Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re B.H.

Supreme Court of Rhode Island

October 19, 2018

In re B.H.

          Providence County Family Court Appeal. 12-1040-1 Kathleen A. Voccola Associate Justice

          For State: Owen Murphy Department of Attorney General

          For Respondent: Robert B. Mann, Esq.

          Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

          OPINION

          GILBERT V. INDEGLIA ASSOCIATE JUSTICE

         The respondent, B.H., appeals from a Family Court order requiring him to register as a sex offender, and denying his motion to waive sex-offender registration and notification pursuant to G.L. 1956 § 11-37.1-4(j).[1] This matter came before the Supreme Court on September 25, 2018, pursuant to an order directing the parties to appear and show cause why the issues raised should not be summarily decided. After considering the arguments set forth in the parties' memoranda and at oral argument, we are convinced that cause has not been shown. Thus, further argument or briefing is not required to decide this matter. For the reasons outlined below, the Family Court's order is affirmed.

         I Facts and Travel

         The pertinent facts of this case may be found in our opinion in the case of In re B.H., 138 A.3d 774 (R.I. 2016), in which respondent had appealed from Family Court adjudications of delinquency with respect to two charges of first-degree child molestation sexual assault. We determined in that appeal that the state had not proven the requisite element of penetration to substantiate two counts of first-degree child molestation sexual assault. In re B.H., 138 A.3d at 783. However, in doing so, we held that, because the trial justice had made an explicit finding that there was contact for the purpose of sexual gratification, respondent was responsible for the lesser-included offense of second-degree child molestation sexual assault.[2] Id. at 785, 786. We remanded the case to the Family Court "with directions to enter adjudications of delinquency on the lesser-included offense of second-degree child molestation and for resentencing." Id. at 787.

         At the hearing on remand, which took place on August 17, 2016, respondent pressed his motion to waive sex-offender registration and notification that he had filed prior to that hearing, arguing that he should only be required to register as a sex offender until his nineteenth birthday, which was one week after the hearing date. In support of his motion to waive sex-offender registration, respondent contended that the conduct that formed the basis of the adjudications of delinquency on the two counts of second-degree child molestation sexual assault was criminal only because the victims, Kevin and Henry, [3] were under the age of fourteen at the time of the incident, and thus the trial justice had the discretion to waive sex-offender registration under § 11-37.1-4(j). The respondent argued that, had the two youths been sixteen years old rather than eleven years old, no charges would have been brought against respondent. In response, the state argued that the trial justice had no discretion in this case because respondent had used threats, manipulation, and coercion against the victims, which made his conduct criminal apart from the ages of the victims.

         With regard to the trial justice's discretion, respondent argued that he had been fully compliant with all previous court orders regarding registration and therapy. The respondent based his argument in support of a waiver in part on reports from David W. Ingle, Psy.D., a licensed clinical psychologist, and Leo D. Keating, a licensed clinical social worker, both of whom indicated that respondent posed little risk to the community for sexual misconduct. The respondent pointed out that Dr. Ingle, who has had extensive experience in treating adult and juvenile offenders, specifically indicated that he could not diagnose respondent with pedophilia due to his age and the various statistical analyses that were performed. According to respondent, Dr. Ingle's assessment was supported by Mr. Keating, who performed both a Millon Clinical Multiaxial Inventory-III[4] and an Abel Assessment of Sexual Interest-3, [5] in addition to reviewing redacted Cranston police statements, probation records, and the sentencing report.

         The state argued that Dr. Ingle and Mr. Keating had based their assessments purely on respondent's account of the events, and that, therefore, the assessments themselves were suspect. According to the state, respondent had not accepted responsibility for his actions and had not been fully rehabilitated. The state further argued that, in the five years since the incident, respondent had not participated in any substantive sex-offender treatment, but had been enabled and accommodated by his family and treatment providers. Additionally, the state faulted Dr. Ingle for not performing a juvenile-sex-offender protocol evaluation as part of his assessment of respondent due to Dr. Ingle's belief that the evaluation was not reliable.[6]

         Ultimately, the trial justice committed respondent to the Rhode Island Training School for Youth, but suspended the commitment; respondent was placed on probation until further order of the court.[7] The court also required respondent to register as a sex offender.[8] In finding that she had no discretion under § 11-37.1-4(j) in this case, the trial justice contrasted respondent's case with what she termed a "Romeo and Juliet type of situation":[9]

"where two kids who were perhaps thirteen years old, engage in sexual contact that is consensual. And, that under that scenario, sometimes the girl's parents might find out. They are outraged. They call the police. They have the boyfriend charged. The boyfriend is charged with first degree child molestation because of the age of the victim in that matter. And then the [c]ourt will have the ability at that time, if the [r]espondent is adjudicated, to look at the statute and look at the ages of the parties and say, well due to the age and the consent between the parties, this [c]ourt finds that the [r]espondent is not a danger to the public and will suspend the obligation to register as a sex offender."[10]

         In so stating, the trial justice found that there was a clear lack of consent to the sexual contact in this case; she pointed out that the victims were coerced by respondent, an older friend, who told them it was merely "an experiment to find out if you are gay." Additionally, the trial justice found that there was no curiosity-motivated sexual play by the two young victims, with the only mention of homosexuality coming from respondent himself. The trial justice also highlighted the fact that respondent was nearly fourteen years old at the time of the incident, while Kevin and Henry had not yet reached puberty. Moreover, she found ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.