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Appeals court hears challenge to classification over "grooming" findings and PPG evidence in 24P0226
Summary
In 24P0226, counsel for the petitioner argued the hearing examiner's findings that Doe displayed grooming behavior and deviant sexual interest lacked substantial evidence and impermissibly relied on hearsay and psychological constructs; the board contended remaining evidence justified the high classification.
The Appellate Panel heard argument in docket 24P0226 (Doe No. 526715) on whether the Offender Registry Board’s classification should be vacated because the hearing examiner made unsupported findings about psychological tendencies, including "grooming," and because certain risk factors and tests were misapplied.
"The classification must be vacated for 3 reasons," counsel Ilsean Earing told the panel, arguing that the examiner's findings that Doe "suffered from potential deviant ****** interest in minor females" and that his behavior was "in line with grooming" were unsupported by substantial evidence and exceeded the hearing examiner's authority because the regulations do not authorize independent findings about psychological conditions.
Earing disputed factual findings about Doe’s prior roles and contacts with minors. Counsel noted that in February 2005 Doe worked a night shift at a residential program where his duties included walking the halls and checking that residents were in bed; Earing characterized the role as a monitor and argued the record did not support the hearing examiner's use of those incidents to infer a grooming pattern. The transcript includes allegations that the minor alleged Doe entered a room early in the morning and used a pillow repeatedly; counsel for the petitioner said some particulars were not credited in the DCF or hearing record and emphasized that certain alleged contacts were denied by Doe.
The panel also examined the role and weight of objective testing. Earing criticized the hearing examiner’s treatment of a penile plethysmography (PPG) result, noting the examiner observed "no significant arousal to deviant stimuli" and also said that the PPG data were not appropriate for statistical analysis of deviant preferences. Counsel argued that the examiner inconsistently assigned weight to actuarial instruments and the PPG, then used other record items to conclude an elevated risk.
The Board’s counsel responded that even without some contested facts the record contains multiple risk factors, including a later sexual‑offense conviction in 2018. Counsel emphasized the relevance of repeat conduct and positions of trust: the 2005 incident involved a residential program and later conduct alleged involved a travel‑basketball coach relationship with a teenage complainant. The board argued those facts, plus the conviction and other factors, supported the assigned level.
The panel pressed both sides on whether disputed factor applications — for example, apparent inconsistent weight given to substance‑abuse evidence and actuarial instruments — required remand. Counsel for the board said the remaining evidence would sustain the classification; petitioner’s counsel argued misapplication of several factors prejudiced the outcome and warranted vacatur and remand.
After extended questioning, the panel took the matter under advisement. The court did not announce a decision at argument.
