Massachusetts court rules possession of child porn not enough to force "level 2" offender classification

Pittsfield, MA – The Massachusetts Appeals Court issued a ruling Thursday in the case of a registered sex offender known as "John Doe" who alleged he had been unfairly classified as a "level 2" offender by the state's Sex Offender Registry Board following a 2004 conviction for possession of child pornography.

Of the three levels of sex offenders in Massachusetts, public information is only available on level 2 and level 3 offenders. Info on level 1 offenders is only made available to law enforcement agencies.

The court ruled that Doe's "level 2" classification be reconsidered by the board for two reasons; first that possession of child pornography is not classified under state law as a "sex offense involving a child," as it was presented by registry board officials, but rather as simply a "sex offense," and second that the board's assertion that possession of child porn is directly related to the dangerousness of the offender was not based on any specific evidence obtained during the classification hearing, making those considerations arbitrary in the eyes of the court.

State children's advocates are not happy about the decision; Marylou Sudders is president of the Massachusetts Society for the Prevention of Cruelty to Children.

"The court's decision may protect the rights of adult sex offenders; it does not protect the rights of children."

"Let's be clear, child pornography is illegal, it's abhorrent behavior by adults, and it certainly puts children in harms way of sexual abuse or exploitation by the offender. So we will be looking to close what we would perceive as a loophole in the current Massachusetts law."

Sudders cited studies that indicate between 30 and 80 percent of those convicted of sexually abusing children were first convicted of possession of child pornography.

"Some individuals will argue that it's a correlation. In fact when you interview individuals who have sexually offended a child; it started with child pornography."

While some panned the ruling, others may see it as a chance for legislators to start reconsidering the state's entire sex offender system.

While she did not comment directly on the ruling, Joan Tabachnick, policy director of the Northampton-based Massachusetts Adolescent Sex Offender Coalition, or MASOC, which works to prevent sexual abuse through early intervention with sexually abusive youth, said the state should reexamine the way they classify offenders for the benefit of the public.

"One of the faults I think of our current sex offender policy is that we have a one size fits all approach."

"Essentially there's a similar response for someone who's a sadistic rapist as someone who is a 12-year-old and is online and with healthy sexual exploration and then downloads child pornography and it gets on the computer."

"What we're doing is we're taking our very limited resources and stretching them so broadly that we're applying some of the same tracking and punishment to people regardless of their level of danger and risk to the community."

Massachusetts Sex Offender Registry Board spokesperson Charles McDonald refuted the characterization of the agency as a "one size fits all" system, noting that the board cannot under law classify offenders based solely on their crime and that all offenders have the right to appeal their recommended classification.

Tabachnick noted that while she supported the registry itself, most sex offenses are not reported, and that focusing on notification of nearby convicted offenders could be a distraction to prevention.

"If you ask somebody (if they want) to know who is a sex offender in their community, the answer obviously is yes. Is that the best way of creating public policy? I would say no."

"If all our focus is on all the different sex offenders then I don't necessarily see the people who are not reported, who are not convicted and I don't create what I think of as universal precautions that we should all be creating to make our community a safer place."

McDonald said Governor Deval Patrick has filed legislation to classify possession of child pornography as a "sex offense involving a child" and that a hearing before the state legislature's joint committee on the judiciary on that bill is expected to be scheduled for late September.