Doe, SORB No. 496501 v. Sex Offender Registry Board ( 2019 )

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SJC-12594
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 496501 vs. SEX
OFFENDER REGISTRY BOARD & others.1
Essex. February 5, 2019. - July 17, 2019.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
Kafker, JJ.
Sex Offender. Sex Offender Registration and Community
Notification Act. Evidence, Sex offender. Practice,
Civil, Sex offender, Standard of proof.
Civil action commenced in the Superior Court Department on
July 15, 2016.
The case was heard by Jeffrey T. Karp, J., on a motion for
partial judgment on the pleadings, and entry of final judgment
was ordered by Timothy Q. Feeley, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Kate A. Frame for the plaintiff.
John P. Bossé for the defendant.
Rebecca Rose, for Committee for Public Counsel Services,
amicus curiae, submitted a brief.
1 The general counsel of the Sex Offender Registry Board
(SORB) and the chair of SORB.
2
GANTS, C.J. The plaintiff (Doe) appeals from a Superior
Court judgment affirming a Sex Offender Registry Board (SORB or
board) decision to classify him as a level two sex offender
after he was convicted in 2015 of two counts of open and gross
lewdness for displaying his genitals to a neighbor through the
window of his home. Doe presents three challenges to the level
two classification. First, he contends that SORB does not have
jurisdiction to classify him as a "sex offender," as defined in
G. L. c. 6, § 178C, because he has not previously been convicted
of open and gross lewdness and only a "second and subsequent
. . . conviction for open and gross lewdness" permits
classification as a sex offender. Second, he contends that a
hearing examiner cannot classify an individual as a level two
sex offender based on a determination that the offender poses a
moderate risk of reoffending, without also making an express
determination that the degree of dangerousness posed by this
individual is such that a public safety interest is served by
having his or her registration information made publicly
available on the Internet. See G. L. c. 6, §§ 178D, 178K (2)
(b). Third, he contends that there was not substantial evidence
to support his level two classification.
We conclude, first, that SORB has jurisdiction to classify
Doe as a sex offender because a previous charge of open and
3
gross lewdness against Doe was resolved through a conviction and
not a continuance without a finding.
Second, we conclude that in order to classify an individual
as a level two sex offender, the hearing examiner is required to
make three explicit determinations by clear and convincing
evidence: (1) that the risk of reoffense is moderate; (2) that
the offender's dangerousness, as measured by the severity and
extent of harm the offender would present to the public in the
event of reoffense, is moderate; and (3) that a public safety
interest is served by Internet publication of the offender's
registry information. This holding is consistent with the
relevant statutes and regulations, and avoids due process
concerns that could arise if an individual's information were
published online in the absence of these determinations.
Third, having examined the evidence and the hearing
examiner's findings in light of this three-prong test, we
conclude that there was not substantial evidence to support her
decision to classify Doe as a level two sex offender by clear
and convincing evidence. Doe's dangerousness could not
reasonably be characterized as moderate, and it was not
reasonable to conclude, based on the hearing examiner's
findings, that Internet publication of Doe's registry
information would serve a public safety interest. We therefore
vacate and set aside the decision of the Superior Court judge
4
affirming SORB's classification of Doe as a level two sex
offender, and remand this matter to the Superior Court for
further proceedings consistent with this opinion.2
Background. 1. Sex offender classification process. The
sex offender registry law, as amended in 1999, established a sex
offender registration system for those in the Commonwealth
convicted of a "sex offense," as defined in G. L. c. 6, § 178C.
See G. L. c. 6, §§ 178C-178Q; St. 1999, c. 74. The purpose of
the law was "to protect . . . the vulnerable members of our
communities from sexual offenders," and particularly from
"sexually violent offenders who commit predatory acts
characterized by repetitive and compulsive behavior." St. 1999,
c. 74, emergency preamble & § 1.
Pursuant to the sex offender registry law, the board
prepares a recommended classification for every sex offender.
See G. L. c. 6, § 178L (1). Where a sex offender challenges
SORB's recommended classification, he or she is entitled to
request an evidentiary hearing. See G. L. c. 6, § 178L (1) (a).
After this hearing, a SORB-designated hearing examiner "shall
consider the relevant and credible evidence and reasonable
inferences derived therefrom to determine: (a) the offender's
risk of reoffense; (b) the offender's dangerousness as a
2 We acknowledge the amicus brief submitted by the Committee
for Public Counsel Services.
5
function of the severity and extent of harm the offender would
present to the public in the event of reoffense; and (c) in
consideration of the foregoing, whether and to what degree
public access to the offender's personal and sex offender
information, pursuant to G. L. c. 6, § 178K, is in the interest
of public safety." 803 Code Mass. Regs. § 1.20(2) (2016).
Based on these determinations, the hearing examiner must issue a
final decision classifying the sex offender into one of three
"levels of notification." Moe v. Sex Offender Registry Bd., 467
Mass. 598, 601 (2014), quoting G. L. c. 6, § 178K (2). All sex
offender risk classifications must be established by clear and
convincing evidence. Doe, Sex Offender Registry Bd. No. 380316
v. Sex Offender Registry Bd., 473 Mass. 297, 314 & n.27 (2015)
(Doe No. 380316).
"Where the board determines that the risk of reoffense is
low and the degree of dangerousness posed to the public is not
such that a public safety interest is served by public
availability, it shall give a level [one] designation to the sex
offender." G. L. c. 6, § 178K (2) (a). Level one offenders'
registry information is not disseminated to the general public
or published on the Internet. See G. L. c. 6, §§ 178D, 178K (2)
(a). "Where the board determines that the risk of reoffense is
moderate and the degree of dangerousness posed to the public is
such that a public safety interest is served by public
6
availability of registration information, it shall give a level
[two] designation to the sex offender." G. L. c. 6, § 178K (2)
(b). Level two offenders' registry information is "available
for inspection by the general public in the form of a
comprehensive database published on the [I]nternet." G. L.
c. 6, § 178D. And "[w]here the board determines that the risk
of reoffense is high and the degree of dangerousness posed to
the public is such that a substantial public safety interest is
served by active dissemination, it shall give a level [three]
designation to the sex offender." G. L. c. 6, § 178K (2) (c).
Level three offenders' registry information is available for
public inspection on the Internet and also subject to "active[]
dissemination" by the police or the board. See G. L. c. 6,
§§ 178D, 178K (2) (c). See also 803 Code Mass. Regs. § 1.28(1)
(2016).
Any individual who disagrees with the board's final
classification is entitled to file a complaint for judicial
review in the Superior Court. See G. L. c. 6, § 178M; G. L.
c. 30A, § 14.
2. Doe's offenses. Prior to his 2015 guilty plea, Doe had
been charged with open and gross lewdness on three occasions:
once in 1990, once in 1991, and once in 1996. At the hearing,
the police report regarding the 1990 charge was not in the
record; the criminal complaint alleged only that Doe committed
7
the crime of open and gross lewdness in the presence of two
women. But Doe testified before the hearing examiner that the
charge arose out of an incident during which he exposed his
genitals to two strangers who were walking by while he sat
inside his motor vehicle. As described infra, the parties
disagree as to whether Doe was found guilty of this charge or
whether the charge was continued without a finding. The 1991
charge was dismissed for lack of prosecution and was not
considered by the hearing examiner. The 1996 charge arose out
of a report by the victim that Doe, who was on the opposite side
of a train platform from her, had his pants and underwear pulled
down and was playing with his genitals as he walked across the
tracks toward her. Doe testified before the hearing examiner
that he was taking the train home after drinking with friends,
and was seen by a woman after having pulled his pants and
underwear down on the platform. This case was continued without
a finding in 1997 and subsequently dismissed.
During his classification hearing, Doe admitted that he had
exposed himself on six or seven other occasions between 1991 and
1996, none of which resulted in an arrest or a court proceeding.
There is no evidence that Doe continued to expose himself in the
time between his 1996 offense and his 2011 offense.
In June 2014, Doe's nineteen year old female neighbor
reported to the police that, while she was inside her home, Doe
8
had exposed himself to her from inside his home on multiple
occasions, three of which she described in further detail. The
first reported incident took place in 2011, when Doe's neighbor
was approximately fifteen years old. At this time, she observed
Doe standing nude beside a window. She reported that she was
able to see Doe's genitals because the window shade "was only
[three-quarters] of the way down." Doe denied any recollection
of this incident. He was initially charged with open and gross
lewdness, but pleaded guilty to the lesser included offense of
indecent exposure, in violation of G. L. c. 272, § 53. Indecent
exposure is not a sex offense under the sex offender registry
law. See G. L. c. 6, § 178C (listing all offenses that qualify
as "[s]ex offense" under sex offender registry law).
The second incident occurred in May 2014. Again, the
neighbor observed Doe standing nude beside a partially-covered
window and exposing his penis. The third incident took place
the following month, when the neighbor saw Doe standing nude in
his kitchen and touching his penis in a manner consistent with
masturbation. Doe's neighbor stated that each of these events
occurred at night, and that she could see the defendant because
his lights were on.
In response to his neighbor's allegations, Doe voluntarily
spoke with a Haverhill police detective on June 18, 2014.
According to the incident report relied upon by the hearing
9
examiner, the officer informed Doe that his neighbor had seen
him naked inside his home; Doe responded that this was "probably
true." When the officer advised Doe that his neighbor believed
the exposure to be purposeful, Doe responded that he "would
agree with that." He likewise agreed that his neighbor had seen
him masturbating in his kitchen. Doe stated that the victim --
whom he had seen changing her clothing and engaging in sexual
acts on her living room couch -- was a "trigger" for him, and
that he was having increasing difficulty controlling his urges.
He agreed with the officer that the victim's exposure was likely
accidental, but his exposure had been intentional. Doe further
stated that he "had a problem" for which he had sought treatment
in the past, that he had "been good for a long time," and that
he now only exposed himself when he was indoors. He said that
he was "just an exhibitionist," and that he had never touched or
hurt anybody. He further stated that he was building a house on
several acres of land in New Hampshire to get away from any
potential "triggers."
In March 2015, Doe pleaded guilty to two counts of open and
gross lewdness arising out of the two incidents that took place
in May and June 2014. He was sentenced to two years of
supervised probation with conditions that he abstain from using
drugs and alcohol and that he participate in a sex offender
10
therapy program, which, according to his therapist, he
successfully completed.
3. Doe's classification and appeals. In June 2015, SORB
recommended that Doe be classified as a level two sex offender.
Doe challenged the recommended classification, and an
evidentiary hearing took place on May 3, 2016. On July 15, the
hearing examiner concluded that Doe "presents a moderate risk to
reoffend and that a public safety interest is served by public
access to his sex offender registry information." She therefore
ordered that Doe register as a level two sex offender. In
reaching her conclusion, the hearing examiner "acknowledge[d]
that [Doe's] offenses are not gravely dangerous," but found them
to be "quite upsetting to his multiple [v]ictims." She further
found that in this case, "community availability of [Doe's] sex
offender information might have prevented the circumstances
which contributed to his reoffenses," as his neighbors "might
have been more modest in the rooms facing his home" had they
"known of his sex offender history." The hearing examiner
therefore found that Doe's "other neighbors, present and future,
deserve this awareness, and that posting his sex offender
information on the [I]nternet is necessary for public safety."
On the same day that the hearing examiner released her
decision, Doe commenced this action seeking judicial review in
the Superior Court. He also filed a motion for a preliminary
11
injunction to stay the publication of his registry information
on the Internet, which a Superior Court judge allowed. In July
2017, Doe filed a motion for partial judgment on the pleadings,
which SORB opposed. A different Superior Court judge denied
Doe's motion and affirmed SORB's final decision classifying Doe
as a level two sex offender. The judge who granted the
preliminary injunction then ruled that, because Doe's level two
classification had been affirmed, the preliminary injunction
that stayed online publication would expire ten days after
judgment entered.
Doe filed a notice of appeal from the Superior Court
judge's decision denying his motion for judgment on the
pleadings, as well as a motion to extend the preliminary
injunction pending appeal. A single justice of the Appeals
Court stayed Internet publication of his information pending
resolution of this case. We granted Doe's application for
direct appellate review.
Discussion. 1. Standard of review. A reviewing court may
set aside or modify SORB's classification decision where it
determines that the decision is in excess of SORB's statutory
authority or jurisdiction, violates constitutional provisions,
is based on an error of law, or is not supported by substantial
evidence. See G. L. c. 30A, § 14 (7) (listing these and other
reasons for vacating decision of agency). In reviewing SORB's
12
decisions, we "give due weight to the experience, technical
competence, and specialized knowledge of the agency." Doe, Sex
Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd.,
466 Mass. 594, 602 (2013), quoting G. L. c. 30A, § 14 (7).
2. SORB jurisdiction over Doe. A single conviction of
open and gross lewdness, in violation of G. L. c. 272, § 16, is
not a "sex offense" that permits classification of an individual
as a sex offender; only a "second and subsequent adjudication or
conviction" of that offense permits such classification. G. L.
c. 6, § 178C. Doe argues, and SORB concedes, that Doe's two
2015 convictions of open and gross lewdness would not themselves
trigger an obligation to register because those convictions
occurred in the same judicial proceeding. See Commonwealth v.
Wimer, 480 Mass. 1, 4 (2018) (where "defendant committed two
separate incidents on two different occasions" but "resulting
two convictions occurred in the same judicial proceeding,"
second conviction does not qualify as "subsequent conviction"
under G. L. c. 6, § 178C). Therefore, SORB has jurisdiction to
classify Doe as a sex offender only if his 1990 open and gross
lewdness charge, which was resolved in 1991, resulted in a
conviction rather than a continuance without a finding.
We conclude that the hearing examiner and the Superior
Court judge correctly determined that Doe qualifies as a sex
offender because he was found guilty of open and gross lewdness
13
in 1991. The docket sheet for this case shows that on October
16, 1991, Doe admitted to sufficient facts and, based on the
letter "G" in the "Finding" column, that a finding of guilt was
entered. The box for a continuance without a finding was not
checked. The docket further shows that Doe was sentenced to two
years of probation on this charge. If his case had been
continued without a finding, one would expect a check mark in
the box indicating that the case against Doe was dismissed at
the request of probation at the conclusion of those two years,
but there is no such check. Doe testified at his hearing that
he was advised that this case had concluded in a continuance
without a finding, and that he need not report a conviction when
he applied for employment. If this advice was given, the docket
contradicts its accuracy. Therefore, we conclude that Doe's
2015 convictions were "second and subsequent" to his 1991
conviction, and that SORB had jurisdiction to classify Doe as a
sex offender.
3. Required determinations for level two classification.
General Laws c. 6, § 178K (2) (b), provides that, to classify an
individual as a level two sex offender, the board must determine
(1) "that the risk of reoffense is moderate" and (2) that "the
degree of dangerousness posed to the public is such that a
public safety interest is served by public availability of
registration information." SORB's regulations recognize that
14
fulfilling this statutory mandate requires the hearing examiner,
based on "the relevant and credible evidence and reasonable
inferences derived therefrom[,] to determine: (a) the
offender's risk of reoffense; (b) the offender's dangerousness
as a function of the severity and extent of harm the offender
would present to the public in the event of reoffense; and (c)
in consideration of the foregoing, whether and to what degree
public access to the offender's personal and sex offender
information . . . is in the interest of public safety." 803
Code Mass. Regs. § 1.20(2). The SORB regulations therefore
require a hearing examiner to make three distinct and explicit
determinations in classifying a sex offender. We now consider
each of the three determinations necessary to support a level
two classification.
a. Risk of reoffense. Section 178K (2) (b) explicitly
provides that a level two offender's risk of reoffense must be
"moderate." Although not explicitly stated either in the
statute or regulations, we understand that this determination of
risk focuses solely on the risk of sexual recidivism, that is,
the risk that the offender will commit a new sexual offense, not
the risk that he or she will commit any criminal offense. See
Doe, Sex Offender Registry Bd. No. 326573 v. Sex Offender
Registry Bd., 477 Mass. 361, 367 (2017) (SORB reclassification
decisions made based on information relevant to risk of "sexual
15
recidivism"); 803 Code Mass. Regs. § 1.33 (2016) (discussing
"strongest predictors of sexual recidivism").
b. Degree of dangerousness. An offender's dangerousness,
as described in 803 Code Mass. Regs. § 1.20(2), is measured by
"the severity and extent of harm" that would result if the
offender were to commit a new sex offense. Determining an
individual's degree of dangerousness therefore requires a
hearing examiner to consider what type of sexual crime the
offender would likely commit if he or she were to reoffend.
Pragmatically, because past is prologue, a hearing examiner
would make this determination based on the sexual crime or
crimes that the offender committed in the past. Where there is
a history of different sexual offenses, the primary focus would
likely be on the crime or crimes recently committed by the
offender. See Doe, Sex Offender Registry Bd. No. 7083 v. Sex
Offender Registry Bd., 472 Mass. 475, 482 (2015) (Doe No. 7083)
("SORB's regulations provide that a sex offender's current . . .
dangerousness to the community must be considered" [emphasis
added]). A hearing examiner, however, may consider an
offender's older sexual offenses where they are relevant to a
holistic assessment of the offender's current degree of
dangerousness, or where the offender has not had recent
opportunity to commit sexual offenses because he or she has been
in custody.
16
Neither the statute nor the regulations specify the degree
of dangerousness required for a level two classification. We
conclude, based on the statutory and regulatory context, the
adverse consequences of Internet publication for an offender,
and our presumption that the Legislature intends its statutes to
pass constitutional muster, that a moderate degree of
dangerousness is required for the hearing examiner to classify
an individual as a level two sex offender.
From the statute, we know that the board can impose a level
two sex offender classification only where it finds that the
offender poses a "degree of dangerousness" "such that a public
safety interest is served by public availability of registration
information." G. L. c. 6, § 178K (2) (b). For a level two
offender, public availability of registration information means
that the offender's information will be published on SORB's
website, where it is viewable by any adult member of the public
at any time. See G. L. c. 6, § 178D; Moe, 467 Mass. at 605. If
an offender's degree of dangerousness is low, it is difficult to
see how the public interest would be served by Internet
publication, especially considering the "dramatic consequences"
that classification as a level two offender has "for [the
offender's] liberty and privacy interests." See Doe No. 380316,
473 Mass. at 311.
17
As this court has previously recognized, Internet
publication of an individual's sex offender registry information
"poses a risk of serious adverse consequences to that offender,
including the risk that 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." Moe, 467 Mass. at 604. See Doe No. 380316, 473
Mass. at 307-308 ("Internet dissemination exposes offenders,
through aggressive public notification of their crimes, to
profound humiliation and community-wide ostracism" [quotation,
citation, and alteration omitted]); Poe v. Sex Offender Registry
Bd., 456 Mass. 801, 813 (2010), quoting Doe v. Attorney Gen.,
426 Mass. 136, 144 (1997) ("Classification and registration
entail possible harm to a sex offender's earning capacity,
damage to his reputation, and, 'most important, . . . the
statutory branding of him as a public danger'"). Registry
information posted on the Internet may be obtained anonymously
from the comforts of one's own home, and republished on public
websites not subject to SORB's control or to the warnings and
certifications required by law to be provided on SORB's website.
Moe, 467 Mass. at 605. See G. L. c. 6, § 178D. And even if a
sex offender's information is later removed from SORB's website
because the individual is released from the obligation to
18
register or reduced to a level one classification, his or her
information would likely continue to exist on private websites,
easily discoverable through a generic online search. Moe, supra
at 605-606. See Note, The Right to Be Forgotten, 64 Hastings
L.J. 257, 259 (2012) ("information posted on the Internet is
never truly forgotten").
Due process concerns could be implicated if we were to
interpret the statute to allow Internet publication of registry
information for individuals whose degree of dangerousness is
anything less than moderate. Cf. Doe No. 380316, 473 Mass. at
303, citing Mathews v. Eldridge, 424 U.S. 319 (1976). "An
individual's ongoing duty to register as a sex offender
implicates significant liberty and privacy interests for as long
as the individual is required to register as a sex offender."
Doe, Sex Offender Registry Bd. No. 76819 v. Sex Offender
Registry Bd., 480 Mass. 212, 219 (2018). And where registration
also means Internet publication, the liberty and privacy
interests take a quantum leap. "Deprivation of greater
individual liberty interests requires greater procedures and
stronger countervailing State interests." Doe, 426 Mass. at
140. By interpreting G. L. c. 6, § 178K (2) (b), to require a
determination of moderate dangerousness, we avoid such concerns
and conform to our presumption that the Legislature intended its
statutes to pass constitutional muster. See Doe, Sex Offender
19
Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass.
764, 771 (2008) ("statute must be construed, if fairly possible,
so as to avoid not only the conclusion that it is
unconstitutional but also grave doubts upon that score"
[citation omitted]).
Our conclusion that a moderate degree of dangerousness is
required for classification as a level two sex offender does not
appear to be in tension with SORB's current practices -- hearing
examiners who conclude that an individual is a level two sex
offender often already find that the individual poses a moderate
degree of dangerousness to the public, as well as a moderate
risk to reoffend. See, e.g., id. at 767 (hearing examiner found
offender posed moderate danger to public and moderate risk to
re-offend); Doe, Sex Offender Registry Bd. No. 376575 v. Sex
Offender Registry Bd., 90 Mass. App. Ct. 786, 788 (2016) (same);
Doe, Sex Offender Registry Bd. No. 95318 v. Sex Offender
Registry Bd., 80 Mass. App. Ct. 901, 902 (2011) (same). See
also Commonwealth v. Feliz, 481 Mass. 689, 706 (2019) ("sex
offenders designated level two . . . are deemed to pose a
moderate . . . risk of reoffending and a concomitant degree of
risk to the public"). Indeed, SORB declares in its appellate
brief that the hearing examiner here found that Doe "presents
. . . a moderate degree of dangerousness to the public," which
20
suggests that the board recognizes the need for such a
determination to support a level two classification.
c. Efficacy of Internet publication. A hearing examiner's
job is not complete upon determining an individual's risk to
reoffend and degree of dangerousness. A third and distinct
determination is required by SORB regulations: "whether and to
what degree public access to the offender's personal and sex
offender information . . . is in the interest of public safety."
803 Code Mass. Regs. § 1.20(2). An offender may not be given a
level two classification unless "the degree of dangerousness
posed to the public" by the offender "is such that a public
safety interest is served by public availability of registration
information," that is, by the availability of registration
information on SORB's website. See G. L. c. 6, §§ 178D,
178K (2) (b). Whether a public safety interest will be "served"
by Internet publication depends not only on the probability of
reoffense and the danger posed by that potential reoffense, but
also on the efficacy of online publication in protecting the
public from being victimized by the offender. "The major
premise underlying the sex offender act," after all, "is that
disclosure of the presence of a sex offender in a particular
community will help protect minors and other persons vulnerable
to becoming victims of sex crimes." Doe v. Attorney Gen., 426
Mass. at 139.
21
Our conclusion that the efficacy of online publication must
be separately evaluated in light of a particular offender's risk
of reoffense and degree of dangerousness is supported not only
by the governing statute and regulations, but also by the
court's reasoning in Moe, 467 Mass. at 615-616. In Moe, we held
that it would be unconstitutional to apply amendments requiring
level two offenders' information to be published on the Internet
to offenders who received a level two classification before the
effective date of those amendments. We reached this conclusion
because at the time that those offenders were classified, level
two offenders' information was explicitly protected from online
publication. See id. at 603; G. L. c. 6, § 178D, as amended
through St. 2003, c. 140, § 5. We explained that "[i]ncreasing
the scope of public access to include Internet publication of
the registry information of level two offenders may affect"
SORB's determination as to what degree of public access to
registry information is appropriate, "even if it does not affect
SORB's evaluation of an offender's degree of dangerousness,
because SORB may decide that public access with Internet
publication is not warranted by the public safety risk posed by
the specific offender's degree of dangerousness." Moe, 467
Mass. at 615. In other words, before the amendments became
effective, a hearing examiner who made a level two
classification would have known that public availability would
22
not include Internet publication when he or she determined,
pursuant to G. L. c. 6, § 178K (2) (b), "that a public safety
interest is served by public availability of registration
information." We recognized in Moe, supra at 615, that a
hearing examiner might have reached a different conclusion on
the same facts if he or she knew that public availability would
include Internet publication.
The SORB regulations make clear that the determination of
the degree to which public access to an offender's personal and
sex offender information is in the interest of public safety
must be made "in consideration" of the offender's risk of
reoffense and dangerousness. 803 Code Mass. Regs. § 1.20(2).
Where a sexually violent offender presents a moderate risk to
reoffend and a moderate degree of dangerousness, Internet
publication will almost invariably serve a public safety
interest by notifying potential victims of the risks presented
by the offender in their geographic area. But where a sexually
nonviolent offender poses a moderate risk of committing
moderately dangerous sexual offenses, there may be cases where
Internet publication -- with its attendant consequences -- might
not be justified because, in light of the particular public
safety risk posed by the offender, it would not serve a public
safety interest. Cf. Doe v. Attorney Gen., 426 Mass. at 146
("principle of fundamental fairness" requires fact finder to
23
consider whether "disclosure is not needed when balanced against
the public need to which the sex offender act responded"). The
efficacy of Internet publication in protecting potential victims
must be determined based on the facts of each individual case.
We therefore require hearing examiners to ask whether, in
light of the particular risks posed by the particular offender,
Internet access to that offender's information might
realistically serve to protect the public against the risk of
the offender's sexual reoffense. If the answer to this question
is "no," classification as a level two offender is unjustified
even where the offender poses a moderate risk to reoffend and a
moderate degree of dangerousness.
d. Need for explicit determinations supported by clear and
convincing evidence. In Doe No. 380316, 473 Mass. at 298, we
held that "SORB is constitutionally required to prove the
appropriateness of an offender's risk classification by clear
and convincing evidence." In a criminal case, where guilt must
be established by proof beyond a reasonable doubt, we require
that each element of the offense be established by proof beyond
a reasonable doubt. See Commonwealth v. Ferreira, 481 Mass.
641, 652-653 (2019). In a sex offender classification case,
where the classification must be established by clear and
convincing evidence, and where SORB's ultimate determination is
comprised of three elements that, pursuant to 803 Code Mass.
24
Regs. § 1.20(2), require separate findings, we similarly require
that each element be established by clear and convincing
evidence. That is, to find that an offender warrants a level
two classification, the board must find by clear and convincing
evidence that (1) the offender's risk of reoffense is moderate;
(2) the offender's dangerousness is moderate; and (3) a public
safety interest is served by Internet publication of the
offender's registry information.
In determining whether these elements have been established
by clear and convincing evidence, a hearing examiner may
consider subsidiary facts that have been proved by a
preponderance of the evidence. See Doe, Sex Offender Registry
Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct.
85, 91 (2019). This, too, is consistent with the evidentiary
rule in criminal cases that, although every element needs to be
proved beyond a reasonable doubt, "preliminary questions of fact
and subsidiary facts need only be proved by a preponderance of
the evidence." Id. at 91-92, quoting Commonwealth v. Edwards,
444 Mass. 526, 543 (2005).
Even though the SORB regulation requires a hearing examiner
to make three determinations before classifying a sex offender,
see 803 Code Mass. Regs. § 1.20(2), SORB contends that the third
of these determinations ("whether and to what degree public
access to the offender's personal and sex offender information
25
. . . is in the interest of public safety") need not be made
explicitly because it is implicit in the board's ultimate
classification. We agree that, where a hearing examiner
classifies an individual as a level two sex offender, it should
be implicit in that decision that the hearing examiner has found
by clear and convincing evidence that a public safety interest
is served by Internet publication of the offender's registry
information. See G. L. c. 6, § 178K (2) (b); Moe, 467 Mass. at
615. But, where such a finding is merely implicit, a reviewing
court cannot be sure that the appropriate determination in fact
was made, and was supported by clear and convincing evidence.
See Doe No. 380316, 473 Mass. at 312 (SORB required to "make
particularized, detailed findings concerning [offender's]
classification"). Separate determinations supported by separate
findings improve the rigor and accuracy of final classifications
and provide for more effective judicial review. Where the SORB
regulation itself calls for three separate determinations and
where classification decisions affect substantial privacy and
liberty interests, we conclude that it is appropriate to require
the hearing examiner to make explicit his or her findings
regarding each of these three elements, and to make clear that
each determination is supported by clear and convincing
evidence. See Doe No. 380316, supra (particularized, detailed
26
findings important features of "the process that offenders are
due").
This requirement of explicit findings regarding all three
elements applies not only to level two classifications, but also
to level three classifications.3 See 803 Code Mass. Regs.
§ 1.20(2). And the obligation to rest these determinations on
clear and convincing evidence likewise applies to all
classifications. See Doe No. 380316, 473 Mass. at 314 n.27
("clear and convincing standard should be applied to all sex
offender risk classification levels, including level one"). The
findings necessary to support the classification, of course,
will differ depending on the level of classification. See G. L.
c. 6, 178K (2) (a)-(c).
We apply this requirement prospectively only; it does not
apply to classifications that have been finally adjudicated.
Where a prior classification decision fails to meet this
3 Although determinations regarding three separate elements
are required for all classifications, including level one, see
803 Code Mass. Regs. § 1.20(2) (2016), the determination
regarding the third element is a foregone conclusion once a
hearing examiner determines that the risk of reoffense or the
degree of dangerousness is low. See G. L. c. 6, § 178K (2) (a)
("Where the board determines that the risk of reoffense is low
and the degree of dangerousness posed to the public is not such
that a public safety interest is served by public availability,
it shall give a level [one] designation to the sex offender").
This is because, to be classified as a level two sex offender,
an individual must pose a moderate risk to commit new sex
offenses and at least a moderate degree of dangerousness. See
G. L. c. 6, § 178K (2) (b).
27
requirement, and where an appeal is pending before the Superior
Court or an appellate court, the court, in its discretion, may
order that the classification decision be remanded to the
hearing examiner.4 The hearing examiner will then issue an
amended classification decision containing his or her express
findings as to all three elements. Unless the hearing examiner
determines that a further hearing is required to evaluate an
individual's risk of reoffense, an individual's degree of
dangerousness, or the public safety interest served by Internet
publication, amended decisions may be issued without holding a
de novo hearing.
4. Hearing examiner's findings. The hearing examiner in
this case classified Doe as a level two sex offender by clear
and convincing evidence after concluding (1) that Doe posed a
moderate risk of reoffense and (2) that online publication of
his registry information was "necessary for public safety." We
now consider whether the hearing examiner's conclusion that
clear and convincing evidence supports a level two
4 We grant the court where the appeal is pending the
discretion to determine whether to remand the case for explicit
findings for two reasons. First, whether SORB's existing
findings are sufficiently explicit to enable proper review is a
question best left to the reviewing court. Second, even where
the findings are not explicit, the underlying facts of the case
may so clearly dictate the appropriate classification level that
a reviewing court may determine that a remand for explicit
findings is not necessary.
28
classification is itself supported by substantial evidence, that
is, "such evidence as a reasonable mind might accept as adequate
to support a conclusion." G. L. c. 30A, § 1 (6).
a. Risk of reoffense. With regard to the first element,
we conclude that the hearing examiner's determination that Doe's
risk of reoffense is moderate was supported by substantial
evidence. The hearing examiner found that Doe had "repetitively
exposed himself to [his neighbor] over the past four years."
Doe himself admitted that he had had participated in multiple
instances of exhibitionistic behavior, that he "had a problem,"
and that he was having increasing difficulty controlling his
urges, which were triggered by seeing his neighbor naked and
engaged in sexual acts. These facts are adequate to support the
hearing examiner's determination that Doe poses a moderate risk
of reoffense. See 803 Code Mass. Regs. § 1.33.
b. Degree of dangerousness. Although
SORB claims in its brief that the hearing examiner found Doe to
present "a moderate degree of dangerousness to the public," we
discern no such determination. Rather, as to the issue of
dangerousness, the hearing examiner found that Doe's offenses
"are not gravely dangerous," but "are quite upsetting to his
multiple [v]ictims." We decline SORB's invitation to
characterize this as a determination of moderate dangerousness.
We note that a required element of the crime of open and gross
29
lewdness is that the defendant has engaged in conduct that
actually alarmed or shocked another person. See Commonwealth v.
Maguire, 476 Mass. 156, 158 (2017). So, in every such case, the
defendant's conduct will be "quite upsetting" to the victim.
Yet the Legislature did not consider the harm arising from a
single offense of open and gross lewdness to be sufficiently
serious to qualify as a sex offense requiring the offender to
register; only the second and subsequent conviction of that
crime is a sex offense under the sex offender registry law. See
G. L. c. 6, § 178C. The hearing examiner's conclusion that
Doe's offenses were "quite upsetting," therefore, is
insufficient to support a determination of moderate
dangerousness.
We need not remand the matter to the hearing examiner to
clarify her finding on this issue because, even if she were to
find Doe's degree of dangerousness to be moderate, as the board
claims she did, we conclude that such a determination is not
supported by substantial evidence on this record.
"[O]ur decisions recognize that the registration statute
requires SORB to base its classification determinations on a sex
offender's 'current' risk to the community, in order to protect
the offender's right to due process." Doe No. 7083, 472 Mass.
at 483. See Doe v. Attorney Gen., 430 Mass. 155, 168 (1999)
(individualized hearing required to determine whether offender
30
poses "present threat"). In determining whether an individual
poses a moderate degree of dangerousness at the time of
evaluation, a hearing examiner must consider "the severity and
extent of the harm the offender would present to the public in
the event of reoffense," 803 Code Mass. Regs. § 1.20(2)(b),
which requires consideration of the nature and type of offense
the offender would be likely to commit if he or she reoffended.
This determination naturally takes place on a continuum --
contact offenders are generally more dangerous than noncontact
offenders, and noncontact offenders whose actions are likely to
create a fear of bodily harm are generally more dangerous than
noncontact offenders whose actions are unlikely to generate such
fear. Cf. Commonwealth v. Suave, 460 Mass. 582, 587-588 (2011),
quoting G. L. c. 123A, § 1 (under civil commitment statute for
sexually dangerous persons, noncontact offender is not "menace
to the health and safety of other persons" unless offender's
"conduct will objectively put his [or her] victim in fear of
bodily harm by reason of . . . a contact sex crime").
Therefore, while we agree with SORB that under some
circumstances the danger posed by noncontact offenses such as
open and gross lewdness might suffice to support a level two
classification, see G. L. c. 6, § 178C, we conclude that an
individual is generally unlikely to pose a moderate degree of
dangerousness -- and thus to qualify as a level two sex offender
31
-- where his or her risk of reoffense relates only to noncontact
offenses which do not put a victim in fear of bodily harm by
reason of a contact sex offense. See Doe v. Attorney Gen., 425
Mass. 217, 221 & n.7 (1997) ("In a ranking of the sex offenses,"
open and gross lewdness "ranks at or near the bottom in
seriousness" because it "involves neither physical harm nor the
threat of physical harm"). Therefore, where a hearing examiner
concludes (1) that an offender poses a risk only of noncontact
offenses and (2) that those noncontact offenses are not likely
to place a victim in reasonable apprehension of a contact
offense, a hearing examiner will have to articulate why, given
these circumstances, any classification above level one is
justified.
Doe has never been accused or convicted of a contact sex
offense. Nor has he been accused of committing any offense that
was sexual in nature between 1996 and 2014, apart from a single
instance of indecent exposure in 2011. During this incident,
Doe's fifteen year old neighbor saw Doe's genitals through his
bedroom window. Based on this offense alone, the hearing
examiner found that Doe was an "Adult Offender with [a] Child
Victim." The presence of this "high-risk" factor "is indicative
of a high risk of reoffense and degree of dangerousness" under
SORB's regulations. See 803 Code Mass. Regs. § 1.33. See id.
32
at § 1.33(3) ("Adult offenders who target children pose a
heightened risk to public safety").
The hearing examiner erred in relying on the "Adult
Offender with a Child Victim" high-risk factor when classifying
Doe as a level two sex offender. The sex offender registry law
identifies six "criminal history factors indicative of a high
risk of reoffense and degree of dangerousness posed to the
public," including "whether the sex offender was an adult who
committed a sex offense on a child." G. L. c. 6, § 178K (1) (a)
(iii). "Sex offense" and "sex offense involving a child" are
both defined terms under the sex offender registry law, and
neither definition includes the offense of indecent exposure.
See G. L. c. 6, § 178C. Where the offense of indecent exposure
is not a "sex offense," and where there is no evidence that Doe
committed a crime involving a child at any other time, there is
no statutory authority to support the hearing examiner's finding
that this high-risk factor was applicable. And although the
SORB regulations refer broadly to "Adult Offender[s] with a
Child Victim," and not specifically to adult offenders who
commit sex offenses against children, there is no reason to
believe that SORB intended its regulatory risk factor to
encompass more crimes than the statutory factor on which it is
based. See Doe, Sex Offender Registry Bd. No. 27914 v. Sex
Offender Registry Bd., 81 Mass. App. Ct. 610, 618-619 (2012)
33
("adult offender with child victim" among "factors that the
Legislature has specifically highlighted as indicative of a high
risk to reoffend and a high degree of dangerousness").
Doe's two convictions of open and gross lewdness in 2015,
like his conviction of indecent exposure, arose out of conduct
that occurred when he was alone in his home, viewable to his
neighbor only through a window. At the time of these offenses,
Doe's neighbor was no longer a child; she was eighteen years old
at the time of the first offense of open and gross lewdness, and
nineteen years old at the time of the second offense. See 803
Code Mass. Regs. § 1.33(3) ("the Board shall consider any victim
younger than [sixteen] years old as a 'child victim'"). The
hearing examiner appeared to credit Doe's testimony that his
conduct was triggered by seeing, from the windows of his own
home, his neighbor naked in her home and engaged in sexual acts.
Therefore, if Doe were to reoffend, the evidence supports a
finding that the crime of reoffense would again be open and
gross lewdness, committed in his own home, viewable only by his
neighbors, which is the only type of sex offense that Doe has
committed since 1996.
Where Doe's sex offenses were limited to open and gross
lewdness, where there is no evidence that Doe committed any act
of open and gross lewdness outside of his home in approximately
twenty years, where the recent acts of open and gross lewdness
34
that triggered his classification hearing occurred only within
his own home, and where Doe has never been found to have
committed or attempted a contact sex offense, there is not
substantial evidence to support a finding by clear and
convincing evidence that Doe currently poses a moderate degree
of dangerousness to the public.5
c. Internet publication. The hearing examiner in this
case made an explicit factual finding regarding the likely
efficacy of publishing Doe's information on the Internet. She
stated that, "in this case, it is reasonable to consider that
community availability of [Doe's] sex offender information might
have prevented the circumstances which contributed to his
reoffenses" -- namely, his neighbor's nudity and sexual behavior
observable from Doe's home -- because, "[h]ad his neighbors
known of his sex offender history, they might have been more
5 We are likewise unconvinced that the other aggravating
factors considered by the hearing examiner -- namely, the
repetitive and compulsive nature of Doe's behavior, the fact
that Doe's early offenses took place in public places, the fact
that Doe's recent offenses took place in view of his neighbors,
who were in "the public sphere," the relationship between Doe
and his victims, the diversity of Doe's victims, and the number
of victims -- could reasonably be considered adequate to support
a determination that Doe is moderately dangerous based on the
discussion supra. See 803 Code Mass. Regs. § 1.33 (2016).
Because we conclude that a determination of moderate
dangerousness was unsupported by the evidence, we need not
consider Doe's specific arguments concerning the hearing
examiner's "cherry-picking" of the evidence and her failure to
afford proper weight to the expert evidence presented and to
Doe's support system and stability in his community.
35
modest in the rooms facing his home." The hearing examiner
therefore concluded that Doe's "other neighbors, present and
future, deserve this awareness, and that posting his sex
offender information on the [I]nternet is necessary for public
safety." Having evaluated this determination, we conclude that
it was not supported by substantial evidence.6
The hearing examiner's focus on the "modesty" of the
victims, as opposed to their protection, was misplaced.
Furthermore, there is no reason to believe that Internet
publication of Doe's registry information would have been
effective in warning Doe's neighbors to be "more modest in the
rooms facing [Doe's] home." Pursuant to G. L. c. 6, § 178D,
SORB's website provides the public with only certain
information: the offender's name; the offender's home address
and any secondary addresses; the offender's work address; the
offender's age, sex, race, height, weight, eye color, and hair
color; a photograph of the offender, if available; the offense
for which the offender was convicted or adjudicated; the date of
the conviction or adjudication; whether the offender has been
6 We note that we are able to evaluate whether the hearing
examiner's determination regarding the third element is
supported by substantial evidence only because she made
particularized findings as to how a public safety interest might
be served by Internet publication of Doe's registry information.
This illustrates the importance of requiring hearing examiners
to make explicit findings as to each of the three required
elements.
36
designated a sexually violent predator; and whether the offender
is in compliance with his or her registration obligations.
Knowing that Doe had been convicted of open and gross lewdness
says nothing about Doe's potential "triggers," and therefore
would not serve to warn Doe's neighbors to avoid conduct that
potentially may trigger a future act of exhibitionism.
Therefore, we conclude that there is not substantial evidence to
support the hearing examiner's determination that "a public
safety interest is served by public access to [Doe's]
registration information." See G. L. c. 6, § 178K (2) (b).7
6. Conclusion. Because we conclude that classification as
a level two sex offender is not supported by substantial
evidence on this record, we vacate the Superior Court's judgment
affirming SORB's level two classification and remand the matter
to the Superior Court for issuance of a judgment declaring that
there is substantial evidence only to support a level one
classification.8
7 Where the hearing examiner's explicit findings regarding
the efficacy of Internet publication are not supported by
substantial evidence, we do not consider whether other explicit
factual findings reasonably could have been made in these
circumstances that would support a determination by clear and
convincing evidence that "a public safety interest is served by
public availability of registration information." G. L. c. 6,
§ 178K (2) (b).
8 Although we conclude that a level two classification was
not supported by substantial evidence, the hearing examiner's
findings, as described supra, do support a level one
37
So ordered.
classification. Because we conclude that there was substantial
evidence to support a level one classification by clear and
convincing evidence, we need not address Doe's argument that
SORB regulations improperly place the burden of proof on the sex
offender where the offender seeks relief from the obligation to
register. See 803 Code Mass. Regs. § 1.29(1) (2016).