Doe, Sex Offender Registry Board No. 205614 v. Sex Offender Registry Board (Lawyers Weekly No. 10-195-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑11328 JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 205614 vs. SEX OFFENDER REGISTRY BOARD. Suffolk. October 7, 2013. ‑ December 11, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Sex Offender. Sex Offender Registration and Community Notification Act. Administrative Law, Hearing, Judicial review, Standard of proof, Regulations. Witness, Expert. Evidence, Expert opinion. Civil action commenced in the Superior Court Department on September 1, 2010. The case was heard by Paul E. Troy, J., on a motion for judgment on the pleadings. The Supreme Judicial Court granted an application for direct appellate review. Catherine J. Hinton for the plaintiff. David L. Chenail, Assistant Attorney General, for the defendant. Andrew S. Crouch, Committee for Public Counsel Services, & Elizabeth A. Lunt, for Committee for Public Counsel Services & another, amici curiae, submitted a brief. LENK, J. John Doe, a female, pleaded guilty to several Federal charges arising from her prior management of an escort service, including one count of sex trafficking of children, 18 U.S.C. § 1591 (2006).[1] That conviction is a “like violation” to the Massachusetts offense of living off of or sharing earnings of a minor prostitute, G. L. c. 272, § 4B, an enumerated offense requiring registration as a sex offender. See G. L. c. 6, § 178C. A hearing examiner of the Sex Offender Registry Board (SORB) determined after a hearing that Doe presented a low risk of reoffense and attendant degree of dangerousness, and classified her as a level one sex offender. Doe appealed, claiming both that it was arbitrary and capricious for the hearing examiner not to have evaluated proffered authoritative evidence on recidivism in females, and that it was an abuse of discretion to have denied her motion for funds for an expert witness to testify on the subject. We conclude that it was arbitrary and capricious for SORB to classify Doe’s risk of reoffense and degree of dangerousness without considering the substantial evidence presented at the hearing concerning the effect of gender on recidivism, and that, in the circumstances, the hearing examiner abused his discretion by denying the motion for funds for an expert witness. Therefore, we remand the matter to SORB for further proceedings. 1. Statutory and regulatory framework. The requirement to register as a sex offender is governed by a set of […]