L.L., a juvenile v. Commonwealth , 470 Mass. 169 ( 2014 )

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SJC-11721
L.L., a juvenile vs. COMMONWEALTH.
Suffolk. September 3, 2014. - December 5, 2014.
Present: Gants, C.J., Spina, Botsford, Cordy, & Hines, JJ.
Sex Offender. Sex Offender Registration and Community
Notification Act. Delinquent Child. Evidence, Juvenile
delinquency, Sex offender. Supreme Judicial Court,
Superintendence of inferior courts.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on July 7, 2014.
The case was reported by Spina, J.
Beth L. Eisenberg, Committee for Public Counsel Services
(Susan Oker, Committee for Public Counsel Services, with her)
for the juvenile.
Catherine Langevin Semel, Assistant District Attorney, for
the Commonwealth.
Eric Tennen, for Children's Law Center of Massachusetts &
others, amici curiae, submitted a brief.
BOTSFORD, J. After admitting to sufficient facts before a
Juvenile Court judge with respect to two counts of indecent
assault and battery on a person fourteen or older, the juvenile
filed a motion seeking relief from the obligation to register as
2
a sex offender pursuant to G. L. c. 6, § 178E (f) (§ 178E [f]).
After a hearing, the judge denied the motion, thereby requiring
the juvenile to register with the Sex Offender Registry Board
(board). We consider here the juvenile's petition for relief
pursuant to G. L. c. 211, § 3. The principal issue he raises
concerns the standard by which a Juvenile Court judge determines
the risk of reoffense on the part of a juvenile under § 178E
(f), an issue that this court considered in Commonwealth v.
Ronald R., 450 Mass. 262, 267-268 (2007). We seek to provide
additional guidance concerning that standard in this opinion.
We affirm the order denying the juvenile's motion for relief
from registration.
Background.1 On the afternoon of May 9, 2013, the juvenile,
who was then sixteen years old, approached an adult woman from
behind as she was walking her dog in Lynn and pulled down the
sweatpants she was wearing to her thighs. The juvenile then
made a vulgar comment about the victim's private parts, grabbed
his own genitals, and ran away. The woman described her
assailant to the Lynn police.
Eight days later, on the afternoon of May 17, 2013, a
different woman was walking four children home from school in
Lynn when she felt the juvenile touch her buttocks and pull her
1
Because the juvenile entered a plea, the background
information provided here is taken from the Commonwealth's
recitation of facts at the plea hearing as well as reports and
other materials included in the record before us.
3
pants to the ground. The woman called the police and provided a
description of her assailant, and soon thereafter, a Lynn police
officer observed the juvenile, who fit this description, on a
different street from where the incident had occurred. Lynn
police patrol units then stopped the juvenile. At a showup
identification procedure soon thereafter, the second woman
identified the juvenile as the person who had pulled her pants
down. The juvenile was placed under arrest and taken to the
Lynn police station.
After having the opportunity to speak with his mother, the
juvenile agreed to speak with the police. He admitted that he
had pulled down the second woman's pants and, when the police
mentioned the first woman to the juvenile, he admitted that he
had pulled down her pants as well.2 Discussing the second
incident, the juvenile explained that he had bought and smoked
some marijuana that morning (May 17), and then, while walking,
he "just went up to [the second woman] and pulled down her
pants." The juvenile did not give a reason for pulling down the
second woman's pants, saying only that he "just felt the
2
The first woman told police that she saw the juvenile
again on the morning of the second incident (May 17). When the
police, on May 17, asked the juvenile whether he had seen the
first woman that morning, the juvenile admitted to having pulled
her pants down. The police prepared a photographic array that
included the juvenile and showed it to the first woman, who
positively identified the juvenile's photograph.
4
excitement." The juvenile also did not give a reason for
targeting the first woman.
On May 20, 2013, two complaints issued from the Essex
County Division of the Juvenile Court Department charging the
juvenile with two counts of indecent assault and battery on a
person fourteen years of age or older and one count of
disorderly conduct. On January 21, 2014, at a hearing before a
Juvenile Court judge, the juvenile admitted to sufficient facts
with regard to each charge and entered a plea that the judge
accepted.3 Between this hearing and the final disposition of the
case, the juvenile filed a motion for relief from the obligation
to register with the board, and an evidentiary hearing on the
motion was held on February 27, 2014.4
At that hearing, the juvenile sought to establish that he
did not "pose a risk of reoffending or a danger to the public,"
and therefore should be relieved of the obligation to register.
G. L. c. 6, § 178E (f). He offered the report and testimony of
3
The two women assaulted by the juvenile attended this
hearing, and each made a statement to the judge about the impact
of the juvenile's assault on her.
4
Although the judge had not yet announced the sentence she
intended to impose, she had indicated that a delinquency
adjudication with a probationary sentence was likely, and in
response to that, given the charges of indecent assault and
battery on a person fourteen years of age or older, the juvenile
filed his motion for relief from the obligation to register as a
sex offender under G. L. c. 6, § 178E (f) (§ 178E [f]). In April
of 2014, the juvenile formally was adjudicated delinquent and
sentenced to probation, to terminate on his eighteenth birthday,
September 10, 2014.
5
his expert witness, Dr. Barbara Quiñones, a forensic
psychologist. Quiñones testified to having administered a
"guided clinical instrument" called the Estimate of Risk of
Adolescent Sexual Offense Recidivism (ERASOR), a test that she
described as "strongly validated" by substantial research as an
appropriate risk assessment tool for juvenile sex offenders.5
According to Quiñones, the ERASOR enumerates twenty-five factors
that have been "consistently shown to be associated with risk of
re-offense," and in administering the test to the juvenile, she
scored each factor as "present, not present, [or] partially
present." She found that in the juvenile's case, four of the
twenty-five risk factors were present,6 twenty risk factors were
not present, no risk factors were partially present, and the
presence of one factor was "unknown." Based on her evaluation
of the juvenile, which included a lengthy interview with him, a
discussion with the juvenile's mother, the administration of the
ERASOR test, and other evaluative processes, Quiñones saw no
sign of deviant sexual behavior in the juvenile, in part because
5
Dr. Barbara Quiñones noted that the Estimate of Risk of
Adolescent Sexual Offense Recidivism (ERASOR) instrument,
although validated, does not provide an actuarial assessment
because an offender's ERASOR score is not tied to a percentage
rate of reoffense. She testified that there are no validated
actuarial instruments for determining the risk of reoffense of
juvenile sex offenders.
6
The four were sexual assault of two or more victims,
sexual assault of a stranger, "[n]egative peer associations and
influence," and "[i]ncomplete sex offender specific treatment."
6
in her opinion such a diagnosis requires a finding of six months
of deviant behavior -- a period of time far longer than that
involved in the juvenile's case. She also stated that in her
opinion, based on research she described, the juvenile's lack of
insight into why he committed the two offenses was not
indicative of a higher risk of reoffense. Based on her
evaluation, Quiñones concluded that the juvenile's "risk to
reoffend sexually is low," adding that, in forensic psychology,
"there is no category of no risk," and that "[o]nce someone has
committed a sexual offense, the lowest category would be low."
She opined that the juvenile's risk of reoffense was so low that
he should not be required to register as a sex offender.
At a hearing in April, 2014, the judge denied the
juvenile's motion for relief from registration and proceeded to
set out oral findings and reasons. She described in some detail
the facts of the two assaults on the two women, and stated that
she found Quiñones's testimony "thoughtful," but did not credit
the expert's opinion about the juvenile's lack of sexual
deviance. The judge also rejected Quiñones's ultimate
conclusion that the juvenile posed a low risk of reoffense,
"based primarily on the facts and the circumstances" of the
offenses, which the judge characterized as "egregious." She
stated that this "was a broad daylight sexual assault on two
strangers in our community with no apparent measure of
7
restraint" or "any understanding of why he committed these
offenses." The judge determined that the juvenile posed a risk
of reoffense and would be required to register with the board.7
The juvenile thereafter filed in the county court his
petition pursuant to G. L. c. 211, § 3, seeking relief with
respect to the order denying him relief from the obligation to
register as a sex offender. The single justice stayed the
judge's order requiring registration and reserved and reported
the matter to the full court.
Discussion. 1. Juvenile's petition for relief under G. L.
c. 211, § 3. As a threshold matter, the Commonwealth contends
that there is no issue properly before the full court for
review, because the juvenile, in the Commonwealth's view, has
abandoned the claim he raised in his petition for relief under
G. L. c. 211, § 3, that he filed in the county court. The
argument fails. Although this court has deemed an argument
waived where it was not raised either before the trial judge or
in a G. L. c. 211, § 3, petition for relief, see Paquette v.
Commonwealth, 440 Mass. 121, 124 n.3 (2003), cert. denied, 540
7
At a subsequent hearing on the juvenile's motion to
reconsider the denial of relief from registration, the judge
indicated that she had used her discretion in accordance with
Commonwealth v. Ronald R., 450 Mass. 262 (2007), to deny relief
from registration. She added that she had carefully reviewed
the victims' statements and the effect of these offenses on the
victims, and stated that she was "well aware of the ever
evolving research in the area of the juvenile behavior and the
juvenile brain." The judge denied the motion for
reconsideration.
8
U.S. 1150 (2004), that is not the case here. The juvenile
previously has raised the substance of the claims he presents to
this court, either in the Juvenile Court or before the single
justice. In any event, the single justice has reserved and
reported the case to this court, and it is properly before us.
See Burke v. Commonwealth, 373 Mass. 157, 159 (1977). Cf.
Commonwealth v. Goodwin, 458 Mass. 11, 14-15 (2010).8
2. Standard for obtaining relief from registration. Under
the sex offender registration act, G. L. c. 6, §§ 178C–178P
(act), sex offenders, whether adults who have been convicted of
a "sex offense" within the scope of the act or juveniles
adjudicated as a youthful offender or delinquent on account of
committing a qualifying sex offense, are required to register as
sex offenders with the board, unless relieved of doing so under
8
The Commonwealth also suggests that the juvenile should be
required to exhaust his administrative remedies by proceeding
through the sex offender registration process and, if necessary,
appealing from the final classification decision of the Sex
Offender Registry Board (board) under G. L. c. 6, § 178M. The
Commonwealth is incorrect. The statutory review process for
decisions of the board does not apply to decisions of a judge
under § 178E (f). See Ronald R., 450 Mass. at 266. A sex
offender aggrieved by a denial of relief from registration under
§ 178E (f) has "no automatic right of appeal," but may file a
petition with a single justice of this court under G. L. c. 211,
§ 3, Ronald R., supra at 266-267, although to obtain substantive
review, the grounds to do so must be significant. See Care &
Protection of Zita, 455 Mass. 272, 278 (2009) ("Even in the
absence of an adequate alternative remedy . . . review on the
substantive merits pursuant to G. L. c. 211, § 3, is not
automatic" because "petitioner must also demonstrate that
[issue] raises a substantial claim of violation of her
substantive rights").
9
one of three statutory exemptions -- of which § 178E (f) is one.
See Ronald R., 450 Mass. at 264 ("there is a presumption that
sex offenders must register" under act). Section 178E (f)
provides in relevant part:
"In the case of a sex offender who has been convicted
of a sex offense or adjudicated as a youthful offender or
as a delinquent juvenile by reason of a sex offense, on or
after December 12, 1999, and who has not been sentenced to
immediate confinement, the court shall, within [fourteen]
days of sentencing, determine whether the circumstances of
the offense in conjunction with the offender's criminal
history indicate that the sex offender does not pose a risk
of reoffense or a danger to the public. If the court so
determines, the court shall relieve such sex offender of
the obligation to register under [§§] 178C to 178P,
inclusive."9
The juvenile claims that due process requires a judge, in
determining under § 178E (f) whether a juvenile should be
relieved from the obligation to register as a sex offender based
on his or her "risk of reoffense," to assess the probability of
such risk according to an articulated standard that itself is
based on objective factors. His argument is that a delinquency
adjudication of a sex offense together with "the juvenile
court's conclusion as to the propriety for excusing (or [not])
the juvenile's registration obligation" as a sex offender form
9
Under the plain terms of § 178E (f), the exemption from
registration for which it provides applies to juvenile as well
as adult sex offenders who are not "sentenced to immediate
confinement." This case is brought by a juvenile sex offender,
and accordingly, in discussing § 178E (f), we focus solely on
the statute's application to juvenile sex offenders in this
opinion. In doing so, we do not intend to suggest that we would
interpret the statute differently in the case of an adult sex
offender; that issue is not before us.
10
the "first step" in the statutory registration process; because
this is so, the procedural due process requirements applicable
to this registration process come into play; and these must
include a requirement that a judge performing the assessment
regarding risk of reoffense under § 178E (f) do so according to
a defined, objective standard. This is especially important for
juveniles, he claims, because of the "historical view of the
juvenile justice system as primarily rehabilitative."
We disagree that a judge's determination under § 178E (f)
whether to relieve a juvenile sex offender from the act's
registration requirements is properly characterized as an
integral part of the registration system itself. See
Commonwealth v. Shindell, 63 Mass. App. Ct. 503, 505 (2005)
(registration requirement is "decision made not by the trial
court, but by the . . . board"). See also Ronald R., 450 Mass.
at 266. But there is no question that the statutory sex
offender registration regime prescribed by the act imposes both
burdensome and long-lasting requirements on a sex offender that
implicate his or her liberty interests.10 And there also is no
10
See Doe, Sex Offender Registry Bd. No. 68549 v. Sex
Offender Registry Bd., ante at 102, 106 (2014) (Doe No. 68549);
Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender
Registry Bd., 466 Mass. 594, 596 (2013) (Doe No. 205614) (sex
offender registration system "implicates constitutionally
protected liberty and privacy interests"). See also Moe v. Sex
Offender Registry Bd., 467 Mass. 598, 604 (2014) ("public
identification of a sex offender poses a risk of serious adverse
consequences to that offender, including the risk that
11
question that, in offering a juvenile sex offender who has not
been sentenced to immediate confinement the opportunity to be
relieved of the obligation to participate in the registration
system in any way, § 178E (f) provides a significant benefit.
Accordingly, it is important that the statute's standards be as
clear as reasonably possible.
In Ronald R., after making a delinquency adjudication based
on the juvenile's commission of a sex offense (rape of a six
year old child), the Juvenile Court judge imposed a suspended
sentence of commitment to the Department of Youth Services until
the juvenile turned eighteen and placed the juvenile on
probation. Ronald R., 450 Mass. at 263. The judge then held a
separate nonevidentiary hearing pursuant to § 178E (f) and
denied the juvenile's motion for relief from the obligation to
register as a sex offender. Id. at 264. The judge did not make
findings, written or oral, but stated that he exercised his
discretion under § 178E (f) not to relieve the juvenile from
registration based on the facts of the case. Id. at 267, 270.
This court rejected the juvenile's argument that the judge
abused his discretion, and, quoting § 178E (f), stated that the
judge's "sole task" under the statute was "to 'determine whether
the sex offender will suffer discrimination in employment and
housing, and will otherwise suffer from the stigma of being
identified as a sex offender, which sometimes means the
additional risk of being harassed or assaulted"); Doe, Sex
Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450
Mass. 780, 791 (2008).
12
the circumstances of the offense in conjunction with the
[juvenile's] criminal history indicate that the [juvenile] does
not pose a risk of reoffense or a danger to the public.'"11 Id.
at 267.
The juvenile in this case argues that neither the text of
§ 178E (f) nor Ronald R. offers any meaningful guidance about
how a Juvenile Court judge is to determine the "risk of
reoffense," creating a statutory regime that permits the
standardless and inconsistent exercise of judicial discretion in
violation of fundamental concepts of fairness. Cf. BMW of N.
Am., Inc. v. Gore, 517 U.S. 559, 588 (1996) (Breyer, J.,
concurring) (legal standards "must offer some kind of constraint
upon a . . . court's discretion, and thus protection against
purely arbitrary behavior"). Particularly for children, for
whom the requirement to register as a sex offender may have more
profound consequences than for an adult,12 and in light of the
11
In Ronald R., 450 Mass. at 267, in addition to stating
that the judge's determination under § 178E (f) was
discretionary, we interpreted the statute to impose upon the
juvenile the burden of establishing that he did not pose a risk
of reoffense. Id. at 268-269. We discuss the issue of
discretion in note 27, infra, but the juvenile does not
challenge the allocation of burden of proof, and we have no
reason to reconsider the point here.
12
Registration may have especially serious consequences for
juvenile sex offenders. See, e.g., Halbrook, Juvenile Pariahs,
65 Hastings L.J. 1, 17-18 (2013) ("Humiliation and shame
associated with registry status, and the risk of being exposed,
often serve to isolate young people on registries," and research
suggests that consequences of registration "affect a former
13
rehabilitative focus of the juvenile justice system, the
juvenile claims it is imperative that this court "establish the
basic parameters of the term 'risk'" in the statutory phrase
"risk of reoffense." He goes on to argue that at least in the
context of juvenile sex offenders, the phrase "risk of
reoffense" should be measured by whether the offender is
"likely" to reoffend, and determined by analyzing factors such
as the "seriousness of the threatened harm, the relative
certainty of the anticipated harm, and the possibility of
successful intervention to prevent that harm." In support of
this standard, the juvenile points to Commonwealth v. Boucher,
438 Mass. 274, 276 (2002), a case involving the sexually
dangerous person (SDP) statute, G. L. c. 123A, §§ 1-16.
As previously stated, we agree with the juvenile on the
importance of providing a more focused approach to the risk
assessment that § 178E (f) calls for, but disagree with his
proffered standard. The Commonwealth points out, correctly,
that the Legislature did not use the words "likely" to reoffend
in § 178E (f), as it did in the SDP statute. See G. L. c. 123A,
§ 1 (definition of "[s]exually dangerous person"). As the SDP
offender's ability to rehabilitate and reintegrate into
society"); Letourneau & Caldwell, Expensive, Harmful Policies
that Don't Work or How Juvenile Sexual Offending Is Addressed in
the U.S., 8 Int'l J. of Behavioral Consultation & Therapy 23, 27
(2013) (consequences associated with juvenile registration and
notification include "stigma, isolation, shame, and
depression").
14
statute demonstrates, if the Legislature had wanted to use the
"likely" standard in § 178E (f), it could have done so. See,
e.g., Commonwealth v. LeBlanc, 407 Mass. 70, 74-75 (1990)
(Legislature's inclusion of particular language in certain
statutes, and omission of such language in statute at issue,
indicates affirmative choice not to include that language).
Although registration imposes distinct burdens on a sex offender
and perhaps particularly a juvenile sex offender, the
infringement on personal liberty is far less than if adjudicated
an SDP. See Doe, Sex Offender Registry Bd. No. 27914 v. Sex
Offender Registry Bd., 81 Mass. App. Ct. 610, 615 (2012). In
the circumstances, it is not reasonable to infer that the
Legislature intended the phrase, "does not pose a risk of
reoffense," in § 178E (f) to mean, even for a juvenile sex
offender, that he or she was not "likely to reoffend."13
13
Furthermore, the Legislature has used the word "likely"
in another provision of the act, G. L. c. 6, § 178G, which
authorizes certain registered sex offenders to seek to terminate
the obligation to register after ten years. Section 178G
provides in relevant part: "The duty of a sex offender required
to register" shall "end [twenty] years after such sex offender
has been convicted or adjudicated or has been released from all
custody or supervision, whichever last occurs," unless the
"person required to register with the [board] . . . make[s] an
application to [the] board to terminate the obligation upon
proof, by clear and convincing evidence, that the person has not
committed a sex offense within ten years following conviction,
adjudication or release from all custody or supervision,
whichever is later, and is not likely to pose a danger to the
safety of others" (emphasis added). Given the situational
differences between a sex offender who was last convicted of a
sex offense at least ten years ago and a sex offender who was
15
In attempting to give more definition to the standard
regarding risk of reoffense incorporated into § 178E (f), it is
useful to take a somewhat functional approach. We view the
standard for determining "risk of reoffense" under § 178E (f) as
having two components: (1) the level of risk warranting relief
from registration, and (2) the basis on which the judge assesses
this risk. We consider each component separately.
a. Level of risk. Despite the statute's indication that
the judge may relieve an offender from registration only if he
or she "does not pose a risk of reoffense or a danger to the
public," we do not interpret this language to mean "no risk,"
because the absence of any risk is impossible as a matter of
logic and common sense. See In re Harold W., App. Ct. of Ill.,
Second Dist., No. 2-12-1235 (Apr. 18, 2014) (unpublished)
(interpretation of statute allowing termination of sex offender
registration upon showing of "no risk to the community"; "to
require proof of the complete absence of any risk would mean
that no one would ever be able to satisfy the statute beyond any
doubt" because "[t]here is always a possibility that sex
offenders will reoffend"). Moreover, there appears to be a
consensus among experts that it is impossible to say that a
convicted or adjudicated delinquent and sentenced within the
previous fourteen days, it is reasonable to assume that the
Legislature used different words in §§ 178E (f) and 178G because
it intended different standards to govern the assessment of
risk.
16
person who has committed a sex offense -- which by definition
includes every person potentially subject to registration under
the act -- poses no risk of reoffense.14,15 We will not attribute
to the Legislature the purpose of rendering § 178E (f)
meaningless by means of an insurmountable standard for obtaining
relief from registration. See Victory Distribs., Inc. v. Ayer
Div. of the Dist. Court Dep't, 435 Mass. 136, 140 (2001);
Commonwealth v. Wade, 372 Mass. 91, 95 (1977) (refusing to
construe statute such that it "would become a useless
legislative exercise").
Because § 178E (f) itself does not clearly define the
appropriate level of risk warranting relief from registration
under § 178E (f), we seek guidance on the issue from other
sections of the act. See Pentucket Manor Chronic Hosp., Inc. v.
Rate Setting Comm'n, 394 Mass. 233, 240 (1985) ("When the
meaning of a statute is brought into question, a court properly
should read other sections and should construe them together
. . . so as to constitute an harmonious whole consistent with
14
Quiñones testified to this effect in the present case,
and the record suggests that this part of her testimony was
credited by the judge. See Doe, Sex Offender Registry Bd. No.
1211 v. Sex Offender Registry Bd., 447 Mass. 750, 762 (2006)
(Doe No. 1211) (noting expert's statement that "I don't think
that once anybody's engaged in sexual acting out behavior can
you say that there is absolutely no risk").
15
The Commonwealth conceded at oral argument that the
standard for relief from registration cannot require a showing
that a sex offender poses absolutely no risk of reoffense,
because such a standard would be impossible to satisfy.
17
the legislative purpose" [citation omitted]). See also Care &
Protection of Jamison, 467 Mass. 269, 276 (2014); Wolfe v.
Gormally, 440 Mass. 699, 704 (2004). General Laws c. 6,
§ 178K (1), in particular, is pertinent.16 This section directs
the board to establish a system by which all sex offenders
required to register are classified by risk of reoffense -- low,
moderate, or high -- according to the factors spelled out in
§ 178K (1) (a)-(l), and in the board's implementing regulations,
803 Mass. Code Regs. § 1.40 (2013). See Doe, Sex Offender
Registry Bd. No. 68549 v. Sex Offender Registry Bd., ante 102,
105 (2014) (Doe No. 68549). See also G. L. c. 6, § 178K (2)
(a)-(c). Section 178K (1) and (2) (a) establishes "low" risk of
reoffense as the lowest level of risk classification, and
therefore the threshold level of risk requiring registration.
See Doe No. 68549, supra at 112. See also Doe, Sex Offender
Registry Bd. No. 24341 v. Sex Offender Registry Bd., 74 Mass.
App. Ct. 383, 387 (2009) (Doe No. 24341). A "low" risk of
reoffense under § 178K (1) is "not merely a hypothetical or
speculative potential risk." Doe No. 24341, supra at 388.
16
The Legislature created the exemption from registration
provision in § 178E (f) and the list of factors for assessing
risk of reoffense set out in G. L. c. 6, § 178K (1), as part of
the same piece of legislation. See St. 1999, c. 74, § 2. This
"common source" of origin supports reading the two sections
together. See Eaton v. Federal Nat'l Mtge. Ass'n, 462 Mass.
569, 585 n.23 (2012). See also Cumberland Farms, Inc. v. Milk
Control Comm'n, 340 Mass. 672, 679 (1960).
18
Rather, it is a risk that is "cognizable"17 –- i.e.,
"perceptible"; "[c]apable of being known, perceived, or
apprehended by the senses or intellect"18 -- and one that can and
indeed must be able to be articulated and described based on
affirmative evidence. See, e.g., Doe No. 68549, supra at 108;
Doe, Sex Offender Registry Bd. No. 1211 v. Sex Offender Registry
Bd., 447 Mass. 750, 762-766 (2006) (Doe No. 1211). It follows
that to qualify for exemption from registration under § 178E
(f), a juvenile sex offender's risk of reoffense should be less
than this "low" registration-triggering risk. In other words,
it is a risk that is more than "no risk" -- and therefore more
than hypothetical or purely speculative -- but not as definite
as what qualifies as "low" under § 178K (1).
b. Assessment of risk of reoffense. We turn to the basis
on which a Juvenile Court judge is to make the assessment of
risk of reoffense under § 178E (f). The statute specifies that
the judge is to determine this risk based on "the circumstances
of the offense in conjunction with the offender's criminal
history." G. L. c. 6, § 178E (f). However, it is silent on the
relationship between these two factors and a predictive
assessment of risk of reoffense, and in the case of a juvenile
17
See Doe No. 1211, 447 Mass. at 762.
18
2 Oxford English Dictionary 596 (1978).
19
sex offender particularly, that relationship is not self-
evident.19,20
The link between the circumstances of the offense and
criminal history and an offender's risk of reoffense may be
illuminated, however, where, as was the case here, the juvenile
presents expert evidence that focuses directly on the question
19
Research suggests some differing views concerning the
connection between "the circumstances of the offense" and risk
of reoffense. Compare, e.g., Batastini, Hunt, Present-Koller, &
DeMatteo, Federal Standards for Community Registration of
Juvenile Sex Offenders: An Evaluation of Risk Prediction and
Future Implications, 17 Psychol. Pub. Policy & L. 451, 458
(2011) (Federal Standards), with Russell, Multidisciplinary
Response to Youth with Sexual Behavior Problems, 40 Wm. Mitchell
L. Rev. 1058, 1070 (2014). However, with respect to criminal
history, there seems to be a consensus that juvenile sex
offenders have a relatively low rate of recidivism -- even
though "[m]ethodological variations clearly influence recidivism
rates," and studies disagree as to what the exact rate is. See
United States Dep't of Justice, Office of Juvenile Justice and
Delinquency Prevention, Juveniles Who Have Sexually Offended 31-
32 (2001) (summarizing seven studies that found rate of sexual
recidivism by juvenile sex offenders to be between eight and
thirty-seven per cent). See also Federal Standards, supra at
457-458 ("sex-specific recidivism rates" of juvenile sex
offenders are between fourteen and twenty-nine per cent);
Parker, Branded for Life: The Unconstitutionality of Mandatory
and Lifetime Juvenile Sex Offender Registration and
Notification, 21 Va. J. Soc. Pol'y & L. 167, 188 (2014)
("Studies support a consensus among experienced practitioners in
the field of juvenile sexual abuse intervention that juvenile
sex offenders have a low rate of recidivism [between two and
fourteen per cent] and are unlikely to become adult sex
offenders").
20
Moreover, where an offense has caused a victim great
emotional distress, there is the possibility that a decision not
to relieve the offender of the obligation to register would be
based solely on the effect that the offense had on the victim,
rather than on the circumstances of the offense and the
offender's criminal history.
20
of risk. In this case, for example, Quiñones testified that the
juvenile's targeting of strangers -- shown by the circumstances
of the two offenses -- indicated a risk of reoffense, but that
the juvenile's commission of two sexual offenses within a brief
period (eight days) did not, in her opinion, increase his risk
of reoffense because he committed the second offense without
having been detected as having committed the first.21 If a
juvenile does offer expert evidence regarding his or her risk of
reoffense -- e.g., expert testimony or relevant research studies
by experts in the field -- the judge should consider that
evidence in assessing the "circumstances of the offense" and
ultimately determining whether to exempt the juvenile from
registration.22 That the judge is not bound to credit proffered
expert testimony, see Commonwealth v. DeMinico, 408 Mass. 230,
235 (1990), does not diminish the obligation to give it serious,
reasoned consideration. Cf. Bianco v. Bianco, 371 Mass. 420,
423 (1976) (where judge has broad discretion, "it is important
21
Quiñones also testified that the juvenile's commission of
his offenses in public and during daytime indicated a lack of
intent to commit more invasive sexual assaults, which suggested,
to Quiñones, a decreased risk of reoffense.
22
Here, the juvenile presented an expert witness who
testified. Later, after the juvenile's motion for relief from
registration had been denied, the juvenile submitted a number of
studies in connection with his motion for reconsideration of the
denial of his motion for relief from registration. Given the
timing of the submission of these studies, the judge acted
within her discretion in declining to consider them.
21
that a judge's findings clearly indicate that [the judge] has
weighed all" relevant considerations).
Independent of expert evidence, and especially where no
expert evidence is offered, the judge may seek guidance by
reference to the factors addressing risk of reoffense in G. L.
c. 6, § 178K (1) (a)-(l), and the board's implementing
regulations. More particularly, it may be appropriate for the
judge to evaluate the juvenile's criminal history and the
circumstances of his or her offense through the lens provided by
these statutory and regulatory risk factors. Consideration, for
example, of the juvenile sex offender's status as a juvenile at
the time of the offense and the significance of that status, see
G. L. c. 6, § 178K (1) (e), would seem critical in every case.
The relevance of other factors will depend on the specific facts
presented.23
23
The juvenile as well as amici express concern about tying
the predictive assessment of risk required under § 178E (f) too
closely to the factors used by the board in its classification
decisions under § 178K (1). They argue that scientific research
and discoveries about sexual offenders have called and continue
to call into question the accuracy of commonly held views about
factors that indicate risk of sex offender recidivism, and they
assert that the board does not keep up with these changes. We
have recognized the problem of the board's failure to update its
regulations and its continued reliance on increasingly outdated
studies and research. See Doe No. 205614, 466 Mass. at 609
("eleven years have passed since [the board] last updated [its]
guidelines, during which time knowledge and understanding of
sexual recidivism has expanded considerably"); Doe, Sex Offender
Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass.
612, 623 n.6 (2010) (board's guidelines "may require more
frequent modification in order to reflect accurately the current
22
With respect to the process by which a Juvenile Court judge
is to reach a decision on risk of reoffense under § 178E (f), as
previously mentioned, this section is one of three provisions in
the act providing for exemption from registration; the other two
are G. L. c. 6, §§ 178E (e) (on Commonwealth's motion, judge may
find that offender need not register) and 178K (2) (d) (board
may determine that offender need not register). Section 178K
(2) (d) specifies that, with respect to the board, it must
support a decision to "relieve [an] offender of any further
obligation to register" upon "making specific written findings."
The absence of similar language in § 178E (f) indicates that the
Legislature did not intend to impose such a requirement. See
Ronald R., 450 Mass. at 270 (although sex offender may request
written findings, decision whether to issue them rests in
judge's discretion). Rather, by specifying that the trial (or
plea) judge is to make the determination concerning the
offender's "risk of reoffense" and exemption from the obligation
to register within two weeks of imposing sentence, the
Legislature appears to have contemplated that the judge would
make the determination not on the basis of a wholly independent
state of knowledge"). We also have recognized the issue
specifically in relation to juvenile sex offenders, because of
the gaps between juveniles and adults and the rapid developments
in scientific and social science research in this area. See Doe
No. 68549, supra at 114-116. However, we anticipate and expect
that the board will soon begin to take corrective steps in
relation to the need to update its regulations.
23
proceeding, but essentially in connection with the resolution of
the delinquency proceeding, informed by the knowledge and
understanding of the circumstances of both the offense and the
offender that the judge had acquired by virtue of being the
trial (or plea) judge.24 Cf. Commonwealth v. Ventura, 465 Mass.
202, 212 (2013).
Although a Juvenile Court judge is not obligated to issue
written findings under § 178E (f), and although the judge's
process of determining a juvenile sex offender's relief from
registration under this section may be less formal than the
process required by the board under § 178K (2) (d), it is
important nonetheless for the judge to explain on the record
with some specificity the reasons for his or her assessment of
risk of reoffense and resulting determination whether the
juvenile should be relieved of the obligation to register. Cf.
Long v. Wickett, 50 Mass. App. Ct. 380, 402 (2000), quoting
Protective Comm. for Indep. Stockholders of TMT Trailer Ferry,
Inc. v. Anderson, 390 U.S. 414, 434 (1968) (even where judge has
"broad discretion," it is "essential . . . that a reviewing
court have some basis for distinguishing between well-reasoned
conclusions arrived at after a comprehensive consideration of
all relevant factors, and mere boiler-plate approval phrased in
24
As discussed previously in the text, the judge of course
also would be informed by any information relevant to assessing
the risk of reoffense that the juvenile or the Commonwealth
presented in connection with the § 178E (f) determination.
24
appropriate language but unsupported by evaluation of the facts
or analysis of the law").25 The presence in the record of the
judge's basis for allowing or denying relief from registration
is of particular importance where, as here, the juvenile has
presented expert testimony or other evidence addressing his risk
of reoffense. Cf. Bianco, 371 Mass. at 423.
3. Disposition of present case. The juvenile claims that
the judge's denial of his motion for relief from registration as
a sex offender must be reversed because, on the record before
her, the judge abused her discretion in rejecting the opinion of
his expert witness.
"[E]xperts' opinions are not binding on the trier of fact,
who may accept or reject them in whole or in part."
Commonwealth v. O'Brien, 423 Mass. 841, 854 (1996) (quotation
omitted). See DeMinico, 408 Mass. at 235. The juvenile does
not contest this point directly, but maintains that the judge
nevertheless was obligated to (1) consider "substantial,
25
There is no direct right to judicial review of a judge's
exemption determination under § 178E (f). See note 8, supra.
But quite apart from judicial review, principles of fairness and
the need for reasoned consistency make the court's observations
in Long v. Wickett, 50 Mass. App. Ct. 380, 402 (2000), about the
importance of findings relevant here. Where, as in this case,
the juvenile has offered expert testimony or research, the judge
should consider it and indicate on the record her view of this
evidence and its relationship to her determination concerning
the offender's obligation to register. Compare Police Dep't of
Boston v. Kavaleski, 463 Mass. 680, 694 (2012) (obligation of
administrative agency in adjudicatory proceeding to explain
reasons for rejecting expert testimony).
25
uncontested expert evidence" concerning the risk of reoffense,
and (2) adequately explain any rejection of such expert
testimony.
On the first point, the record makes clear that the judge
here did consider the opinion testimony of Quiñones, discussing
a number of the expert's specific points or opinions in the
judge's oral findings. As to the second point, the record also
shows that the judge did explain in general terms her
disagreement with some of Quiñones's opinions. In particular,
the judge explained that she did not credit the expert's opinion
that the juvenile's offenses were not connected to sexual
deviance or that marijuana contributed to the juvenile's
offense, based on the judge's determination that the juvenile
committed "a broad daylight sexual assault on two strangers in
our community with no apparent measure of restraint" or "any
understanding of why he committed these offenses." The judge
stated that these circumstances led her not to have confidence
in Quiñones's opinion that the juvenile's level of risk of
reoffending was low enough to relieve him from the requirement
of registration. In both the judge's initial explanation of her
reasons for requiring the juvenile to register and her later
explanation of her denial of his motion for reconsideration, the
judge emphasized that she had given careful consideration to
Quiñones's testimony and opinions. Although one might take a
26
different view of Quiñones's testimony and opinions from that of
the judge, her rejection of certain of those opinions was
neither unexplained nor without any basis.
Furthermore, the judge's focus in her findings on certain
of the circumstances of the juvenile's offenses -- the daylight
attacks in the public street on two separate individuals without
"apparent . . . restraint" and without insight into the reasons
for doing so -- reflects in substance some of the concerns
included in the factors for assessing risk of reoffense set out
in G. L. c. 6, § 178K (1), and associated regulations.26
Considering the judge's findings in light of our discussion in
this opinion of the risk of reoffense standard set out in § 178E
(f), we cannot say that the findings do not support the judge's
assessment of that risk. In sum, we conclude that based on the
record before her, the judge's ultimate determination that the
juvenile should not be relieved of the obligation to register as
a sex offender did not lie "outside the bounds of reasonable
alternatives," Adoption of Mariano, 77 Mass. App. Ct. 656, 660
26
For example, the judge's attention to the juvenile's two
separate assaults and lack of restraint suggests a
correspondence with the factor of "repetitive and compulsive
behavior" set out in G. L. c. 6, § 178K (1) (a) (ii), and 803
Mass. Code Regs. § 1.40(2) (2013).
27
(2010), and, accordingly, did not constitute an abuse of her
discretion.27
Judgment affirmed.
27
In discussing the abuse of discretion standard in Ronald
R., 450 Mass. at 267, the court stated: "In order for the
juvenile to sustain an abuse of discretion claim, he must
demonstrate that 'no conscientious judge, acting intelligently,
could honestly have taken the view expressed by him.'
Commonwealth v. Ira I., 439 Mass. 805, 809 (2003), quoting
Commonwealth v. Bys, 370 Mass. 350, 361 (1976)." See Davis v.
Boston Elevated Ry. Co., 235 Mass. 482, 502 (1920). As the
dates of the cases just cited suggest, this articulation of the
abuse of discretion standard of review has enjoyed a long career
in our jurisprudence, but, we conclude, it has "earned its
retirement." Iannacchino v. Ford Motor Co., 451 Mass. 623, 636
(2008), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563
(2007). An appellate court's review of a trial judge's decision
for abuse of discretion must give great deference to the judge's
exercise of discretion; it is plainly not an abuse of discretion
simply because a reviewing court would have reached a different
result. See Bucchiere v. New England Tel. & Tel. Co., 396 Mass.
639, 641 (1986). But the "no conscientious judge" standard is
so deferential that, if actually applied, an abuse of discretion
would be as rare as flying pigs. When an appellate court
concludes that a judge abused his or her discretion, the court
is not, in fact, finding that the judge was not conscientious
or, for that matter, not intelligent or honest. Borrowing from
other courts, we think it more accurate to say that a judge's
discretionary decision constitutes an abuse of discretion where
we conclude the judge made "a clear error of judgment in
weighing" the factors relevant to the decision, see Picciotto v.
Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008) (citation
omitted), such that the decision falls outside the range of
reasonable alternatives. See Zervos v. Verizon N.Y., Inc., 252
F.3d 163, 168-169 (2d Cir. 2001); Adoption of Mariano, 77 Mass.
App. Ct. 656, 660 (2010).