adult minds' -- for example, in 'parts
of the brain involved in behavior control.'"
Miller, supra, quoting Roper, supra at 569, 570.
The guidelines do not ignore the importance of the
distinctions, discussed in Miller, between adult and juvenile
offenders. Rather, as explained, the guidelines delineate in
24
some detail the different ways in which they are to be applied
to adults and to juveniles. See, e.g., G. L. c. 6,
§ 178K (1) (e); 803 Code Mass. Regs. § 1.40(1), (3), (6), (7),
(9)(c)(6), (14).
A question nevertheless remains, which cannot be answered
on the record before us, whether the manner in which the
guidelines differentiate between adults and juveniles is sound
in view of current scientific research. "SORB need not update
its guidelines every time a new study is published," Doe No.
205614, 466 Mass. at 605, but "[w]here, as here, scientific
knowledge in a field is rapidly evolving, . . . the applicable
standards may require more frequent modification in order to
reflect accurately the current state of knowledge" (citation
omitted). Doe No. 151564, 456 Mass. at 623 n.6, citing
Commonwealth v. Lanigan, 419 Mass. 15, 27 (1994). Given that
the most recent studies cited in the guidelines were published
in 2001, there is reason for some concern as to whether the
guidelines continue to reflect accurately the current state of
scientific knowledge.
Judgment affirmed.