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Doe, Sex Offender Registry Board No. 380316 v. Sex Offender Registry Board (Lawyers Weekly No. 10-198-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-11823   JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 380316  vs.  SEX OFFENDER REGISTRY BOARD.       Middlesex.     September 9, 2015. – December 11, 2015. Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.     Sex Offender.  Sex Offender Registration and Community Notification Act.  Constitutional Law, Sex offender, Burden of proof.  Due Process of Law, Sex offender, Hearing, Standard of proof.  Practice, Civil, Sex offender, Standard of proof.  Internet.       Civil action commenced in the Superior Court Department on November 21, 2013.   The case was heard by Dennis J. Curran, J., on a motion for judgment on the pleadings.   The Supreme Judicial Court granted an application for direct appellate review.     Brandon L. Campbell for the plaintiff. David L. Chenail (Elisha W. Willis with him) for the defendant. Beth L. Eisenberg & Larni S. Levy, Committee for Public Counsel Services, & Eric B. Tennen, for Committee for Public Counsel Services & another, amici curiae, submitted a brief. Andrew S. Crouch, for Youth Advocacy Division of the Committee for Public Counsel Services & another, amici curiae, submitted a brief.     LENK, J.  We are asked in this case to consider anew the standard of proof that the Sex Offender Registry Board (SORB) must satisfy in order to classify a convicted sex offender under the provisions of the sex offender registry law, G. L. c. 6, §§ 178C-178Q.  The plaintiff, John Doe No. 380316 (Doe), is a convicted sex offender who was classified by a preponderance of the evidence as having a moderate risk of reoffense.  In Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90, 91 (1998) (Doe No. 972), we held that SORB need only prove the appropriateness of a sex offender’s risk classification by a preponderance of the evidence.  In light of amendments to the sex offender registry law and other developments since our decision in that case, however, Doe contends that the preponderance standard no longer adequately protects his due process rights.  We agree.  For the reasons stated below, we hold that SORB is constitutionally required to prove the appropriateness of an offender’s risk classification by clear and convincing evidence.[1] 1.  Background.  When Doe was thirty-five years old, he reportedly “twisted” the penis of his six year old nephew through the child’s underwear while both were in the bathroom.  […]

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Posted by Massachusetts Legal Resources - December 11, 2015 at 5:07 pm

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