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	Appeals Court: Having Child Porn Doesn’t Equal Threat By Steve LeBlanc Worcester Telegram & Gazette August 12, 2011 http://www.telegram.com/article/20110812/NEWS/108129850/1116/raw_headlines The state’s Sex Offender Registry Board can’t force an individual to register as a “Level 2” sex offender based solely on a conviction of possessing child pornography, the Massachusetts Appeals Court ruled Thursday. The case involved a man who pleaded guilty in 2004 to placing five orders for child pornography from a Miami-based pornography ring at a cost of $528. Investigators said they found two sexually explicit movies involving minors on the man’s computer. The man, identified only as “John Doe” in court papers, was sentenced to 18 months in prison and three years of supervised probation. The board classified the man as a sex offender, but the Appeals Court said the board failed to offer evidence linking possession of child pornography to the likelihood the man may pose a threat. The lawyer for the man said the ruling shows the board must do more than just point to a conviction before deciding someone poses a danger of committing a future sex offense. “Just because you committed an offense, doesn’t mean you’re dangerous,” said the man’s attorney Michael Nam-Krane. “They simply assume that they can find these people dangerous. Hopefully this case will bring some reform to the agency.” Charles McDonald, a spokesman for the Sex Offender Registry Board, said the board “will fully comply with the court’s decision.” In the ruling, the court faulted the sex offender board hearing officer who decided to classify the man as a Level 2 sex offender. Level 2 offenders are considered to pose at least a moderate risk of committing another offense. The hearing officer said she decided on the Level 2 status because the man had “committed a serious sex offense involving a child,” by possessing child pornography and telling investigators that he was attracted to young girls. The man was 62 at the time of the 2006 hearing. “Although (the plaintiff’s) crime did not involve a direct assault, such does not minimize the fact that untold numbers of children are degraded and often psychologically destroyed by pornographic profiteers, and often, suffer much worse,” the hearing officer wrote. The court, however, noted that while state law identifies possession of child pornography as a “sex offense” the law goes on to define what constitutes a “sex offense involving a child,” as cited by the hearing officer. That list of sex offenses involving a child doesn’t include possession of child pornography. “Consequently, as an error of law ... the hearing officer appears to have mischaracterized the plaintiff’s underlying offense,” the court ruled. “The hearing officer’s equation of possession of child pornography (and the victimization of its subjects) with the dangerousness contemplated by the statute ... does not rest upon any specified evidence,” the court added. “Without such support it runs the risk of arbitrariness.” Gov. Deval Patrick has filed a bill designed to update the state’s sex offender laws. The bill would redefine child pornography in part as “sex offense involving a child,” a change that would make it easier for the sex offender board to classify those who possess child pornography as sex offenders. The bill is currently before the Legislature’s Committee on the Judiciary and is scheduled for a public hearing at the end of September The Appeals Court ruling, which reversed an earlier ruling Superior Court, sends the question back to the board to reconsider their decision to classify the “John Doe” as a Level 2 offender.
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