Sex Offender Registry - Out-Of-State Offender

Where a plaintiff pled guilty in Florida to indecent assault, he should not be required to register in Massachusetts as a sex offender because he does not fit within the statutory definition of sex offender.

The plaintiff's request for preliminary injunction relief is allowed.

Judge's Analysis

"On November 17, 1983, the plaintiff, who uses the pseudonym Ron Roe in this action, pleaded guilty in the Circuit Court of the Seventeenth Judicial Circuit in Broward County, Florida to indecent assault in violation of Fla. Stat. ch. 800.04 (1979). ... Even though the Court ostensibly sentenced Roe to probation, for all practical purposes the true sentence was six months in jail and 4 1/2 years on probation, since the Court included among the 'conditions of probation' that Roe serve six months in the Broward County Jail.

"Roe, now a resident of Massachusetts, moves for a preliminary injunction to bar the defendants from enforcing against him the newly-amended Sex Offender Registration and Community Notification Act, St. 1999, c. 74. Specifically, he seeks to enjoin the defendants 'from disseminating information, instituting prosecution or otherwise enforcing G.L.c. 6, Sects. 178C-178O against [him] pending final adjudication of this matter.' ...

"Roe crafts two lines of attack. First, he contends that he is not a 'sex offender' under the Sex Offender Act, both because the crime he pleaded guilty to in Florida is not a 'like offense' to any of the Massachusetts crimes defined as 'sex offenses' and because the withholding of an adjudication of guilt means that he was not 'convicted' of even that Florida offense. Second, he contends that, even if he were a 'sex offender,' the Act may not be enforced against him because it is unconstitutional under the Massachusetts Declaration of Rights and the United States Constitution. As detailed below, this Court need not reach the constitutional arguments, because it preliminarily finds that Roe is not a 'sex offender' under the Act and therefore allows his motion for a preliminary inunction. ...

"... Stripped to its essence, the resolution of this issue depends upon what the Sex Offender Act means when it requires a person convicted of 'a like violation of the laws of another state' to register as a 'sex offender.' This is an issue of first impression in Massachusetts; this Court is not aware of any direct guidance on this issue from either the Legislature or an appellate court. ...

"Since it is a crime for a person convicted of 'a like violation of the laws of another state' knowingly to fail to register as a sex offender within two days of his moving into the Commonwealth, it is imperative that it be clear to a sex offender that he indeed is a sex offender. The drafters of the Act respected this principle by defining a 'sex offender' in terms of prior convictions for enumerated Massachusetts offenses. See G.L.c. 6, Sect. 178C, as amended by Section 2 of the Act, St. 1999, c. 74. Consequently, all that a person needs to know to determine whether he is a 'sex offender' is whether he was convicted of one of those offenses within the time frame set forth in G.L.c. 6, Sect. 178G; he need not focus on the wording of the indictment or the content of the plea colloquy. It is reasonable to expect that the drafters of the Act intended there to be a similar degree of clarity for those persons with out-of-state convictions who move into Massachusetts, especially since they have so little time to determine whether they have a legal obligation to register as a sex offender. Persons with out-of-state convictions, like those with Massachusetts convictions, should be able to look at their criminal judgments and determine whether they are sex offenders; they should not be required to recall the wording of the indictment or the words used by the prosecutor in her summary of the facts at the plea hearing or the precise words they used during the plea colloquy to acknowledge their guilt. This information may not be clearly recalled and, as in this case, may not be apparent from the available record. Moreover, even when a tape recording of the plea colloquy is available, it will almost always take a considerable amount of time to locate, retrieve, and transcribe, and the potential sex offender, who must register within two days of his arrival in Massachusetts, does not have the luxury of time.

"Indeed, if the focus for out-of-state convictions is to be on the actual conduct the defendant admitted to at the plea hearing rather than the conviction itself, as the Commonwealth contends here, then persons with out-of-state convictions may be required to register as sex offenders even when they did not plead guilty to a traditional sex offense. It may well happen that an out-of-state defendant indicted for indecent assault and battery may plead in accordance with a plea agreement to the lesser included offense of assault and battery, but the prosecutor in his description of the facts may state that the touching involved the victim's private parts. If the defendant were to admit during the plea colloquy that the prosecutor's statement of the facts was accurate, then he has essentially admitted to an indecent battery, even though he was not convicted of that offense. If this conviction happened in Massachusetts, it is plain that this defendant does not thereby become a sex offender who must register under the Act. If the conviction happened outside Massachusetts, the consequence should not be any different.

"The only way to accomplish the legislative purposes that (1) that the Act is clear as to when an out-of-state offender moving to Massachusetts must register and (2) that the Act treats persons with out-of-state convictions in the same way as persons with Massachusetts convictions is to define 'a like violation of the laws of another state' as a conviction in another state of an offense whose necessary elements, if established in Massachusetts, would constitute a violation of one of the 'sex offenses' enumerated in G.L.c. 6, Sect. 178C. This definition is analogous to the principle of collateral estoppel in the civil context: the out-of-state conviction establishes that certain necessary elements were proven beyond a reasonable doubt and if these elements would be sufficient to convict the defendant of one of the 'sex offenses' enumerated in G.L.c. 6, Sect. 178C had the crime taken place in Massachusetts, then the defendant must be treated as if he had committed one of those enumerated offenses. ...

"Under this definition, there is no dispute that Roe has not been convicted of 'a like violation of the laws of another state' because an admission of battery, which is a necessary element of the crime of indecent assault and battery in Massachusetts, was not necessary to find Roe guilty of indecent assault in violation of Fla. Stat. ch. 800.04. Since Roe could be guilty of that Florida statute but not guilty of any of the 'sex offenses' enumerated in G.L.c. 6, Sect. 178C, he may not be classified as a 'sex offender' and therefore has no obligation to register as such.

"In view of this finding, this Court need not and does not reach the constitutionality of the Sex Offender Act or the question of whether Roe's guilty plea constitutes a criminal 'conviction' in view of the withholding of adjudication. ...

"... This Court hereby preliminary enjoins the defendants from disseminating information, instituting prosecution, or otherwise enforcing G.L.c. 6, Sects. 178C-178O against the plaintiff pending final adjudication of this matter."

Roe v. Attorney General of the Commonwealth, et al. (Lawyers Weekly No. 12-318-99) (10 pages) (Gants, J.) (Suffolk Superior Court) (Civil Action No. 99-2706-H).

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