To Reclassify Sex Offenders, Mass. SJC Says Sex Offender Registry Board Has Burden Of Proof

The Massachusetts Sex Offender Registry Board has the burden of proof when determining whether a sex offender should not be moved to a less dangerous classification, the state's highest court ruled Wednesday.

The Supreme Judicial Court also ruled in separate cases that indigent sex offenders have a right to legal counsel in reclassification hearings, and that those hearings must be held within a "reasonable" period of time.

The board already is required to provide "clear and convincing evidence" when initially determining which of three classification levels a sex offender should receive, based upon their risk of committing new offenses. Those placed in the more serious Level 2 or Level 3 categories are subject to having their names and pictures posted on a public website by the state.

But when a sex offender requested to be moved to a lower classification, or removed from the registry altogether, the board argued that it was the burden of the individual to prove why he or she should deserved to be reclassified.

The court found otherwise.

"We conclude that the risk of erroneous classification and deprivation remains in reclassification proceedings and that that risk must continue to be borne by the government," wrote Associate Justice Scott Kafker. "Therefore, the ultimate burden of proof should remain with the board to prove by clear and convincing evidence that the classification is current and correct."

The court added, however, that there was also a "burden of production," on the sex offender to provide evidence of a change in circumstances that would warrant reclassification.

The ruling came in the case of an unnamed man who was convicted on five separate cases of open and gross lewdness and lascivious behavior between 1990 and 2004.

In 2013, the man appealed to have his Level 3 classification lowered, arguing he had not offended in many years and had overcome substance abuse problems that he said contributed to his past behavior.