MATSA

Towards Understanding the New Massachusetts Sex Offender Law and Regulations*

David Medoff, Ph.D.

The creation of a Sex Offender Registry in the Commonwealth has generated a diverse and somewhat controversial range of reactions from many different sources. These reactions stem in part from legitimate concerns regarding the perceived implications of this new administrative body, from experience based upon the old Sex Offender Statute, and from a somewhat hasty response to what is clearly misinformation. Without question, nearly any discussion of Sex Offenders and Sexual Offenses will by definition be emotional in nature. Nevertheless, and indeed because of the emotional, nature of this topic, it is incumbent upon both mental health and legal professionals working with either offenders, victims, or the general public to be informed in their understanding of the Sex Offender Registry and its role.

The Sex Offender Registry is an administrative agency created by the Massachusetts Legislature in 1996. Its most recent form, stemming from legislation passed in 1999 can be found in Massachusetts General Laws Chapter 6 sections 178C to 178P, as most recently amended in Chapter 74 of the Acts of 1999. The Registry is led by a seven member Board legislatively comprised of (a) three licensed psychologists or psychiatrists with special expertise in the assessment of sex offenders and with knowledge of the forensic -mental health system, one of whom must have special expertise in the assessment of juvenile sex offenders, (b) one person with experience and knowledge in the field of criminal justice who acts as chairperson, (c) at least two persons with at least five years of training and experience in probation, parole, or corrections, and, (d) at least one person with expertise or experience with victims of sexual abuse. All Board members are appointed by the governor for specified terms, with the exception of the chairperson who serves at the pleasure of the governor.

The Board is responsible for three basic tasks including registration and classification of convicted or adjudicated sex offenders, and community notification when applicable. In addition, the Board is responsible for developing procedures and guidelines for the assessment of both the risk of recidivism and the degree of dangerousness posed to the public by convicted or adjudicated sex offenders. The Board is also responsible for developing procedures for city and town police departments to disseminate sex offender registry information when applicable, for devising procedures for locating and verifying current addresses of sex offenders, and for conducting evidentiary hearings upon any sex offender's recommended classification.

Under the old law, sex offenders convicted or adjudicated for specified crimes were required to present themselves to their local police stations, and provide their home and work addresses as well as personal identification information. This information was then immediately available to the public upon request. Under the new law, sex offenders convicted or adjudicated for specified crimes are required to complete a brief postcard-type form that they then mail back to the Sex Offender Registry. Under the new law, no information becomes accessible to the public until the sex offender is availed of his or her right to a full evidentiary hearing, and until subsequent final classification takes place.

The procedure for registration described above as the new law is currently on appeal at the Massachusetts Supreme Judicial Court (SJC). The primary issue on appeal is the requirement of registration, i.e., the mailing of basic information, prior to any evidentiary hearing. Should the SJC decision be favorable to the Sex Offender Registry, the mail in registration procedure prior to a hearing will be upheld. Should the SJC decision be unfavorable, it would likely lead to a procedure whereby the offender will be offered an evidentiary hearing prior to the requirement for registration. This hearing will also determine the level of classification.

Classification is a process that is completed by the Board with the use of empirically derived actuarial assessment measures. Under the new law, the Board maintains full discretion for relieving juvenile sex offenders from their obligation to register. Amore limited discretion in relieving adult sex offenders from their obligation to register is also available to the Board. As is mentioned above, the classification process assesses both the risk of recidivism and the degree of dangerousness posed to the public. Upon determination of a requirement for registration, there are three levels at which any sex offender could be classified. Levels of classification range from one to three and designate increased risk to public safety from low, to moderate, to high. Each classification level has different requirements for community notification, and each will be described below.

Under certain circumstances, the Board may also recommend that a sex offender be classified as a sexually violent predator in addition to a level three offender. In any such case, the Board is required to submit a report with this recommendation to the sentencing court. This report is to include both the specific identification of the sexually violent offense, and the mental abnormality or personality disorder from which the offender suffers. A hearing is then held, and the court adjudicates this recommended classification. If the court finds any sex offender a sexually violent predator, this designation becomes part of the information contained in the offender's community notification materials.

Community notification differs with the varying levels of classification. Passive notification refers to information remaining available either at the Sex Offender Registry or local law enforcement agencies at the specific request of a member of the public. Under passive notification, information is not actively disseminated to the public. Active notification involves dissemination of information to the public through any of several means including notification to organizations in the community which are likely to encounter a level three sex offender or a sexually violent predator. Such organizations include but are not limited to all schools in the community. At the discretion of the chief of police, day care centers, youth recreational programs, and establishments that provide services to the elderly or other vulnerable members of the population may also be actively notified. Active notification also includes dissemination of information to individual members of the public who are likely to encounter a level three sex offender or a sexually violent predator.

Additional requirements of active community notification include dissemination of information through publication of the information in local newspapers and/or public announcement through local cable television. The chief of police may also determine conditions of posting this information in the local town or city hall, libraries, and similar publicly accessible areas.

It is important to note that any registered sex offender who has not committed a sex offense within ten years following his or her conviction, adjudication, or release from custody or supervision may file a motion to the Board to terminate their obligation to register. If the Board approves this motion, all information pertaining to the sex offender shall be removed from the registry, and appropriate law enforcement agencies shall be notified. If the motion is denied, the sex offender is entitled to an evidentiary hearing before the Board. Any offender that has been adjudicated a Sexually Violent Predator would first need to motion the court for their removal from this designation, and then, upon such removal, motion the Board to terminate their obligation to register.

Under the new law, level one offenders are required to register annually by mail, but no community notification takes place. Available information regarding a level one sex offender is provided to law enforcement only, and is not available to the public. Level two offenders are required to register in person at their local police department on an annual basis. Community notification for level two sex offenders falls under passive notification procedures. That is, any member of the public who is 18 years of age or older, and who submits a written record of inquiry including their reason for such inquiry, may request registry information either from their local police station or directly from the Sex Offender Registry. Information to be disseminated includes (a) the name of the sex offender, (b) their home and work addresses, (c) the offense(s) for which they have been adjudicated and the dates of the adjudication(s), (d) the sex offender's age, sex, race, weight, eye and hair color, and (e) a photograph of the sex offender, if available. Level three sex offenders are required to register in person at their local police departments on an annual basis, and they fall under the active notification procedures described above.

There are two critically important changes in the old Sex Offender Registry procedural guidelines that have significant implications for the process of classification. First, as mentioned above, is the use of research based actuarial assessment measures. The Board will now use empirically derived risk assessment instruments in the process of classifying adult sex offenders. Classification procedures for juvenile sex offenders are currently under development. The second critical change involves the elimination of presumptive overrides in the classification process altogether. Under the old procedure, there were eleven such presumptive overrides that mandated an automatic level three classification. These overrides covered a range of known risk factors ranging from a child victim under the age of 16 years, to the lack of current treatment, to the use of violence in the commission of the offense. While the risk factors used as presumptive overrides under the old classification procedures are incorporated into the new procedures, they have become elements of the classification process and are not independently dispositive factors.

There are also some meaningful changes in the new sex offender registry legislation itself. Under the new law, all sex offenders have a right to legal representation at the administrative hearings, and indigent sex offenders have a right to appointed counsel as provided by the Committee for Public Counsel Services. This legal right to representation for the purposes of a civil administrative hearing is quite rare, and provides additional protections for all convicted sex offenders. In addition, under the new law, juvenile sex offenders are required to have legal representation at the administrative hearings. Further, also under the new law, juvenile court judges maintain full authority and discretion in relieving any juvenile sex offender from their obligation to register. A more limited discretion is afforded to justices in the adult court system. Additional rights are provided under the new law to any sex offender by virtue of their right to expert funds upon required notification from the Sex Offender Registry of their introduction of expert testimony.

As can be seen, there have been some significant changes in both the Massachusetts sex offender registry legislation, and in the procedures and guidelines developed by the Sex Offender Registry Board. These changes have afforded both a greater degree of due process to those involved in the registration, classification, and community notification procedures, and have served to provide a greater degree of objectivity, impartiality, and fairness to the proceedings in general. While the existence of the Sex Offender Registry will undoubtedly remain an emotional discussion for some, and a controversial topic of consideration for others, it is only through an informed understanding that a productive dialog can begin, and that the best interest of public safety can be realized.

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