Appeals Court questions Sex Offender Registry Board classification and internet-dissemination order

The Massachusetts Appeals Court heard argument in an appeal challenging the Sex Offender Registry Board's (SORB) Level 2 classification and an associated internet dissemination order.

Appellant counsel Samara Hernandez asked the panel to vacate or remand the classification, arguing the hearing examiner erred in applying two regulatory factors. Hernandez said factor 16 (public place) was given full weight for an incident described as occurring in a living room while the mother was asleep and that the record lacks detail about the home's configuration to support treating the living room as a public place. "Depending on the circumstances...it could be a public place but under these circumstances we don't have enough information," Hernandez told the panel.

Hernandez also challenged factor 37 (other information related to the nature of sexual behavior), arguing a friend's police statement that the appellant "wanted to be with her" was not sexual conduct sufficient to broaden the victim pool beyond intrafamilial victims.

The panel questioned preservation of the factor‑16 claim and probed whether an isolated statement from many years prior, combined with an offense-free period and a stable adult relationship in the community, supports the board's decision to require internet dissemination for public-safety reasons.

Nancy Moreny, arguing for the SORB, said the examiner's findings were supported by substantial evidence: the living room is a common area and the record contains a signed police statement in which the young victim reported that the appellant told her he "wanted to be with her," a statement the victim explained she understood sexually. Moreny said the examiner also considered mental-health concerns, prison behavior and other qualitative factors in concluding the risk justified a Level 2 classification and dissemination.

Justices probed whether clear-and-convincing evidence shows the appellant currently poses a danger that internet dissemination would mitigate given nearly a decade in the community without reoffense and a long-term adult partner. Counsel and the panel discussed how opportunity-based offending and qualitative risk factors are weighed against mitigating evidence such as age and stable relationships.

After questioning, the court submitted the appeal for decision; no opinion was announced from the bench.

The case was argued before Justices Rubin, Saxs and Smith.