NEW SEX OFFENDER REGISTRY STATUTE
(Reprinted from Lawyers Weekly, by permission of the author.)
by Peter Elikann, Esquire

During the past few years, the sex offender registry statute, while generally popular with both the public and legislators, has been contested as vague, poorly drafted and unconstitutional. A series of five different challenges before the Supreme Judicial Court had brought the enforcement of the law to a standstill. Compliance with most aspects of the law was put on hold until the statute could be rewritten.

Among other confusions, the original statute called for hearings to classify potential registrants, but didn't note such things as who should preside over such hearings (a judge, a member of the sex offender registry board or a specially appointed magistrate) or what kind of hearings they should be (evidentiary or non-evidentiary).

Finally, in September, the legislature passed a new version of the sex offender registry statute. Even this rewriting failed to clarify every issue. For example, less then a month earlier, the S.J.C. had ruled that no one would have to register until they first had a hearing. But the new statute required that everyone register first before a hearing and then outlined heavier penalties for failing to do so.Since that time, though, this has been clarified by a judicial decision on November 30 which ruled the legislature was wrong and that offenders do, in fact, have a constitutional right to a hearing before they have to register. This is being appealed.

It is now clear, though, that the new law will soon be up and running. Still, both sides acknowledge it could take a long time to process everyone. Approximately 15,000 offenders must be given a hearing on their classification and the S.J.C. has ruled that the offender is entitled to a full blown evidentiary hearing. Observers fear it could take years to conduct this number of mini-trials given the small staff and limited financial and space resources of the Sex Offender Registry Board (SORB). The SORB, though, hopes to prove this wrong by trying to expand their staff from 12 to 80.

The hearings, many which will feature expert testimony, will place the offender within one of three levels. Those designated Level One will be determined to have a low risk of danger and reoffense. The public will not have access to their names, which may only be viewed by the law enforcement community and the courts. These offenders may register by mail and must do so every year. Those designated Level Two will be determined to have a moderate risk of danger and reoffense. The public will have access to their names, but only if individual citizens initiate their own inquiry. Designees must register in person at the police station. Every year, they must reregister in person and submit an updated photograph and fingerprints. Level Three designees will be considered to pose a danger and a high risk of reoffense. Not only will the police make such information about them available to the public upon public inquiry, but they may also actively disseminate the information under a community notification plan. These designees must register in person at the police station. They must do so annually and have an updated photograph taken and fingerprints.

Additionally, there is a fourth designation. If a level three offender is also determined to be both sexually violent and suffer from a mental defect, he may be termed a "sexually violent predator. (SVP)" An SVP must register at the police station every 90 days. The offender has a right to counsel at a hearing to challenge such a designation. Registrants who give a homeless shelter as their residence must also verify their information to the police every 90 days regardless of their level designation.

If anything, the new statute is tougher than the first and there is very little good news for the defense bar. Most severe for some offenders are lifetime parole and civil commitment for an indefinite period from one day to life. The only good news for defendants is that those charged with a first offense of open and gross lewdness which includes everything from public urination and mooning to actual exhibitionism will no longer have to register. Also, if the first offense of open and gross was committed as a juvenile, then the first adult offense will still be considered a first offense.

But, in its place, a number of other offenses have now been added to the list of those to be registered. These include:

--possession of child pornography
--distributing obscene matter
--enticing an adult or minor to prostitution
--deriving support from child prostitution
--incest
--drugging a person for sexual intercourse
--disseminating to a minor harmful matter
--posing or exhibiting a child

Designated offenders must register within two days or they face new more onerous mandatory sentences. Someone who fails to register the first time will be sentenced to not less than six months in the house of correction nor more than five years in state prison. Failing to register a second time will bring a mandatory sentence of not less than five years. However, a homeless person who fails to register is treated more leniently. A first offense of failure to register for a homeless person carries a sentence of not more than 30 days. A second offense for the homeless brings a sentence of not more than two and one half years in the house of correction or not more than five years in state prison.

There are several ways to attempt to be excused from registering:

1. If the prosecutor files a motion at the time of sentencing, the court may determine that the offender is not dangerous and carries no risk of reoffense. This applies only to certain offenses. It would not apply to a number of offenses including acts committed against a minor, sexually violent acts and two or more offenses committed on different dates;

2. The court, on its own initiative, may, within 14 days of sentencing, relieve an offender of the obligation to register if the offense occurred after December 12, 1999 and the offender was not sentenced to immediate confinement. Again, this applies to only certain convictions.

3. The SORB may determine that an offender is not dangerous and poses no risk of reoffense;

4. An offender may appeal to the court a decision of the SORB under the Administrative Procedure Act.

Also, although one must register for 20 years after conviction or release from all custody and supervision, whichever occurs last, the SORB may terminate early the obligation to register after 10 years. This is so if the sex offender proves to the board by clear and convincing proof that he or she has not since committed another sex offense and is not likely to pose a danger to the safety of others.

Among the most controversial provisions are lifetime parole for some offenders and indefinite civil commitment after one who has been given the designation of sexually dangerous person (SDP) finishes his or her prison sentence.

Community parole supervision for life will be imposed after conviction but prior to sentencing for certain offenses. It cannot be applied retroactively for crimes committed prior to September 10, 1999 when the new statute was passed. It will be optional for those convicted of a first offense of indecent assault and battery of a child under the age of 14; indecent assault and battery of a person over the age of 14; or indecent assault and battery on a mentally retarded person. In these cases, it could only happen upon motion of the prosecutor or if the judge initiated it. The court must impose mandatory lifetime parole for conviction of:

-- rape

--rape of a child under 16 with force

--rape and abuse of a child

-- assault with intent to commit rape

--drugging for sex

--unnatural and lascivious acts

--attempt to commit any of the above

-- a second offense of indecent assault and battery on a child under the age of 14, a mentally retarded person or a person 14 years old or over

Even though lifetime parole is mandatory, if it is the defendant's first conviction for any of the above, the defendant may file a motion to request an evidentiary hearing to present mitigating reasons why he should not be placed on lifetime parole. Violation of lifetime parole is punishable by imposition of the remainder of the committed portion of the sentence. Once the offender has served his complete sentence, a violation of lifetime parole is punishable by a sentence of 30 days for a first offense; 180 days for a second offense; one year for a third offense. The offender may petition the parole board for release from lifetime parole after 15 years. A hearing will then be conducted where the petitioner must demonstrate by clear and convincing evidence that he will not pose a danger to the community. If the petition is then denied, he must wait three years before another effort may be made to end lifetime parole.

There is also a "sexually dangerous person" designation (not to be confused with the earlier mentioned less harsh "sexually violent predator" designation). The SDP designation is a prerequisite for indefinite civil commitment for a term of one day to life and is exclusive to the Superior Court and does not involve the District Court. However, it has been expanded to also include juveniles and youthful offenders.

A sexually dangerous person is defined by the Commonwealth as (1) a juvenile or youthful offender who has been convicted of a sexual offense who "suffers from a mental abnormality or personality disorder which makes the person likely to engage in sexual offenses if not confined to a secure facility; or (2) someone who was charged with a sexual offense, but found incompetent to stand trial who "suffers from a mental abnormality or personality disorder which makes such person likely to engage in sexual offenses if not confined to a secure facility; or (3) a person previously convicted "whose misconduct in sexual matters indicates a general lack of power to control his sexual impulses as evidenced by repetitive or compulsive sexual misconduct by either violence against any victim, or aggression against any victim under the age of 16 years, and who, as a result, is likely to attack or otherwise inflict injury on such victims because of his uncontrolled or uncontrollable desires."

Generally speaking, the way it works is that for those convicted of certain offenses, the Department of Corrections will notify the prosecutor six months prior to the offender's release. The prosecutor may then choose to file a petition with the court for the offender to be civilly committed upon the end of his prison sentence. If the court finds probable cause exists to believe the person is a sexually dangerous person, the offender is notified. He can be initially committed to a treatment center for 60 days for evaluation. Afterwards, he has a right to appointment of counsel and then a jury trial. The jury must unanimously determine beyond a reasonable doubt that the offender is a sexually dangerous person for him to be committed for a term of one day to life.

If the individual had previously been found incompetent to stand trial in the criminal session, the Commonwealth can, nonetheless, still proceed against him by way of a civil commitment trial. The right not to be tried while incompetent does not apply.

At the time we go to press, a number of rules by which the Sex Offender Registry Board will operate have not yet been announced. They include the specific procedure to be followed to conduct the classification hearings. A full set of some type of administrative regulations are being drafted. But it is clear that the sex offender registry, which has long been dormant, will very soon be in full operation. It will make dramatic changes both in the practice of a major area of criminal law in the Commonwealth and in the lives of offenders.

Peter Elikann is a Court TV commentator, Boston-based criminal defense attorney and former chair of the Massachusetts Bar Association Criminal Justice Section Council. His second book, Superpredators: The Demonization Of Our Children By The Law, was published this year.