MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court judgment affirming his final classification by the Sex Offender Registry Board (SORB) as a level two sex offender. For the reasons set forth below, we vacate the Superior Court judgment affirming the hearing examiners classification decision, and a new judgment shall enter remanding the matter to SORB for further proceedings consistent with this memorandum and order.
Background. We summarize the facts as set forth in the hearing examiners decision, “supplemented by undisputed facts from the record.” Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 606 (2011) (Doe No. 10800). Doe was notified of his duty to register as a sex offender in May 2017, following his 2015 convictions for one count of rape and abuse of a child and one count of indecent assault and battery of a child, to which he pleaded guilty. The convictions stemmed from Does sexual assault of his twelve year old niece (victim) when he was fifty-one years old. She reported that after attending a soccer game with Doe and two of his friends, Doe dropped his friends off in West Roxbury and Dorchester. Doe then drove to the town where the victim lived, but stopped his vehicle, before arriving at her home, on the side of the road. Doe kissed the victim, “sticking his tongue in her mouth” and put his hands under her pants and underwear, rubbing them against her “privates.” Despite the victims attempt to resist the assault, Doe did not stop until another vehicle pulled up beside them. When the other vehicle left, Doe asked the victim, “Do you want to keep going?” The victim told Doe that she wanted to go home. Doe then drove the victim home and she told her mother, who alerted the police. Doe was sentenced to a term of three to five years in State prison, followed by a ten-year term of probation.
While Doe was incarcerated, he agreed to participate in a sex offender treatment program. Participation was conditioned on a waiver of confidentiality. In October 2016, Doe completed the treatment programs “Motivation and Engagement” unit. Then, in December 2016, Doe withdrew from treatment. He reported that his attorney had advised him against engaging in treatment during the pendency of his criminal appeal,
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and told him to avoid discussing the details of his case with anyone. Doe was classified a level two offender in December 2018, a decision that was affirmed by the Superior Court in December 2019.
Discussion. 1. Regulatory factors. Doe contends that the hearing examiner improperly applied SORBs regulatory factors and, as a result, his level two classification was not supported by substantial evidence. Specifically, Doe alleges two primary errors in the application of the regulatory factors. First, Doe argues that it was improper for the examiner to use Does refusal to continue sex offender treatment as an aggravating factor in assessing Does risk of reoffense and degree of dangerousness.
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Second, Doe claims that he should have received full weight for two risk-mitigating factors,
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in light of evidence that he would have a significant support system, housing, and employment upon his release from prison.
A hearing examiner has discretion “to consider which statutory and regulatory factors are applicable and how much weight to ascribe to each factor.” Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 109-110 (2014). “In reviewing SORBs decisions, we ‘give due weight to the experience, technical competence, and specialized knowledge of the agency.’ ” Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 649 (2019) (Doe No. 496501), quoting Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594, 602 (2013). Our review is limited, and “[w]e reverse or modify the boards decision only if we determine that the decision is unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with law.” Doe No. 10800, 459 Mass. at 633. See Doe, Sex Offender Registry Bd. No. 11204 v. Sex Offender Registry Bd., 97 Mass. App. Ct. 564, 574 (2020) (classification must be “based on a sound exercise of informed discretion” [citation omitted]).
Under the circumstances of this case, we agree with Doe that it was improper for the hearing examiner to conclude that a refusal to participate in nonconfidential sex offender treatment was indicative of an increased risk of reoffense.
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Where “sex offender treatment is conditioned on a waiver of confidentiality, refusal of treatment alone is insufficient to support an inference that the [individual] does not want to be treated.” Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 140-141 (2019) (Doe No. 23656), quoting Commonwealth v. Hunt, 462 Mass. 807, 819 (2012). An offender who is offered nonconfidential treatment is faced with the “problematic choice” of participation, with the attendant risk of possible self-incrimination, or nonparticipation, which subjects the offender to the application of an elevated risk factor at a subsequent classification hearing. Doe No. 23656, supra at 139-140, quoting Hunt, supra at 811.
Here, the record supports Does assertion that the sex offender treatment program was nonconfidential.
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The record also supports Does assertion that “he was advised not to engage in treatment by his attorney” and that he withdrew from treatment because he was “in the process of appealing [his] case.” SORB nevertheless contends that the justification for excluding refusal evidence is not present where, as here, Doe did not appeal on a claim of factual innocence. We disagree. The consequences of forthright (and self-incriminating) disclosures in sex offender treatment potentially reach beyond the issues raised in an offenders criminal appeal. For example, the therapeutic communications could be used in future prosecutions for uncharged conduct, or in an incarcerated offenders parole hearing. See Doe No. 23656, 483 Mass. at 139-140; Hunt, 462 Mass. at 818.
Accordingly, on remand, Does classification should be determined anew without consideration of Does withdrawal from sex offender treatment. We express no opinion on the propriety of the hearing examiners decision to apply moderate mitigating weight to evidence of Does support systems and stability in the community. However, we note that a sex offenders classification must reflect “a sex offenders ‘current’ risk to the community.” Doe, Sex Offender Registry Bd. No. 7546 v. Sex Offender Registry Bd., 487 Mass. 568, 572 (2021), quoting Doe, Sex Offender Registry Bd. No. 7083 v. Sex Offender Registry Bd., 472 Mass. 475, 483 (2015). Assuming that Doe has been released from custody, evidence that demonstrates his stability, such as housing and employment, will no longer be “speculative.”
2. Internet publication. In Doe No. 496501, 482 Mass. at 655, the Supreme Judicial Court held that an offender may be classified as a level two sex offender only if the hearing examiner determines that “Internet access to [the] offenders information might realistically serve to protect the public against the risk of the offenders sexual reoffense.” “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.” Id. at 654. The hearing examiner must “make explicit his or her findings regarding [that determination], and ․ make clear that [the] determination is supported by clear and convincing evidence.” Id. at 657.
In this case, although the hearing examiner determined that “a public safety interest is served by public access to [Does] sex offender registry information,” this determination was not supported by explicit findings. See Doe No. 496501, 482 Mass. at 656-657 (“Separate determinations supported by separate findings improve the rigor and accuracy of final classifications and provide for more effective judicial review”). Because the hearing examiner did not have the benefit of Doe No. 496501, supra, which issued after the hearing in this case, we remand to allow the hearing examiner to make further findings regarding the need for Internet publication in accordance with Doe No. 496501. On remand, Doe is free to argue that the circumstances of his index offense, and his conduct in the years following, demonstrate that Internet publication will not serve a public safety interest. See id. at 655 (Internet publication may not be justified for nonviolent sex offender even where risk of reoffense and degree of dangerousness is moderate).
Conclusion. The judgment is vacated, and a new judgment shall enter in the Superior Court remanding the matter to SORB for further proceedings consistent with this memorandum and order.
So ordered.
vacated
FOOTNOTES
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. Doe appealed only from his conviction of indecent assault and battery of a child. The conviction was affirmed by a different panel of this court in March 2020.
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. See 803 Code Mass. Regs. § 1.33(24) (2016) (less than satisfactory participation in sex offender treatment).
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. See 803 Code Mass. Regs. § 1.33(33) (2016) (home situation and support systems); 803 Code Mass. Regs. § 1.33(34) (2016) (materials submitted by sex offender regarding stability in community).
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. SORB agrees but argues that the issue is waived on the ground that Doe failed to raise it in the Superior Court. Certainly, Doe could have raised the issue more sharply in the Superior Court. However, in his memorandum of law in support of his motion for judgment on the pleadings, Doe did argue that the hearing examiners decision was not supported by substantial evidence, that the “factors were applied in an arbitrary and capricious manner,” and specifically noted that Doe had “declined [sex offender] treatment” while in custody. Moreover, the administrative record contains records from the Department of Correction that explain Does rationale for discontinuing treatment. In addition, Does failure to raise the issue more sharply is understandable given that the rule prohibiting consideration of nonconfidential treatment refusal in classification proceedings was not announced until briefing was concluded in the Superior Court proceedings. See Doe No. 23656, 483 Mass. at 140-141. We exercise our discretion to reach the issue.
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. The informed consent form gives DOC personnel, attorneys, SORB, and others the right to review the clinical files of sex offender treatment program participants.