"Sex Offender Registration Summary of the Law"
Chapter 1 SEX OFFENDER REGISTRATION: SUMMARY OF THE LAW LARNI S. LEVY, ESQ. Committee for Public Counsel Services, Boston § 1.1 INTRODUCTION ............................................................. 1–1 § 1.2 WHO IS REQUIRED TO REGISTER? ......................... 1–1 § 1.3 WHAT ARE THE REQUIREMENTS OF PREHEARING REGISTRATION? .......................... 1–3 § 1.4 HOW DOES A FORMER OFFENDER GET A HEARING? .................................................................... 1–4 § 1.5 HOW DOES A FORMER OFFENDER RESPOND TO A THIRTY-DAY LETTER? ....................................... 1–5 § 1.6 UNDER WHAT CIRCUMSTANCES MAY SORB RELIEVE A FORMER OFFENDER FROM THE OBLIGATION TO REGISTER? ..................................... 1–6 § 1.7 WHAT ARE THE POSSIBLE CLASSIFICATION LEVELS? ........................................................................... 1–7 § 1.8 HOW ARE REGISTRATION HEARINGS CONDUCTED? ........................................... 1–8 § 1.9 UNDER WHAT CIRCUMSTANCES MAY THE SENTENCING COURT RELIEVE A FORMER OFFENDER OF THE OBLIGATION TO REGISTER?................................................................ 1–9 § 1.9.1 Persons Entitled to Consideration for Relief ....................... 1–9 (a) Upon Motion by the Commonwealth (G.L. c. 6, § 178E(e)) ................................................. 1–9 1–i SEX OFFENDER REGISTRY PRACTICE (b) Upon Motion by the Defendant (G.L. c. 6, § 178E(f))...................................................1–9 § 1.9.2 Offenses Excluded from Relief ..........................................1–10 § 1.10 WHAT HAPPENS IF A PERSON WHO IS REQUIRED TO REGISTER FAILS TO REGISTER?...............................................................1–10 § 1.11 FOR HOW LONG MUST A FORMER OFFENDER REGISTER? ..............................................1–11 § 1.12 CAN A FORMER OFFENDER OBTAIN A REDUCTION IN CLASSIFICATION LEVEL AFTER INITIAL CLASSIFICATION BECOMES FINAL? .............................................................................1–12 § 1.13 CAN A FORMER OFFENDER’S CLASSIFICATION LEVEL BE RAISED AFTER INITIAL CLASSIFICATION BECOMES FINAL? .............................................................................1–12 § 1.14 REGISTRATION FEE ....................................................1–13 1–ii Chapter 1 SEX OFFENDER REGISTRATION: SUMMARY OF THE LAW LARNI S. LEVY, ESQ. Committee for Public Counsel Services, Boston Scope Note This chapter summarizes the law for registration of adult sex offenders, reviewing persons required to register, obtaining a hearing, examining the circumstances under which an offender may be relieved from registering, and possible reclassification. § 1.1 INTRODUCTION The Sex Offender Registration and Notification Act (hereinafter “the Act”), first passed in 1996 and subsequently amended on numerous occasions, is codified at G.L. c. 6, §§ 178C–178Q. The Act requires persons convicted or adjudicated as a delinquent or as a youthful offender of certain designated sex offenses within a certain time frame to register as former sex offenders. There are two kinds of registration. The first kind requires registration with the Sex Offender Registry Board (SORB) prior to a hearing. No public dissemina- tion of this registration information is permitted. The second kind occurs posthearing. Posthearing registration occurs at a local police station for persons designated as at moderate (Level 2) or high risk (Level 3) of reoffending, and with SORB for persons designated as at low risk of reoffending (Level 1). Level 2 and Level 3 former offenders are subject to public dissemination of reg- istration information. § 1.2 WHO IS REQUIRED TO REGISTER? Persons who satisfy all of the following three criteria must register: • persons who reside, are employed, or who are students at a post- secondary school in Massachusetts; 1–1 § 1.2 SEX OFFENDER REGISTRY PRACTICE • persons who have been convicted or adjudicated as delinquent or as a youthful offender of the following sex offenses (or a like vio- lation in another state): – G.L. c. 265, § 13B (indecent assault and battery on a child under fourteen); – G.L. c. 265, § 13F (indecent assault and battery on a mentally retarded person); – G.L. c. 265, § 13H (indecent assault and battery on a person fourteen or over); – G.L. c. 265, § 22 (rape); – G.L. c. 265, § 22A (rape of a child under sixteen with force); – G.L. c. 265, § 23 (rape and abuse of a child under sixteen); – G.L. c. 265, § 24 (assault with intent to commit rape); – G.L. c. 265, § 24B (assault of a child under sixteen with in- tent to commit rape); – G.L. c. 265, § 26 (kidnapping of a child under the age of six- teen); – G.L. c. 265, § 26C (enticing a child under the age of sixteen for the purposes of committing a crime); – G.L. c. 272, § 2 (enticing away a person for prostitution or sexual intercourse); – G.L. c. 272, § 3 (drugging persons for sexual intercourse); – G.L. c. 272, § 4A (inducing a minor into prostitution); – G.L. c. 272, § 4B (living off or sharing earnings of a minor prostitute); – G.L. c. 272, § 16 (second and subsequent adjudication or conviction for open and gross lewdness and lascivious behav- ior (excluding juveniles adjudicated delinquent before August 1, 1992)); – G.L. c. 272, § 17 (incestuous marriage or intercourse); 1–2 SEX OFFENDER REGISTRATION § 1.2 – G.L. c. 272, § 28 (disseminating to a minor matter harmful to a minor); – G.L. c. 272, § 29A (posing or exhibiting a child in a state of nudity); – G.L. c. 272, § 29B (dissemination of visual material of a child in a state of nudity or sexual conduct); – G.L. c. 272, § 29C (possession of child pornography); – G.L. c. 272, § 35A (unnatural and lascivious acts with a child under sixteen); – G.L. c. 277, § 39 (aggravated rape); and – G.L. c. 274, § 6 (attempt to commit any of the above). • former offenders who have been released from custody, probation, parole, or a civil commitment as a sexually dangerous person (whichever date is latest) since August 1 1981. § 1.3 WHAT ARE THE REQUIREMENTS OF PREHEARING REGISTRATION? Former offenders on probation or parole must register within two days of being informed by the supervising agency of their obligation to register. See G.L. c. 6, § 178E(b). Former offenders in custody must register at least two days prior to release. The agency with custody of the former offender must send the former offender’s registration data to SORB within five days of receiving custody of the person. SORB must classify the former offender at least ten days before his or her earliest release date. See G.L. c. 6, § 178E(a). All other former offenders residing, working, or attending a postsecondary school in the Commonwealth must register within ten days of the effective date of the statute (ten days after September 10, 1999). SORB is required to send written notification of the Act’s requirements to the last known address of all former sex offenders who are no longer in custody or under supervision. It is unclear what is required of former offenders who do not receive this written notice of the Act’s requirements. See G.L. c. 6, § 178E(l). Former offenders must register their primary and secondary addresses. A secon- dary address is defined as one where the person “lives, abides, lodges, or resides” 1–3 § 1.3 SEX OFFENDER REGISTRY PRACTICE for fourteen or more days “in the aggregate during any calendar year” or the address at which a former offender “routinely lives, abides, lodges, or resides” for four or more “consecutive or nonconsecutive days in any month.” See G.L. c. 6, § 178C (emphasis added). Former offenders must verify their ad- dresses annually during the month of their birth. See G.L. c. 6, § 178F. Former offenders who list a homeless shelter as their residence must verify registration every forty-five days. See G.L. c. 6, § 178F. Sentencing judges are required to inform former offenders who are not sen- tenced to incarceration for ninety days or more of their obligation to register, and these former offenders are also required to acknowledge their obligation in writing. Judges accepting guilty pleas are also subject to this requirement, but failure to com- ply is not grounds to vacate or invalidate a plea. See G.L. c. 6, § 178E(c), (d). Former offenders who intend to change a work, home (primary or secondary), or postsecondary school address must inform SORB in writing ten days prior to the move. See G.L. c. 6, § 178E(h), (j). Former offenders who intend to move out of the Commonwealth must inform SORB in writing ten days prior to the move. See G.L. c. 6, § 178E(i). Registration forms may be obtained from SORB’s Web site, http://www.mass.gov/sorb, or by contacting SORB at its administrative of- fices in Salem (P.O. Box 4547, Salem, MA 01970) at (978) 740-6400. § 1.4 HOW DOES A FORMER OFFENDER GET A HEARING? SORB sends a letter to the former offender informing him or her of the right to submit evidence regarding dangerousness and risk of reoffense (called a “thirty- day” letter). An incarcerated former offender should receive such notice while in custody. The former offender has thirty days to submit evidence or to request an extension of time to submit evidence. See G.L. c. 6, § 178L. (For more informa- tion on thirty-day letters, see below.) SORB assigns a preliminary classification level to the former offender. See G.L. c. 6, § 178L. (See below for discussion of classification levels.) SORB noti- fies the former offender by mail whether he or she is obligated to register and, if so, of his or her initial classification level. Included in this notice is a request- for-hearing form and indigency determination form. If the former offender is not content with the classification level, he or she may request a hearing. A hearing must be requested (by mailing such request to SORB) within twenty days of receipt of the initial classification level. Failure to request a hearing within this time period will result in waiver of the right to a 1–4 SEX OFFENDER REGISTRATION § 1.4 hearing. See G.L. c. 6, § 178L(1)(a). A former offender who requests a hearing and later withdraws that request suffers no prejudice. SORB regulations provide that a request for a hearing may be withdrawn at any time before the hearing, or at the hearing before any testimony is presented. A former offender is precluded from withdrawing his or her request after the hearing has begun unless the hearing examiner agrees. See 803 C.M.R. § 1.07(3). Counsel will be appointed for indigent former offenders who complete and re- turn the indigency determination form to SORB. Nonindigent former offenders are entitled to be represented by privately retained attorneys. A former offender may also be represented by a nonattorney third party. See 803 C.M.R. § 1.14(2). All juveniles shall be represented by counsel at the hearing and are entitled to appointed counsel. See 803 C.M.R. § 1.14(3). § 1.5 HOW DOES A FORMER OFFENDER RESPOND TO A THIRTY-DAY LETTER? Decisions on what, if anything, to send SORB must be made on a case-by-case basis. According to the scientific literature, certain factors are particularly rele- vant to a former offender’s risk of reoffense. Some of these factors include: • employment (the longer the better) (include whether the former offender is retired, a homemaker, a full-time student, or disabled and unable to work); • involvement in or completion of a treatment program (drug, alco- hol, counseling, sex offender therapy, etc.) (SORB views the cog- nitive-behavioral relapse prevention model as most effective for treatment of adult sex offenders, and either cognitive-behavioral relapse prevention or multisystemic therapy as most effective for juveniles); • a history of living with a spouse or partner for two or more years; • acceptance of responsibility for acts committed; • if the offender is over the age of forty (and the offense occurred when the offender was younger); and • stability of lifestyle which suggests a lack of impulsivity (i.e., good parole/probation record, stable living conditions, employ- ment, avoiding children in or near home (if person has history of molesting children), etc.). 1–5 § 1.5 SEX OFFENDER REGISTRY PRACTICE A decision to send SORB a therapist’s treatment records or a letter from a thera- pist should be given careful consideration. The former offender must balance the potential benefit of providing information that may lower his or her classifica- tion level against the risk of disclosing otherwise confidential information that could be used against him or her. For example, if a former offender participates in therapy but continues to deny responsibility for his or her actions, the treat- ment records could cause more harm than good. Any confidential information sent to SORB should be accompanied by a caveat that the provision of such ma- terials does not constitute a waiver of the former offender’s privilege as pro- tected by G.L. c. 112, §§ 135A and 153B (social worker); G.L. c. 233, § 20B (psychiatrist and psychotherapist); and any other privilege that may apply. How- ever, be aware that providing treatment information may open the door for SORB to investigate further. Former offenders are encouraged to seek advice of counsel when responding to a thirty-day letter. Unfortunately, CPCS is not authorized by statute to appoint counsel for indigent former offenders at this stage of the process, unless the former offender is a juvenile. See G.L. c. 6, § 178L(1)(a), (c) (notice of thirty- day letter sent to juvenile’s most recent attorney of record). Counsel will be ap- pointed for adult former offenders only when the individual has exercised his or her right to a hearing and has been found to be indigent by SORB. Failure to send SORB information in response to a thirty-day letter does not preclude the former offender from later submitting that information at the de novo SORB hearing. § 1.6 UNDER WHAT CIRCUMSTANCES MAY SORB RELIEVE A FORMER OFFENDER FROM THE OBLIGATION TO REGISTER? After a hearing, SORB may relieve a former offender of his or her registration obligations by making “specific written findings that the circumstances of the offense in conjunction with the offender’s criminal history do not indicate a risk of reoffense or danger to the public.” G.L. c. 6, § 178K(2)(d). SORB’s regula- tions require a former offender to request relief from registration in writing at least ten business days before his or her scheduled hearing date. 803 C.M.R. § 1.37A(1). Offenders excluded from consideration for relief from registration include the following: • persons convicted of two or more sex offenses, as defined in 42 U.S.C. § 14071 (Wetterling Act), committed on different occasions; 1–6 SEX OFFENDER REGISTRATION § 1.6 • persons deemed to be sexually violent predators after a court hearing; • persons convicted of a sexually violent offense; • persons convicted of a sex offense involving a child who have not already registered for a period of at least ten years; and • persons who are subject to lifetime or minimum registration re- quirements as determined by SORB in G.L. c. 6, § 178D. See G.L. c. 6, § 178K(2)(d). Adult offenders convicted of offenses for which relief from registration is not permitted by statute (such as statutory rape where the person has not already registered for ten years), may nevertheless be entitled to relief from the obliga- tion to register under the case law. See Doe No. 8725 v. Sex Offender Registry Board, 450 Mass. 780 (2008) (retroactive imposition of registration requirement without consideration of individual’s right to rebut presumption of dangerous- ness that flows from criminal conviction violates due process). See Doe v. Attor- ney General (Doe 5), 430 Mass. 155, 164–66 (1999) (even individuals convicted of rape are entitled to a hearing to determine whether they must continue to reg- ister). The statute unconstitutionally shifts the burden of proof to the former of- fender to prove that he or she meets the standard for relief from registration. See Doe 5, 430 Mass. at 166 (SORB has burden of proof by preponderance of the evidence); Doe v. Sex Offender Registry Board (Doe 4), 428 Mass. 90 (1998). § 1.7 WHAT ARE THE POSSIBLE CLASSIFICATION LEVELS? The sexual offender guidelines provide for three levels of notification depending on the degree of risk of reoffense and the degree of dangerousness posed to the public by the sex offender. • Level 1: Low risk of reoffense. Registration by mail with SORB. No dissemination to the public. • Level 2: Moderate risk of reoffense. Registration in person at the local police station. Some dissemination to the public. 1–7 § 1.7 SEX OFFENDER REGISTRY PRACTICE • Level 3: High risk of reoffense. Registration in person at the local police station. Extensive dissemination to the public, including SORB dissemination by Internet. See G.L. c. 6, § 178K(2). See also G.L. c. 6, §§ 178I, 178J. § 1.8 HOW ARE REGISTRATION HEARINGS CONDUCTED? Registration hearings are conducted in accordance with G.L. c. 6, § 178L in various locations throughout the state. SORB must make two determinations: whether the individual must register because he or she poses a present threat of grave harm to children or other vulnerable persons and, if so, whether he or she should be assigned a risk level classification of one, two, or three. See, e.g., Doe v. Attorney General (Doe 3), 426 Mass. 136, 137 (1997); Doe 5, 430 Mass. at 165. SORB has the burden of proof by a preponderance of the evidence. See Doe 5, 430 Mass. at 166; Doe 4, 428 Mass. 90 (1998). SORB must support its classifi- cation by making “specific, written, detailed, and individualized findings . . . .” Doe 4, 428 Mass. at 91. The former offender may wish to present expert testimony regarding his or her risk of recidivism. To do so, the indigent former offender must apply for funds from SORB. The statute provides that SORB may grant funds in “any case where the board, in its classification proceeding, intends to rely on the testimony or report of an expert witness prepared specifically for the purposes of the classi- fication proceeding.” G.L. c. 6, § 178L(a). The Supreme Judicial Court has in- terpreted this provision to allow SORB to grant funds whether or not SORB re- lies on expert evidence. The burden is on the petitioner to show that an expert is needed in his or her particular circumstances. Doe No. 89230 v. Sex Offender Registry Board, 452 Mass. 764 (2008). Expert evidence not supported by live witness testimony (such as psychological evaluations and reports) is excluded. 803 C.M.R. § 1.18(6). This should be ob- jected to on the ground that expert reports are reliable hearsay, which is gener- ally admissible at SORB hearings. If the individual is aggrieved by the result of the hearing, he or she can appeal SORB’s determination to the Superior Court pursuant to G.L. c. 30A, § 14 (Ad- ministrative Procedure Act). See G.L. c. 6, § 178M. 1–8 SEX OFFENDER REGISTRATION § 1.8 If SORB concludes that a Level 3 offender is sexually violent and suffers from a mental defect, it may recommend that the offender be deemed a sexually violent predator (SVP). A hearing is conducted in the sentencing court to determine whether the offender should be designated a SVP. Counsel is appointed for the indigent former offender. If the court determines that the person is a SVP, then the individual must register in person at the police station every ninety days. See G.L. c. 6, § 178K(2)(c). The authors are not aware of any instance in which SORB has recommended an SVP designation. § 1.9 UNDER WHAT CIRCUMSTANCES MAY THE SENTENCING COURT RELIEVE A FORMER OFFENDER OF THE OBLIGATION TO REGISTER? The sentencing court has discretion to relieve a former offender from the obliga- tion to register. G.L. c. 6, § 178E(e), (f). However, certain offenses are excluded from such relief. § 1.9.1 Persons Entitled to Consideration for Relief (a) Upon Motion by the Commonwealth (G.L. c. 6, § 178E(e)) Persons not convicted of an excluded offense may be relieved of the obligation to register by the sentencing court if • the Commonwealth moves for relief from registration; and • the sentencing court determines that the defendant’s offense and criminal history do not indicate a risk of reoffense or danger to the public. Practice Note The Commonwealth rarely moves for relief and is more likely to con- sider this as part of a plea negotiation. (b) Upon Motion by the Defendant (G.L. c. 6, § 178E(f)) Persons not convicted of an excluded offense may be relieved of the obligation to register by the sentencing court if 1–9 § 1.9 SEX OFFENDER REGISTRY PRACTICE • the defendant is convicted after December 12, 1999, and is not sentenced to immediate confinement; and • after a hearing conducted within fourteen days of sentencing, the court determines that the defendant’s offense and criminal history do not indicate a risk of reoffense or danger to the public. § 1.9.2 Offenses Excluded from Relief The statute prohibits the court from relieving an adult of his or her registration obligations if he or she • has been convicted of – two or more sex offenses as defined in the Wetterling Act, 42 U.S.C. § 14071, committed on different occasions; – a sex offense involving a child; or – a sexually violent offense; • has been determined to be a sexually violent predator; or • is otherwise subject to minimum or lifetime registration require- ments pursuant to G.L. c. 6, § 178D. But see Doe No. 8725 v. Sex Offender Registry Board, 450 Mass. 780 (2008). § 1.10 WHAT HAPPENS IF A PERSON WHO IS REQUIRED TO REGISTER FAILS TO REGISTER? The Commonwealth can prosecute an individual for the crime of knowingly failing to register, providing false registration information, or failing to update or to annually verify registration information. See G.L. c. 6, § 178H. The Commonwealth has the burden of proving that the offender had notice of his or her obligation to register or to update registration information; that he or she knew and understood his or her obligations; and that he or she had an oppor- tunity to comply. The Commonwealth must prove that the defendant deliberately and intentionally failed to register. Evidence of mental illness, cognitive impair- ment, or other impediments to comprehension is relevant to this determination. 1–10 SEX OFFENDER REGISTRATION § 1.10 A conviction for failure to register can result in: • first offense: six months to two and one-half years in the house of correction or five years in state prison and/or fine; • second and subsequent offense: not less than five years in state prison. See G.L. c. 6, § 178H. A conviction for failure to register for a person who is classified as a Level 2 or Level 3 former offender can result in the imposition of lifetime community pa- role. § 1.11 FOR HOW LONG MUST A FORMER OFFENDER REGISTER? Pursuant to G.L. c. 6, § 178G, adults convicted of a single sex offense and most juveniles must register for twenty years from date of conviction/adjudication or release from custody or supervision, whichever last occurs. The duty to register is never terminated for • adults convicted of two or more sex offenses (as defined in 42 U.S.C. § 14071) committed on different occasions, a sexually violent offense; • adults convicted of a sexually violent offense; • adults and juveniles determined to be sexually violent predators or otherwise subject to lifetime registration requirements pursuant to G.L. c. 6, § 178D. But see Doe No. 8725 v. Sex Offender Registry Board, 450 Mass. 780 (2008). An offender may apply for termination of the registration requirement ten years from the date of conviction or release from custody or supervision, whichever last occurs. The offender must prove by clear and convincing evidence that he or she has committed no new sex offenses and is not likely to pose a danger to the safety of others. An offender is ineligible for termination of registration if he or she has been found to be an SVP; convicted of two or more Wetterling offenses committed on separate occasions; convicted of a sexually violent offense; or convicted of a sex offense against a child and hasn’t already registered for ten 1–11 § 1.11 SEX OFFENDER REGISTRY PRACTICE years. 803 C.M.R. § 1.37B. But see Doe No. 8725 v. Sex Offender Registry Board, 450 Mass. 780 (2008). § 1.12 CAN A FORMER OFFENDER OBTAIN A REDUCTION IN CLASSIFICATION LEVEL AFTER INITIAL CLASSIFICATION BECOMES FINAL? A former offender may file a written motion with SORB, no sooner than three years after his or her initial classification becomes final, requesting a reduction in his or her classification level. 803 C.M.R. § 1.37C(2). A former offender’s motion for reclassification should include, and is limited to, new or updated information about the former offender that was not available at the time of the initial classification decision. To request a reduction in classification level, a former offender must have been at liberty for at least five years, have no new sex offenses, and not be currently incarcerated or have pending criminal charges. A former offender’s motion for reduction in classification level is ruled on by SORB without a new hearing. § 1.13 CAN A FORMER OFFENDER’S CLASSIFICATION LEVEL BE RAISED AFTER INITIAL CLASSIFICATION BECOMES FINAL? If SORB receives new information indicating that a former offender has an in- creased risk of reoffense (e.g., a new criminal charge or conviction), then it can seek to have the offender reclassified. 803 C.M.R. § 1.37C(3). SORB must send a letter to the former offender informing him or her that it in- tends to reclassify him or her, and inviting him or her to submit information to aid in the classification process. Reclassification proceeds in the same way as an initial classification of a former offender. The former offender will be informed of his or her new, preliminary classification level, and will be able to request an administrative hearing to chal- lenge that classification. 1–12 SEX OFFENDER REGISTRATION § 1.13 § 1.14 REGISTRATION FEE Former offenders finally assigned a risk level must pay a registration fee of $75. The fee must be paid annually, at the time of annual verification of registration information. The fee can be waived by SORB if payment would constitute an undue hardship. G.L. c. 6, § 178Q. 1–13 SEX OFFENDER REGISTRY PRACTICE 1–14