Articles Posted in Sex Crimes

In Koe v. Commissioner of Probation, the Supreme Judicial Court ruled that G.L. c.276, §100A(6), which prohibits a former level two sex offender from sealing a criminal record, violates state rights to due process and is therefore unconstitutional as applied under the circumstances present in this case.

The background was as follows. “In 1995, … Koe was found guilty by a Superior Court jury of one count of rape and abuse of a child … and one count of indecent assault and battery on a child under age fourteen…. The offenses occurred in 1990, when Koe was twenty-two years old…. As a result of her convictions, SORB recommended, and Koe accepted, a classification as a level two sex offender…. Her obligation to register as such commenced in 2003. In 2013, Koe petitioned a SORB hearing panel for reclassification and relief from the obligation to register. The panel heard evidence (1) that “Koe accepted responsibility for her sex offenses”; (2) that Koe had received sex offender therapy and completed a relapse prevention plan; (3) that she was assessed by a psychologist as having “‘no deviant interests in children of any age’”; and (4) that, according to research on the subject, there is “an ‘extremely low’ reoffense rate among female sex offenders.” “[T]he hearing panel concluded that Koe ‘present[ed] no cognizable risk to reoffend and no cognizable degree of dangerousness.’” Nonetheless, “the panel determined that, because Koe had been convicted of a ‘sexually violent offense,’ G.L. c.6, §178C, she was not eligible, as a matter of law, for relief from the obligation to register, see G.L. c.6, §178K(2)(d). Accordingly, it ordered her to register as a level one sex offender.” Koe appealed to the Superior Court pursuant to G.L. c.30A and a judge “grant[ed] Koe permanent relief” from the registration requirement, on the basis of the SORB hearing panel’s “conclusions regarding Koe’s lack of dangerousness…. “

Koe then filed a petition with the Commissioner of Probation to seal her criminal record, pursuant to G.L. c.276, §100A, and related provisions. Section 100A contains a particular subsection that governs the sealing of sex offenses. It provides: ‘Sex offenses, as defined in [G.L. c.6, §178C], shall not be eligible for sealing for [fifteen] years following their disposition …; provided, however, that any sex offender who has at any time been classified as a level [two] or level [three] sex offender, pursuant to [G.L. c.6, §178K], shall not be eligible for sealing of sex offenses’ (emphases added). G.L. c.276, §100A(6).” In light of the statutory language “prohibit[ing] the sealing of sex offenses by someone who has ever been classified as a level two or level three sex offender,” “the [Commissioner of Probation] responded that Koe was ineligible to seal her sex offenses because she was once classified as a level two sex offender…. Koe challenged the commissioner’s response … by way of a complaint in the county court seeking declaratory, injunctive, and extraordinary relief. Without decision, the single justice reserved and reported the case to the full [SJC].” Continue reading →

In a recent decision – Commonwealth v. Sylvester – the Supreme Judicial Court discussed whether an attorney’s failure to advise a client of his obligation to register as a sex offender during a 2002 plea constituted ineffective assistance of counsel. The decision, however, fails to address how additional sex offender registration requirements imposed after 2002 would impact the Court’s analysis of this issue.

The background was as follows. The defendant pleaded guilty in 2002 to a charge of indecent assault and battery, as a result of which he registered as a sex offender. In 2008, the defendant pleaded guilty to a charge of failure to register as a sex offender “and a Superior Court judge sentenced the defendant to probation for three years and imposed community parole supervision for life [CPSL].” In 2013, the defendant filed a motion to withdraw the 2002 guilty plea, in which he argued that his plea counsel was ineffective in failing to communicate a full appreciation of the consequences of pleading guilty to a sex offense. Specifically, the defendant asserted (1) that plea counsel failed to explain that he “‘might have to register with the police indefinitely’”; and (2) that he would not have pleaded guilty if he had “‘fully understood that ‘registering’ meant that [he] would … someday be subject to lifetime community parole.’” The judge denied the defendant’s motion.

In its decision, the SJC noted that “‘[g]enerally, under Massachusetts law, defense counsel’s failure to inform a defendant of collateral or contingent consequences of a plea does not render a plea involuntary[,]’ Commonwealth v. Roberts, 472 Mass. 355, 362 (2015), quoting [Commonwealth v.] Shindell, 63 Mass. App. Ct. [503,] 505 [2005],” and that “the Appeals Court [in Shindell] [had] concluded, on this basis, that defense counsel is not constitutionally required to warn of sex offender registration consequences.” Nonetheless, the SJC considered the defendant’s argument that Padilla v. Kentucky, 559 U.S. 356, 364-366 & n.8 (2010), regarding counsel’s failure to warn of the immigration consequences of a plea, had “abrogated the distinction between direct and collateral consequences and created a new framework for determining whether a consequence of conviction has a uniquely ‘close connection’ to the criminal process to require warnings under the right to counsel guaranties of the Sixth Amendment. Under that framework, the defendant assert[ed] that, to provide constitutionally effective assistance, counsel must warn clients about consequences of sex offender registration when they are considering whether to plead guilty to a ‘sex offense’ as defined in G.L. c.6, §178C.” In response to the defendant’s contention, the SJC “reiterate[d] [its previously expressed] conclusion that the only mandate stemming from the Padilla case is that deportation may not be treated as a collateral consequence outside the scope of the Sixth Amendment.”  Continue reading →

In a recent case, Doe, Sex Offender Registry Board No. 380316 v. Sex Offender Registry Board, the Supreme Judicial Court changed the standard of proof applicable to classification determinations by the Sex Offender Registry Board (SORB), discarding the existing “preponderance of the evidence” standard in favor of the more stringent “clear and convincing evidence” standard.

Doe was convicted of indecent assault and battery on a child under fourteen. Following the conviction, SORB determined, by a preponderance of the evidence, that Doe should be classified as a level two sex offender. Doe appealed SORB’s decision to the Superior Court, which affirmed the classification level, applying the same standard: preponderance of the evidence. The SJC vacated that affirmation, however, and, pursuant to due process considerations, changed the standard or proof from a “preponderance of the evidence” to “clear and convincing” evidence, which is a higher level of proof. The SJC explained that subsequent to its establishment of the preponderance of the evidence standard for classifying sex offenders in Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90, 91 (1998), “amendments to the sex offender registry law and other developments” have rendered the preponderance standard inadequate to protect sex offenders against the risk of erroneous over classification by SORB. The Court noted that “[o]n balance, … [the] legislative changes have more often imposed extra burdens on registered offenders than provided them with additional protections. More offenses are now subject to a registration requirement. Sex offenders face increasingly stringent affirmative reporting requirements, and the penalties for failing to meet those requirements are harsher.” The SJC went on to state that “[t]he sex offender registry law in its current form … calls for extensive dissemination of … registry information. Both level two and level three sex offenders’ information is now posted on the Internet…. Consequences of such public dissemination may include housing and employment discrimination, harassment, and assault.” Moreover, although “[a] convicted sex offender’s risk classification now has far greater consequences than were present when [the Court] decided Doe No. 972 over seventeen years ago,” “there is reason to question whether SORB’s … classification guidelines [which have not been updated since 2001] continue to reflect accurately” the current state of scientific “scholarship regarding statutory factors that concern risk assessment.” Continue reading →

According to an article in the MetroWest Daily News, a Framingham District Court judge ordered a Rhode Island man held without bail in relation to several sexual assault charges. The article states that the man is accused of sexually assaulting and raping the alleged victim over a period of years, beginning when she was thirteen years old. The alleged assaults reportedly began in the early 2000s and ended several years later. Despite the seriousness of the claims, the alleged victim failed to report any of the alleged conduct to the police for years, coming forward only fifteen months ago, in April of 2014. After the report was lodged, the Commonwealth began an investigation but did not arrest the defendant until last week. At the arraignment, the Commonwealth moved to hold the defendant without bail under G. L. c. 276, § 58A.

This statute allows the Commonwealth to move for a “dangerousness hearing” where a defendant is charged with a felony that involves the use, attempted use, or threatened use of physical force as an element of the offense. During the hearing, the court must make a determination as to whether the defendant is in fact “dangerous” under the statute – i.e., that no conditions of release will reasonably assure the safety of any other person or the community. In the event that the defendant is found to be dangerous, the court may elect to release him with certain conditions. Alternatively, the court may determine that even the imposition of conditions would be insufficient to ensure the safety of another person or the community, and therefore order the defendant to be held without bail for up to 120 days.

In making a determination as to whether a defendant should be released on conditions versus held without bail, the court takes the following factors into consideration: (1) the nature and seriousness of the danger posed to any person or the community that would result by the person’s release; (2) the nature and circumstances of the offense charged; (3) the potential penalty the person faces; (4) the person’s family ties; (5) the person’s employment record; (6) the person’s history of mental illness; (7) the person’s reputation; (8) the risk that the person will obstruct or attempt to obstruct justice or threaten, injure or intimidate or attempt to threaten, injure or intimidate a prospective witness or juror; (9) the person’s record of convictions, if any; (10) any illegal drug distribution or present drug dependency; (11) whether the person is on bail pending adjudication of a prior charge; (12) whether the acts alleged involve G. L. c. 209A related issues; and/or (13) whether the person is on probation, parole or other release pending completion of sentence for any conviction and whether he is on release pending sentence or appeal for any conviction. Continue reading →