803 Mass. Reg. 1.03

Current through Register 1444, May 28, 2021
Section 1.03 - Definitions

All words and phrases not defined in 803 CMR 1.00 shall be defined by M.G.L. c. 6, § 178C. Unless otherwise indicated in a specific factor enumerated in 803 CMR 1.33, the use of the male gender in 803 CMR 1.00 shall be deemed to include the female or neutral gender. The use of the singular includes the plural and vice versa where the context so permits.

As used in 803 CMR 1.00, the following words and phrases shall have the following meanings:

Authorized Representative. An appointed or privately retained attorney, legal guardian or any other person authorized by the sex offender to represent him or her during the hearing process. For appointment of counsel, see803 CMR 1.09. If the authorized representative is not an attorney, he or she shall submit to the Board a written authorization signed and dated by the sex offender at least ten business days prior to the scheduled hearing date. The written authorization shall state the relationship between the authorized representative and the sex offender.

Classification File. The part of the sex offender's file maintained by the Board that contains the documentary evidence compiled by the Board to complete the recommendation process.

Classification Worksheet. A form developed and approved by the Board that reflects the recommendation process, shows the foundation for and indicates the Board's recommended registration and classification determination for each offender. The worksheet shall include a review of the factors enumerated in M.G.L. c. 6, § 178K(1)(a) through (l) and explained further in 803 CMR 1.33. The Board shall make a blank copy of the Classification Worksheet and related policies, procedures, protocols, and objective standards generally available and available upon request. The Hearing Examiner presiding over a classification hearing is not bound by the recommended classification or the means by which it was adduced.

Clear and Convincing Evidence. The standard applied at administrative hearings where the Hearing Examiner determines, based upon all of the evidence, there is a high degree of probability that the sex offender meets the standards specified for the duty to register and to be classified at a designated level. The Board shall bear the burden of proof at such hearings.

Documentary Evidence. Clear and legible records, data, reports, or letters submitted to the Board by the sex offender or on behalf of the sex offender relative to his or her risk of reoffense and the degree of dangerousness he or she poses to the public and his or her duty to register.

Employment. Any work that is full-time or part-time for a period of time exceeding 14 days or for an aggregate period of time exceeding 30 days during any calendar year, whether compensated or uncompensated, self-employed or working for an entity. To "work" shall mean to perform employment or work defined in 803 CMR 1.00.

Expert Witness. A licensed medical doctor or mental health professional, excluding employees of the Sex Offender Registry Board, whose testimony and report offering an opinion as to a sex offender's risk of reoffense and degree of dangerousness were prepared expressly for reliance by a Party at a hearing conducted pursuant to 803 CMR 1.10 through 1.20. Reports prepared by licensed mental health professionals that contain an opinion as to a sex offender's risk of reoffense and degree of dangerousness that were prepared for any other purpose will not qualify as Expert Witness opinions for a hearing conducted pursuant to 803 CMR 1.10 through 1.20.

Factor(s). The descriptions and definitions as well as the principles and authorities enumerated in 803 CMR 1.33 which the Board uses in its registration and classification determinations.

Final Classification. A sex offender shall be deemed finally classified when the presiding Hearing Examiner determines that he or she is a Level 1, Level 2 or Level 3 Offender, except where a sex offender has declined to request a hearing, in which case the recommended classification accomplished pursuant to 803 CMR 1.06 will become the Final Classification.

Full Board. At least four members of the Sex Offender Registry Board. The full board may establish policies and procedures to implement the provisions of M.G.L. c. 6, §§ 178C through 178Q and 803 CMR 1.00.

Hearing Examiner. An individual employed by the Sex Offender Registry Board, a single member of the Sex Offender Registry Board, or a hearing panel, or the Chair's designee to conduct administrative hearings to determine by clear and convincing evidence a sex offender's duty to register and final classification level.

Jurisdiction. The Board has jurisdiction over a person who resides, has secondary addresses, works or attends an institution of higher learning in the Commonwealth and who has been convicted of a sex offense or who has been adjudicated as a youthful offender or as a delinquent juvenile by reason of a sex offense or a person released from incarceration or parole or probation supervision or custody with the department of youth services for such a conviction or adjudication or a person who has been adjudicated a sexually dangerous person under M.G.L. c. 123A, § 14 as in force at the time of adjudication, or a person released from civil commitment pursuant to M.G.L. c, 123A, § 9, whichever last occurs, on or after August 1, 1981.

Juvenile. An individual younger than 18 years old at the time of committing a sex offense. If the sex offender is a juvenile, all written notifications from the Board shall also be mailed to:

(a) his or her legal guardian;

(b) the Department of Children and Families or the Department of Youth Services if the Juvenile is receiving services from, or subject to proceedings initiated by, one or more of these agencies; and

(c) his or her most recent attorney of record.

Level 1 Offender. The designation given to a sex offender when it has been determined his or her risk of reoffense is low and the degree of dangerousness posed to the public is not such that a public safety interest is served by public access to information pertaining to the offender.

Level 2 Offender. The designation given to a sex offender when it has been determined his or her risk of reoffense is moderate and the degree of dangerousness posed to the public is such that a public safety interest is served by public access to sex offender registry information.

Level 3 Offender. The designation given to a sex offender when it has been determined his or her risk of reoffense is high and the degree of dangerousness posed to the public is such that a substantial public safety interest is served by active dissemination (community notification) of sex offender registry information.

Party. The sex offender and the Sex Offender Registry Board. At the hearing, the sex offender may represent himself or herself or have an authorized representative. For representation at hearing see 803 CMR 1.09. The Board may have a representative responsible for presenting evidence and argument regarding the offender at any hearing held under 803 CMR 1.00. The Sex Offender Registry Board shall be identified by its name and not by its individual representatives' names.

Receipt. The delivery of mail. There shall be a rebuttable presumption that any notice or letter mailed by the Sex Offender Registry Board to the offender at the address(es) at which he or she is currently registered was received by the offender within three days of mailing.

Recommendation. The Board's recommended classification, also referred to as preliminary classification level, made pursuant to the policies, procedures, protocols, and objective standards set forth in M.G.L. c. 6, § 178K(1)(a) through (l) and explained in 803 CMR 1.33 to base its recommended classifications. The Board shall make its policies, procedures, protocols, and objective standards for the recommendation process generally available and available upon request.

School. Any public or private educational institution, including any secondary school, trade, vocational or professional institution, or a post-secondary institution of higher learning.

Second and Subsequent Adjudication or Conviction for Open and Gross Lewdness and Lascivious Behavior. The later of two or more separate convictions pursuant to M.G.L. c. 272, § 16. Multiple convictions resulting from a single act shall be treated as a single conviction, but arraignments occurring on the same date and resulting in multiple convictions shall be presumed to be the result of separate acts and treated as separate convictions.

Sex Offender Number (SON). The unique identification number assigned to every sex offender by the Sex Offender Registry Board. The offender must include his or her SON on all written communications with the Sex Offender Registry Board.

Sex Offender Registry. The central computerized database of all sex offenders required to register pursuant to M.G.L. c. 6, §§ 178C through 178Q.

Sex Offender Registry Board (Board or SORB). The administrative agency of the Commonwealth consisting of the members, as set forth in M.G.L. c. 6, § 178K, and its staff.

Student. Any person who is enrolled on a full-time or part-time basis, in any school.

803 CMR 1.03

Amended by Mass Register Issue 1305, eff. 1/29/2016.
Amended by Mass Register Issue 1306, eff. 1/29/2016.