Doe, Sex Offender Registry Board No. 346132 v. Sex Offender Registry Board (Lawyers Weekly No. 11-069-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 13‑P‑548 Appeals Court JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 346132 vs. SEX OFFENDER REGISTRY BOARD. No. 13‑P‑548. Suffolk. March 5, 2014. ‑ June 18, 2014. Present: Kafker, Fecteau, & Agnes, JJ. Sex Offender. Sex Offender Registration and Community Notification Act. Jurisdiction, Sex offender. Kidnapping. Rape. Practice, Civil, Sex offender. Words, “Like violation.” Civil action commenced in the Superior Court Department on March 29, 2012. The case was heard by Elizabeth M. Fahey, J., on a motion for judgment on the pleadings. Eric Tennen for the plaintiff. David L. Chenail for the defendant. KAFKER, J. Based on a 1987 Federal kidnapping conviction, the Sex Offender Registry Board (SORB) notified John Doe of his duty to register and his preliminary classification as a level three sex offender. Doe unsuccessfully contested both the registration requirement and the level of classification at an evidentiary hearing and in Superior Court. On appeal, Doe argues that SORB lacks jurisdiction over him, obviating his need to register and rendering his classification void. As his conviction was not in a Massachusetts court, this argument depends on the proper interpretation and application of G. L. c. 6, § 178C, as amended by St. 1999, c. 74, § 2, which requires registration for individuals convicted in another jurisdiction of a “like violation” similar to a Massachusetts sex crime requiring registration. In Doe’s view, his Federal kidnapping conviction does not have an analogous “like violation” in Massachusetts that would compel registration. Conversely, SORB contends that in Doe’s particular case, “rape and assault” were proved to satisfy an element of his Federal kidnapping charge, and that this is sufficient to satisfy the elements of the Massachusetts offense of aggravated rape, which requires registration. It is SORB’s position that Doe was essentially convicted of a “like violation” and thus subject to SORB’s jurisdiction. Based on our understanding of the test set out in John Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 615-619 (2010) (Doe No. 151564), which requires that the elements of the two offenses be the same or nearly the same, and precludes registration based on the particular facts underlying a conviction, we must reject SORB’s conduct-based argument. Factual and procedural history. On February 2, 1987, a Federal jury found Doe guilty of kidnapping pursuant […]