DocketNumber: 17-P-1175
Citation Numbers: 113 N.E.3d 935
Filed Date: 11/19/2018
Status: Precedential
Modified Date: 7/24/2022
The plaintiff, John Doe, appeals from a Superior Court judgment, affirming the Sex Offender Registry Board's (SORB's) classification of Doe as a level two sex offender. As set forth infra, Doe challenges his classification on multiple grounds. We affirm.
Background. In October of 2013, Doe pleaded guilty to three counts of indecent assault and battery on a child under the age of fourteen, stemming from sexual offenses he committed against his then ten year old stepson (victim no. 1) starting in 2006, and against his then twelve year old niece (victim no. 2) in 2010 or 2011. Victim no. 1 reported that Doe, who was fifty-nine years old at the time the abuse began, touched victim No. 1's penis on numerous occasions and had the victim touch Doe's penis. Doe admitted to sexually assaulting victim no. 1 on twelve separate occasions. Victim no. 1 reported the sexual abuse in 2011.
In 2010 or 2011 (several years after the sexual offenses against victim no. 1), Doe touched victim no. 2's breasts and vagina, and attempted to have her touch his "privates," but she refused. Doe was about sixty-three years old at the time. During an investigation by the Department of Children and Families (DCF), Doe admitted touching victim no. 2's legs, but claimed it was not sexual.
Doe was sentenced on two counts to concurrent terms of two and one-half years in a house of correction, with twelve months to serve and the balance suspended. On the third count, he received two years of probation to be served after his release from incarceration.
In 2014, SORB notified Doe that it recommended that he register as a level three sex offender pursuant to G. L. c. 6, §§ 178C - 178Q. Doe had an initial hearing in June 2014; however, while Doe's matter was pending, the Supreme Judicial Court held in Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd.,
As required by the regulations, see 803 Code Mass. Regs. § 1.33 (2016), the examiner considered the statutory factors applicable to Doe's classification. The examiner considered several high risk factors, including that Doe demonstrated repetitive and compulsive behavior, he was an adult offender who offended against a child victim, and he offended against both male and female victims. The examiner additionally considered, as a risk elevating factor, Doe's violation of a condition of his pretrial probation by going to victim no. 1's home in violation of a no-contact order.
The examiner considered several risk mitigating factors, including Doe's probation supervision, his advanced age, his participation in sex offender treatment, his support system, as well as his stability in the community following his release from incarceration. With regard to Doe's advanced age,
In addition, the examiner considered the testimony of Doe's expert, Dr. Joseph J. Plaud,
As set forth supra, the Superior Court judge, on a motion for judgment on the pleadings, affirmed SORB's decision. This appeal followed.
Discussion. A reviewing court may modify or set aside an agency's decision only if it was "(a ) [i]n violation of constitutional provisions; or (b ) [i]n excess of statutory authority or jurisdiction of the agency; or (c ) [b]ased upon an error of law; or (d ) [m]ade upon unlawful procedure; or (e ) [u]nsupported by substantial evidence; or (f ) [u]nwarranted by facts found by the court on the record ... ; or (g ) [a]rbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law."
Expert testimony. With regard to Doe's expert's risk assessment, the law is clear that "[t]he opinion of a witness testifying on behalf of a sex offender need not be accepted by the hearing examiner even where the board does not present any contrary expert testimony" (citation omitted). Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd.,
Moreover, unlike the examiner, see infra, Dr. Plaud did not consider the effect of Doe's advanced age at the time of the underlying sexual offenses in connection with the assessment. Dr. Plaud testified that for offenders older than the age of sixty, the recidivism rate was "dramatically low" and would be statistically below three percent.
Furthermore, Dr. Plaud's opinion relied on his conclusion that the high risk factor of repetitive and compulsive behavior did not apply to Doe because Doe had not been identified and sanctioned in the time period between his sexual offenses against victim no. 1 and his sexual offenses against victim no. 2. In contrast, the regulations do not limit this high risk factor to situations where the offender is subjected to legal intervention between offenses or victims, though increased weight may be given to this factor in such circumstances. See 803 Code Mass. Regs. § 1.33. On this record, the examiner's decision not to adopt Dr. Plaud's opinion was not arbitrary or capricious.
Advanced age. Doe next contends that the examiner should have given full weight to the fact that Doe was almost seventy years old at the time of the hearing, relying on several scientific articles stating, and his expert testimony, that the risk of reoffense is reduced substantially as one ages. As discussed supra, the examiner gave some mitigating weight to Doe's age, but found that Doe's age did not have a significant mitigating weight because his offenses occurred when he was aged fifty-nine and sixty-three, at a time when typically sex offenders are substantially less likely to reoffend.
The regulatory guidelines specify that advanced age should not be applied uniformly, rather, that advanced age "should be given less weight when an offender continues to demonstrate an active sex drive or general criminality." 830 Code Mass. Regs. § 1.33(30)(a). On this record, we cannot say that it was arbitrary and capricious for the examiner to give some, but not full weight to this factor. See Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd.,
Repetitive and compulsive behavior. Doe also maintains that the examiner erred in applying the repetitive and compulsive behavior factor because there was no legal intervention between the time Doe sexually assaulted victim no. 1 and the time Doe sexually assaulted victim no. 2.
Judgment affirmed.
Doe was seventy years old at the time of the hearing.
Doe also submitted a report from Dr. John F. Cusack. However, because Dr. Cusack did not testify at the hearing, the examiner did not consider Dr. Cusack's ultimate risk opinion.
Doe bears the burden of proving that one of these conditions has been satisfied. See Coe v. Sex Offender Registry Bd.,
Furthermore, in articles provided by Doe, sex offenders released after the age of sixty showed low recidivism rates. For example, one article states that the recidivism rate for sex offenders released after the age of sixty was 3.8 per cent. Another article states the recidivism rate for sex offenders older than the age of sixty was two per cent.
The issue whether his sexual offenses against victim no. 1 and victim no. 2 were compulsive in addition to being repetitive was not raised by Doe and therefore we do not reach it.
In light of the foregoing, Doe's argument that SORB did not establish by clear and convincing evidence his level two classification (which relies on his contentions regarding his expert, advanced age, and lack of legal intervention) is unavailing.