Overview of the Law

September 6, 2004

The Sex Offender Registration and Notification Act, first passed in 1996 and subsequently amended on numerous occasions, is codified at G.L. c. 6, § 178C-Q (2004).  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.

Persons Convicted of Certain Designated Sex Offenses

There are two kinds of registration.  The first kind requires registration with the Sex Offender Registry Board (the Board) prior to a hearing.  No public dissemination of this registration information is permitted.  The second kind occurs post-hearing.  Post-hearing registration occurs at a local police station for persons designated as at moderate (level 2) or high risk (level 3) of reoffending and with the board for persons designated as at low risk of reoffending (level 1).  Level 2 and level 3 former offenders are subject to public dissemination of registration information.

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 (or a like violation in another state):

    • c. 265, § 13 BIndecent assault and battery on a child under 14
    • c. 265, § 13 FIndecent assault and battery on a mentally retarded person
    • c. 265, § 13 HIndecent 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, § 23 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. 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 subsequent 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.

What are the Requirements of Pre-hearing Registration?

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).

2.   Former offenders in custody must register at least two days prior to release. See § 178E(a).

3.   All other former offenders residing, working, or attending a post-secondary school in the Commonwealth must register within ten days of the effective date of the statute (10 days after September 10, 1999).  The board 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 § 178E(l).

4.   Former offenders must verify their addresses annually during the month of their birth.  See § 178F.

5.   Homeless former offenders must verify registration every 90 days.  See § 178F.

6.   Sentencing judges are required to inform former offenders who are not sentenced 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 comply is not grounds to vacate or invalidate a plea. See § 178E(c), (d).

7.   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) and (j).

8.   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).

9.   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.

How Does a Former Offender Get a Hearing?

1. 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 at least 60 days prior to his/her wrap-up date or parole date.  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).2. The Board assigns a preliminary classification level to the former offender.  See§ 178L. (See below for discussion of classification levels).

3. 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.

4. 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.   TheBoard’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/her request after the hearing has begun unless the hearing examiner agrees.  See 803 CMR 1.07(3).

5. 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. According to the scientific literature, certain factors are 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 (& the offense occurred when former offender was younger)
    • 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/her classification level against the risk of disclosing otherwise confidential information which could be used against him/her.  For example, if a former offender participates in therapy but continues to deny responsibility for his/her actions, his/her 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); G.L. c. 112, § 129A (psychologist); G.L. 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.  Counsel will be appointed only when a former offender 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.

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 former 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 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).

 

What are the Possible Classification Levels?

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

Level 1:

  • “Low risk of reoffense”
  • Registration by mail with the Board
  • No dissemination to the public

Level 2:

  • “Moderate risk of reoffense”
  • Registration in person at the local police station
  • Some dissemination to the public

Level 3:

  • “High risk of reoffense”
  • Registration in person at the local police station
  • Extensive dissemination to the public, including Board dissemination on the internet

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 s/he poses a present threat of grave harm to children or other vulnerable persons and, if so, (2) whether s/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 has the burden of proof by a preponderance of the evidence.  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.
  • 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 Board’s authority to grant funds is limited by statute to “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).  Since the Board has never, to date, relied upon expert witness testimony, we must be prepared to challenge this statutory limitation on the procurement of expert funds as: (1) a denial of the former offender’s due process rights, Doe 5, supra; Doe 4,supra; Doe 3, supra; and (2) disadvantaging indigent clients in relation to clients who can afford to pay, Commonwealth v.  Lockley, 381 Mass. 156, 160 (1980).  Counsel for the former offender should be prepared with an offer of proof as to the relevancy of the expert testimony in the event the motion for funds is denied.
  • Expert evidence not supported by live witness testimony (such as psychological evaluations and reports) is excluded.  803 CMR 1.18(6).  This should be objected to on the ground that expert reports are reliable hearsay, which is generally admissible at Board hearings, and on the ground that the law unfairly denies the former offender the funds necessary to compensate an expert.
  • 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 Procedures 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 then conducted in the sentencing court to determine whether the former offender should be designated a SVP.  Counsel will be 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).

Under What Circumstances May the Sentencing Court Relieve a Former Offender of the Obligation to Register? 
See § 178E(e) and (f).

Excluded Offenses:
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. 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)

What Happens if a Person Who is Required to Register Fails to Register? (See alsoPractice 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.
  • The sentencing scheme for a homeless person convicted of failing to register differs from the above and imposes a minimum mandatory five year state prison sentence for a third and subsequent conviction.  See § 178H(2)(c).

For How Long Must a Former Offender Register? See § 178 G.

  • For adults convicted of a single sex offense and most juveniles: 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.
  • Termination of registration:  Ten years from the date of conviction or release from custody or supervision, whichever last occurs, a former offender may apply to the Board for termination of the registration requirement.  The former 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.  A former offender is ineligible for termination of registration if s/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.803 CMR 1.37B.

Can a Former Offender Obtain a Reduction in his Classification Level after His Initial Classification Becomes Final?

  • A former offender may file a written motion with the Board, no sooner than three years after his/her initial classification becomes final, requesting a reduction in his/her classification level.  803 CMR 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 the Board without a new hearing.

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

  • If the Board receives new information indicating that a former offender has an increased risk of reoffense (e.g., a new criminal charge or conviction), then the Board can seek to have the former offender reclassified.  803 CMR 1.37C(3).
  • The Board 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.

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 [See also Memorandum of March 18, 2005]

Persons Adjudicated as a Delinquent or as a Youthful Offender
 

There are two kinds of registration.  The first kind requires registration with the Sex Offender Registry Board (the board) prior to a hearing.  No public dissemination of this registration information is permitted.  The second kind occurs post-hearing.  Post-hearing registration occurs at a local police station for persons designated as at moderate (level 2) or high risk (level 3) of reoffending and with the board for persons designated as at low risk of reoffending (level 1).  Level 2 and level 3 former offenders are subject to public dissemination of registration information.

Who Is Required to Register?

Anyone adjudicated delinquent or youthful offender of the following sex offenses (or a like violation in another state) is required to register by mail with the Sex Offender Registry Board (SORB) and will be offered a hearing by the SORB prior to any public dissemination.

  • c. 265, § 13B Indecent assault and battery on a child under 14
  • 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, § 23 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. 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 subsequent 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

What are the Requirements of Pre-hearing Registration?

1.  Former offenders on probation or parole must register within two days of being informed by the supervising agency of the obligation to register. See § 178E(b); 803 CMR 1.04 (6).2.  Former offenders in custody must register within two days of release. See § 178E(a), (c); 803 CMR 1.04 (7).

3.  All other former offenders residing or working in the Commonwealth were required to register within 10 days of the effective date of § 178E(l); however, this section also states that SORB is required to send written notification regarding registration obligations to all former offenders who prior to the effective date of the law, were released from all custody and supervision, making it seem that such former offenders need not register until notified in writing by SORB of the obligation to do so.  If a former offender is a juvenile at the time s/he receives notice of his/her obligation to register, the SORB must also send the registration form to:

  • His/her legal guardian;
  • The Department of Children and Families or 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

See § 178E(b); 803 CMR 1.04 (5).

4.  When a former offender is adjudicated delinquent or youthful offender either after trial, or after a plea, and is not sentenced to immediate confinement, the sentencing court must notify the former offender of his/her duties under the law. The court must then obtain written acknowledgment of these duties from the former offender.  Where the former offender is still a juvenile at the time of sentencing, his/her legal guardian must also acknowledge receipt of this information in writing. Failure by the sentencing court to comply with these requirements is not grounds to vacate or invalidate a plea. See § 178E(c), (d).5.  Former offenders must verify their addresses annually. This now includes providing the names and addresses of any institutions of higher learning that a former offender plans to work at or attend.  See § 178F. SORB will require annual verification during the month of the former offender’s birth.

6.  Homeless former offenders must verify registration every 90 days.  See § 178F.

7.  Former offenders who intend to change a work or home address or plan to attend an institution of higher learning must inform SORB in writing ten days prior to the move. See § 178E(h) and (j).

8.  Former offenders who intend to move, work or attend an institution of higher learning outside of the Commonwealth must inform SORB in writing ten days prior to the move. See § 178E(i).

9.  Registration forms may be obtained from SORB’s website,www.state.ma.us/sorb, or by contacting SORB at its administrative offices in Salem (P.O. Box 4547, Salem, MA 01970) at 978-740-6400.   Juveniles or persons whose only offense was committed as a juvenile, register using the yellow cards.

 

How Does a Juvenile Get a Hearing?

1.  SORB sends a letter to the former offender informing him/her of the right to submit evidence regarding dangerousness and risk of re-offense (called a“thirty-day” letter).  An incarcerated offender should receive such notice at least 60 days prior to his/her wrap-up date or parole date.  The former offender has 30 days to submit evidence or to request an extension of time to submit evidence.  See § 178L.2.  If the former offender is still a juvenile, SORB must also send the “thirty day”letter to:

  • His/her legal guardian;
  • The Department of Children and Families or 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

3.  SORB determines whether or not the former offender has a duty to register based on the following criteria:

  • whether the former offender’s criminal history contains at least one conviction or adjudication for a sex offense as defined in § 178C;
  • whether the offense was sexual in nature;
  • whether the former offender currently lives or works in the Commonwealth; and
  • whether the former offender currently poses a danger.  See § 178L.

4.  If the former offender is a juvenile, or if the former offender’s only sex offense was committed as a juvenile, SORB may request a meeting with the former offender and his/her Authorized Representative.  This meeting is completely within SORB’s discretion; a former offender cannot request a meeting.  No inference is to be drawn against a former offender who chooses not to meet with SORB prior to classification.  See 803 CMR 1.06(7).5.  If SORB determines that the former offender does not meet the criteria above, they will notify the former offender that s/he does not have to register and will remove the former offender’s information from the registry. See 803 CMR 1.06 (4).

6.  If SORB determines that the former offender does meet the above criteria, SORB will then prepare a recommended classification based on the Classification Worksheet.  See 803 CMR 1.06(5).  For former offenders who are juveniles, or whose only offense was committed as a juvenile, the member of SORB who has special expertise in the assessment and evaluation of juvenile offenders, must sign off on any classification recommendation.  See 803 CMR 1.06(7).

7.  SORB notifies the former offender by mail 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 still a juvenile, this notice will be sent to:

  • His/her legal guardian;
  • The Department of Children and Families or 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

8.  If the former offender is not content with SORB’s decision regarding his/her duty to register and/or the classification level, s/he has two avenues to seek relief.  Under the new regulations, a former offender has the option of filing aMotion for Relief from Registration Obligation as well as the option of requesting a hearing.

Pursuant to M.G.L. c. 6, § 178K(2)(d) and 803 CMR 1.37A, a former offender may submit a written Motion for Relief from Registration Obligation.  This request may take the form of a letter, or petition, and may be submitted a) prior to or upon registration, b) with a response to a “thirty-day” letter, or 3) at least 10 business days before a scheduled hearing.  This Motion does not replace a hearing and cannot be substituted for a request for a hearing. A Motion for Relief from Registration will be summarily denied pursuant to 803 CMR 1.37A(2) if the offender:

  • has been determined by the sentencing court to be a sexually violent predator; or
  • has been convicted of two or more Wetterling Offenses committed on different occasions; or
  • has been convicted of a sexually violent offense; or
  • has been convicted of a sex offense involving a child, whose offense was sexual in nature, and who has not already registered pursuant to M.G.L. c. 6, § 178E, as enacted on September 10, 1999, for at least 10 years.

Pursuant to M.G.L. c. 6, § 178L(1)(a), a hearing must be requested (by mailing such request to SORB) 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. SORB’s regulations provide that a request for a hearing may be withdrawn at any time before the hearing, or on the record at the hearing before any testimony is presented.  The new regulations preclude a former offender from withdrawing his/her request after the hearing has begun without approval from the Hearing Examiner.  See 803 CMR 1.07(3).  Withdrawal of the request for hearing constitutes waiver and results in the initial classification becoming final.  See  803 CMR 1.07(3).

If a former offender files a Motion for Relief and that Motion is denied, or a former offender files his/her motion after the initial classification, but prior to a hearing date, and that former offender has already requested a hearing, the hearing shall proceed pursuant to 803 CMR 1.09-1.26, BUT, the former offender shall have the burden of proving by a preponderance of the evidence that s/he is eligible for relief.  See 803 CMR 1.37A(4).  This provision flies in the face of the holding inDoe v. Attorney General, 403 Mass. 155, 166 (1999), and should be challenged.

9.  Counsel will be appointed for indigent former offenders who complete and return the indigency determination form to SORB.  Non-indigent former offenders are entitled to retain their own attorneys.  A former offender may also be represented by a non-attorney third party.  See 803 CMR 1.14(2).  All former offenders who are still juveniles at the time of notification of the hearing shallbe represented by counsel at the hearing and are entitled to appointed counsel.  See 803 CMR 1.14(3).  CPCS has agreed to pay attorneys for representation commencing at the “30-day” letter stage for juvenile former offenders only.

 

How does a Juvenile Respond to a 30 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 relevant to a former offender’s risk of re-offense.  Some of these factors include:

  • Employment (the longer the better) (include whether the 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.);
  • A history of living with a spouse or partner for 2 or more years
  • Acceptance of responsibility for acts
  • Age over forty (& the offense occurred when offender was younger)
  • 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 SORB 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/her classification level against the risk of disclosing otherwise confidential information which could be used against him/her.  For example, if a former offender participates in therapy but continues to deny responsibility for his/her actions, his/her treatment records could cause more harm than good.  Any confidential information sent to SORB should be accompanied by a caveat that the provision of such materials does not constitute a waiver of the offender’s privilege as protected by G.L. c. 112, § 135A, B (social worker); G.L. c. 112, §129A (psychologist); G.L. c. 233, § 20B (psychiatrist & psychotherapist); and any other privilege that may apply.  However, 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 30-day letter.  CPCS is  authorized by statute to appoint counsel for indigent former delinquent or youthful offenders at this stage of the process.For former juvenile offenders, an attorney who receives a “thirty-day” letter and agrees to accept an appointment will be eligible for compensation for work done at that stage.  Counsel who are unwilling to accept an appointment on these matters should notify CPCS as soon as they receive a 30-day letter pertaining to a juvenile so that counsel may be appointed.

 

Under What Circumstances May SORB Relieve a Juvenile from the Obligation to Register?

After a hearing, SORB 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 re-offense or danger to the public.”  G.L. c. 6, § 178K(2)(d).The only juvenile offenders, or persons whose offenses were committed as juveniles, who are excluded from consideration for relief are those who have been deemed to be sexually violent predators.   SORB does not consider juvenile offenders to have been “convicted” of a sex offense; rather, any time SORB intends a section to apply to a juvenile offender, the language of the provision specifically includes the phrase, “adjudicated a delinquent or youthful offender.”

The statute and regulations (803 CMR 137A(4)) unconstitutionally shift 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 (SORB has burden of proof by preponderance of the evidence); Doe v. Sex Offender Registry Board (Doe 4), 428 Mass. 90 (1998).

 

What are the Possible Classification Levels?

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

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

Level 3:

  • “High risk of reoffense”
  • Registration in person at the local police station
  • Extensive dissemination to the public, including Board dissemination on the internet
    Administrative hearings will be conducted in various locations across the state.

How are Registration Hearings Conducted? See § 178L.

  • SORB must make two determinations: (1) whether the individual must register because s/he poses a present threat of grave harm to children or other vulnerable persons and, if so, (2) whether s/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.
  • 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).
  • The offender may wish to present expert testimony regarding his/her risk of recidivism.  To do so, the indigent offender must apply for funds from SORB.  SORB’s authority to grant funds is limited by statute to “…any case where SORB, 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); 803 CMR 1.09(2).  To date, SORB has never relied upon the testimony or report of an expert. Attorneys should continue to challenge this statutory limitation on the procurement of expert funds as: (1) a denial of the offender’s due process rights, Doe 5,supra.; Doe 4, supra.; Doe 3, supra.; and (2) disadvantaging indigent clients in relation to clients who can afford to pay, Commonwealth v.  Lockley, 381 Mass. 156, 160 (1980).  Counsel for the offender should be prepared with an offer of proof as to the relevancy of the expert testimony in the event the motion for funds is denied.
  • Should an offender present expert testimony, 803 CMR 1.18 has been amended to require that a party shall only be permitted to introduce a Expert Witness’s written report, including the expert’s opinions regarding dangerousness or risk of re offense if the expert testifies at the hearing.
  • If the individual is aggrieved by the result of the hearing, s/he can appeal SORB’s determination to the Superior Court pursuant to G.L. c. 30A, § 14 (Administrative Procedures Act).  See § 178M.
  • 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).  This provision applies to both adult and juvenile offenders.  A hearing will then be conducted in the sentencing court to determine whether the offender should be designated a SVP.  Counsel will be appointed for the indigent 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).

Under what Circumstances may the Sentencing Court Relieve a Juvenile of the Obligation to Register?

See § 178E(e) and (f).A.

Juveniles adjudicated delinquent or youthful offender who are not sentenced to immediate confinement are entitled to a determination of whether the circumstances of the sex offense in conjunction with the juvenile’s criminal history indicate that s/he does not pose a risk of reoffense or danger to the public.  See § 178E(f).  If the standard is met, the court may relieve the juvenile of his/her obligation to register.  This determination is made within fourteen days of sentencing.

B.         Upon written motion of the Commonwealth 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.

NOTE:  A juvenile is ineligible for relief under these provisions only if s/he has been determined to be a sexually violent predator or is otherwise subject to minimum or lifetime registration requirements pursuant to § 178D.  Again, SORB does not consider juvenile offenders to have been “convicted” of a sex offense; rather any time SORB intends a section to apply to a juvenile offender, the language of the provision specifically includes the phrase, “adjudicated a delinquent or youthful offender.”

 

What Happens if a Juvenile Who is Required to Register Fails to Register? (See alsoPractice Aids: Failure to Register)

  • The Commonwealth can prosecute an individual for the crime of knowingly failing to register.  See § 178H.
  • The Commonwealth has the burden to prove that the offender had notice of his/her obligation to register.
  • 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.
  • A homeless person convicted of failing to register will receive a minimum mandatory five year state prison sentence for a third and subsequent conviction.  See § 178H(2)(c).

For How Long Must a Juvenile Register?  See § 178G.

  • For most juveniles: 20 years from date of adjudication or release from custody or supervision, whichever last occurs.
  • For juveniles determined to be sexually violent predators or otherwise subject to lifetime registration requirements pursuant to § 178D: Duty to register shall never be terminated.Termination from registration:  Ten years from the date of conviction or release from custody or supervision, whichever last occurs, a juvenile may apply to SORB for termination of the registration requirement.  The juvenile 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.  Pursuant to 803 CMR 1.37B(1), SORB will only consider new and updated information that was not available at the time of the original registration and classification.  Juvenile offenders who have been determined to be SVP are ineligible.

Requests for Reclassification

Request for Reclassification by Juvenile

Three years from the date of Final Classification, an offender may file a written motion with SORB to re-examine his/her classification level.  The burden is on the offender and consideration is limited to new and updated information. 803 CMR 1.37C(2) sets forth the specific showing that the offender must make for SORB to consider his/her motion. Request for Reclassification by SORB: SORB, on its own initiative, may seek to reclassify any registered and finally classified sex offender upon receipt of any information that indicates that the offender may present an increased risk to re-offend or degree of dangerousness. 803 CMR 1.37C(3), sets forth the factors that SORB may base their action on.  If SORB does seek to reclassify an offender, it must notify him/her that his/her classification level is being re-evaluated.  The re-evaluation follows the same protocol as the original classification.  An offender is entitled to reject the recommended reclassification level and request a hearing following the same procedures as provided for an initial hearing in 803 CMR 1.08-1.25.

An amendment to G.L. c. 6, § 178G has eliminated the provision allowing a sexually violent predator to file a motion in the sentencing court to relieve him/her of the sexually violent predator designation.

 

Registration Fee

Juveniles 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 [See also
Memorandum of March 18, 2005]