Sex offender classification upheld by SJC

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A sex offender’s challenge to his Level 2 classification has been rejected by the Supreme Judicial Court.

The offender, “John Doe,” pleaded guilty to numerous sexual offenses committed against two girls, aged 13 and 14, when he was 18 years old.

After he challenged his initial Level 3 classification, a hearing examiner of the Sex Offender Registry Board classified him as a Level 2 offender. A Superior Court judge affirmed.

“Before us, Doe’s central argument is that the hearing examiner erred by considering Doe’s multiple offenses as part of his determination of Doe’s degree of dangerousness. More specifically, Doe contends that the hearing examiner erroneously, and unconstitutionally, considered Doe’s multiple offenses as ‘other relevant information’ bearing on Doe’s dangerousness pursuant to SORB’s regulatory factor thirty-seven, and did so even though SORB is precluded from consideration of multiple offenses, without involvement of the criminal justice system in between such offenses, regarding risk of reoffense pursuant to regulatory factor two, which applies to behavior that is not only repetitive but also compulsive. We conclude that dangerousness and risk of reoffense involve separate inquiries, and multiple offenses may therefore be considered differently under factors thirty-seven and two,” Justice Scott L. Kafker wrote for the SJC.

“Doe’s reliance on the factor two analysis is misplaced. Factor two specifically requires not only repetitive but also compulsive behavior. Such repetitive and compulsive behavior is central to the inquiry of risk of reoffense — the only inquiry addressed by factor two — as it has been empirically linked to the risk of reoffense, while repetitive behavior alone has not been so found. … In contrast, factor thirty-seven does not require proof of compulsive behavior. And, as utilized here, the hearing examiner’s application of factor thirty-seven was only for determining degree of dangerousness, not risk of reoffense. The statute renders these distinct inquiries: dangerousness is ‘measured by the severity and extent of harm’ should an offender recidivate; the risk of reoffense measures the likelihood an offender will recidivate. … Accordingly, the law restricting application of factor two does not control this case,” Kafker wrote.

“Indeed, in considering the impact of Doe’s multiple offenses on his future dangerousness — including that he raped one victim multiple times — the hearing examiner was not ignoring the law, but rather complying with SORB’s statutory mandate. General Laws c. 6, §178K, the board’s authorizing statute, requires that the board’s classification guidelines include consideration of ‘the number, date and nature of prior offenses’ ‘in determining … degree of dangerousness’ (emphasis added). G.L.c. 6, §178K(b)(iii). And here, factor twenty-two, accounting for the number of Doe’s victims — two — does not fully capture the extent of his offenses, because he repeatedly offended against one of the victims. An analysis of dangerousness ‘naturally takes place on a continuum,’ and based on this record, we discern no error in the hearing examiner considering Doe’s multiple prior offenses in his determination of dangerousness,” the court concluded.

The 23-page decision is Doe, Sex Offender Registry Board No. 527962 v. Sex Offender Registry Board, Lawyers Weekly No. 10-107-25.