L.L., a juvenile v. Commonwealth

NOTICE: All slip opinions and orders are subject to formal

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SJC-11721

L.L., a juvenile vs. COMMONWEALTH.

Suffolk. September 3, 2014. - December 5, 2014.

Present: Gants, C.J., Spina, Botsford, Cordy, & Hines, JJ.

Sex Offender. Sex Offender Registration and Community

Notification Act. Delinquent Child. Evidence, Juvenile

delinquency, Sex offender. Supreme Judicial Court,

Superintendence of inferior courts.

Civil action commenced in the Supreme Judicial Court for

the county of Suffolk on July 7, 2014.

The case was reported by Spina, J.

Beth L. Eisenberg, Committee for Public Counsel Services

(Susan Oker, Committee for Public Counsel Services, with her)

for the juvenile.

Catherine Langevin Semel, Assistant District Attorney, for

the Commonwealth.

Eric Tennen, for Children's Law Center of Massachusetts &

others, amici curiae, submitted a brief.

BOTSFORD, J. After admitting to sufficient facts before a

Juvenile Court judge with respect to two counts of indecent

assault and battery on a person fourteen or older, the juvenile

filed a motion seeking relief from the obligation to register as

2

a sex offender pursuant to G. L. c. 6, § 178E (f) (§ 178E [f]).

After a hearing, the judge denied the motion, thereby requiring

the juvenile to register with the Sex Offender Registry Board

(board). We consider here the juvenile's petition for relief

pursuant to G. L. c. 211, § 3. The principal issue he raises

concerns the standard by which a Juvenile Court judge determines

the risk of reoffense on the part of a juvenile under § 178E

(f), an issue that this court considered in Commonwealth v.

Ronald R., 450 Mass. 262, 267-268 (2007). We seek to provide

additional guidance concerning that standard in this opinion.

We affirm the order denying the juvenile's motion for relief

from registration.

Background.1 On the afternoon of May 9, 2013, the juvenile,

who was then sixteen years old, approached an adult woman from

behind as she was walking her dog in Lynn and pulled down the

sweatpants she was wearing to her thighs. The juvenile then

made a vulgar comment about the victim's private parts, grabbed

his own genitals, and ran away. The woman described her

assailant to the Lynn police.

Eight days later, on the afternoon of May 17, 2013, a

different woman was walking four children home from school in

Lynn when she felt the juvenile touch her buttocks and pull her

1

Because the juvenile entered a plea, the background

information provided here is taken from the Commonwealth's

recitation of facts at the plea hearing as well as reports and

other materials included in the record before us.

3

pants to the ground. The woman called the police and provided a

description of her assailant, and soon thereafter, a Lynn police

officer observed the juvenile, who fit this description, on a

different street from where the incident had occurred. Lynn

police patrol units then stopped the juvenile. At a showup

identification procedure soon thereafter, the second woman

identified the juvenile as the person who had pulled her pants

down. The juvenile was placed under arrest and taken to the

Lynn police station.

After having the opportunity to speak with his mother, the

juvenile agreed to speak with the police. He admitted that he

had pulled down the second woman's pants and, when the police

mentioned the first woman to the juvenile, he admitted that he

had pulled down her pants as well.2 Discussing the second

incident, the juvenile explained that he had bought and smoked

some marijuana that morning (May 17), and then, while walking,

he "just went up to [the second woman] and pulled down her

pants." The juvenile did not give a reason for pulling down the

second woman's pants, saying only that he "just felt the

2

The first woman told police that she saw the juvenile

again on the morning of the second incident (May 17). When the

police, on May 17, asked the juvenile whether he had seen the

first woman that morning, the juvenile admitted to having pulled

her pants down. The police prepared a photographic array that

included the juvenile and showed it to the first woman, who

positively identified the juvenile's photograph.

4

excitement." The juvenile also did not give a reason for

targeting the first woman.

On May 20, 2013, two complaints issued from the Essex

County Division of the Juvenile Court Department charging the

juvenile with two counts of indecent assault and battery on a

person fourteen years of age or older and one count of

disorderly conduct. On January 21, 2014, at a hearing before a

Juvenile Court judge, the juvenile admitted to sufficient facts

with regard to each charge and entered a plea that the judge

accepted.3 Between this hearing and the final disposition of the

case, the juvenile filed a motion for relief from the obligation

to register with the board, and an evidentiary hearing on the

motion was held on February 27, 2014.4

At that hearing, the juvenile sought to establish that he

did not "pose a risk of reoffending or a danger to the public,"

and therefore should be relieved of the obligation to register.

G. L. c. 6, § 178E (f). He offered the report and testimony of

3

The two women assaulted by the juvenile attended this

hearing, and each made a statement to the judge about the impact

of the juvenile's assault on her.

4

Although the judge had not yet announced the sentence she

intended to impose, she had indicated that a delinquency

adjudication with a probationary sentence was likely, and in

response to that, given the charges of indecent assault and

battery on a person fourteen years of age or older, the juvenile

filed his motion for relief from the obligation to register as a

sex offender under G. L. c. 6, § 178E (f) (§ 178E [f]). In April

of 2014, the juvenile formally was adjudicated delinquent and

sentenced to probation, to terminate on his eighteenth birthday,

September 10, 2014.

5

his expert witness, Dr. Barbara Quiñones, a forensic

psychologist. Quiñones testified to having administered a

"guided clinical instrument" called the Estimate of Risk of

Adolescent Sexual Offense Recidivism (ERASOR), a test that she

described as "strongly validated" by substantial research as an

appropriate risk assessment tool for juvenile sex offenders.5

According to Quiñones, the ERASOR enumerates twenty-five factors

that have been "consistently shown to be associated with risk of

re-offense," and in administering the test to the juvenile, she

scored each factor as "present, not present, [or] partially

present." She found that in the juvenile's case, four of the

twenty-five risk factors were present,6 twenty risk factors were

not present, no risk factors were partially present, and the

presence of one factor was "unknown." Based on her evaluation

of the juvenile, which included a lengthy interview with him, a

discussion with the juvenile's mother, the administration of the

ERASOR test, and other evaluative processes, Quiñones saw no

sign of deviant sexual behavior in the juvenile, in part because

5

Dr. Barbara Quiñones noted that the Estimate of Risk of

Adolescent Sexual Offense Recidivism (ERASOR) instrument,

although validated, does not provide an actuarial assessment

because an offender's ERASOR score is not tied to a percentage

rate of reoffense. She testified that there are no validated

actuarial instruments for determining the risk of reoffense of

juvenile sex offenders.

6

The four were sexual assault of two or more victims,

sexual assault of a stranger, "[n]egative peer associations and

influence," and "[i]ncomplete sex offender specific treatment."

6

in her opinion such a diagnosis requires a finding of six months

of deviant behavior -- a period of time far longer than that

involved in the juvenile's case. She also stated that in her

opinion, based on research she described, the juvenile's lack of

insight into why he committed the two offenses was not

indicative of a higher risk of reoffense. Based on her

evaluation, Quiñones concluded that the juvenile's "risk to

reoffend sexually is low," adding that, in forensic psychology,

"there is no category of no risk," and that "[o]nce someone has

committed a sexual offense, the lowest category would be low."

She opined that the juvenile's risk of reoffense was so low that

he should not be required to register as a sex offender.

At a hearing in April, 2014, the judge denied the

juvenile's motion for relief from registration and proceeded to

set out oral findings and reasons. She described in some detail

the facts of the two assaults on the two women, and stated that

she found Quiñones's testimony "thoughtful," but did not credit

the expert's opinion about the juvenile's lack of sexual

deviance. The judge also rejected Quiñones's ultimate

conclusion that the juvenile posed a low risk of reoffense,

"based primarily on the facts and the circumstances" of the

offenses, which the judge characterized as "egregious." She

stated that this "was a broad daylight sexual assault on two

strangers in our community with no apparent measure of

7

restraint" or "any understanding of why he committed these

offenses." The judge determined that the juvenile posed a risk

of reoffense and would be required to register with the board.7

The juvenile thereafter filed in the county court his

petition pursuant to G. L. c. 211, § 3, seeking relief with

respect to the order denying him relief from the obligation to

register as a sex offender. The single justice stayed the

judge's order requiring registration and reserved and reported

the matter to the full court.

Discussion. 1. Juvenile's petition for relief under G. L.

c. 211, § 3. As a threshold matter, the Commonwealth contends

that there is no issue properly before the full court for

review, because the juvenile, in the Commonwealth's view, has

abandoned the claim he raised in his petition for relief under

G. L. c. 211, § 3, that he filed in the county court. The

argument fails. Although this court has deemed an argument

waived where it was not raised either before the trial judge or

in a G. L. c. 211, § 3, petition for relief, see Paquette v.

Commonwealth, 440 Mass. 121, 124 n.3 (2003), cert. denied, 540

7

At a subsequent hearing on the juvenile's motion to

reconsider the denial of relief from registration, the judge

indicated that she had used her discretion in accordance with

Commonwealth v. Ronald R., 450 Mass. 262 (2007), to deny relief

from registration. She added that she had carefully reviewed

the victims' statements and the effect of these offenses on the

victims, and stated that she was "well aware of the ever

evolving research in the area of the juvenile behavior and the

juvenile brain." The judge denied the motion for

reconsideration.

8

U.S. 1150 (2004), that is not the case here. The juvenile

previously has raised the substance of the claims he presents to

this court, either in the Juvenile Court or before the single

justice. In any event, the single justice has reserved and

reported the case to this court, and it is properly before us.

See Burke v. Commonwealth, 373 Mass. 157, 159 (1977). Cf.

Commonwealth v. Goodwin, 458 Mass. 11, 14-15 (2010).8

2. Standard for obtaining relief from registration. Under

the sex offender registration act, G. L. c. 6, §§ 178C–178P

(act), sex offenders, whether adults who have been convicted of

a "sex offense" within the scope of the act or juveniles

adjudicated as a youthful offender or delinquent on account of

committing a qualifying sex offense, are required to register as

sex offenders with the board, unless relieved of doing so under

8

The Commonwealth also suggests that the juvenile should be

required to exhaust his administrative remedies by proceeding

through the sex offender registration process and, if necessary,

appealing from the final classification decision of the Sex

Offender Registry Board (board) under G. L. c. 6, § 178M. The

Commonwealth is incorrect. The statutory review process for

decisions of the board does not apply to decisions of a judge

under § 178E (f). See Ronald R., 450 Mass. at 266. A sex

offender aggrieved by a denial of relief from registration under

§ 178E (f) has "no automatic right of appeal," but may file a

petition with a single justice of this court under G. L. c. 211,

§ 3, Ronald R., supra at 266-267, although to obtain substantive

review, the grounds to do so must be significant. See Care &

Protection of Zita, 455 Mass. 272, 278 (2009) ("Even in the

absence of an adequate alternative remedy . . . review on the

substantive merits pursuant to G. L. c. 211, § 3, is not

automatic" because "petitioner must also demonstrate that

[issue] raises a substantial claim of violation of her

substantive rights").

9

one of three statutory exemptions -- of which § 178E (f) is one.

See Ronald R., 450 Mass. at 264 ("there is a presumption that

sex offenders must register" under act). Section 178E (f)

provides in relevant part:

"In the case of a sex offender who has been convicted

of a sex offense or adjudicated as a youthful offender or

as a delinquent juvenile by reason of a sex offense, on or

after December 12, 1999, and who has not been sentenced to

immediate confinement, the court shall, within [fourteen]

days of sentencing, determine whether the circumstances of

the offense in conjunction with the offender's criminal

history indicate that the sex offender does not pose a risk

of reoffense or a danger to the public. If the court so

determines, the court shall relieve such sex offender of

the obligation to register under [§§] 178C to 178P,

inclusive."9

The juvenile claims that due process requires a judge, in

determining under § 178E (f) whether a juvenile should be

relieved from the obligation to register as a sex offender based

on his or her "risk of reoffense," to assess the probability of

such risk according to an articulated standard that itself is

based on objective factors. His argument is that a delinquency

adjudication of a sex offense together with "the juvenile

court's conclusion as to the propriety for excusing (or [not])

the juvenile's registration obligation" as a sex offender form

9

Under the plain terms of § 178E (f), the exemption from

registration for which it provides applies to juvenile as well

as adult sex offenders who are not "sentenced to immediate

confinement." This case is brought by a juvenile sex offender,

and accordingly, in discussing § 178E (f), we focus solely on

the statute's application to juvenile sex offenders in this

opinion. In doing so, we do not intend to suggest that we would

interpret the statute differently in the case of an adult sex

offender; that issue is not before us.

10

the "first step" in the statutory registration process; because

this is so, the procedural due process requirements applicable

to this registration process come into play; and these must

include a requirement that a judge performing the assessment

regarding risk of reoffense under § 178E (f) do so according to

a defined, objective standard. This is especially important for

juveniles, he claims, because of the "historical view of the

juvenile justice system as primarily rehabilitative."

We disagree that a judge's determination under § 178E (f)

whether to relieve a juvenile sex offender from the act's

registration requirements is properly characterized as an

integral part of the registration system itself. See

Commonwealth v. Shindell, 63 Mass. App. Ct. 503, 505 (2005)

(registration requirement is "decision made not by the trial

court, but by the . . . board"). See also Ronald R., 450 Mass.

at 266. But there is no question that the statutory sex

offender registration regime prescribed by the act imposes both

burdensome and long-lasting requirements on a sex offender that

implicate his or her liberty interests.10 And there also is no

10

See Doe, Sex Offender Registry Bd. No. 68549 v. Sex

Offender Registry Bd., ante at 102, 106 (2014) (Doe No. 68549);

Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender

Registry Bd., 466 Mass. 594, 596 (2013) (Doe No. 205614) (sex

offender registration system "implicates constitutionally

protected liberty and privacy interests"). See also Moe v. Sex

Offender Registry Bd., 467 Mass. 598, 604 (2014) ("public

identification of a sex offender poses a risk of serious adverse

consequences to that offender, including the risk that

11

question that, in offering a juvenile sex offender who has not

been sentenced to immediate confinement the opportunity to be

relieved of the obligation to participate in the registration

system in any way, § 178E (f) provides a significant benefit.

Accordingly, it is important that the statute's standards be as

clear as reasonably possible.

In Ronald R., after making a delinquency adjudication based

on the juvenile's commission of a sex offense (rape of a six

year old child), the Juvenile Court judge imposed a suspended

sentence of commitment to the Department of Youth Services until

the juvenile turned eighteen and placed the juvenile on

probation. Ronald R., 450 Mass. at 263. The judge then held a

separate nonevidentiary hearing pursuant to § 178E (f) and

denied the juvenile's motion for relief from the obligation to

register as a sex offender. Id. at 264. The judge did not make

findings, written or oral, but stated that he exercised his

discretion under § 178E (f) not to relieve the juvenile from

registration based on the facts of the case. Id. at 267, 270.

This court rejected the juvenile's argument that the judge

abused his discretion, and, quoting § 178E (f), stated that the

judge's "sole task" under the statute was "to 'determine whether

the sex offender will suffer discrimination in employment and

housing, and will otherwise suffer from the stigma of being

identified as a sex offender, which sometimes means the

additional risk of being harassed or assaulted"); Doe, Sex

Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450

Mass. 780, 791 (2008).

12

the circumstances of the offense in conjunction with the

[juvenile's] criminal history indicate that the [juvenile] does

not pose a risk of reoffense or a danger to the public.'"11 Id.

at 267.

The juvenile in this case argues that neither the text of

§ 178E (f) nor Ronald R. offers any meaningful guidance about

how a Juvenile Court judge is to determine the "risk of

reoffense," creating a statutory regime that permits the

standardless and inconsistent exercise of judicial discretion in

violation of fundamental concepts of fairness. Cf. BMW of N.

Am., Inc. v. Gore, 517 U.S. 559, 588 (1996) (Breyer, J.,

concurring) (legal standards "must offer some kind of constraint

upon a . . . court's discretion, and thus protection against

purely arbitrary behavior"). Particularly for children, for

whom the requirement to register as a sex offender may have more

profound consequences than for an adult,12 and in light of the

11

In Ronald R., 450 Mass. at 267, in addition to stating

that the judge's determination under § 178E (f) was

discretionary, we interpreted the statute to impose upon the

juvenile the burden of establishing that he did not pose a risk

of reoffense. Id. at 268-269. We discuss the issue of

discretion in note 27, infra, but the juvenile does not

challenge the allocation of burden of proof, and we have no

reason to reconsider the point here.

12

Registration may have especially serious consequences for

juvenile sex offenders. See, e.g., Halbrook, Juvenile Pariahs,

65 Hastings L.J. 1, 17-18 (2013) ("Humiliation and shame

associated with registry status, and the risk of being exposed,

often serve to isolate young people on registries," and research

suggests that consequences of registration "affect a former

13

rehabilitative focus of the juvenile justice system, the

juvenile claims it is imperative that this court "establish the

basic parameters of the term 'risk'" in the statutory phrase

"risk of reoffense." He goes on to argue that at least in the

context of juvenile sex offenders, the phrase "risk of

reoffense" should be measured by whether the offender is

"likely" to reoffend, and determined by analyzing factors such

as the "seriousness of the threatened harm, the relative

certainty of the anticipated harm, and the possibility of

successful intervention to prevent that harm." In support of

this standard, the juvenile points to Commonwealth v. Boucher,

438 Mass. 274, 276 (2002), a case involving the sexually

dangerous person (SDP) statute, G. L. c. 123A, §§ 1-16.

As previously stated, we agree with the juvenile on the

importance of providing a more focused approach to the risk

assessment that § 178E (f) calls for, but disagree with his

proffered standard. The Commonwealth points out, correctly,

that the Legislature did not use the words "likely" to reoffend

in § 178E (f), as it did in the SDP statute. See G. L. c. 123A,

§ 1 (definition of "[s]exually dangerous person"). As the SDP

offender's ability to rehabilitate and reintegrate into

society"); Letourneau & Caldwell, Expensive, Harmful Policies

that Don't Work or How Juvenile Sexual Offending Is Addressed in

the U.S., 8 Int'l J. of Behavioral Consultation & Therapy 23, 27

(2013) (consequences associated with juvenile registration and

notification include "stigma, isolation, shame, and

depression").

14

statute demonstrates, if the Legislature had wanted to use the

"likely" standard in § 178E (f), it could have done so. See,

e.g., Commonwealth v. LeBlanc, 407 Mass. 70, 74-75 (1990)

(Legislature's inclusion of particular language in certain

statutes, and omission of such language in statute at issue,

indicates affirmative choice not to include that language).

Although registration imposes distinct burdens on a sex offender

and perhaps particularly a juvenile sex offender, the

infringement on personal liberty is far less than if adjudicated

an SDP. See Doe, Sex Offender Registry Bd. No. 27914 v. Sex

Offender Registry Bd., 81 Mass. App. Ct. 610, 615 (2012). In

the circumstances, it is not reasonable to infer that the

Legislature intended the phrase, "does not pose a risk of

reoffense," in § 178E (f) to mean, even for a juvenile sex

offender, that he or she was not "likely to reoffend."13

13

Furthermore, the Legislature has used the word "likely"

in another provision of the act, G. L. c. 6, § 178G, which

authorizes certain registered sex offenders to seek to terminate

the obligation to register after ten years. Section 178G

provides in relevant part: "The duty of a sex offender required

to register" shall "end [twenty] years after such sex offender

has been convicted or adjudicated or has been released from all

custody or supervision, whichever last occurs," unless the

"person required to register with the [board] . . . make[s] an

application to [the] board to terminate the obligation upon

proof, by clear and convincing evidence, that the person has not

committed a sex offense within ten years following conviction,

adjudication or release from all custody or supervision,

whichever is later, and is not likely to pose a danger to the

safety of others" (emphasis added). Given the situational

differences between a sex offender who was last convicted of a

sex offense at least ten years ago and a sex offender who was

15

In attempting to give more definition to the standard

regarding risk of reoffense incorporated into § 178E (f), it is

useful to take a somewhat functional approach. We view the

standard for determining "risk of reoffense" under § 178E (f) as

having two components: (1) the level of risk warranting relief

from registration, and (2) the basis on which the judge assesses

this risk. We consider each component separately.

a. Level of risk. Despite the statute's indication that

the judge may relieve an offender from registration only if he

or she "does not pose a risk of reoffense or a danger to the

public," we do not interpret this language to mean "no risk,"

because the absence of any risk is impossible as a matter of

logic and common sense. See In re Harold W., App. Ct. of Ill.,

Second Dist., No. 2-12-1235 (Apr. 18, 2014) (unpublished)

(interpretation of statute allowing termination of sex offender

registration upon showing of "no risk to the community"; "to

require proof of the complete absence of any risk would mean

that no one would ever be able to satisfy the statute beyond any

doubt" because "[t]here is always a possibility that sex

offenders will reoffend"). Moreover, there appears to be a

consensus among experts that it is impossible to say that a

convicted or adjudicated delinquent and sentenced within the

previous fourteen days, it is reasonable to assume that the

Legislature used different words in §§ 178E (f) and 178G because

it intended different standards to govern the assessment of

risk.

16

person who has committed a sex offense -- which by definition

includes every person potentially subject to registration under

the act -- poses no risk of reoffense.14,15 We will not attribute

to the Legislature the purpose of rendering § 178E (f)

meaningless by means of an insurmountable standard for obtaining

relief from registration. See Victory Distribs., Inc. v. Ayer

Div. of the Dist. Court Dep't, 435 Mass. 136, 140 (2001);

Commonwealth v. Wade, 372 Mass. 91, 95 (1977) (refusing to

construe statute such that it "would become a useless

legislative exercise").

Because § 178E (f) itself does not clearly define the

appropriate level of risk warranting relief from registration

under § 178E (f), we seek guidance on the issue from other

sections of the act. See Pentucket Manor Chronic Hosp., Inc. v.

Rate Setting Comm'n, 394 Mass. 233, 240 (1985) ("When the

meaning of a statute is brought into question, a court properly

should read other sections and should construe them together

. . . so as to constitute an harmonious whole consistent with

14

Quiñones testified to this effect in the present case,

and the record suggests that this part of her testimony was

credited by the judge. See Doe, Sex Offender Registry Bd. No.

1211 v. Sex Offender Registry Bd., 447 Mass. 750, 762 (2006)

(Doe No. 1211) (noting expert's statement that "I don't think

that once anybody's engaged in sexual acting out behavior can

you say that there is absolutely no risk").

15

The Commonwealth conceded at oral argument that the

standard for relief from registration cannot require a showing

that a sex offender poses absolutely no risk of reoffense,

because such a standard would be impossible to satisfy.

17

the legislative purpose" [citation omitted]). See also Care &

Protection of Jamison, 467 Mass. 269, 276 (2014); Wolfe v.

Gormally, 440 Mass. 699, 704 (2004). General Laws c. 6,

§ 178K (1), in particular, is pertinent.16 This section directs

the board to establish a system by which all sex offenders

required to register are classified by risk of reoffense -- low,

moderate, or high -- according to the factors spelled out in

§ 178K (1) (a)-(l), and in the board's implementing regulations,

803 Mass. Code Regs. § 1.40 (2013). See Doe, Sex Offender

Registry Bd. No. 68549 v. Sex Offender Registry Bd., ante 102,

105 (2014) (Doe No. 68549). See also G. L. c. 6, § 178K (2)

(a)-(c). Section 178K (1) and (2) (a) establishes "low" risk of

reoffense as the lowest level of risk classification, and

therefore the threshold level of risk requiring registration.

See Doe No. 68549, supra at 112. See also Doe, Sex Offender

Registry Bd. No. 24341 v. Sex Offender Registry Bd., 74 Mass.

App. Ct. 383, 387 (2009) (Doe No. 24341). A "low" risk of

reoffense under § 178K (1) is "not merely a hypothetical or

speculative potential risk." Doe No. 24341, supra at 388.

16

The Legislature created the exemption from registration

provision in § 178E (f) and the list of factors for assessing

risk of reoffense set out in G. L. c. 6, § 178K (1), as part of

the same piece of legislation. See St. 1999, c. 74, § 2. This

"common source" of origin supports reading the two sections

together. See Eaton v. Federal Nat'l Mtge. Ass'n, 462 Mass.

569, 585 n.23 (2012). See also Cumberland Farms, Inc. v. Milk

Control Comm'n, 340 Mass. 672, 679 (1960).

18

Rather, it is a risk that is "cognizable"17 –- i.e.,

"perceptible"; "[c]apable of being known, perceived, or

apprehended by the senses or intellect"18 -- and one that can and

indeed must be able to be articulated and described based on

affirmative evidence. See, e.g., Doe No. 68549, supra at 108;

Doe, Sex Offender Registry Bd. No. 1211 v. Sex Offender Registry

Bd., 447 Mass. 750, 762-766 (2006) (Doe No. 1211). It follows

that to qualify for exemption from registration under § 178E

(f), a juvenile sex offender's risk of reoffense should be less

than this "low" registration-triggering risk. In other words,

it is a risk that is more than "no risk" -- and therefore more

than hypothetical or purely speculative -- but not as definite

as what qualifies as "low" under § 178K (1).

b. Assessment of risk of reoffense. We turn to the basis

on which a Juvenile Court judge is to make the assessment of

risk of reoffense under § 178E (f). The statute specifies that

the judge is to determine this risk based on "the circumstances

of the offense in conjunction with the offender's criminal

history." G. L. c. 6, § 178E (f). However, it is silent on the

relationship between these two factors and a predictive

assessment of risk of reoffense, and in the case of a juvenile

17

See Doe No. 1211, 447 Mass. at 762.

18

2 Oxford English Dictionary 596 (1978).

19

sex offender particularly, that relationship is not self-

evident.19,20

The link between the circumstances of the offense and

criminal history and an offender's risk of reoffense may be

illuminated, however, where, as was the case here, the juvenile

presents expert evidence that focuses directly on the question

19

Research suggests some differing views concerning the

connection between "the circumstances of the offense" and risk

of reoffense. Compare, e.g., Batastini, Hunt, Present-Koller, &

DeMatteo, Federal Standards for Community Registration of

Juvenile Sex Offenders: An Evaluation of Risk Prediction and

Future Implications, 17 Psychol. Pub. Policy & L. 451, 458

(2011) (Federal Standards), with Russell, Multidisciplinary

Response to Youth with Sexual Behavior Problems, 40 Wm. Mitchell

L. Rev. 1058, 1070 (2014). However, with respect to criminal

history, there seems to be a consensus that juvenile sex

offenders have a relatively low rate of recidivism -- even

though "[m]ethodological variations clearly influence recidivism

rates," and studies disagree as to what the exact rate is. See

United States Dep't of Justice, Office of Juvenile Justice and

Delinquency Prevention, Juveniles Who Have Sexually Offended 31-

32 (2001) (summarizing seven studies that found rate of sexual

recidivism by juvenile sex offenders to be between eight and

thirty-seven per cent). See also Federal Standards, supra at

457-458 ("sex-specific recidivism rates" of juvenile sex

offenders are between fourteen and twenty-nine per cent);

Parker, Branded for Life: The Unconstitutionality of Mandatory

and Lifetime Juvenile Sex Offender Registration and

Notification, 21 Va. J. Soc. Pol'y & L. 167, 188 (2014)

("Studies support a consensus among experienced practitioners in

the field of juvenile sexual abuse intervention that juvenile

sex offenders have a low rate of recidivism [between two and

fourteen per cent] and are unlikely to become adult sex

offenders").

20

Moreover, where an offense has caused a victim great

emotional distress, there is the possibility that a decision not

to relieve the offender of the obligation to register would be

based solely on the effect that the offense had on the victim,

rather than on the circumstances of the offense and the

offender's criminal history.

20

of risk. In this case, for example, Quiñones testified that the

juvenile's targeting of strangers -- shown by the circumstances

of the two offenses -- indicated a risk of reoffense, but that

the juvenile's commission of two sexual offenses within a brief

period (eight days) did not, in her opinion, increase his risk

of reoffense because he committed the second offense without

having been detected as having committed the first.21 If a

juvenile does offer expert evidence regarding his or her risk of

reoffense -- e.g., expert testimony or relevant research studies

by experts in the field -- the judge should consider that

evidence in assessing the "circumstances of the offense" and

ultimately determining whether to exempt the juvenile from

registration.22 That the judge is not bound to credit proffered

expert testimony, see Commonwealth v. DeMinico, 408 Mass. 230,

235 (1990), does not diminish the obligation to give it serious,

reasoned consideration. Cf. Bianco v. Bianco, 371 Mass. 420,

423 (1976) (where judge has broad discretion, "it is important

21

Quiñones also testified that the juvenile's commission of

his offenses in public and during daytime indicated a lack of

intent to commit more invasive sexual assaults, which suggested,

to Quiñones, a decreased risk of reoffense.

22

Here, the juvenile presented an expert witness who

testified. Later, after the juvenile's motion for relief from

registration had been denied, the juvenile submitted a number of

studies in connection with his motion for reconsideration of the

denial of his motion for relief from registration. Given the

timing of the submission of these studies, the judge acted

within her discretion in declining to consider them.

21

that a judge's findings clearly indicate that [the judge] has

weighed all" relevant considerations).

Independent of expert evidence, and especially where no

expert evidence is offered, the judge may seek guidance by

reference to the factors addressing risk of reoffense in G. L.

c. 6, § 178K (1) (a)-(l), and the board's implementing

regulations. More particularly, it may be appropriate for the

judge to evaluate the juvenile's criminal history and the

circumstances of his or her offense through the lens provided by

these statutory and regulatory risk factors. Consideration, for

example, of the juvenile sex offender's status as a juvenile at

the time of the offense and the significance of that status, see

G. L. c. 6, § 178K (1) (e), would seem critical in every case.

The relevance of other factors will depend on the specific facts

presented.23

23

The juvenile as well as amici express concern about tying

the predictive assessment of risk required under § 178E (f) too

closely to the factors used by the board in its classification

decisions under § 178K (1). They argue that scientific research

and discoveries about sexual offenders have called and continue

to call into question the accuracy of commonly held views about

factors that indicate risk of sex offender recidivism, and they

assert that the board does not keep up with these changes. We

have recognized the problem of the board's failure to update its

regulations and its continued reliance on increasingly outdated

studies and research. See Doe No. 205614, 466 Mass. at 609

("eleven years have passed since [the board] last updated [its]

guidelines, during which time knowledge and understanding of

sexual recidivism has expanded considerably"); Doe, Sex Offender

Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass.

612, 623 n.6 (2010) (board's guidelines "may require more

frequent modification in order to reflect accurately the current

22

With respect to the process by which a Juvenile Court judge

is to reach a decision on risk of reoffense under § 178E (f), as

previously mentioned, this section is one of three provisions in

the act providing for exemption from registration; the other two

are G. L. c. 6, §§ 178E (e) (on Commonwealth's motion, judge may

find that offender need not register) and 178K (2) (d) (board

may determine that offender need not register). Section 178K

(2) (d) specifies that, with respect to the board, it must

support a decision to "relieve [an] offender of any further

obligation to register" upon "making specific written findings."

The absence of similar language in § 178E (f) indicates that the

Legislature did not intend to impose such a requirement. See

Ronald R., 450 Mass. at 270 (although sex offender may request

written findings, decision whether to issue them rests in

judge's discretion). Rather, by specifying that the trial (or

plea) judge is to make the determination concerning the

offender's "risk of reoffense" and exemption from the obligation

to register within two weeks of imposing sentence, the

Legislature appears to have contemplated that the judge would

make the determination not on the basis of a wholly independent

state of knowledge"). We also have recognized the issue

specifically in relation to juvenile sex offenders, because of

the gaps between juveniles and adults and the rapid developments

in scientific and social science research in this area. See Doe

No. 68549, supra at 114-116. However, we anticipate and expect

that the board will soon begin to take corrective steps in

relation to the need to update its regulations.

23

proceeding, but essentially in connection with the resolution of

the delinquency proceeding, informed by the knowledge and

understanding of the circumstances of both the offense and the

offender that the judge had acquired by virtue of being the

trial (or plea) judge.24 Cf. Commonwealth v. Ventura, 465 Mass.

202, 212 (2013).

Although a Juvenile Court judge is not obligated to issue

written findings under § 178E (f), and although the judge's

process of determining a juvenile sex offender's relief from

registration under this section may be less formal than the

process required by the board under § 178K (2) (d), it is

important nonetheless for the judge to explain on the record

with some specificity the reasons for his or her assessment of

risk of reoffense and resulting determination whether the

juvenile should be relieved of the obligation to register. Cf.

Long v. Wickett, 50 Mass. App. Ct. 380, 402 (2000), quoting

Protective Comm. for Indep. Stockholders of TMT Trailer Ferry,

Inc. v. Anderson, 390 U.S. 414, 434 (1968) (even where judge has

"broad discretion," it is "essential . . . that a reviewing

court have some basis for distinguishing between well-reasoned

conclusions arrived at after a comprehensive consideration of

all relevant factors, and mere boiler-plate approval phrased in

24

As discussed previously in the text, the judge of course

also would be informed by any information relevant to assessing

the risk of reoffense that the juvenile or the Commonwealth

presented in connection with the § 178E (f) determination.

24

appropriate language but unsupported by evaluation of the facts

or analysis of the law").25 The presence in the record of the

judge's basis for allowing or denying relief from registration

is of particular importance where, as here, the juvenile has

presented expert testimony or other evidence addressing his risk

of reoffense. Cf. Bianco, 371 Mass. at 423.

3. Disposition of present case. The juvenile claims that

the judge's denial of his motion for relief from registration as

a sex offender must be reversed because, on the record before

her, the judge abused her discretion in rejecting the opinion of

his expert witness.

"[E]xperts' opinions are not binding on the trier of fact,

who may accept or reject them in whole or in part."

Commonwealth v. O'Brien, 423 Mass. 841, 854 (1996) (quotation

omitted). See DeMinico, 408 Mass. at 235. The juvenile does

not contest this point directly, but maintains that the judge

nevertheless was obligated to (1) consider "substantial,

25

There is no direct right to judicial review of a judge's

exemption determination under § 178E (f). See note 8, supra.

But quite apart from judicial review, principles of fairness and

the need for reasoned consistency make the court's observations

in Long v. Wickett, 50 Mass. App. Ct. 380, 402 (2000), about the

importance of findings relevant here. Where, as in this case,

the juvenile has offered expert testimony or research, the judge

should consider it and indicate on the record her view of this

evidence and its relationship to her determination concerning

the offender's obligation to register. Compare Police Dep't of

Boston v. Kavaleski, 463 Mass. 680, 694 (2012) (obligation of

administrative agency in adjudicatory proceeding to explain

reasons for rejecting expert testimony).

25

uncontested expert evidence" concerning the risk of reoffense,

and (2) adequately explain any rejection of such expert

testimony.

On the first point, the record makes clear that the judge

here did consider the opinion testimony of Quiñones, discussing

a number of the expert's specific points or opinions in the

judge's oral findings. As to the second point, the record also

shows that the judge did explain in general terms her

disagreement with some of Quiñones's opinions. In particular,

the judge explained that she did not credit the expert's opinion

that the juvenile's offenses were not connected to sexual

deviance or that marijuana contributed to the juvenile's

offense, based on the judge's determination that the juvenile

committed "a broad daylight sexual assault on two strangers in

our community with no apparent measure of restraint" or "any

understanding of why he committed these offenses." The judge

stated that these circumstances led her not to have confidence

in Quiñones's opinion that the juvenile's level of risk of

reoffending was low enough to relieve him from the requirement

of registration. In both the judge's initial explanation of her

reasons for requiring the juvenile to register and her later

explanation of her denial of his motion for reconsideration, the

judge emphasized that she had given careful consideration to

Quiñones's testimony and opinions. Although one might take a

26

different view of Quiñones's testimony and opinions from that of

the judge, her rejection of certain of those opinions was

neither unexplained nor without any basis.

Furthermore, the judge's focus in her findings on certain

of the circumstances of the juvenile's offenses -- the daylight

attacks in the public street on two separate individuals without

"apparent . . . restraint" and without insight into the reasons

for doing so -- reflects in substance some of the concerns

included in the factors for assessing risk of reoffense set out

in G. L. c. 6, § 178K (1), and associated regulations.26

Considering the judge's findings in light of our discussion in

this opinion of the risk of reoffense standard set out in § 178E

(f), we cannot say that the findings do not support the judge's

assessment of that risk. In sum, we conclude that based on the

record before her, the judge's ultimate determination that the

juvenile should not be relieved of the obligation to register as

a sex offender did not lie "outside the bounds of reasonable

alternatives," Adoption of Mariano, 77 Mass. App. Ct. 656, 660

26

For example, the judge's attention to the juvenile's two

separate assaults and lack of restraint suggests a

correspondence with the factor of "repetitive and compulsive

behavior" set out in G. L. c. 6, § 178K (1) (a) (ii), and 803

Mass. Code Regs. § 1.40(2) (2013).

27

(2010), and, accordingly, did not constitute an abuse of her

discretion.27

Judgment affirmed.

27

In discussing the abuse of discretion standard in Ronald

R., 450 Mass. at 267, the court stated: "In order for the

juvenile to sustain an abuse of discretion claim, he must

demonstrate that 'no conscientious judge, acting intelligently,

could honestly have taken the view expressed by him.'

Commonwealth v. Ira I., 439 Mass. 805, 809 (2003), quoting

Commonwealth v. Bys, 370 Mass. 350, 361 (1976)." See Davis v.

Boston Elevated Ry. Co., 235 Mass. 482, 502 (1920). As the

dates of the cases just cited suggest, this articulation of the

abuse of discretion standard of review has enjoyed a long career

in our jurisprudence, but, we conclude, it has "earned its

retirement." Iannacchino v. Ford Motor Co., 451 Mass. 623, 636

(2008), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563

(2007). An appellate court's review of a trial judge's decision

for abuse of discretion must give great deference to the judge's

exercise of discretion; it is plainly not an abuse of discretion

simply because a reviewing court would have reached a different

result. See Bucchiere v. New England Tel. & Tel. Co., 396 Mass.

639, 641 (1986). But the "no conscientious judge" standard is

so deferential that, if actually applied, an abuse of discretion

would be as rare as flying pigs. When an appellate court

concludes that a judge abused his or her discretion, the court

is not, in fact, finding that the judge was not conscientious

or, for that matter, not intelligent or honest. Borrowing from

other courts, we think it more accurate to say that a judge's

discretionary decision constitutes an abuse of discretion where

we conclude the judge made "a clear error of judgment in

weighing" the factors relevant to the decision, see Picciotto v.

Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008) (citation

omitted), such that the decision falls outside the range of

reasonable alternatives. See Zervos v. Verizon N.Y., Inc., 252

F.3d 163, 168-169 (2d Cir. 2001); Adoption of Mariano, 77 Mass.

App. Ct. 656, 660 (2010).