Current through Register 1531, September 27, 2024
Pursuant to M.G.L. c. 6, §§ 178K(1)(a) through (1)
and 178L, the Board shall use the following factors to determine each sex
offender's level of risk of reoffense and degree of dangerousness posed to the
public in reaching a final classification decision.
Research supports that the strongest predictors of sexual
recidivism for all sex offenders are variables related to antisocial
orientation and sexual deviance. (Cortoni, 2010; Hanson and
Morton-Bourgon, 2004; Prescott 2006)
These factors may be present to varying degrees in any
individual case. The final classification level is not based on a cumulative
analysis of the applicable factors, but rather a qualitative analysis of the
individual sex offender's history and personal circumstances. Factors that are
not specifically referenced in a final classification decision are deemed
inapplicable.
Some factors apply to adult male offenders, adult female
offenders and juvenile offenders in different ways. These differences are
reflected in each factor. Juvenile females are classified using juvenile
factors. (Frey, 2010; Hunter et al, 2006; Kubick et al. 2002; Matthews
et al, 1997; Van deer Put, 2013)
The Board recognizes that adult female sex offenders generally
have lower recidivism rates than adult male sex offenders. (Cortoni et
al, 2010). The Board shall apply mitigating weight to this lower
recidivism rate, along with the other relevant regulatory factors, in
determining the final classification level.
HIGH-RISK FACTORS:
Pursuant to M.G. L. c. 6, §178K(1)(a)(i) through (vi), the
presence of Factors 1 through 6, is indicative of a high risk of reoffense and
degree of dangerousness. The absence of Factors 1 through 6 does not reduce an
offender's risk of reoffense or lower his degree of dangerousness.
(1)
Factor 1: Mental
Abnormality.
(a)
Adult Male. The presence of a statutorily defined
mental abnormality specifically related to sexual deviance is significantly
associated with an increased risk of reoffense.
The Board shall consider documentation from a licensed mental
health professional that indicates that the offender has been diagnosed with a
paraphilic disorder related to sexual fantasies, urges, and behaviors.
In the case of pedophilic disorder, this would only be
applicable to offenders who are 16 years of age or older at the time of
diagnosis. (Doren, 2002; Hanson and Morton-Bourgon, 2004; Hanson and
Morton-Bourgon, 2005; and Mann et al. 2010)
(b)
Adult
Female. Factor 1 applies in the same manner to female offenders.
(Ford and Cortoni, 2008; Hart et al., 2003; Rousseau and Cortoni,
2010)
(c)
Juvenile. Factor 1 applies in the same manner to
juvenile offenders. (Prescott, 2006; Worling and Curwen, 2001; Worling
and Langstrom, 2006)
(2)
Factor 2: Repetitive and
Compulsive Behavior.
(a)
Adult Male. Repetitive and compulsive behavior is
associated with a high risk of reoffense. Factor 2 is applied when a sex
offender engages in two or more separate episodes of sexual misconduct. To be
considered separate episodes there must be time or opportunity, between the
episodes, for the offender to reflect on the wrongfulness of his conduct.
The Board may give increased weight to offenders who have been
discovered and confronted (by someone other than the victim) or investigated by
an authority for sexual misconduct and, nonetheless, commit a subsequent act of
sexual misconduct. The most weight shall be given to an offender who engages in
sexual misconduct after having been charged with or convicted of a sex offense.
(Harris et al., 2003; Harris and Hanson, 2004)
(b)
Adult
Female. Factor 2 applies in the same manner to female offenders.
(Cortoni, et al., 2010; Vandiver and Kercher, 2004)
(c)
Juvenile. Factor
2 applies only to juvenile offenders who continue to commit sex offenses after
they have been detected for prior sexual misconduct. Detection includes: being
cautioned, warned, disciplined, criminally charged, or otherwise sanctioned by
an adult authority (
e.g. police, parent, or teacher).
An offender who engages in sexual misconduct after having been
charged with or convicted of a prior sex offense presents an even higher risk
to reoffend.
803 CMR 1.33(2)(c) includes adults whose only sex offense(s)
were committed as a juvenile. (ATSA, 2012; Curwen and Costin, 2007;
Epperson et al., 2009; Nisbet, et al., 2004; Powers-Sawyerand Miner, 2009;
Prentky and Righthand, 2003; Stetson School, 2012; Worling and Curwen, 2001;
Worling and Langstrom, 2003 and 2006)
(3)
Factor 3: Adult Offender with
a Child Victim.
(a)
Adult Male. Adult offenders who target children pose a
heightened risk to public safety because children normally lack the physical
and mental strength to resist an offender. In addition, children can be lured
into dangerous situations more easily than most adults. For purposes of factor
3, the Board shall consider any victim younger than 16 years old as a "child
victim".
Offenders who target prepubescent children, generally younger
than 13 years old, are more likely to have a deviant sexual interest and,
therefore, pose an even higher risk of reoffense and degree of dangerousness
and are given greater weight.
If the difference in age between the offender and the victim is
five years or less and there is evidence of a consensual, although statutorily
criminal, sexual act, the Board shall give limited weight to factor 3.
(Hanson & Bourgon, 2005; Hanson et al. 2007, Levinson et al., 2008;
Mann et al, 2010)
(b)
Adult Female.
Factor 3 will apply in the same manner to adult female offenders.
(c)
Juvenile. Factor
3 does not apply to juvenile offenders. Factor 27 addresses juvenile offenders
who target child victims, including adults whose only sex offense(s) were
committed as a juvenile.
(4)
Factor 4: Age at First
Offense.
(a)
Adult
Male. Age at first offense is an important variable related to
risk of reoffense and degree of sexual deviance. Offenders who manifest an
early onset and persistence of deviant sexual interests or behaviors are at a
higher risk to reoffend sexually.
Factor 4 applies to offenders convicted as adults who committed
their first detected sexual misconduct as a juvenile and continued to engage in
sexual misconduct after the age of 21. (Hanson and Harris, 2000;
Skelton and Vess, 2008)
(b)
Adult Female.
Factor 4 will apply in the same manner to adult female offenders.
(c)
Juvenile. Factor
4 applies to juvenile offenders who committed their first act of sexual
misconduct when they were younger than 13 years old, were detected, and then
continued to engage in sexual misconduct after 14 years of age or older.
803 CMR 1.33(4)(c) includes adults whose only sex offense(s)
were committed as juveniles. (Prentky, et al, 2010; Prescott,
2006)
(5)
Factor 5: Adjudicated
Sexually Dangerous Person or Released from Civil Commitment.
(a)
Adult Male.
Pursuant to M.G.L. c. 6, § 178K(1)(a)(v), the Board views any offender who
has been adjudicated as a sexually dangerous person, pursuant to M.G.L. c. 123A
or the equivalent in another state, whether he has been released or not, to
present a substantial risk to reoffend and degree of dangerousness.
Because of the statutory differences between the criteria and
legal process for civilly committing sexually dangerous persons and classifying
sex offenders living in the community, the Board uses criteria to determine an
offender's risk of reoffending and degree of dangerousness that are different
from those used by the courts in a sexually dangerous person proceeding.
(b)
Adult
Female. Factor 5 applies in the same manner to adult female
offenders.
(c)
Juvenile. Factor 5 applies in the same manner to
juvenile offenders.
(6)
Factor 6: Maximum Term of Incarceration.
(a)
Adult Male.
Pursuant to M.G.L. c. 6, § 178K(1)(a)(vi), the Board considers the
offender who declines early release, specifically to avoid community
supervision or due to his own concerns of reoffending, to present an increased
risk of reoffense and degree of dangerousness.
803 CMR 1.33(6)(a) includes adults whose only sex offense(s)
were committed as a juvenile, but who were incarcerated for other offenses as
an adult.
(b)
Adult Female. Factor 6 applies in the same manner to
adult female offenders.
(c)
Juvenile. Factor 6 does not apply to juvenile
offenders.
RISK-ELEVATING FACTORS:
(7)
Factor 7:
Relationship between Offender and Victim. The relationship between
an offender and the victim is an important variable in determining risk of
reoffense and degree of dangerousness.
(a)
Adult Male. For purposes of Factor 7, the following
relationship categories are relevant:
1.
Intrafamilial Victim includes the following:
a. Any persons whose marriage to the offender
would be prohibited pursuant to M.G.L., c. 207, §§ 1 through
3;
b. Legally married
spouses;
c. Adoptive children,
first cousins, brothers- and sisters-in-law; and
d. Any persons who are family member
substitutes (e.g., foster, step-relatives, or any other type
of familial household "live-in" relationship) who lived in the same household
with the offender for two or more years prior to the offending behavior.
Offenders who only target intrafamilial victims may be at a lower risk to
reoffend as compared to offenders who target unrelated victims. However, having
an intrafamilial victim is not a risk mitigating, nor a risk elevating, factor.
It is included for definitional purposes only.
2.
Extrafamilial
Victim includes the following:
a.
Any person who has a recognizable non-intrafamilial relationship with the
offender, such as a friend, co-worker, or acquaintance; and
b. Any persons who are family member
substitutes (
e.g. foster, step-relatives, or any other type of
familial household "live-in" relationship) who lived in the same household with
the offender for less than two years prior to the offending behavior. Having
victims outside the family relationship is empirically related to an increased
risk of reoffense. The number of potential victims substantially increases when
offenders choose to sexually offend against extrafamilial victims.
Position of Trust. The Board gives
special consideration to offenders who commit a sex offense while in a position
of trust as established by their profession or role with the victim. These
offenders present an increased degree of dangerousness because they violate the
victim's and the public's sense of trust, safety, and security.
3.
Stranger
Victim includes the following:
a.
Any person who has known the offender for less than 24 hours prior to the
offense;
b. Any person who has had
no memorable interaction with the offender prior to the offense;
c. There are cases where the offender and
victim relationship is established via electronic communications. To consider
an adult victim a stranger, the contact sex offense would have to occur within
24 hours of the initial contact. To consider a child victim a stranger, the
offender would have to transmit sexually explicit materials or make sexually
explicit comments within 24 hours of first electronic contact.
Sex offenders who have sexually offended against a stranger
victim have a higher risk of reoffense then offenders who target victims known
to them. (Hanson and Bussiere, 1998; Hanson and Harris, 2000; Harris et
al., 2003; Knight and Thornton, 2007)
(b)
Adult
Female. Factor 7 applies in the same manner to adult female
offenders. (
Poels, 2007; Williams and Nicholaichuk, 2001)
1. the number of poor behavioral reports or
disciplinary reports the offender received while confined;
2. the seriousness of the violation;
and
3. the length of time that has
elapsed between the offender's last report and his release. 803 CMR 1.33(12)(a)
includes adults whose only sex offense(s) were committed as a juvenile and who
also have a history of adult incarcerations or commitment. (Doren,
2002; and Epperson et al, 2003)
(8)
Factor 8: Weapon, Violence or
Infliction of Bodily Injury.
(a)
Adult Male. All sex offenses are inherently violent,
but not necessarily in a physical sense. Offenders who use or threaten to use
violence or weapons or cause bodily injury during the commission of a sexual
assault are more likely to reoffend and present an increased degree of
dangerousness. These behaviors may be indicative of sexual arousal to violence
or an antisocial orientation.
Any force or threat of force beyond that necessary to commit
the sexual offense shall constitute violence. Any object used to injure,
incapacitate, penetrate, force, or threaten the victim during the course of the
sexual assault shall be considered a weapon. Any injury, including but not
limited to bruises, abrasions, and cuts, or any injury requiring medical
attention other than for investigative purposes that is sustained by the victim
during a sexual offense shall be deemed bodily injury. (Boer et al.,
1997; Epperson et al., 1998; Harris et al., 2003; Knight and Thornton, 2007;
Mann et al., 2010; Mokres et al., 2012)
(b)
Adult Female.
Factor 8 applies in the same manner to adult female offenders. (Poels,
2007)
(c)
Juvenile. Factor 8 applies in the same manner to
juvenile offenders. (ATSA, 2012; Curwen and Costin, 2007; McCann and
Lussier, 2008; Prentky and Righthand, 2003; Stetson School, 2012; Worling and
Curwen, 2001; Worling and Langstrom, 2006)
(9)
Factor 9: Alcohol and
Substance Abuse.
(a)
Adult Male. Drugs and alcohol are behavioral
disinhibitors. Substance abuse may increase an offender's risk of reoffense.
Factor 9 applies when the sex offender has a history of substance abuse,
demonstrates active substance abuse, or when the offender's substance use was a
contributing factor in the sexual misconduct. An offender's history of drug and
alcohol use and history of treatment, abstinence and relapse should be
considered in determining the weight given to factor 9.
803 CMR 1.33(9)(a) includes adults whose only sex offense(s)
were committed as a juvenile, unless the substance misuse was time-limited
experimentation during adolescence. (Bonta and Andrews, 2007; Douglas
and Skeem, 2005; Hanson and Harris, 2000; Hanson et al., 2007)
(b)
Adult
Female. Factor 9 applies in the same manner to adult female
offenders. (Cortoni, 2010; Ford, 2010; Giguere and Bumby, 2007; Hanson
et al., 2007; Hart et al., 2003; Rousseau and Cortoni, 2010; Sandler and
Freeman, 2009; Vandiver and Kercher, 2004).
(c)
Juvenile. Factor
9 applies in the same manner to juvenile offenders. (Heilbrun, et al.,
2005; Stetson School, 2012)
(10)
Factor 10: Contact with
Criminal Justice System.
(a)
Adult Male. Individuals are expected to comply with
the law. Lawlessness and antisocial behavior correlate with risk of reoffense
and degree of dangerousness. For the purposes of factor 10, the Board shall
consider evidence of a persistent disregard for rules, laws, and the violation
of the rights of others.
Ongoing criminal behavior weighs heavily in the application of
factor 10. Analysis under factor 10 shall include the consideration of the
number and type of criminal charges, dispositions on the charges, dates of the
criminal conduct, and number of abuse prevention or harassment prevention
orders.
When classifying adults whose only sex offense(s) were
committed as a juvenile, the Board shall consider their entire criminal
history. (Duwe and Freske, 2012; Hanson and Bussière, 1998;
Hanson and Bourgon, 2005; and Harris et al., 2003)
(b)
Adult Female.
Factor 10 applies in the same manner to adult female offenders.
(Cortoni, 2010; Hanson et al., 2007; Hart et al., 2003; Sandler and
Freeman, 2007, 2009; Vandiver and Kercher, 2004; Vandiver,
2006)
(c)
Juvenile. Juveniles with a history of multiple charges
or adjudications, including non-sexual crimes, are at increased risk of
reoffense. Analysis under factor 10 shall include consideration of the number
and severity of criminal charges, abuse prevention orders, harassment
prevention orders, and Child Requiring Assistance proceedings, dispositions on
the charges, and dates of the criminal conduct. (Carpentier et al.,
2011; Epperson et al., 2009; Gerhold et al. 2007; McCann & Lussier, 2008;
Nisbet et al,. 2004; Prentky and Righthand, 2003; Zimring et al., 2007; Zimring
et al., 2009).
(11)
Factor 11: Violence
Unrelated to Sexual Assaults.
(a)
Adult Male. An
offender is more likely to reoffend and present a greater danger if he has
previously demonstrated that he can act violently and with no regard to the
safety of others. Analysis under factor 11 shall include the consideration of
the severity and frequency of violence towards other persons or animals.
(Harris et al., 2003; Hanson & Bourgon, 2005)
(b)
Adult Female.
Factor 11 applies in the same manner to adult female offenders. (Hanson
and Cortoni, 2005; Poels, 2007)
(c)
Juvenile. Factor
11 applies in the same manner to juvenile offenders. (Curwen and
Costin, 2007; Knight et al., 2009; Prentky and Righthand, 2003; Stetson School,
2012; Worling and Curwen, 2001; and Worling et al., 2012)
(12)
Factor 12:
Behavior While Incarcerated or Civilly Committed.
(a)
Adult Male.
Offenders are expected to comply with the rules of the institutional setting.
Poor behavior while incarcerated or civilly committed is an indicator of
antisocial behavior. An offender who unsatisfactorily adjusts to the rigors of
confinement by violating rules in a highly structured environment presents an
increased degree of dangerousness. Unsatisfactory adjustment is evidenced by
violations of the rules. In determining the potential risk of reoffense and
dangerousness of an offender, the Board may consider such elements as:
1. the number of poor behavioral reports or
disciplinary reports the offender received while confined;
2. the seriousness of the violation;
and
3. the length of time that has
elapsed between the offender's last report and his release. 803 CMR 1.33(12)(a)
includes adults whose only sex offense(s) were committed as a juvenile and who
also have a history of adult incarcerations or commitment. (Doren,
2002; and Epperson et al., 2003)
(b)
Adult Female.
Factor 12 applies in the same manner to adult female offenders.
(c)
Juvenile. Factor
12 does not apply to juvenile offenders. Factor 13 addresses juvenile offenders
in custody.
(13)
Factor 13: Non-compliance with Community Supervision.
(a)
Adult Male.
Offenders are expected to comply with the terms of community supervision.
Non-compliance with the rules of community supervision is an indicator of
antisocial behavior. An offender who unsatisfactorily adjusts to the external
controls inherent to community supervision poses a significant risk when those
controls are removed. Unsatisfactory adjustment is evidenced by violations of
the rules of the supervising agency or the conditions of release. In
determining the potential risk and dangerousness of an offender, the Board may
consider such elements as:
1. the number of
violations the offender received during his period of supervision;
2. the seriousness of the violation reported
in the violation notice or report; and
3. the length of time that has elapsed
between the offender's last violation notice or report and his release from
supervision.
The Board shall consider the offender who engages in sexual
misconduct while on community supervision to pose a greater risk of reoffense
and a greater degree of danger to the public.
When classifying adults whose only sex offense(s) were
committed as a juvenile, the Board shall consider the offender's entire history
of community supervision. (Hanson and Harris, 2000; Knight and
Thornton, 2007; Mann et al., 2010).
(b)
Adult Female.
Factor 13 applies in the same manner to adult female offenders. (Hanson
et al., 2007; Hart et al., 2003; Stuart and Brice-Baker,
2004)
(c)
Juvenile. For purposes of factor 13, juvenile
offenders are considered to be under "community supervision" when they are
supervised in the community by probation or the Department of Youth Services
(DYS), or when they are in a residential treatment program or a DYS detention
center or program.
A juvenile who unsatisfactorily adjusts to the external
controls inherent to supervision may pose a significant risk when those
controls are removed. Unsatisfactory adjustment is evidenced by a pattern of
violations of rules and regulations of the supervising agency or program. In
determining the potential risk and dangerousness of an offender, the Board may
consider such elements as:
1. the
number of disciplinary issues or rule violations;
2. their seriousness; and
3. the length of time that has elapsed since
the offender's last disciplinary issue or violation.
While not sufficient by itself to invoke factor 13, a
juvenile's history of suspension and expulsion from school may be considered in
assessing a pattern of behavior while in a supervised setting.
The Board shall consider juvenile offenders who engage in
sexual misconduct while under community supervision to pose a heightened risk
of reoffense and a greater degree of danger to the public. (Epperson et
al., 2009; Prentky and Righthand, 2003)
(14)
Factor 14: Recent
Threats.
(a)
Adult
Male. The Board shall consider the offender who expresses threats
or intent to sexually assault another person to be at an increased risk of
reoffense and degree of dangerousness.
803 CMR 1.33(14)(a) includes adults whose only sex offense(s)
were committed as a juvenile. (Hanson and Harris, 2000; Hanson et al.,
2007; Harris et al., 2003)
(b)
Adult Female.
Factor 14 applies in the same manner to adult female offenders.
(c)
Juvenile. Factor
14 applies in the same manner to juvenile offenders.
(15)
Factor 15: Hostility Towards
Women.
(a)
Adult
Male. Hostile attitudes and behavior towards women are predictive
of sexual reoffense and increased dangerousness. Factor 15 is applied when an
offender has a pervasive pattern of conflicts with women, physical aggression
toward women, and using derogatory and demeaning language towards women, or has
multiple abuse prevention orders or harassment prevention orders taken out by
different women at different times.
803 CMR 1.33(15)(a) includes adults whose only sex offense(s)
were committed as a juvenile and who evidence a recent pattern of hostility
toward women. (Allan et al. 2000; Hanson et al., 2007; Mann et al.,
2010)
(b)
Adult Female. Factor 15 does not apply to adult female
offenders.
(c)
Juvenile. Factor 15 does not apply to juvenile
offenders.
(16)
Factor 16: Public Place.
(a)
Adult Male. The
commission of a sex offense or engaging in sexual misconduct in a place where
detection is likely reflects the offender's lack of impulse control. The Board
may apply less weight to factor 16 if there is evidence that the offender made
a clear and concerted effort to conceal his offending behavior from others. For
purposes of factor 16, a "public place" includes any area maintained for or
used by the public and any place that is open to the scrutiny of others or
where there is no expectation of privacy. (Epperson et al,
2000)
(b)
Adult Female. Factor 16 applies in the same manner to
adult female offenders.
(c)
Juvenile. Factor 16 applies in the same manner to
juvenile offenders. (Langstrom, 2001)
(17)
Factor 17: Male Offender
against Male Victim.
(a)
Adult Male. Male offenders who have engaged in sexual
misconduct against a male victim reoffend at a higher rate. Factor 17 applies
when a male offender commits any sexual misconduct against a non-consenting
male or a male child younger than 16 years old. (Hanson et al., 2003;
Harris et al., 2003; Harris and Hanson, 2004; Knight and Thornton,
2007)
(b)
Adult Female. Factor 17 does not apply to adult female
offenders.
(c)
Juvenile. Factor 17 applies only to juvenile offenders
who were 13 years of age or older at the time of the sexual misconduct.
There are two circumstances when juvenile sex offenders who
have male victims are at a higher risk to reoffend. Factor 17 only
applies:
1. when the male victim is
younger than 13 years old and is at least five years younger than the offender
at the time of the sexual misconduct; or
2. if there is penetration and physical force
in the sexual assault, regardless of the age of the victim.
803 CMR 1.33(17)(c) includes adults whose only sex offense(s)
were committed as a juvenile. (McCann and Lussier, 2008; Prescott,
2006; Prentky and Righthand, 2003; Worling and Curwen, 2001).
(18)
Factor 18: Extravulnerable Victim.
(a)
Adult Male.
Offenders who engage in sexual misconduct against an extravulnerable victim
pose a greater danger to public safety. For purposes of factor 18
"extravulnerable" includes any condition or circumstance that:
1. renders a victim more susceptible to
sexual assault or unable to effectively defend himself or herself; or
2. compromises his or her ability to
effectively report the abuse or provide testimony in court.
The Board considers victims who are younger than eight years
old or 60 years of age or older to be extravulnerable by virtue of their age.
(Levinson, et al., 2001; McGrath, 1991)
(b)
Adult
Female. Factor 18 applies in the same manner to adult female
offenders.
(c)
Juvenile. Factor 18 applies in the same manner to
juvenile offenders.
(19)
Factor 19: Level of Physical Contact.
(a)
Adult Male.
Sexual assault involving penetration has been shown to cause increased
psychological harm to the victim. The offender who engages in penetration,
especially penile penetration, as part of the sexual assault poses an increased
degree of dangerousness. In the case of an adult with a child victim, if the
difference in age between the offender and the victim is five years or less and
there is evidence of a consensual, although statutorily criminal sexual act,
the Board shall give limited weight to factor 19. (Lesserman et al,
1997)
(b)
Adult Female. Factor 19 applies in the same manner to
adult female offenders.
(c)
Juvenile. Factor 19 applies in the same manner to
juvenile offenders. However, when determining the weight to apply to factor 19,
the Board should consider: age difference between offender and victim; whether
there is evidence of an ongoing dating type relationship; whether the victim
consented; and whether there was force or coercion.
803 CMR 1.33(19)(c) includes adults whose only sex offense(s)
were committed as a juvenile. (Stetson School, 2012)
(20)
Factor
20: Diverse Sexual Behavior.
(a)
Adult Male. Diverse sexual behavior may reflect sexual
preoccupation, elevated sex drive, or sexual deviance. Offenders who have a
history of engaging in different types of inappropriate sexual behaviors, in
separate episodes, are at an increased risk to reoffend. Diverse sexual
behaviors include, but are not limited to: voyeurism, exhibitionism, possession
of pornography, contact sexual assaults, stealing of a person's belongings for
sexual arousal, frottage, stalking, photographing or videotaping a partially
nude or nude person or the intimate parts of a person without their consent,
and engaging in sexual harassment. In determining the weight applied to factor
20, the Board shall consider the number, types, and frequency of the diverse
sexual behaviors. (Hanson and Harris, 2000; Hanson et al., 2007; Harris
et al., 2003; and Mann et al., 2010)
(b)
Adult Female.
Factor 20 applies in the same manner to adult female offenders. (Hart
et al, 2003)
(c)
Juvenile. Factor 20 applies in the same manner to
juvenile offenders. (Curwen and Costin, 2007; Prentky and Righthand,
2003; Worling and Curwen, 2001)
(21)
Factor 21: Diverse Victim
Type.
(a)
Adult
Male. Offenders whose acts of sexual misconduct traverse victim
types, such as multiple ages, gender, or relationship categories, present a
greater risk of reoffense and danger to public safety because they have a
broader victim pool. (Hanson and Harris 2000; Heil et al., 2003; Kleban
et al., 2012)
(b)
Adult Female. Factor 21 applies in the same manner to
adult female offenders.
(c)
Juvenile. Factor 21 applies in the same manner to
juvenile offenders. (Curwen and Costin, 2007; Epperson et al, 2009;
Stetson School, 2012; Worling and Curwen, 2001; Parks and Bard,
2006)
(22)
Factor 22: Number of Victims.
(a)
Adult Male.
Offenders who have committed acts of sexual misconduct against two or more
victims present an increased risk of reoffense and degree of
dangerousness.
(b)
Adult Female. Factor 22 applies in the same manner to
adult female offenders.
(c)
Juvenile. Factor 22 applies in the same manner to
juvenile offenders. (Epperson et al., 2009; Gerhold et al., 2007;
Miccio-Fonseca, 2009; Prentky and Righthand, 2003; Powers-Sawyer and Miner,
2009; Stetson School, 2012; Worling and Curwen, 2001; Worling and Langstrom,
2006)
(23)
Factor 23: Victim Access.
(a)
Adult Male. An
offender's risk of reoffense increases when he has frequent and easy access to
potential victims from his preferred victim pool. The Board may consider such
things as:
1. whether the offender has regular
and ongoing opportunities for interaction with potential victims through such
things as coaching, teaching, or volunteering, or through his living,
employment, or relationship settings; or
2. whether the offender appears to be
intentionally seeking circumstances that put him in contact with his preferred
victims.
For offenders who target stranger victims, factor 23 applies
when the offender's conduct suggests an intentional seeking out of
circumstances similar to his prior offending behavior.
803 CMR 1.33(23)(a) includes adults whose only sex offense(s)
were committed as juveniles. (Hanson and Harris, 2000; Hanson et al,
2007)
(b)
Adult Female.
Factor 23 applies in the same manner to adult female offenders.
(c)
Juvenile. The
risk of reoffense increases when juveniles have frequent, unsupervised access
to potential victims from their preferred victim pool or appear to be
intentionally seeking circumstances that allow such access. (Carpentier
and Proulx, 2011; Spice, et al, 2013; Worling and Langstrom,
2006)
(24)
Factor 24: Less than Satisfactory Participation in Sex Offender
Treatment.
(a)
Adult
Male. Offenders who refuse to participate in, dropped out of, or
are terminated by their treatment provider from sex offender treatment present
an increased risk of reoffense.
The Board shall consider the offender who, during his most
recent opportunity to participate in treatment while in custody or when
required by community supervision, refused to participate in a sex offender
treatment program or dropped out or was involuntarily terminated to be at an
increased risk of reoffense and degree of dangerousness. (Hanson and
Harris, 2000; Hanson et al., 2002; Fosel and Schmucker, 2005)
(b)
Adult
Female. Factor 24 applies in the same manner to adult female
offenders.
(c)
Juvenile. Factor 24 applies in the same manner to
juvenile offenders. (Curwen and Costin, 2007; Epperson et al, 2009;
Gerhold, et al, 2007; Powers-Sawyer and Miner, 2009; Vitacco et al., 2009;
Worling and Curwen, 2001; Worling and Langstrom, 2006)
(25)
Factor 25:
Prostitution of Children.
(a)
Adult Male. Factor 25 does not apply to male
offenders.
(b)
Adult
Female. Female offenders convicted of offenses related to either
promoting or patronizing prostitution of a child have an increased risk of
reoffense. (Sandler and Freeman, 2009)
(c)
Juvenile. Factor
25 does not apply to juvenile offenders.
(26)
Factor 26: History of
Abusing Children.
(a)
Adult Male. Factor 26 does not apply to male
offenders.
(b)
Adult
Female. Female offenders with a history of engaging in any type of
non-sexual child abuse have an increased risk of reoffense. The Board shall
consider evidence of prior child abuse, including charges, investigations, and
convictions. (Cortoni and Gannon, 2011; Sandler and Freeman, 2009;
Wijkman and Bijleveld, 2013)
(c)
Juvenile. Factor
26 does not apply to juvenile offenders.
(27)
Factor 27: Age of
Victim.
(a)
Adult
Male. Factor 27 does not apply to male offenders.
(b)
Adult Female.
Factor 27 does not apply to female offenders.
(c)
Juvenile. Factor
27 only applies to juvenile offenders who were 13 years of age or older at the
time of the sex offense.
1.
Child
Victims. Juvenile offenders who target younger child victims
outside of their peer age group present an increased risk of reoffense and
degree of dangerousness. For purposes of factor 27, the Board shall consider
"child victim" as younger than 13 years old and at least five years younger
than the offender at the time of the offense.
2.
Adult Victims.
Juvenile offenders who target adult victims present an increased risk of
reoffense and degree of dangerousness. For purposes of factor 27, the Board
shall consider "adult victim" as 18 years of age or older and at least five
years older than the offender at the time of offense.
803 CMR 1.33(27)(c) includes adults whose only sex offense(s)
were committed as a juvenile. (ATSA, 2012; McCann and Fussier, 2008;
Nisbet, et al, 2004; Stetson School, 2012; Worling and Curwen, 2001; Worling
and Fangstrom, 2006)
(28)
Factor 28: Supervision by
Probation or Parole.
(a)
Adult Male. Supervision of sex offenders released into
the community increases public safety. An offender's risk of reoffense and
degree of dangerousness are reduced while he is serving a term of community
supervision. Factor 28 also applies to offenders who are incarcerated at the
time of the classification hearing and will be under community supervision upon
release. Factor 28 may be given less weight if there is a history of probation
violations.
803 CMR 1.33(28)(a) includes adults whose only sex offense(s)
were committed as a juvenile. (English et al., 1995; Vries Robbé
and Vogel, 2013)
(b)
Adult Female.
Factor 28 applies in the same manner to female offenders.
(c)
Juvenile.
Community supervision reduces a juvenile sex offender's risk of reoffense and
degree of dangerousness. For purposes of factor 28, juvenile offenders are
under "community supervision" when they are serving a probation sentence or are
being monitored by DYS while in the community. (Stetson School,
2012)
(29)
Factor 29: Offense-Free Time in the Community.
(a)
Adult Male. The
likelihood of sexual recidivism decreases the longer the sex offender has had
access to the community without committing any new sex offense or non-sexual
violent offense. The risk of reoffense decreases for most offenders after
living in the community offense-free for five to ten years. The risk of
reoffense lowers substantially after ten years of offense-free time in the
community.
For purposes of factor 29, the offense-free time begins on the
date of an offender's most recent release from custody for a sex offense or
non-sexual violent offense. In the case of an offender who was not committed,
the offense-free time begins on the most recent date of conviction or
adjudication of a sex offense or non-sexual violent offense.
803 CMR 1.33(29)(a) includes adults whose only sex offense(s)
were committed as a juvenile. (Hanson et al., 2013; Harris &
Hanson, 2004)
(b)
Adult Female. Factor 29 applies in the same manner to
female offenders.
(c)
Juvenile. Adolescence is a time of rapid social,
sexual, physical, cognitive, and emotional developmental changes. The
likelihood of recidivism decreases for most juvenile sexual offenders after
living in the community offense-free for three years. The risk of re-offense
continues to lower over time and by ten years of offense-free time the risk of
reoffense has substantially decreased.
For purposes of factor 29, the offense-free time begins on the
most recent date the juvenile offender is released from DYS detention for a sex
offense or non-sexual violent offense. In the case of an offender who is not in
detention, the offense-free time begins on the most recent date of adjudication
in the juvenile court for a sex offense or non-sexual violent offense.
(Prentky et al., 2010; Worling and Langstrom, 2006; Worling, et al.,
2010)
(30)
Factor 30: Advanced
Age.
(a)
Adult
Male. Recidivism rates incrementally decline as sex offenders get
older, especially as offenders move into their later years. While advanced age
alone does not outweigh other risk-elevating factors present in an individual
offender, advancing age has a mitigating effect on risk of reoffense.
Factor 30 does not apply uniformly to all sex offenders.
Although risk of reoffense gradually declines when an offender is in his
forties, the Board considers advanced age to have a significant mitigating
effect when the offender is 50 years of age or older or, for those with child
victims, when the offender is 60 years of age or older. For purposes of factor
30, the Board will consider the offender's age at the time of the
classification hearing.
Factor 30 should be given less weight when an offender
continues to demonstrate an active sex drive or general criminality.
803 CMR 1.33(30)(a) includes adults whose only sex offense(s)
were committed as a juvenile. (Barbaree and Blanchard, 2008; Hanson,
2002; Hanson, 2006; Fazel et al., 2006; Lussier and Healy, 2009; Nicholaichuk
et al., 2014; Prentky and Lee, 2007; Skelton and Vess, 2008; Thornton,
2006)
(b)
Adult Female. Factor 30 applies in the same manner to
adult female offenders.
(c)
Juvenile. Factor 30 does not apply to juvenile
offenders.
(31)
Factor 31: Physical Condition.
(a)
Adult Male.
Pursuant to M.G.L. c. 6, § 178K(1)(d), the Board shall give consideration
to the offender who has a physical condition that is documented by a treating
medical provider. Factor 31 seeks to identify those offenders who have a
decreased risk of reoffense or degree of dangerousness due to a physical
condition, including a debilitating illness. At minimum, the medical
documentation must:
1. Identify the physical
condition;
2. Indicate the onset or
date of diagnosis of the physical condition;
3. Provide a detailed description of the
offender's limitations connected to the physical condition; and
4. Provide a summary of the offender's
treatment and prognosis relative to the physical condition.
(b)
Adult
Female. Factor 31 applies in the same manner to adult female
offenders.
(c)
Juvenile. Factor 31 applies in the same manner to
juvenile offenders.
(32)
Factor 32: Sex Offender Treatment. In order for factor
32 to apply, it shall be the responsibility of the offender to provide
documentation from a treatment provider verifying his treatment participation
or completion. This documentation must, at minimum, include: the name and
license number of the offender's treatment provider; the treatment provider's
description of the treatment program's milieu, methodology, goals, and
objectives; and a record of the offender's attendance, level of participation,
and degree of progress.
(a)
Adult
Male. The Board has determined that participation in or successful
completion of sex offense-specific treatment, specifically in a program
utilizing a cognitive-behavioral modality, such as Relapse Prevention,
Risk-Needs-Responsivity, or Good Lives, is a risk-reducing factor. The Board
may also consider pharmacological treatment for paraphilic disorders as risk
reducing.
The risk-mitigating weight applied to factor 32 varies in
degrees based on the following:
1.
Completion of Treatment. In general, offenders who
have successfully completed a treatment program have lower rates of reoffense
than those who have not. Participation in treatment through the end of a term
of incarceration or community supervision is not considered "completion of
treatment" unless there is documentation that the offender met all the goals of
the program.
2.
Currently Participating in Treatment. The Legislature
has identified current participation in treatment as a risk mitigating factor.
Offenders who voluntarily participate in treatment in the community, not solely
as a condition of supervised release, and offenders who continue to participate
in treatment after their treatment providers have determined that they have
completed the program, may receive more weight under factor 32.
3.
Past Participation in
Treatment. The Board shall consider an offender's past
participation in treatment. Offenders who participated in treatment while
incarcerated or under community supervision, but did not complete the sex
offender treatment program, may receive less weight under factor 32.
4.
Denial. One of
the primary goals of successful sex offender treatment is accepting
responsibility for engaging in harmful sexual offending behavior. While some
individuals who deny committing their sex offense can benefit from treatment,
their lack of responsibility or degree of minimization for their behaviors may
diminish the weight assigned to factor 32.
When classifying adults whose only sex offense(s) were
committed as a juvenile, the Board shall consider their past participation in
treatment as a juvenile and participation in sex offender treatment as an
adult. (Hanson et al., 2009; Levenson, 2011; Lösel and Schmucker,
2005; Marques, 2005; Olver et al., 2013; Saleh and Guidry,
2003)
(b)
Adult Female.
Many female sex offenders have treatment needs that may not be addressed in
traditional treatment programs created for male sex offenders. The Board shall
give mitigating weight to participation in or successful completion in a
program utilizing a cognitive-behavioral modality such as Relapse Prevention,
Risk-Needs-Responsivity, and Good Lives or general psychological therapy. The
Board shall consider the degree of participation in treatment and denial in the
same manner as adult males. (Blanchette and Brown, 2006; Blanchette and
Taylor, 2010; Ford, 2010)
(c)
Juvenile.
Juvenile offenders may have broader treatment needs than their adult
counterparts. Because juveniles are still maturing and developing, they may be
more amenable to treatment.
The Board has determined that participation in any
psychological therapy that addresses various areas of the offender's life,
including family, school, emotional, and social domains, or sex offense
specific treatment is a risk-reducing factor. The amount of weight assigned to
factor 32 increases with the offender's progress and level of participation,
family involvement, level of accountability, amount of focus on sex offending
behavior, or whether the offender completed a treatment program. (ATSA,
2012; Borduin et al., 2009; Reitzel and Carbonell, 2006; Worling et al.,
2010)
(33)
Factor 33: Home Situation
and Support Systems.
(a)
Adult Male. Factor 33 is applied to an offender who is
currently residing in a positive and supportive environment. The likelihood of
reoffense is reduced when an offender is supported by family, friends, and
acquaintances.
The Board shall give greater mitigating consideration to
evidence of a support network that is aware of the offender's sex offense
history and provides guidance, supervision, and support of
rehabilitation.
803 CMR 1.33(33)(a) includes adults whose only sex offense(s)
were committed as a juvenile. (Tabachnick and Klein, 2011; de Vries
Robbé and Vogel, 2013; de Vries Robbé et al.,
2014)
(b)
Adult Female. Factor 33 applies in the same manner to
adult female offenders. (Gannon and Rose, 2008)
(c)
Juvenile. A
juvenile who is currently residing in a positive and supportive environment is
less likely to reoffend. Factor 33 is applied when there is evidence of stable
relationships with family, stable and therapeutically supportive family,
pro-social friends and acquaintances, or positive engagement with social
services, teachers or other adults.
The Board shall give greater mitigating consideration to
evidence of a positive support network that is aware of the offender's sex
offense history and provides guidance, supervision, and support of
rehabilitation. (Bremer, 2006; Prentky and Righthand, 2003; Prentky et
al., 2010; Worling and Curwen, 2001)
(34)
Factor 34: Materials
Submitted by the Sex Offender Regarding Stability in the
Community.
(a)
Adult
Male. Pursuant to M.G.L. c. 6, § 178K(1)(l), the Board shall
give mitigating consideration to materials submitted by the offender that
demonstrate stability in the community. The Board shall consider evidence that
directly addresses the offender's recent behavior and lifestyle including, but
not limited to: his residential stability, sustained sobriety, education or
employment stability, type of employment, and non-work related activities.
(Tabachnick and Klein, 2011; de Vries Robbé and Vogel, 2013; de
Vries Robbé et al., 2014)
(b)
Adult Female.
Factor 34 applies in the same manner to adult female offenders. (Gannon
and Rose, 2008)
(c)
Juvenile. Factor 34 applies in the same manner to
juvenile offenders. (
Bremer, 2006; Prentky et al., 2010)
ADDITIONAL FACTORS:
(35)
Factor 35: Psychological or
Psychiatric Profiles Indicating Risk to Reoffend.
(a)
Adult Male. The
Board shall consider evaluative reports, empirically-based risk assessment
instruments, or testimony from a licensed mental health professional that
discuss psychological and psychiatric issues, including major mental illness,
as they relate to the offender's risk of reoffense.
The Board may give appropriate evidentiary weight to
documentary reports and risk assessment, but the ultimate risk opinion, if any,
will be excluded from consideration unless the mental health professional
testifies as an expert witness at the classification hearing. (Abracen
and Looman, 2012; Fazel et. al. 2007; Hanson and Bussière, 1998; Hanson
and Harris, 2000; Kafka, 2012)
(b)
Adult Female.
Factor 35 applies in the same manner to adult female offenders.
(Cortoni, 2010; Gannon, et al., 2014; Hart et al., 2003; Rousseau and
Cortoni, 2010; Vandiver and Kercher, 2004)
(c)
Juvenile. Factor
35 applies in the same manner to juvenile offenders. (Kafka,
2012).
(36)
Factor 36: Online Offending Behavior.
(a)
Adult Male. The
presence of other regulatory factors must also be considered in assessing the
risk of reoffense and degree of dangerousness posed by online offenders. The
Board categorizes online offending behavior in the following ways:
1.
Child
Pornography. Sex offenders who limit their offending to possessing
child pornography, in the absence of other factors, generally pose a lower risk
of reoffense and degree of dangerousness than sex offenders who commit contact
offenses.
Evidence of sexual deviance may demonstrate an increase in risk
to commit contact sex offenses. Useful indicators of sexual deviance include,
but are not limited to: evidence of actively searching for images of
prepubescent children; collecting larger amounts of prepubescent pornography
relative to adolescent or adult pornography; collecting larger amounts of child
pornography relative to adult pornography; sorting and organizing files versus
random downloading; and primarily focusing on child pornography depicting boys
or a higher boy to girl ratio in a collection. (Kim, 2004; Seto et al.,
2011; Seto & Eke, 2015)
2.
Online
Communicating. Sex offenders who engage in sexually explicit
communications or exchange pornographic photos with minors or persons they
believe to be minors by any electronic means present a danger to the public.
These offenders generally pose a higher degree of dangerousness
than those who limit their offending behavior to child pornography as described
in 803 CMR 1.33(36)(a)1.
3.
Solicitation Offending. Sex offenders who communicate
with minors or persons they believe to be minors by any electronic means for
the purpose of enticing or meeting in-person to engage in sexual misconduct
present the greatest danger among online offenders. (Seto & Eke,
2005; Babchishin et al., 2011; Briggs et al, 2011; Seto et al., 2011; Eke et
al., 2011)
(b)
Adult Female. Factor 36 applies in the same manner to
adult female offenders.
(c)
Juvenile. The categories of online offending apply to
juveniles in the same manner as adults.
Juveniles whose online offending targets similarly aged peers
may present a lower degree of risk and dangerousness than adults who target
juveniles. (Saleh et al., 2014)
(37)
Factor 37: Other Information
Related to the Nature of the Sexual Behavior.
(a)
Adult Male.
Pursuant to M.G.L. c. 6, § 178L(1), the Board shall consider any
information that it deems useful in determining risk of reoffense and degree of
dangerousness posed by any offender.
(b)
Adult Female.
Factor 37 applies in the same manner to adult female offenders.
(c)
Juvenile. Factor
37 applies in the same manner to juvenile offenders.
(38)
Factor 38: Victim Impact
Statement.
(a)
Adult
Male. The Board recognizes the substantial impact sex offenses
have on victims. Pursuant to M.G.L. c. 6, § 178K(1)(k), the Board shall
consider any written statement authored by the victim, the parent or guardian
of a minor victim or a deceased victim, or the guardian of an adult victim of a
sex offense that resulted in a conviction or adjudication.
(b)
Adult Female.
Factor 38 applies in the same manner to adult female offenders.
(c)
Juveniles.
Factor 38 applies in the same manner to juvenile offenders.
