BOSTON (AP) – The Massachusetts Appeals Court has ruled the state must weigh the entirety of a sex offender’s life, including what role alcohol might have played in the original crime, when determining if he must register as an offender for life.

The case involves a man convicted of assault with intent to rape in 1984 after leaving a Quincy bar. Since then the man, not identified in court papers, has given up drinking and stayed out of trouble.

The Sex Offender Registry Board argued the man should be required continue to register with police as a level one sex offender, but the man argued he no longer poses a risk.

The court ordered the board to reconsider its decision, taking into account the man’s life since his arrest, before determining that he is still a risk.

If the board again concludes the man presents an ongoing risk to commit another sex offense, it must show what facts support that conclusion, the court said.

The mere fact of the original offense is not enough to require the man to continue to register more than two decades later, according to court.

The court said the board should consider a number of factors before making its decision, including the man’s past troubles with alcohol and his efforts to turn his life around, before determining if he presents an ongoing risk, the court said.

“These include, for example, the role alcohol may have played in the offense (and Doe’s subsequent abstinence); the fact that Doe has no previous or subsequent history of sex offenses; his medical, vocational, and living situation; and any other factors that would bear on the predictive value of Doe’s twenty-five year old crime,” the court ruled.

Ultimately, the sex offender board must show that the man presents a “cognizable risk of re-offense,” not merely a “hypothetical or speculative potential risk,” the court said.

If the board determines the man has a low risk of re-offense, and therefore should be required to register, it must define what “low” means and show some evidence to back up that finding.

“The term ‘low’ must be given a reasonable interpretation; it should not be taken to mean ‘anything more than no,”‘ the court said.

The decision further chips away at the state’s 1999 sex offender law, which requires anyone convicted of a sex crime to register with police for the rest of their lives.

The Supreme Judicial Court last year ruled that low-level sex offenders convicted before the law was enacted have the right to a hearing to show they are no longer dangerous. That ruling came in the case of a man convicted of rape in 1979. He served two years of probation and committed no other crimes. In 2003 he was told he must register as a level one sex offender every year for the rest of his life.

The court found applying the law retroactively to a man whose crime occurred two decades earlier violated his constitutional rights.

The lawyer for the man in the most recent case, Elizabeth Caddick, says the Appeals Court decision goes a step further by giving Sex Offender Registry Board hearing officers discretion when deciding if someone must continue registering.

“The court is saying now that hearing officers can ignore the law and follow the state constitution,” Caddick said.

The crime occurred July 2, 1984 after the man left the bar and began following a woman he did not know.

After she turned down his offer to walk her home, the man pushed her into some bushes, tried to kiss her as she struggled, slapped her several times, pinned her down and reached under her shirt and tore her bra. The woman was able to free herself and passers-by alerted police.

The man pleaded guilty to assault with intent to rape and indecent assault and battery and was sentenced to a year in jail.

After the assault, according to court papers, the man attended a detoxification program and has not had a drink for more than two decades. The man has worked as a pressman for a Massachusetts newspaper since 1983 and has maintained good relationships with his children.

AP-ES-06-05-09 1806EDT


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