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Massachusetts Supreme Court Shifts Burden on Government to Prove by Clear and Convincing Evidence Sex Offender Poses Continued Risk at Termination of Registry Hearings

by Dale Chappell

The Supreme Judicial Court of Massachusetts held that when a sex offender required to register requests to be reclassified at a lower risk level, or to terminate his obligation to register, the burden is on the Sex Offender Registry Board (“SORB”)—and not the offender—to prove he still poses a risk to require registration at a certain risk level.

Recognizing that “a sex offender’s continued duty to register despite no longer posing a risk to reoffend,” or to remain on a higher risk level than necessary, “distracts the public’s attention from offenders who pose a real risk of re-offense, and strains law enforcement resources,” the Court consolidated the several cases of sex offenders who moved to terminate their obligation to continue to register, agreeing that putting the burden on the offender is unconstitutional.

Offenders convicted of certain enumerated sex offenses are required to register under Massachusetts law and are classified by the SORB into three levels of risk. Level one is lowest, where the risk of re-offense is not such that public availability of registry information is required; level two is higher risk, requiring public availability of the sex offender’s registry information; and level three is the highest risk, where “active dissemination” of the sex offender’s information to the public is necessary. G.L.c. §§ 178E and 178K.

Registered sex offenders may request to be reclassified to a lower level after three years or to terminate their obligation to register after 10 years if no further sex offenses have been committed. The initial burden is on the offender to show a change in circumstances such that he no longer poses a risk to reoffend or is a risk to the public. §§ 178L and 178G.

The burden at the hearing, the Court recently held, is on the SORB to prove by clear and convincing evidence the offender’s classification is appropriate. The question in this case was whether the SORB had the same burden at termination hearings. The Court held that it does.

“The private interests at stake in sex offender registration and classification are significant,” the Court said. Sex offenders on the registry are “likely to confront stigma and legal restrictions that will make it harder for him to find stable housing or employment, and may even face threats of physical harm,” the Court recognized. The duty to register is “a continuing, intrusive, and humiliating regulation of the person himself,” the Court said.

The Legislature, by providing a waiting period for requesting reclassification or termination, has recognized that an offender may no longer pose a danger to others after a passage of time, the Court said. In a companion case decided the same day, the Court held that placing the burden of proof on the SORB to prove by clear and convincing evidence “appropriately reduces the risk of erroneous deprivation” at reclassification hearings. Noe, Sex Offender Registry Bd. No. 5340 v. Sex Offender Registry Bd., 480 Mass. 195 (2018). The Court reasoned in Noe that the burden must remain on the SORB as it “minimized the risk of error” during reclassification proceedings. The same reasoning applies equally to termination hearings, the Doe Court concluded.

“When everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless,” the Court opined, expressing its concern over leaving sex offenders at higher risk levels or on the registry who no longer pose such a risk to the public.

Accordingly, the Massachusetts Supreme Court held that state law unconstitutionally placed the burden on sex offenders seeking termination of registration, shifted the burden to the SORB at termination hearings, and remanded for further proceedings. See: Doe, Sex Offender Registry Board No. 76819 v. Sex Offender Registry Board, 480 Mass. 212 (2018). 

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Related legal case

Doe, Sex Offender Registry Board No. 76819 v. Sex Offender Registry Board



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