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Appeals court hears challenge to SORB’s use of repetitive/compulsive factor in risk and dangerousness assessments
Summary
Appeals Court argument focused on whether the Sex Offender Registry Board may treat repeated conduct as a separate indicator of dangerousness or whether that practice improperly doubles up on factors already covered in classification rules.
The Appeals Court heard argument in an appeal challenging how the Sex Offender Registry Board applies Factor 2 (repetitive/compulsive behavior) and whether that factor may be used to elevate a registrant’s dangerousness.
Appellant counsel argued that a Middlesex Superior Court decision (Judge Wilkins) has held there is no peer-reviewed evidence that multiple incidents of misconduct predict dangerousness or reoffending unless the offender was confronted, apprehended or charged. Counsel said the hearing examiner effectively double-counted the same conduct—relying on the number of victims under Factor 22 and then treating repetition as a separate dangerousness signal under Factor 37—thus bootstrapping the same facts into two separate risk escalators.
Board counsel urged the panel to adopt a commonsense approach: repeated contact attempts and similar fact patterns increase the likelihood of future victimization and therefore are a permissible basis for a higher classification or the application of Factor 37. Counsel relied on prior unpublished Appeals Court decisions that have treated repetition as an indicator of higher risk.
Justices pressed both sides on whether Factor 2 is about risk of reoffense only or whether it can properly inform findings about present dangerousness, and they asked whether the regulatory scheme and past board practice adequately separate risk and dangerousness or whether the current rules create a double-counting problem.
Why it matters: The court’s decision will decide whether SORB examiners may—and on what evidence—elevate classifications for registrants who committed multiple incidents, and whether a superior-court finding about the lack of empirical support for a particular regulatory practice controls administrative application across cases.
