The matter of Laurence Gagnon (Petitioner) is here for a decision of the Court. The Petitioner is a convicted sex offender who was classified by the Sex Offender Registration Board (the Board) as a Level 3 risk to reoffend under G.L. 1956 § 11-37.1, commonly known as the Sex Offender Registration and Community Notification Act (the Act).
I Facts and Travel
The Petitioner filed a timely objection to the Level 3 classification and requested the Court review the Board's determination and lower his classification.
The Court received from the Attorney General's Office the record of the Board and the Attorney General's motion to affirm the Board's determination.
The Petitioner, through his legal counsel, filed a memorandum in support of his petition and requested this Court to lower his classification.
All documents provided to the Court by both parties were reviewed and considered by the Court.
A hearing with oral argument was held before this Court on May 9, 2014, and the Petitioner was afforded the opportunity to provide other evidence and testimony to ensure he was granted a meaningful hearing.
The Court would note at the outset of its Decision that Petitioner: On April 16, 2013, pleaded nolo contendere to three counts of second degree child molestation. Each count was associated with a different juvenile male. On each count, the Court imposed concurrent sentences of ten years with one year to serve, the remainder suspended with probation with NCO's, mandatory counseling and sex offender registration.
II Standard of Review
In this proceeding, the State has the burden of presenting a prima facie case that justifies the level and manner of notification. First, the Court must review the record to determine whether a validated risk assessment tool was used to determine the risk of re-offense. Second, the Court must determine whether reasonable means were used to collect the information contained in the validated risk assessment tool. The Act is clear that, after a prima facie case is established, the Court is obligated to affirm the determination of the level and nature of community notification unless it is persuaded by a preponderance of the evidence that the determination by the Board on either the level of notification or the manner in which it is proposed to be accomplished is not in compliance with the Act or the Guidelines which were adopted pursuant to the Act. The Act and Guidelines leave the Board with great flexibility requiring only that the Board use a "validated risk assessment tool and other material" to determine the level of risk. Sec. 11-37.1-6.
The State has previously filed a motion to affirm along with an exhibit list and all of the documents and information the Board used in making its determination that the offender is a Level 3 risk to reoffend. Exhibit 2 in the Court Record contains a copy of the Risk Assessment Report (the Report) that was generated by the Board and acts as a summary of the information the Board reviewed. Included in this Report is a summary of the score the offender received on the Validated Risk Assessment Tools used by the Board as well as a summary of the important factors the Board considered in determining that these tools underrepresented the offender's risk to reoffend. The Board concluded, after examining all the material, that offender was a high risk to reoffend and should be classified as a Level 3.
Exhibits 3(a), (b), and (c) of the Court Record includes the Tally Sheets of the three Validated Risk Assessment Tools used by the Board. An investigator for the Board of Review meets with each convicted sex offender during the classification process and conducts an interview. The investigator asks each offender a set of questions regarding their sex offenses, treatment, and many other factors. The investigator then uses these answers to score each of the three tools. This offender was scored on three tools, including the STATIC-99, STATIC-2002, and the STABLE-2007. On the STATIC-99, the offender received a total score of -1, which placed him in the "low" risk category. On the STATIC-2002, the offender received a total score of 2, which placed him in the "low" risk category. On the STABLE-2007, the offender received a score of 6, which placed him in the "moderate" risk category.
While the tests are the best available tools used by sex offender counselors and professionals, the tests themselves are only considered "moderate predictors" of sexual recidivism rates and should not be considered in a vacuum. The tools cannot consider every factor which can cause a person to reoffend and that is why the Act requires the Board look at other information in making its determination and does not strictly rely on the scores of these tools. The Rhode Island Supreme Court in State v. Germane noted that the board of review is required, pursuant to its own guidelines, to review a number of case-specific facts in addition to an individual offender's score on the validated risk assessment tools. 971 A.2d 555, 585 (R.I. 2009). And a "prudent evaluator will always ...