MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
John Doe, Sex Offender Registry Board (SORB) No. 526277 (Doe), appeals from a Superior Court judgment affirming his classification by SORB as a level two sex offender. On appeal, Doe argues, among other things, that the level two classification must be vacated because the hearing examiner erred by applying high risk factor 2, “repetitive and compulsive behavior,” where Doe was not confronted between offenses and no evidence showed that his behavior was compulsive. Because SORB concedes that factor 2 does not apply under the circumstances, we vacate the judgment and remand to SORB for further proceedings.
Background. The governing offenses took place over a four year period from 2010 to 2014. During this period, Doe, who was twenty-two to twenty-six years old, progressively escalated sexual contact with the victim, his “half-niece,” who was eleven or twelve when the assaults began. Doe pleaded guilty in 2018 to nine counts of rape of a child, G. L. c. 265, § 23, eight counts of indecent assault and battery, G. L. c. 265, § 13H, and eleven counts of indecent assault and battery on a person under fourteen, G. L. c. 265, § 13B. He was sentenced to four years of probation and required to register as a sex offender. Doe has no record of other sexual offenses, or other criminal offenses.
Following a February 2019 hearing, Doe was classified as a level two sex offender. At the hearing, Doe submitted expert evidence, consisting of three expert reports as well as live testimony. The expert evidence largely focused on the impairments caused by Does diagnosed autism spectrum disorder (Aspergers Syndrome), and how this condition had likely contributed to his commission of the governing offenses. The experts opined that Doe had a low risk of reoffense in light of his personal characteristics, his history, and his successes in therapy. Doe also submitted evidence of mitigating factors, which included that he lives at home with his parents and other family, and has a strong network that is cognizant of his condition (and his offenses) and is committed to supporting him.
The hearing examiner found two high risk factors applicable (factor 2, repetitive and compulsive behavior, and factor 3, adult offender with child victim), as well as two risk elevating factors (factor 16, public place, and factor 19, level of physical contact). See 803 Code Mass. Regs. 1.33. Additionally, the hearing examiner found that two risk mitigating factors applied -- factor 28, supervision by probation or parole, and factor 32, sex offender treatment.
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See id. Does classification was upheld by the Superior Court. Doe appeals.
Discussion. A reviewing court may set aside or modify SORBs classification decision where it determines that the decision is in excess of SORBs statutory authority or jurisdiction, violates constitutional provisions, is based on an error of law, or is not supported by substantial evidence. See Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 466 Mass. 594, 601 (2013). See also G. L. c. 30A, § 14 (7).
Doe raises several arguments on appeal, only one of which we need address: a challenge to the application of factor 2. The hearing examiner found that factor 2 applied because Doe had “repeatedly sexually assaulted the [v]ictim for a period of four years ․ [and thus] had ample opportunity to reflect on the wrongfulness of his sexual misconduct.” Doe argues that “[s]cientific research indicates that repetitive conduct is only risk-enhancing where an offender re-offends after an ․ intervention,” and that the record did not support such a finding where the hearing examiner found that Doe “did not commit further offenses after the sexual assaults were disclosed to authorities.”
Prior to oral argument on this appeal, the Middlesex Superior Court issued a declaratory judgment invalidating the second and third sentences
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of factor 2. See John Doe, Sex Offender Registry Bd. No. 22188 vs. Sex Offender Registry Bd., Middlesex Sup. Ct., No. 20-1130-B, slip op. at 1, 17-22 (Apr. 16, 2021) (Wilkins, J.). In that case, in response to the same argument that Doe raises here, SORB conceded that there is insufficient scientific support for factor 2s correlation of repetitive conduct with a higher risk of reoffense, where the perpetrator has not been confronted between offenses. See id. at 20-22. SORB did not appeal the Superior Court judgment, and SORB has conceded in a postargument submission to this court that it is bound in this case by the Superior Court judgment, and that factor 2 does not apply on the record before us.
SORB maintains, however, that even with factor 2 removed from the equation, substantial evidence supports Does level two classification. With factor 2 excised what remains is one high risk factor and two risk elevating factors, as well as two risk mitigating factors. However, given the hearing examiners reliance on factor 2, and its heft as a high risk factor, we cannot be confident that factor 2 did not materially influence the hearing examiners level two classification, or that the hearing examiners decision would be the same absent its application. See John Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 657 n.4 (2019). Accordingly, we vacate the judgment and remand the matter to SORB for further proceedings in accordance with this memorandum and order.
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So ordered
vacated and remanded
FOOTNOTES
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. The hearing examiner noted the significant support that Doe receives from friends and family, but ultimately did not apply risk mitigating factor 34, stability in the community, stating that: “the [p]etitioner stays at home cut off from the community and isolated, and therefore I do not consider his situation as mitigating under this factor.”
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. Factor 2 (a), applicable to adult males, reads in full:“Repetitive and compulsive behavior is associated with a high risk of reoffense. Factor 2 is applied when a sex offender engages in two or more separate episodes of sexual misconduct. To be considered separate episodes there must be time or opportunity, between the episodes, for the offender to reflect on the wrongfulness of his conduct.“The Board may give increased weight to offenders who have been discovered and confronted (by someone other than the victim) or investigated by an authority for sexual misconduct and, nonetheless, commit a subsequent act of sexual misconduct. The most weight shall be given to an offender who engages in sexual misconduct after having been charged with or convicted of a sex offense.” (Emphasis added.)803 Code Mass. Regs. 1.33 (2) (a). The remainder of the regulation was not affected by the Superior Courts declaratory judgment. See John Doe, Sex Offender Registry Bd. No 22188 vs. Sex Offender Registry Bd., Middlesex Sup. Ct., No. 20-1130-B, slip op. at 1 (April 16, 2021 (Wilkins, J.).
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. As over two years have elapsed since the hearing, it would be appropriate on remand to consider additional evidence, if offered, regarding (among other things) Does current living arrangement and social circumstances.