MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff appeals from his classification as a level two sex offender, focusing primarily on the Sex Offender Registry Boards (SORB) application of factors 2 and 16, as well as SORBs determination that a public safety interest is served by Internet publication of his sex offender registry information. While Does case was under review, spurred by a decision from the Superior Court, SORB began the process of amending factor 2. Concluding that the application of factor 2 was error, and that the error may have affected Does classification, we vacate and remand.
Background. We address the background briefly, as backdrop to our conclusion that a remand is necessary. Doe committed the index offenses, two counts of rape and abuse of a child, on a member of his extended family, whom he victimized when she was aged thirteen to sixteen.
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The victim reported that Doe had repeatedly vaginally raped her and forced her to perform oral sex on him, including when they were in family homes where other family members were present and, once, in a car as he drove her to a family gathering. At some point in the abuse, after he was married, Doe warned the victim that his wife had “asked him if anything was going on between them because they were so close,” and they “had to be careful.” Despite this statement from his wife, the sexual abuse continued.
After the victim reported the crimes (two years after the fact), Doe was convicted and committed to a State prison term of four to five years.
In concluding that Doe should be classified as a level two offender, the hearing examiner relied, among other things, on factor 2 (repetitive and compulsive behavior), a “high risk factor.” The examiner gave the factor “increased weight,” because “[a]lthough [Does] wife was uncertain about the sexual nature of the relationship between [Doe] and the Victim, she addressed her concerns about the type of relationship they were having” through her questioning of Doe. The hearing examiner also relied on factor 16, a risk-elevating factor that applies when a sex offense occurs in a “public place.”
Doe sought review in the Superior Court arguing, among other things, that the hearing officer improperly applied factor 2 because Does wifes “expression of concern” about Does relationship with the victim, “without any specific knowledge of sexual improprieties” was insufficient to support the application of factor 2. In May 2021, a judge affirmed Does level two classification. This appeal followed on June 9, 2021.
Discussion. “In reviewing SORBs decisions, we give due weight to the experience, technical competence, and specialized knowledge of the agency” (citation omitted). Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594, 602 (2013). “The decision may only be set aside if the court determines that the decision is unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with law.” Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 76 (2015), citing Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 787 (2006). “[T]he proper standard of review when an offender successfully challenges the application of a regulatory factor is to ask whether the error may have affected the classification and, if so, to remand to SORB.” Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender Registry Bd., 101 Mass. App. Ct. 797, 804 (2022) (“Doe 22188 II“), citing G. L. c. 30A, § 14.
At the time of Does classification, factor 2 read,
“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.”
803 Code Mass. Regs. § 1.33(2) (2016).
While Does case was under review, a Superior Court judge struck down the second and third sentences of the first paragraph of factor 2. Doe, Sex Offender Registry Bd. No. 22188 vs. Sex Offender Registry Bd., Middlesex Superior Court, Dkt. No. 2081-CV-1130-B, at 6 (April 16, 2021) (“Doe 22188 Superior Court“). The judge discerned no correlation between those portions of the regulation and the scientific research on which it was purportedly based, noting that “there is no data or peerreviewed literature to support the proposition that repeated sexual offenses are compulsive or even predictive of reoffense or dangerousness unless the offender is caught. The opportunity to reflect between offenses does not change that.” Doe 22188 Superior Court, supra at 11-12. Dr. R. Karl Hanson, the expert whose studies form the foundation for the factor 2 framework, has opined that “the occurrence of multiple offenses without being caught was not” predictive of recidivism. Doe 22188 II, supra at 800. SORB did not file an appeal and instead opted to amend factor 2, a process that remains ongoing.
Here, the examiner applied the now-invalidated language of factor 2 and gave the factor “increased weight” because Doe reoffended after being confronted by his wife. The application of the second and third sentences of factor 2 was error, and this error may have affected Does classification, so a remand is necessary. See Doe 22188 II, supra at 804.
Two further notes for remand: first, the examiner equated the question from Does wife with being “confronted” within the meaning of the regulation. On remand, the examiner should address how this characterization is consistent with factor 2 and the scientific principles on which it rests. See Doe 22188 II, supra at 804. Second, the application of factor 16 to this case also deserves further scrutiny. Although one incident (forced oral sex in a car) unquestionably qualifies under factor 16, we are less confident in the other three examples cited by the hearing officer in support of the application of this factor.
Accordingly we vacate the judgment and a new judgment shall enter remanding the matter to SORB for further proceedings in accordance with this decision, including a determination of whether Internet publication serves a public safety purpose.
So ordered.
FOOTNOTES
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. In light of the remand, we need not address SORBs contention that the victim is properly considered extra-familial, and that the hearing examiner erred in considering her to be Does niece.