Current through Register 1531, September 27, 2024
(1)
General
Principles. Pursuant to M.G.L. c. 6, § 178G, a sex offender
whose registration and classification determination has become final pursuant
to M.G.L. c. 6, § 178L(2) and
803 CMR
1.08 and
1.20,
may file a written motion with the Board to terminate his or her obligation to
register. The burden of proof will be on the sex offender to show by clear and
convincing evidence that he or she has not committed a sex offense within ten
years following conviction, adjudication or release from all custody or
supervision, whichever last occurs, and that he or she does not pose a risk to
reoffend or a danger to the public.
(2)
Filing and Form of the
Motion.
(a) In his or her
motion, the sex offender shall include his full name, date of birth, address,
sex offender number (SON), name and address of legal representative (if
applicable), and name and address of legal guardian (if applicable).
(b) In his or her motion, the sex offender
shall include proof, by clear and convincing evidence, that he or she has not
committed a sex offense within ten years following the date of conviction,
adjudication or release from all custody or supervision, whichever last occurs.
In addition, the sex offender shall provide clear and convincing evidence that
he or she is not likely to pose a risk to reoffend or a danger to the safety of
others.
(c) Any motion for
termination filed before a sex offender's registration and classification
determination has become final will be treated as motion for relief from
registration pursuant to
803
CMR 1.29.
(d) The Board may summarily deny, without a
hearing, an offenders motion for termination if:
1. the offender is incarcerated;
2. the offender has pending criminal
charges;
3. the offender's last
classification decision is currently under Judicial Review pursuant to M.G.L.
c. 30A, § 14 or on appeal, or on review by the Board as a result of an
order by a court of the Commonwealth or a federal court.
The Board will notify the offender, in writing, the substantive
reasons for summarily denying the motion for termination. The denial of a
motion for termination under 803 CMR 1.30(2) is not subject to Judicial Review.
803 CMR 1.30(2)(d) does not apply to offenders whose only sex offense was a
result of an adjudication as a youthful offender or as a delinquent
juvenile.
(3) Pursuant to M.G.L. c. 6, § 178G, a
sex offender is not eligible for termination if the offender:
(a) has been determined to be a sexually
violent predator pursuant to M.G.L. c. 6, § 178K(2)(c);
(b) has been convicted of two or more sex
offenses involving a child, as defined by M.G.L. c. 6, § 178C, committed
on different occasions;
(c) has
been convicted of a sexually violent offense, as defined by M.G.L. c. 6, §
178C; or
(d) has been convicted of
a sex offense involving a child and has not already registered for at least ten
years.
(4) A sex
offender whose only sex offense was the result of an adjudication as a youthful
offender or as a delinquent juvenile may file a motion to terminate at any time
after he or she is finally classified notwithstanding the provisions in 803 CMR
1.30(1).
(5) By filing a motion for
termination, the offender authorizes the Board to obtain any information
accessible under M.G.L. c. 6, §§ 178E and 178K(3) to assist in its
review of the offender's motion.
(6)
Termination Hearing
Process. The Chair may appoint a panel of Hearing Examiners or a
single Hearing Examiner to conduct the hearing on the sex offender's motion for
termination.
(a) The Board will notify the
sex offender in writing of the date, time and location of the termination
hearing. An offender may waive his or her right to appear at the hearing before
the Board. If an offender does not appear at his or her hearing, the Board
shall treat the offender's failure to appear as a waiver of his or her
appearance and shall proceed to rule on the offender's motion, unless the
offender presents good cause within three calendar days of the
hearing.
(b) No later than five
calendar days before the scheduled hearing date, the sex offender may submit a
written request to reschedule the hearing for good cause.
(c) No later than 20 calendar days before the
scheduled hearing date, the Board and offender shall exchange all additional
information intended to be submitted to the panel or Hearing Examiner.
(d) The sex offender may be
represented at the hearing by privately retained counsel or an authorized
representative.
(e) Motions for
termination shall be decided on new and updated information not available at
the time of the original classification. This does not foreclose the panel or
Hearing Examiner from considering the information relied on by the Board to
determine the sex offender's classification levels, including any prior written
decisions issued by the Board.
(7)
Decision on Motion for
Termination. The panel or Hearing Examiner shall determine whether
the sex offender has met his or her burden by clear and convincing evidence
that he or she is not likely to pose a risk to reoffend or a danger to the
safety of others. Pursuant to M.G.L. c. 30A, § 11(7) and (8), the panel or
Hearing Examiner shall make specific written findings detailing the reasons for
its decision after the hearing. For purposes of judicial review, pursuant to
M.G.L. c. 30A, § 14 and M.G.L. c. 6, § 178M, these written findings
shall be considered the final agency action.
(8)
Notification of
Decision.
(a) Notification of the
decision on a motion for termination made pursuant to 803 CMR 1.30(7) will be
mailed to the sex offender and his or her authorized representative, if
applicable, as soon as practicable. The sex offender or his or her authorized
representative may request in writing, at the time of his administrative
hearing, that the final decision made pursuant to
803 CMR
1.20 be sent to him or her via
facsimile.
(b) The decision will
inform the sex offender of his or her right to seek judicial review of the
final decision, pursuant to M.G.L c. 30A § 14 and M.G.L. c. 6, §
178M. Pursuant to M.G.L. c. 30A, § 14, the sex offender has right to
pursue judicial review within 30 calendar days from the date of receipt of the
final Sex Offender Registry Board decision. The filing of a complaint for
judicial review will not alter the final agency decision or stay the sex
offender's registration requirements or the dissemination of registration
information.
(9) A sex
offender may re-apply for termination, following the same procedures, three
years after the date the Board denied the motion or after the final disposition
in court, whichever is later.
