Frequently Asked Questions

Frequently Asked Questions:

Who is required to register?

A person is required to register with the Board if he or she:

1. Resides in or is employed in Massachusetts, or is a student at a post-secondary school in Massachusetts, AND

2. Has been convicted of one or more of the following sex offense(s) (or a like violation in another state):

c. 265 § 13B   Indecent assault and battery on a child under 14

c. 265 §13B1/2 Aggravated indecent A&B on a child under 14

c. 265 §13B3/4 Repeat offense of indecent A&B on a child

c. 265 § 13F   Indecent assault and battery on a mentally retarded person

c. 265 § 13H   Indecent assault and battery on a person 14 or over

c. 265 § 22    Rape

c. 265 § 22A   Rape of a child under 16 with force

c. 265 § 22B   Aggravated rape of a child with force

c. 265 § 22C   Repeat Offense of rape of a child with force

c. 265 § 23    Rape and abuse of a child under 16

c. 265 § 23A   Aggravated Rape and abuse of a child under 16

c. 265 § 23B   A Repeat Offense of Rape and Abuse of a child under 16

c. 265 § 24    Assault with intent to commit rape

c. 265 § 24B   Assault of a child under 16 with intent to commit rape

c. 265 § 26    Kidnapping of a child under the age of 16

c. 265 § 26C   Enticing a child under the age of 16 for the purposes of committing a crime

c. 265 § 26D   Enticing a child under 18 via electronic communication to engage in prostitution, human trafficking, or commercial sexual activity

c. 265 § 50    Trafficking of persons for sexual servitude

c. 265 § 52    Second and Subsequent violation of human trafficking for sexual servitude

c. 272 § 2     Enticing away a person for prostitution or sexual intercourse

c. 272 § 3     Drugging persons for sexual intercourse

c. 272 § 4A    Inducing a minor into prostitution

c. 272 § 4B    Living off or sharing earnings of a minor prostitute

c. 272 § 16    2nd and sub. adjudication or conviction for open & gross lewdness & lascivious behavior (excluding juveniles adjudicated delinquent before August 1, 1992)

c. 272 § 17    Incestuous marriage or intercourse

c. 272 § 28    Disseminating to a minor matter harmful to a minor

c. 272 § 29A   Posing or exhibiting a child in a state of nudity

c. 272 § 29B   Dissemination of visual material of a child in a state of nudity or sexual conduct

c. 272 § 29C   Possession of child pornography

c. 272 § 35A   Unnatural and lascivious acts with a child under 16

c. 277 § 39    Aggravated rape

c. 274, § 6    Attempt to commit any of the above

AND

3. Has been released from custody, probation, or parole, or from a civil commitment as a sexually dangerous person (whichever date is latest) since August 1 1981.

Under What Circumstances May the Sentencing Court Relieve a Former Offender of the Obligation to Register?

See § 178E(e) and (f).

Excluded Offenses: 

The plain language of the statute prohibits the court from relieving an adult of his/her registration obligations if s/he has been convicted of: (1) two or more sex offenses as defined in the Wetterling Act, 42 U.S.C. §14071, committed on different occasions; (2) a sex offense involving a child; (3) a sexually violent offense; or s/he (4) has been determined to be a sexually violent predator; or (5) is otherwise subject to minimum or lifetime registration requirements pursuant to § 178D. Dalton v. Commonwealth, 467 Mass. 555 (2014).  But see Doe #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 dangerousness that flows from criminal conviction violates due process.)

These exclusions apply only to convictions and not to juvenile adjudications.

 

However, 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 obligation to register under a due process analysis.  See Doe No. 8725 v. Sex Offender Registry Board, 450 Mass. 780 (2008) (Retroactive imposition of registration requirement without consideration by Board of individual’s right to rebut presumption of dangerousness that flows from criminal conviction violates due process); Doe No. 24341 v. Sex Offender Registry Board, 74 Mass. App. Ct. 383, 385 (2009)(A sex offender cannot be required to register simply because he was – however long ago in the past – convicted of a sexually violent offense, if he poses no current risk).  See also Doe v. Attorney General (Doe 5), 430 Mass. 155, 164-166 (1999) (even individuals convicted of rape are entitled to a hearing to determine whether they must continue to register).

 

Entitled to Consideration for Relief:

Persons not convicted of an excluded offense may be relieved of the obligation to register by the sentencing court upon motion by the Commonwealth, if the court determines that the defendant’s offense and criminal history do not indicate a risk of reoffense or danger to the public. 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 upon motion by the Defendant, if (i) the defendant is convicted after December 12, 1999, (ii) is not sentenced to immediate confinement, and (iii) after a hearing conducted within 14 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. G.L. c. 6, § 178E(f).

Entitled to Consideration for Relief:

Persons may be relieved of the obligation to register by the sentencing court upon motion by the Commonwealth, if the court determines that the defendant’s offense and criminal history do not indicate a risk of reoffense or danger to the public. G.L. c. 6, § 178E(e)

Persons may be relieved of the obligation to register by the sentencing court upon motion by the Defendant, if (i) the defendant is convicted after December 12, 1999, (ii) is not sentenced to immediate confinement, and (iii) after a hearing conducted within 14 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. G.L. c. 6, § 178E(f)

What are the Requirements of Pre-hearing Registration (Former offenders who have not yet been finally classified)?

All pre-hearing registration is done in writing by mailing registration data to the board on a form approved by the board. Pre-hearing registration data is not disseminated to the public. § 178E (n).

1.   Former offenders on probation or parole must register within two days of being informed by the supervising agency of their obligation to register. See §178E (b); 803 CMR 1.04 (6).

2.   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 the board within five days of receiving custody of the person.  See §178E (a); 803 CMR 1.04 (7). Within two days of release, a former offender finally classified as a level 2 or 3 offender must also register in person at the local police department if his address is different from the      address he sent to the board prior to release. G.L. c.   6, §178F 1/2.

3.  Former offenders must register their primary and secondary addresses.  A secondary address is defined as one where the person “lives, abides, lodges, or resides” for 14 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 4 or more “consecutive or nonconsecutive days in any month.”  See §178C (emphasis added).

4.   Former offenders must verify their addresses annually during the month of their birth by mailing the registration form to the board.  See §178F.

5.   Former offenders who list a homeless shelter as their residence must verify registration every 30 days.  See §178F.

6.  Former offenders who intend to change a work, home or post-secondary school address must inform the board in writing ten days prior to the move. See §178E (h), (j) and (p).

7.  Former offenders who intend to move out of the Commonwealth must inform the board in writing ten days prior to the move. See §178E (i).

8.  Former offenders who move into the Commonwealth from another jurisdiction must register with the board, by mail, within 2 days of moving into the Commonwealth. See §178E (g).

Registration forms may be obtained from the board’s website, www.mass.gov/sorb, or by contacting the board at its administrative offices in Salem (P.O. Box 4547, Salem, MA 01970) at 978-740-6400 (link to registration forms)

How Does a Former Offender Get a Hearing?

The board sends a letter to the former offender informing him/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 30 days to submit evidence or to request an extension of time to submit evidence. See §178L. (For more information on thirty day letters, see below).

Following receipt of the 30 day letter and other information, the board will determine whether or not the offender has a duty to register based on the following criteria: a. whether the offender’s criminal history contains at least one conviction or adjudication for a sex offense as defined in 178C;  b. whether the offense was sexual in nature;  c.  whether the offender currently lives, works, or attends an institution of higher learning in the Commonwealth; and d.   whether the offender currently poses a danger.

If the board determines that the offender does not meet the criteria above, they will notify the offender that s/he does not have to register and will remove the offender’s information from the registry. See 803 CMR 1.06 (4).

If the board determines that the offender does meet the above criteria, SORB will then prepare a recommended classification based on the Classification Worksheet. See 803 CMR 1.06(5). The board will assign a preliminary classification level to the former offender. See §178L. (See below for discussion of classification levels).

The board notifies the former offender by mail whether s/he is obligated to register and, if so, of his/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, s/he may request a hearing. A hearing must be requested (by mailing such request to the board) within twenty (20) 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 hearing. See §178L (1) (a). A former offender who requests a hearing and later withdraws that request suffers no prejudice. The board’s 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 request after the hearing has begun unless the hearing examiner agrees. See 803 CMR 1.07(3).

Counsel will be appointed for indigent former offenders who complete and return the indigency determination form to the board. Non-indigent former offenders are entitled to be represented by privately retained attorneys. A former offender may also be represented by a non-attorney third party. See 803 CMR 1.14(2).  All juveniles shall be represented by counsel at the hearing and are entitled to appointed counsel. See 803 CMR 1.14(3).

How Does a Former Offender Respond to a 30-Day Letter?

Decisions on what, if anything, to send the board must be made on a case by case basis. SORB will consider certain factors to be particularly relevant 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, homemaker, full-time student or disabled and unable to work);
  • Involvement in or completion of a treatment program (drug, alcohol, counseling, sex offender therapy, etc.). The board views the cognitive-behavioral relapse prevention model as most effective for treatment of adult sex offenders, and either cognitive-behavioral relapse prevention or multi-systemic therapy as most effective for juveniles;
  • A history of living with a spouse or partner for 2 or more years
  • Acceptance of responsibility for acts
  • Age over forty
  • Living in the community offense-free for five years or more
  • Stability of lifestyle which suggests a lack of impulsivity (ie. good parole/probation record, stable living conditions, employment, avoiding children in or near home [if person has history of molesting children], etc.)

A decision to send the board a letter from a therapist or a therapist’s treatment records should be given careful consideration.  The former offender must balance the potential benefit of providing information which may lower his classification level against the risk of disclosing otherwise confidential information which could be used against him.  For example, if a former offender participates in therapy but continues to deny responsibility for his actions, his treatment records could cause more harm than good.  Any confidential information sent to the board should be accompanied by a caveat that the provision of such materials does not constitute a waiver of the former offender’s privilege as protected by G.L. c.112, §135A, B (social worker); c.233, §20B (psychiatrist & psychotherapist); and any other privilege that may apply.  However, be aware that providing treatment information may open the door for the board to investigate further.

Former offenders are encouraged to seek advice of counsel when responding to a 30 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 §178L (1) (a) and (c) (notice of 30 day letter sent to juvenile’s most recent attorney of record).  Counsel will be appointed for adult former offenders only when the individual has exercised his/her right to a hearing and has been found to be indigent by the board.  Failure to send the board information in response to a 30 day letter does not preclude the former offender from later submitting that information at the de novo board hearing.

What are the Possible Classification Levels?

See § 178K(2). See also § 178I and § 178J.

Level 1: “Low risk of re-offense” Registration by mail with the Board; No dissemination to the public.

Level 2: “Moderate risk of re-offense” Registration in person at the local police station; Some dissemination to the public and internet dissemination for offenders finally classified after July 12, 2013.

Level 3: “High risk of re-offense” Registration in person at the local police station; Extensive dissemination to the public, including internet dissemination.

The statute prohibits a level 3 offender from “knowingly and willingly liv[ing] in, mov[ing] to or transfer[ing] to any convalescent or nursing home, infirmary maintained in a town, rest home, charitable home of the aged or intermediate care of the mentally retarded.” However, in John Doe v. Police Commissioner of Boston, 460 Mass. 342, 349, 343(2011), the Supreme Judicial Court held that this provision was unconstitutional as applied to John Doe. The SJC held that the provision infringes upon Doe’s protected liberty and property interests and violates his right to due process because it fails to provide for an individual determination that the public safety benefits of requiring him to leave the rest home outweigh the risks to him of such removal.   

Under What Circumstances May the Board Relieve a Former Offender from the Obligation to Register?

After a hearing, the Board may relieve a former offender of his/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). The Board’s regulations require a former offender to request relief from registration in writing at least ten business days before his/her scheduled hearing date. 803 CMR 1.37A(1).

Excluded from consideration for relief from registration are (1) persons convicted of two or more sex offenses as defined in 42 U.S.C. §14071 (Wetterling Act) committed on different occasions; (2) persons deemed to be sexually violent predators after a court hearing; (3) persons convicted of a sexually violent offense; (4) persons convicted of a sex offense involving a child who have not already registered for a period of at least ten years; and (5) persons who are subject to lifetime or minimum registration requirements as determined by the board in § 178D. See § 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 obligation 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 dangerousness that flows from criminal conviction violates due process); Doe No. 24341 v. Sex Offender Registry Board, 74 Mass. App. Ct. 383, 385 (2009)(A sex offender cannot be required to register simply because he was – however long ago in the past – convicted of a sexually violent offense, if he poses no current risk).  See also Doe v. Attorney General (Doe 5), 430 Mass. 155, 164-166 (1999) (even individuals convicted of rape are entitled to a hearing to determine whether they must continue to register).

The statute unconstitutionally shifts the burden of proof to the former offender to prove that s/he meets the standard for relief from registration.  See Doe 5, 430 Mass. at 166 (Board has burden of proof by preponderance of the evidence); Doe v. Sex Offender Registry Board (Doe 4), 428 Mass. 90 (1998).

REMEMBER that a person who was adjudicated delinquent or youthful offender of a sex offense is not considered by SORB to have been “convicted” of a crime, and as such his Motion will NOT be summarily denied, unless he has been determined to be a sexually violent predator.   Also note that Doe No 8725, 450 Mass. 780 (2008) dictates that SORB cannot summarily deny a motion for relief based on the specific offense charged, but instead that all offenders must have the opportunity to challenge the SORB’s assessment of their obligation to register and classification.

How are Registration Hearings Conducted?

See § 178L.

Administrative hearings are conducted in various locations across the state.

The board must make two determinations: (1) whether the individual must register because he poses a present threat of grave harm to children or other vulnerable persons and, if so, (2) whether he should be assigned a risk level classification of 1, 2, or 3. See e.g. Doe v. Attorney General (Doe 3), 426 Mass. 136, 137 (1997); Doe 5, 430 Mass. at 165.

The board must prove a sex offender’s classification by clear and convincing evidence.  Doe 380316 v. SORB, 473 Mass. 297, 298 (2015).  See Doe 5, 430 Mass. at 166; Doe 4, 428 Mass. 90 (1998). The board must support its classification by making “specific, written, detailed, and individualized findings….” Doe 4, 428 Mass. at 91; John Doe 941 v. Sex Offender Registry Board, 460 Mass. 336, 338 (2011).

The former offender may wish to present expert testimony regarding his/her risk of recidivism. To do so, the indigent former offender must apply for funds from the board. The statute provides that the board 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 classification proceeding.” G.L. c.6, §178L (a). The SJC has interpreted this provision to allow the board to grant funds whether or not the board relies on expert evidence. The burden is on the petitioner to show that an expert is needed in his/her particular circumstances. Doe No. 89230 v. Sex Offender Registry Board, 452 Mass. 764 (2008).  See also John Doe 205614 v. SORB, 466 Mass. 594 (2013) (Expert funds in SORB cases are not limited to cases where one of the 3 factors mentioned in Doe 89230 is implicated (Factors 1, 13 and 15 – mental abnormality, physical condition, or psychiatric or psychological profile indicating risk to reoffend). A particular characteristic may justify expert funds where the SORB guidelines do not adequately address these issues).

Expert evidence not supported by live witness testimony (such as psychological evaluations and reports) is excluded. 803 CMR 1.18(6). However, “an opinion as to the offender’s risk of reoffense that is documented by a licensed mental health professional in the course of treatment, and not expressly for use at a classification hearing, is admissible in evidence at the hearing and may be considered by the hearing examiner even if the witness does not testify.” Poe v. SORB, 456 Mass. 801, n. 6 (2010).

If the individual is aggrieved by the result of the hearing, s/he can appeal the board’s determination to the Superior Court pursuant to G.L. c.30A, §14 (Administrative Procedure Act). See §178M.

If the board 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 90 days. See §178K (2) (c).

After the registration hearing, can a former offender appeal his final classification level?

A final board decision can be appealed to the Superior Court within 30 days of receipt of the decision. The 30 day deadline is a jurisdictional deadline and if it is missed, the client loses his right to appeal. See G.L. c. 6, § 178M and G.L. c. 30A,  §14.  Filing a Notice of Appeal with the board will not preserve the client’s right to superior court review. Only the filing of a civil complaint in superior court will preserve his right.  A complaint for judicial review can be filed in Superior Court in Essex county (where SORB is located), Suffolk county or the county where the former offender resides.

An appeal may be taken from the decision of the superior court to the Appeals Court. The Notice of Appeal must be filed in the superior court within 60 days of date of entry of the judgment, pursuant to Rule 4 of the Rules of Appellate Procedure.

What Happens if a Person Who is Required to Register Fails to Register? (See also Practice Aids: Failure 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 § 178H.

The Commonwealth has the burden of proving that the former offender had notice of his/her obligation to register or to update registration information; that s/he knew and understood his/her obligations; and that s/he had an opportunity to comply. The Commonwealth must prove that the former offender deliberately and intentionally failed to register. Evidence of mental illness, cognitive impairment or other impediments to comprehension is relevant to this determination.

A conviction for failure to register can result in:  a)  first offense:  six months to 2 ½ years in the house of correction or 5 years in state prison and/or fine;  b) second and subsequent offense: not less than five years in state prison.  See §178H.

For How Long Must a Former Offender Register?

See § 178 G.

For adults convicted of a single, non-violent sex offense and juveniles with juvenile adjudications:  20 years from date of conviction/adjudication or release from custody or supervision, whichever last occurs.

For (a) adults convicted of two or more sex offenses (as defined in 42 U.S.C. §14071) committed on different occasions, a sexually violent offense, or (b) adults and juveniles determined to be sexually violent predators or otherwise subject to lifetime registration requirements pursuant to §178D: Duty to register shall never be terminated.  But see Doe No. 8725 v. Sex Offender Registry Board, 450 Mass. 780 (2008).   The statute defines which offenses constitute “sexually violent offense[s].” See section 178C.

Early Termination of registration:  Ten years from the date of conviction or release from custody or supervision, whichever last occurs, an offender may apply to the board for termination of the registration requirement.  The offender must prove by clear and convincing evidence that s/he 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 has been found to be 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 10 years. The statute defines which offenses constitute “sex offense[s] involving a child.” Section 178C.  803 CMR 1.37B.  But see Doe No. 8725 v. Sex Offender Registry Board, 450 Mass. 780 (2008).

Can a former offender obtain a reduction in his classification level after his initial classification?

A former offender may request, in writing, that the Board reduce his classification level no sooner than three years after his/her initial classification becomes final. 803 CMR 1.37C (2).

To request a reduction in classification level, a former offender must have been at liberty for at least three years, have no new sex offenses, and present new and updated information which proves that his/her risk of re-offense and degree of dangerousness has been reduced.  If an individual has been convicted of a new sex offense, he/she may not seek reclassification sooner than ten years from the date of the last classification decision.

If a former offender experiences a material change in circumstances related to a medical condition, he/she may file a motion for reclassification sooner than five years after the date of his/her prior classification. However, he/she will need to support this motion with an affidavit from a treating medical provider.

The board may deny reclassification if an individual is incarcerated, on community supervision or has pending criminal charges.  The board may also deny a reclassification request if the last classification decision is under judicial review, on appeal or on review by the board pursuant to a remand.

By filing a written request for reclassification, the former offender authorizes SORB to obtain additional information to assist in its’ review.  For example, SORB may gather additional input from the police. If SORB obtains additional information, it will mail that information to the former offender who will then have 20 business days to submit a written response to this additional information.

After receiving an individual’s written request for reclassification and any additional information, SORB will schedule a hearing and will notify the individual of the time, date, and location of the hearing. A final reclassification decision by the board can be appealed to the Superior Court pursuant to G.L. c. 30A and G.L. c. 6, section 178M. Indigent clients are entitled to appointment of counsel in Superior Court.

Can a former offender obtain early termination of his registration obligation?

A former offender may apply for early termination of his registration obligation pursuant to G.L. c. 6, section 178G and 803 CMR 1.37B when all of the following conditions have been met:

1. It has been over ten years since his conviction, adjudication or release from all custody or supervision, whichever occurs last, and he has not committed a sex offense within that time period.

2. His classification level is final and is not under judicial review or appeal.

3. He has not been convicted of a sexually violent offense (as defined in G.L. c. 6, section 178C), two or more Wetterling offenses on different occasions,  or a sex offense involving a child (or he has already been registered for at least 10 years based on his sex offense involving a child).

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 obligation 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 dangerousness that flows from criminal conviction violates due process); Doe No. 24341 v. Sex Offender Registry Board, 74 Mass. App. Ct. 383, 385 (2009)(A sex offender cannot be required to register simply because he was – however long ago in the past – convicted of a sexually violent offense, if he poses no current risk).  See also Doe v. Attorney General (Doe 5), 430 Mass. 155, 164-166 (1999) (even individuals convicted of rape are entitled to a hearing to determine whether they must continue to register).

4. He has not been determined to be a sexually violent predator, is not currently incarcerated, or subject to pending criminal charges.

5. There is new evidence since his original registration and classification that demonstrates that he is not likely to pose a danger to the safety of others.

Can a Former Offender’s Classification Level Be Raised after His/Her Initial Classification Becomes Final?

Pursuant to an amendment to the Sex Offender Registry statute that was enacted on July 1, 2013, SORB may seek to raise a former offender’s classification level based on “new information, which is relevant to a determination of a risk of re-offense or degree of dangerousness.” G.L. c. 6, section 178L (3). SORB is required to promulgate regulations defining such “new information” that can give rise to an increased classification level.

Prior to July 1, 2013, the Appeals Court had held that SORB’s regulation allowing the board to increase an offender’s classification level absent a new sex offense conviction was not authorized by the statute. See Doe 16748 v. SORB, 82 Mass. App. Ct. 152 (2012) (board’s regulation, 803 C.M.R. § 1.37C (3), allowing for reclassification absent a new sex offense conviction is beyond scope of statutory authority).

If the Board decides to raise an individual’s classification level, it must send a letter to the former offender informing him/her that the Board intends to reclassify him/her, and inviting him/her to submit information to the Board 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 new, preliminary classification level, and will be able to request an administrative hearing to challenge that classification. The final reclassification is subject to judicial review in Superior Court pursuant to G.L. c. 6, section 178M.

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. G. L. c. 6, § 178Q.  The fee can be waived by the board if payment would constitute an undue hardship.  G. L. c.6, §178Q.

Juvenile Offenders

Under G.L. c. 6, §178E(f), a juvenile adjudicated delinquent or a youthful offender, by reason of a sex offense, on or after December 12, 1999, and who is not sentenced to immediate confinement, is entitled to a determination of whether the court may relieve him or her from the obligation to register.  The issue is whether the circumstances of the sex offense in conjunction with the juvenile’s criminal history indicate that he or she does not pose a risk of re- offense or danger to the public.  This determination is made within fourteen days of sentencing.

G.L. c. 6, §178E(f) does not specify whether counsel needs to move for relief; however, in the recent case of Commonwealth v. Ronald R. (450 Mass. 262 (2007), the Supreme Judicial Court held that a juvenile bears the burden of proving that he does not pose a risk of reoffense or danger to the public.  Should the juvenile be aggrieved by a court’s failure to relieve him of his obligation to register, the only avenue for relief is a petition pursuant to Gl. L. c. 211, §3.  The Court concluded, that “although a defendant may request written findings and legal conclusions or an evidentiary hearing, the decision whether to grant the request rests soundly in the judge’s discretion.” It is strongly recommended that attorneys request written findings whenever a sentencing judge denies a request for relief from registration.

Pursuant to §178E (e), the judge may relieve a juvenile of the obligation to register even if the juvenile has been sentenced to a period of confinement; however, the judge may only exercise this discretion upon receipt of a written motion of the Commonwealth.

If a juvenile has been relieved of the obligation to register by the trial court pursuant to G.L.c. 6, §178E(e) or (f),  a copy of the order endorsed by the court should be faxed to SORB (978-740-6464) as soon as possible.  

If the offender is still a juvenile, notice from SORB must be sent to: His/her legal guardian; the Department of Social Services or the Department of Youth Services if the Juvenile is receiving services from, or subject to proceedings initiated by, one or more of these agencies; and his/her most recent attorney of record.  803 CMR 1.04 (5); 803 CMR 1.05 (1)

If the offender is a juvenile, or his/her only sex offense was as a juvenile, SORB may request a meeting during this classification period with the offender and his/her Authorized Representative.  SORB has the discretion to decide if such a meeting will occur; an offender cannot request a meeting. No inference is to be drawn against an offender who chooses not to meet with SORB prior to classification.  See 803 CMR 1.06(7).

For offenders who are juveniles, or whose only offense was committed as a juvenile, the member of SORB who is a licensed psychologist or psychiatrist with special expertise in the assessment and evaluation of juvenile offenders, must sign off on any initial classification recommendation.  See §178L (1); 803 CMR 1.06 (7).

All offenders who are still juveniles at the time of notification of the hearing shall be represented by counsel at the 30 day letter stage and are entitled to appointment of counsel at that time.  See 803 CMR 1.14(3).

Lifetime registration requirements are not applicable to individuals who have only juvenile sex offense adjudications and no sex offense convictions. Juveniles must only register for 20 years from the date of adjudication or release from custody or supervision, whichever last occurs. See §178C.

In John Doe 136652 v. Sex Offender Registry Board, 81 Mass. App. Ct. 639 (2012), the Appeals Court found that the hearing examiner erred by failing to take account of the plaintiff’s age at the time of the offense and by applying several aggravating factors to the plaintiff without explaining how they were applicable to a prepubescent child.