The Kickham Comment - Boston Criminal Attorney Blog

In my previous post on this topic, I noted that the Massachusetts Appeals Court has recently handed down a decision that changes the way the state Sex Offender Registration Board (SORB,) determines whether or not someone previously convicted of a sex offense, must continue to register as a sex offender indefinitely in Massachusetts.

Now, to the legal reasons why: The Appeals Court ruled the way it did here, based largely upon two legal concepts: “Retroactivity,” and “Due Process.” Of these two concepts, most people are more familiar with due process. This legal maxim, embedded in the United States Constitution and the Massachusetts Constitution, requires (very basically and broadly) that anyone subjected to a criminal proceeding be given notice and an opportunity to be heard as to the charges or proceedings against them. “Retroactivity” refers to the process of punishing someone in the present, based upon an unsupported inference or assumption that the person still poses a threat that the legal proceeding seeks to protect against. Retroactivity played a key role in the Appeals Court’s decision here, as the appellant’s offense, which SORB argued made him subject to its continuing registration requirement, was a single offense that took place almost 25 years ago. More important than that, there was compelling evidence that the incident was fueled by a drinking problem that has not existed for many years since the time of the offense, and there was strong evidence that appellant had reformed his life in many respects since that time.

In this case, the hearing officer at SORB found that Doe presented a “low” risk to reoffend and a “low” degree of danger to the public. Resultantly, she classified him as a level one sex offender (the least serious level) but notwithstanding, the finding subjected him to the continuing registration requirement as a sex offender. The court noted that in so finding, it could be argued that the hearing examiner based her reasoning on the fact that Doe had not shown that he presented “no” risk of re-offense or threat to the community. But the court found that this “inferential leap,” was not sustainable here where: a) such a finding was legally foreclosed by the sex offender registration statute; b) the record did not show that the hearing examiner considered the issue of his present risk level; and c) the hearing examiner, at the time she made her ruling, did not have the benefit of a prior Massachusetts Supreme Judicial Court (SJC) ruling preventing such inferential conclusions.

Sex offenses in Massachusetts, or anywhere, elicit a strong reaction on the part of the public and the media – and understandably so. This is especially true when the offenses involve children or the vulnerable – again, with good reason. Wisely, we in Massachusetts (and other states also) have enacted laws requiring persons convicted of sex offenses to publicly register as sex offenders with a special agency that monitors such convicts, following their conviction and/or release from prison. But how far should the law go when dealing with someone who has been convicted of a single sex offense, which involved substance abuse, many years ago,? Should that person be required to register publicly as a sex offender indefinitely, for so long as he or she remains a resident of Massachusetts?

The Massachusetts Appeals Court handed down an interesting decision this past week, dealing with the requirement that sex offenders in Massachusetts must register potentially for life as such, with the state Sex Offender Registration Board (SORB.) SORB is the state agency that is charged with registering and monitoring persons either convicted of, or who have accepted guilty pleas on, sexual offenses. To date, if a defendant in a criminal prosecution either pled guilty to or was convicted of a sex crime, he or she would be required to register with SORB indefinitely – no matter what circumstances surrounded the original crime, or how old the offense was. The Massachusetts Appeals Court has now modified that requirement.

In John DOE, Sex Offender Registry Board No. 24341 vs. SEX OFFENDER REGISTRY BOARD, the Appeals Court heard the case of “Doe” (a pseudonym,) who claimed that he was wrongly being required to continue to register with SORB as a sex offender, based upon a single offense 25 years ago, which he claimed was fueled by a drinking problem that he no longer has. The appellant was convicted in 1984 of assault with intent to rape, after leaving a Quincy bar. Since his conviction 25 years ago, “Doe” had enrolled in Alcoholics Anonymous (AA,) given up drinking, led a responsible life and had experienced no trouble with law enforcement or been involved in criminal offenses of any kind. A hearing officer at SORB concluded that though Doe posed a “low” risk, he still posed a risk, that the details of his personal rehabilitation were not material, and that he therefore was still required to register as a Level One sex offender (the least serious level classification within SORB.) Doe appealed to a Superior Court judge, who affirmed SORB’s findings. Doe’s attorney then brought the matter to the Appeals Court for review.

According to internet safety experts and many public policy officials, teens increasingly face the possibility of becoming registered sex offenders for sending sexually explicit images of themselves (or others) over the Internet and their cell phones. More and more schools and parents have discovered that their teenage sons and daughters have emailed sexually suggestive photos of themselves to other classmates, usually through their cell phone cameras. Remember the Polaroid Land Camera? And you thought that was high-tech …

To combat what many perceive to be a growing problem here, some prosecutors across the country have suggested that emailing such images (by underage teens of themselves or others,) could constitute dissemination of illegal “kiddie porn.” While dissemination of nude and semi-nude images of persons over 18 is legal, such images of anyone under 18 are considered illegal pornography in almost all states. Dissemination of these images over the internet, via ‘sexting,’ might constitute a federal crime. Most sexting involves girls who intend to send the photo to a boyfriend or someone they are interested in. It used to be that if a high school kid were interested in another student, she or he would try to get into a study group with that student, or strike up a conversation. Not so any more. If these pictures stayed with the intended recipient and strayed no further, perhaps there wouldn’t result any real problems.

But of course, that’s not what happens. The “innocent” photo soon enough is forwarded to friends, and friend of friends, and faster that you can say “swine flu,” it spreads like a virus, and the whole school (if not half the town) has seen the images. Clearly, this is a bad idea and a foolish practice. Before she or he knows it, aside from being the talk of the school, the person who took the photo of him or herself, is the target of cyber-bullying, with threats made by enemies or extortionists to post the images on YouTube and the internet. A California-based nonprofit agency, i-SAFE, which provides an online safety curriculum for students in Grades K-12, recently coordinated “Cyber Safety Week” across various schools in Massachusetts, to warn of these dangers, and this is a good first response to this problem. The Verizon Foundation donated $100,000 for the training sessions. At the Greater New Bedford Vocational School where one such program was held recently, Bristol County Sheriff Thomas M. Hodgson commented, “This is a whole new crime prevention program for a threat facing our children and our parents.” Hodgson’s department has been sponsoring an Internet safety campaign for the last two years.

The Supreme Judicial Court (SJC) handed down a very interesting ruling recently, that will widely impact how suspects who are accused of sex crimes can be monitored when they are on release pending trial. The court recently ruled that suspected sex offenders cannot be ordered by a judge to wear a GPS tracking bracelet while they are awaiting trial. The ruling is important because previously, the Commonwealth could file and argue a motion before a judge at a defendant’s arraignbment, requesting that a suspect released before trial be ordered to wear a GPS tracking bracelet, so that police and authorities could monitor his/her whereabouts prior to trial. A law passed in 2006 specifically allowed this motion, and it has been used in many pre-trial cases involving sex crimes since then. However, the SJC recently ruled that the law was intended by the Massachusetts Legislature to apply only to convicts who have been placed on probation after being convicted of certain sex crimes, not to those who are merely suspects. The GPS law was challenged by a man who had been placed on pretrial probation by a New Bedford District Court judge after he was charged with indecent assault and battery on a child under 14 as well as disseminating obscene matter to a minor.

A lot of people, especially advocates for victims of sex crimes, are understandably upset by this ruling. It is not uncommon for someone accused of a sex crime to be released on pre-trial probation, and without any means to monitor such a suspect, he or she is effectively released back into the community, where they may possibly re-offend. On the other hand, a person can be innocent of a crime they are accused of. Not everyone charged with a crime is guilty of that crime; people are often accused unjustly. In such a situation, it can be humiliating and onerous to be forced to wear a GPS tracking bracelet, 24/7. It is effectively a “Scarlet Letter”. This can be a tough issue. I’d like to know what my readers think about this issue. Email me at: bill@kickhamlegal.com, and let me know your thoughts.