803 CMR 1.33
Risk Factors
The strongest predictors of sexual recidivism for all sex offenders are variables related to
antisocial orientation and sexual deviance. (Cortoni, 2010; Prescott 2006; Hanson and
Morton-Bourgon, 2004)
Pursuant to M.G.L. c. 6, §§ 178K(1)(a) through (l) and 178L, the Board shall use the
following factors to determine a sex offender's level of risk of re-offense and degree of
dangerousness posed to the public.
These factors may be present to varying degrees in any individual case. The final
classification level is not based on a cumulative analysis of the applicable factors, but rather a
qualitative analysis of the individual sex offender's history and personal circumstances as a
whole based on these factors. This approach is necessary where sexual recidivism research
continues to evolve, cannot address all aspects of each unique sex offender, and where experts
may often conflict. Some factors apply to adult male sex offenders, adult female sex offenders
and juvenile sex offenders in different ways. These differences are reflected in each factor. As
considered in the juvenile factors, juvenile sex offenders generally have lower rates of sexual
recidivism than adult male offenders. (Lussier et al., 2024; Caldwell & Caldwell, 2022;
Caldwell, 2016; Caldwell, 2009; Hanson & Morton-Bourgon, 2004). Juvenile female sex
offenders are classified using juvenile factors. (Van der Put, 2013; Frey, 2010; Hunter et al.,
2006; Kubik et al. 2002; Matthews et al., 1997)
The Board recognizes there is current scientific research regarding young adults at age 18,
19, 20 years old referred to as "emerging adults" and that this population demonstrates issues
with impulse control similar to individuals in late adolescence. For most individuals who engage
in criminal behavior as emerging adults, they have a greater capacity to change than older adults
(Steinberg & Scott, 2003). However, there is no current sex offender recidivism research
specific to emerging adults.
The Board recognizes that adult female sex offenders generally have lower recidivism base
rates than adult male and juvenile sex offenders. (Cortoni, 2018; Cortoni et al., 2010) The Board
shall consider this lower recidivism rate, along with the other relevant regulatory factors, in
determining an adult female sex offender's level of risk of re-offense and degree of
dangerousness posed to the public.
HIGH-RISK FACTORS:
Pursuant to M.G. L. c. 6, §178K(1)(a)(i) through (vi), the presence of Factors 1 through 6,
is indicative of a high risk of re-offense and degree of dangerousness. The absence of Factors
1 through 6 does not reduce an offender's risk of re-offense or degree of dangerousness as
determined by other factors.
(1) Factor 1: Mental Abnormality.
(a) Adult Male. The presence of a statutorily defined mental abnormality specifically
related to sexual deviance is significantly associated with a high risk of re-offense and
degree of dangerousness.
The Board shall consider documentation from a licensed mental health professional that
indicates that the offender has been diagnosed with a paraphilia related to sexual fantasies,
urges, and behaviors. (Mann et al., 2010; Hanson and Morton-Bourgon, 2005; Hanson and
Morton-Bourgon, 2004; Doren, 2002)
(Rousseau and Cortoni, 2010; Ford and Cortoni, 2008; Hart et al., 2003)
(c) Juvenile. Factor 1 applies to juvenile sex offenders in the same manner. (Prescott,
2006; Worling and Langstrom, 2006; Worling and Curwen, 2001)
(2) Factor 2: Repetitive and Compulsive Behavior.
(a) Adult Male. Sex Offenders who have engaged in repetitive and compulsive behavior
present a high risk of re-offense and degree of dangerousness.
The Board may consider Factor 2 when the sex offender committed a sex offense after
first having been:
1.
discovered and confronted (by someone other than the victim of the sexual
misconduct) for a sexual misconduct prior to the sex offense; or
2. investigated by an authority for sexual misconduct.
Increased weight shall be given when the sex offender engages in a sex offense or sexual
misconduct after having been charged with or convicted of a sex offense. (Harris and
Hanson, 2004; Harris et al., 2003)
(b) Adult Female. Factor 2 applies to female sex offenders in the same manner. (Cortoni,
et al., 2010; Vandiver and Kercher, 2004)
(c) Juvenile. Factor 2 applies to juvenile sex offenders who continue to commit sex
offenses or sexual misconduct after having been detected for prior sexual misconduct.
Detection includes being cautioned, warned, disciplined, criminally charged, or otherwise
sanctioned by an adult authority (e.g. police, parent, or teacher).
A juvenile sex offender engaging in sexual misconduct after being charged with or
convicted of a prior sex offense presents an even higher risk of re-offense and degree of
dangerousness.
803 CMR 1.33(2)(c) includes adults whose only sex offense(s) were committed as a
juvenile. (Rich, 2017; ATSA, 2012; Epperson et al., 2009; Powers-Sawyer and Miner, 2009;
Curwen and Costin, 2007; Worling and Langstrom, 2006; Nisbet, et al., 2004; Prentky and
Righthand, 2003; Worling and Langstrom, 2003; Worling and Curwen, 2001)
(3) Factor 3: Adult Sex Offender with a Child Victim.
(a) Adult Male. Adult sex offenders who have targeted children pose a high risk of
re-offense and degree of dangerousness. The Board shall consider any victim younger
than 16 years old as a child victim.
Sex offenders who have targeted prepubescent children, generally younger than 13 years
old, are more likely to have a deviant sexual interest. These sex offenders pose an even
higher risk of re-offense and degree of dangerousness and are given greater weight.
If the age difference between the sex offender and the victim was five years or less and
there was credible evidence of a consensual, though statutorily criminal, sexual act, the
Board shall give this factor limited weight. (Mann et al., 2010; Levenson et al., 2008;
Hanson et al. 2007; Hanson & Morton-Bourgon, 2005)
(b) Adult Female. Factor 3 applies to adult female sex offenders in the same manner.
(Freeman and Sandler, 2008)
(c)
Juvenile . Factor 3 does not apply to juvenile sex offenders. Factor 27 addresses
juvenile sex offenders who target child victims, including adults whose only sex offense(s)
or sexual misconduct were committed as a juvenile.
(4) Factor 4: Age at First Offense.
(a) Adult Male. Age at first offense is an important variable related to risk of re-offense
and degree of sexual deviance. Sex offenders who manifested an early onset and persistence
of deviant sexual interests or behaviors are at a high risk of re-offense and degree of
dangerousness.
Factor 4 applies to sex offenders who committed their first detected sex offense(s) or
sexual misconduct as a juvenile and continued to commit sex offense(s) or sexual
misconduct at 21 years old.
803 CMR 1.33(4)(a) includes adults whose only sex offense(s) were committed as
juveniles. (Skelton and Vess, 2008; Hanson and Harris, 2000)
(Freeman and Sandler, 2008)
(c)
Juvenile. Factor 4 applies to juvenile sex offenders who committed their first sex
offense(s) or sexual misconduct when they were younger than 13 years old, were detected,
and then continued to engage in sex offense(s) or sexual misconduct at 14 years of age or
older. (Prentky, et al., 2010; Prescott, 2006)
(5) Factor 5: Adjudicated Sexually Dangerous Person or Released from Civil Commitment.
(a)
Adult Male. Pursuant to M.G.L. c. 6, § 178K(1)(a)(v), the Board views any sex
offender who has been adjudicated as a sexually dangerous person, pursuant to M.G.L. c.
123A or the equivalent in another state, whether he has been released or not, to present a
high risk of re-offense and degree of dangerousness.
Because of the statutory differences between the criteria and legal process for civilly
committing sexually dangerous persons and classifying sex offenders living in the
community, the Board uses criteria to determine a sex offender's risk of reoffending and
degree of dangerousness that are different from those used by the courts in a sexually
dangerous person proceeding. (Knight & Thornton, 2007; Prentky & Lee, 2007; Prentky,
Knight & Lee, 1997)
(c) Juvenile. Factor 5 applies to juvenile sex offenders in the same manner.
(6) Factor 6: Maximum Term of Incarceration.
(a)
Adult Male. Pursuant to M.G.L. c. 6, § 178K(1)(a)(vi), the Board considers sex
offenders who declined early release, specifically to avoid community supervision or due to
his own concerns of re-offending, as presenting a high risk of re-offense and degree of
dangerousness.
803 CMR 1.33(6)(a) includes adults whose only sex offense(s) were committed as a
juvenile, but who were incarcerated for other offenses as an adult.
(c) Juvenile. Factor 6 does not apply to juvenile sex offenders except as noted above.
RISK-ELEVATING FACTORS:
(7) Factor 7: Relationship between Sex Offender and Victim. The relationship between an
offender and the victim at the time of the sex offense or sexual misconduct is an important
variable in determining risk of re-offense and degree of dangerousness. Hearing examiners
should be guided by the Static-99R's coding rules regarding victim-offender relationship where
it is not explicitly defined below. Where the offender was mistaken or unaware of a familial
relationship, the offender's actual knowledge should control the determination of the relationship
type. (Phenix, 2016).
Although there are three distinct relationships, research shows there is a high percentage of
crossover offending among the three relationship types. This should be considered when
looking at an offender's risk of re-offense, degree of dangerousness and whether public safety
requires dissemination of the offender's information. (Simons, 2017; Kleban, et. al., 2013; Heil,
et. al., 2003)
(a) Definitions
1. Intrafamilial Relationships
2.
Any persons whose marriage to the offender would be prohibited pursuant to
M.G.L. c. 207, §§ 1 through 3;
3. Any person whose relationship to the offender would prohibit marriage pursuant to
M.G.L., c. 207, §§ 1 through 3 if they were the opposite sex, but who are of the same
sex, i.e. father and son or mother and daughter;
3. Legally married spouses;
4. Adoptive children, first cousins, brothers- and sisters-in-law; and
5. Any persons who are family member substitutes (e.g., foster, step-relatives, or any
other type of familial household live-in relationship) who lived in the same household
with the offender for two or more years prior to the offending behavior.
A divorce or separation between spouses or separation between live-in partners may
impact the nature of the offender and victim's relationship. An ex-spouse or ex-live-in
partner remains intrafamilial to the offender forever. However, when considering the
relationship between the offender and the family members of an ex-spouse or ex-live-in
partner, the hearing examiner should be guided by the length of time the offender was in the
family role, the length of the separation and the nature of the current relationship prior to the
start of offending.
Offenders who only targeted intrafamilial victims may be at a lower risk to reoffend as
compared to offenders who targeted unrelated victims. Having an intrafamilial victim is not
a risk mitigating, nor risk elevating, factor. It is included for definitional purposes only.
(2) Extrafamilial Relationships
(a) Any person who has a recognizable non-intrafamilial relationship with the offender,
such as a friend, co-worker, or acquaintance whom they have known for over 24 hours prior
to the onset of the offending behavior; and
(b) Any persons who are family member substitutes (e.g. foster, step-relatives, or any other
type of familial household live-in relationship) who lived in the same household with the
offender for less than two years prior to the offending behavior.
(3) Stranger Relationships.
(a) A victim is considered a stranger if the victim did not know the offender (or vice versa)
24 hours before the offense. For victims contacted over the internet, the offense must occur
less than 24 hours after the initial communication. In internet crimes or some in person
crimes, if the offender was known to the victim but disguised themselves such that the victim
did not know who the sex offender was, their relationship would be considered that of
strangers if they engaged in crimes under such pretense.
If either knew the other for more than 24 hours, their relationship would be extrafamilial.
Knowing someone includes any memorable interaction such as a passing hello or interacting
as a store clerk. Knowing someone without ever interacting would render the victim a
stranger.
(b) Position of Trust. The Board gives special consideration to offenders who committed
a sex offense while in a position of trust as established by their profession or role with the
victim. These offenders present an increased degree of dangerousness because they violate
the victim's and the public's sense of trust, safety and security. Position of trust only applies
to extrafamilial and stranger relationships.
(c) Adult Male. Having victims outside the family relationship is empirically related to an
increased risk of re-offense. The number of potential victims substantially increases when
offenders choose to sexually offend against extrafamilial victims. Offenders who offended
while in a position of trust have an increased degree of dangerousness.
Offenders who have sexually offended against a stranger victim have a higher risk of
re-offense and present a greater degree of dangerousness to the safety and welfare of the
public than offenders who targeted victims known to them. (Stroebel, et. al., 2012; Knight
and Thornton, 2007; Harris et al., 2003; Hanson and Harris, 2000; Hanson and Bussiere,
1998)
(d) Adult Female. Factor 7 applies to adult female sex offenders in the same manner.
(Vandiver, et. al., 2018; Poels, 2007; Williams and Nicholaichuk, 2001)
(e)
Juvenile. Juvenile sex offenders who offend while in a position of trust have an
increased degree of dangerousness. Juvenile sex offenders who have sexually offended
against a stranger victim have an increased risk of re-offense and present a greater degree
of dangerousness to the safety and welfare of the public than offenders who target victims
known to them.
803 CMR 1.33(7)(e) includes adults whose only sex offense(s) were committed as a
juvenile. (Rich, 2017; Miccio-Fonseca and Rasmusen, 2009; Powers-Sawyer and Miner,
2009; Hendriks and Bijlevild, 2008; McCann and Lussier, 2008; Gerhold, et al., 2007;
Worling and Langstrom, 2006; Heilbrun, et al., 2005; Worling and Curwen, 2001;)
(8) Factor 8: Weapon, Violence, or Infliction of Bodily Injury.
(a)
Adult Male. Sex offenses or sexual misconduct are inherently violent, but not
necessarily in a physical sense. Sex offenders who used or threatened to use violence or
weapons, or caused bodily injury during the commission of their sex offense(s) or sexual
misconduct present an increased risk of re-offense and degree of dangerousness. These
behaviors may be indicative of sexual arousal to violence or an antisocial orientation.
Any force or threat of force beyond that necessary to commit the sexual offense(s) or
sexual misconduct shall constitute violence. Any object used to injure, incapacitate,
penetrate, force, or threaten the victim during the sex offense(s) or sexual misconduct shall
be considered a weapon. Any injury, including but not limited to strangulation, bruises,
abrasions, and cuts, or any injury requiring medical attention other than for investigative
purposes that is sustained by the victim during the sexual offense(s) or sexual misconduct
shall be deemed bodily injury. (Mokres et al., 2012; Mann et al., 2010; Knight and
Thornton, 2007; Harris et al., 2003; Epperson et al., 1999; Boer et al., 1997)
(Poels, 2007)
(c) Juvenile. Factor 8 applies to juvenile sex offenders in the same manner. (Rich, 2017;
ATSA, 2012; McCann and Lussier, 2008; Curwen and Costin, 2007; Worling and
Langstrom, 2006; Prentky and Righthand, 2003; Worling and Curwen, 2001)
(9) Factor 9: Substance Use.
(a) Adult Male. Drugs and alcohol are behavioral disinhibitors. Substance use may increase
an offender's risk of re-offense. Factor 9 applies when the sex offender has a history of
substance use, demonstrates active substance use, or when the offender's substance use was
a contributing factor in the sexual misconduct. The Board shall consider the sex offender's
substance use history, diagnosis, treatment history, and/or engagement in recovery support
services inclusive of peer support services when determining the weight given to Factor 9.
803 CMR 1.33(9)(a) includes adults whose only sex offense(s) were committed as a
juvenile, unless the substance use was time-limited experimentation during adolescence.
(Abracen et al., 2017; Hamdi and Knight, 2012; Looman and Abracen, 2011; Bonta and
Andrews, 2007; Hanson et al., 2007; Douglas and Skeem, 2005; Hanson and Harris, 2000)
(Vandiver, et. al., 2018; Cortoni, 2010; Ford, 2010; Rousseau and Cortoni, 2010; Sandler
and Freeman, 2009; Giguere and Bumby, 2007; Hanson et al., 2007; Vandiver and Kercher,
2004; Hart et al., 2003)
(c) Juvenile. Factor 9 applies to juvenile sex offenders in the same manner. (Rich, 2017;
Heilbrun, et al., 2005)
(10) Factor 10: Contact with Criminal Justice System.
(a)
Adult Male. Individuals are expected to comply with the law. The Board shall
consider the sex offender's disregard for rules, laws, and the violation of the rights of others.
Lawlessness and antisocial behavior are indicative of an increased risk of re-offense and
degree of dangerousness.
The sex offender's pattern of criminal behavior weighs heavily in Factor 10's application.
The Board shall consider, but is not limited to:
1. the number and type of criminal charges;
2. the number and type of criminal dispositions;
3. the number of abuse prevention or harassment prevention orders; and
4. the dates of criminal conduct.
When classifying adults whose only sex offense(s) were committed as a juvenile, the
Board shall consider their entire criminal history. (Boutwell, et al., 2013; Thorton, 2013,
Duwe and Freske, 2012; Hanson and Bourgon, 2005; Harris et al., 2003; Hanson and
Bussière, 1998)
(Vandiver, et. al, 2018; Cortoni, 2010; Sandler and Freeman, 2009, 2007; Hanson et al.,
2007; Vandiver, 2006; Vandiver and Kercher, 2004; Hart et al., 2003)
(c) Juvenile. Juvenile sex offenders with a history of multiple charges or adjudications,
including non-sexual crimes, present an increased risk of re-offense and degree of
dangerousness. The Board shall consider, but is not limited to, the number and severity of
criminal charges, abuse prevention orders, harassment prevention orders, dispositions, and
the dates of the criminal conduct. (Epperson et al., 2015; Boutwell et al., 2013; Carpentier
et al., 2011; Epperson et al., 2009; Zimring et al., 2009; McCann & Lussier, 2008; Gerhold
et al. 2007; Zimring et al., 2007; Nisbet et al., 2004; Prentky and Righthand, 2003)
(11) Factor 11: Violence Unrelated to Sexual Assaults.
(a) Adult Male. Sex offenders who have acted violently with no regard for the safety of
others present an increased risk of re-offense and degree of dangerousness. The Board shall
consider the severity and frequency of violence towards other persons or animals. (Hanson
& Bourgon, 2005; Harris et al., 2003)
(Poels, 2007; Cortoni and Hanson, 2005)
(c) Juvenile. Factor 11 applies to juvenile sex offenders in the same manner. (Rich, 2017;
Worling et al., 2012; Knight et al., 2009; Curwen and Costin, 2007; Prentky and Righthand,
2003; Worling and Curwen, 2001)
(12) Factor 12: Behavior While Incarcerated or Civilly Committed.
(a)
Adult Male. Sex offenders are expected to comply with institutional rules. Poor
behavior while incarcerated or civilly committed is indicative of antisocial behavior. Sex
offenders who unsatisfactorily adjusted to the rigors of confinement by violating rules in a
highly structured environment present an increased risk of re-offense. The type and nature
of violations may also increase the offender's degree of dangerousness. Unsatisfactory
adjustment is evidenced by violations of the rules. The Board may consider, but is not
limited to:
1. the number of behavioral reports or disciplinary reports received;
2. the seriousness of the violation; and
3. the length of time between a sex offender's last report and release.
803 CMR 1.33(12)(a) includes adults whose only sex offense(s) were committed as a
juvenile and who also have a history of adult incarcerations or commitment.(Epperson et al.,
2003; Doren, 2002)
(c) Juvenile. Factor 12 only applies to juvenile offenders who are committed to DYS in a
hardware secure placement.
(13) Factor 13: Noncompliance with Community Supervision.
(a)
Adult Male. Sex offenders are expected to comply with terms of any community
supervision, including pre-trial conditions of release. Noncompliance with community
supervision rules is indicative of antisocial behavior. Sex offenders who have
unsatisfactorily adjusted to community supervision's external controls present an increased
risk of re-offense. The type and nature of violations may also increase the offender's degree
of dangerousness when those controls are removed.
Unsatisfactory adjustment is evidenced by violations of the rules of the supervising
agency or the conditions of release.
The Board may consider, but is not limited to:
1. the number of violations during the period of supervision;
2. the seriousness of the violation reported in the violation notice, report, or sanction;
and
3. the length of time that has elapsed between the sex offender's last violation notice or
report and their release from supervision.
The Board shall consider the sex offender who engaged in sexual misconduct while on
community supervision to pose a greater risk of re-offense and a greater degree of
dangerousness to the public.
When classifying adults whose only sex offense(s) were committed as a juvenile, the
Board shall consider the sex offender's entire history of community supervision. (Mann et
al., 2010; Knight and Thornton, 2007; Hanson and Harris, 2000)
(Freeman and Sandler, 2008; Hanson et al., 2007; Stuart and Brice-Baker, 2004; Hart et
al., 2003)
(c) Juvenile. Juvenile sex offenders are considered under community supervision when
they are supervised in the community by probation, DYS, or when they are in a residential
treatment program or a DYS program that is not hardware secure.
A juvenile sex offender who unsatisfactorily adjusted to community supervision's
external controls may pose a significant risk of re-offense. The type and nature of violations
may also increase the offender's degree of dangerousness when those controls are removed.
Unsatisfactory adjustment is evidenced by a pattern of violations of rules and regulations of
the supervising agency or program. In determining a juvenile sex offender's potential risk
of re-offense and degree of dangerousness, the Board may consider, but is not limited to:
1. the number of disciplinary issues or rule violations;
2. their seriousness; and
3. the length of time that has elapsed since the juvenile sex offender's last disciplinary
issue or violation.
While not sufficient by itself to invoke Factor 13, a juvenile sex offender's history of
suspension and expulsion from school may be considered in assessing a pattern of behavior
while in a supervised setting.
The Board shall consider juvenile sex offenders who engaged in sexual misconduct while
under community supervision as posing an increased risk of re-offense and degree of
dangerousness. (Epperson et al., 2015; Epperson et al., 2009; Prentky and Righthand, 2003)
(14) Factor 14: Recent Threats.
(a) Adult Male. Sex offenders who have expressed threats or an intent to sexually assault
another person present an increased risk of re-offense and degree of dangerousness.
803 CMR 1.33(14)(a) includes adults whose only sex offense(s) were committed as a
juvenile. (Hanson et al., 2007; Harris et al., 2003; Hanson and Harris, 2000)
(c) Juvenile. Factor 14 applies to juvenile sex offenders in the same manner.
(15) Factor 15: Hostility Towards Women.
(a) Adult Male. Sex offenders who have exhibited hostile attitudes and behavior towards
women present an increased risk of re-offense and degree of dangerousness and is indicative
of antisocial behavior. The Board shall consider, but is not limited to, whether the sex
offender has:
1. displayed a pervasive pattern of conflicts with women;
2. displayed physical aggression and/or violence toward women;
3. used derogatory and demeaning language towards women; or
4. had multiple abuse prevention orders or harassment prevention orders by different
women at different times.
803 CMR 1.33(15)(a) includes adults whose only sex offense(s) were committed as a
juvenile and who have displayed a pattern of hostility toward women as an adult.
(Mann et al., 2010; Hanson et al., 2007; Allan et al. 2007)
(b) Adult Female. Factor 15 does not apply to adult female sex offenders.
(c) Juvenile. Factor 15 does not apply to juvenile sex offenders except as noted above.
(16) Factor 16: Public Place.
(a) Adult Male. Sex offense(s) or sexual misconduct committed in areas where detection
is likely reflects the sex offender's lack of impulse control and is indicative of an increased
risk of re-offense.
Less weight may be applied where the sex offender made a clear and concerted effort to
conceal the sex offense(s) or sexual misconduct from others.
Public place includes any area maintained for, or used by, the public, any place open to
the scrutiny of others, or where the sex offender had no expectation of privacy. (Epperson
et al., 2000)
(c) Juvenile. Factor 16 applies to juvenile sex offenders in the same manner. (Epperson et
al., 2015; Langstrom, 2002)
(17) Factor 17: Male Sex Offender against Male Victim.
(a) Adult Male. A sex offense or sexual misconduct committed against a male victim is
indicative of an increased risk of re-offense. Factor 17 applies when the sex offender
committed the sex offense or sexual misconduct against a non-consenting male or a male
child younger than 16 years old. (Knight and Thornton, 2007; Harris and Hanson, 2004;
Hanson et al., 2003; Harris et al., 2003)
(b) Adult Female. Factor 17 does not apply to adult female sex offenders.
(c) Juvenile. Factor 17 may apply only to juvenile sex offenders who were 13 years of age
or older at the time of the sex offense or sexual misconduct.
There are two circumstances when juvenile sex offenders who have male victims present
a higher risk of re-offense. Factor 17 only applies:
1. when the male victim was younger than 13 years old and was at least five years
younger than the sex offender at the time of the sex offense or sexual misconduct; or
2. if there was penetration and physical force in the sexual assault, regardless of the age
of the victim.
803 CMR 1.33(17)(c) includes adults whose only sex offense(s) were committed as a
juvenile. (McCann and Lussier, 2008; Prescott, 2006; Prentky and Righthand, 2003;
Worling and Curwen, 2001).
(18) Factor 18: Extravulnerable Victim.
(a) Adult Male. Sex offenders who committed a sex offense or sexual misconduct against
an extravulnerable victim present an increased degree of dangerousness. Extra-vulnerable
includes, but is not limited to, any condition or circumstance that:
1. rendered a victim more susceptible to sexual assault;
2. rendered a victim unable to effectively defend themselves; or
3.
compromised a victim's ability to effectively report sexual abuse or provide
testimony in court.
The Board shall consider victims who were younger than eight years old or more than
60 years old at the time of the sex offense or sexual misconduct to be extra-vulnerable by
virtue of their age. (Levenson, et al., 2008; McGrath, 1991)
(c) Juvenile. Factor 18 applies to juvenile sex offenders in the same manner.
(19) Factor 19: Level of Physical Contact.
(a) Adult Male. Sexual offenses or sexual misconduct that involved penetration, especially
penile penetration, causes victims increased psychological harm and increases the sex
offender's degree of dangerousness.
Limited weight shall be given when an adult sex offender offended against a child victim if,
1. the age difference between the sex offender and the victim was five years or less; and
2. there was evidence of a consensual, but statutorily criminal sexual act. (Lesserman
et al., 1997)
(c) Juvenile. Factor 19 applies to juvenile sex offenders in the same manner. However, in
determining the weight applied, the Board should also consider:
1. the age difference between the sex offender and the victim;
2. whether there was credible evidence of an ongoing dating type relationship;
3. whether there was credible evidence of a consensual, but statutorily criminal sexual
act; and
4. whether there was force or coercion.
803 CMR 1.33(19)(c) includes adults whose only sex offense(s) were committed as a
juvenile. (Rich, 2017)
(20) Factor 20: Diverse Sexual Behavior.
(a) Adult Male. Diverse sexual behavior may reflect sexual preoccupation, elevated sex
drive, or sexual deviance. Sex offenders who engaged in different types of sexual behaviors,
in separate episodes, present an increased risk of re-offense. The Board shall consider the
number, types, and frequency of a sex offender's diverse sexual behaviors in the weight
applied to this factor.
Diverse sexual behaviors include, but are not limited to: voyeurism, exhibitionism,
possession of pornography, contact sexual assaults, stealing of a person's belongings for
sexual arousal, frottage, stalking, photographing or videotaping a partially nude or nude
person or the intimate parts of a person without their consent, engaging in explicit electronic
communications, hiring persons for sex, frequenting strip clubs, and engaging in sexual
harassment. (Babchishin, et. al., 2015; Thorton, 2013; Mann et al., 2010; Hanson et al.,
2007; Harris et al., 2003; Hanson and Harris, 2000)
(Hart et al., 2003)
(c) Juvenile. Factor 20 applies to juvenile sex offenders in the same manner. (Curwen and
Costin, 2007; Prentky and Righthand, 2003; Worling and Curwen, 2001)
(21) Factor 21: Diverse Victim Type.
(a) Adult Male. Sex offenders whose sex offense or sexual misconduct traversed victim
types, such as multiple ages, gender, or relationship categories present an increased risk of
re-offense. (Stephens, et al., 2018; Stephens, et al., 2017; Kleban et al., 2013; Heil et al.,
2003; Hanson and Harris 2000)
(c) Juvenile. Factor 21 applies to juvenile sex offenders in the same manner. (Rich, 2017;
Epperson et al., 2015;Epperson et al., 2009; Curwen and Costin, 2007; Parks and Bard,
2006; Worling and Curwen, 2001)
(22) Factor 22: Number of Victims.
(a) Adult Male. Sex offenders who committed a sex offense or sexual misconduct against
two or more victims present an increased risk of re-offense. (Stephens et al. 2018; Stephens
et al. 2017; Hanson Bussiere 1998)
(c) Juvenile. Factor 22 applies to juvenile sex offenders in the same manner. (Rich, 2017;
Epperson et al., 2015; Epperson et al., 2009; Miccio-Fonseca, 2009; Powers-Sawyer and
Miner, 2009; Gerhold et al., 2007; Worling and Langstrom, 2006; Prentky and Righthand,
2003;Worling and Curwen, 2001)
(23) Factor 23: Victim Access.
(a) Adult Male. A sex offender's risk of re-offense increases when he has frequent and easy
access to potential victims similar to his past victims.
The Board may consider, but is not limited to:
1. whether the sex offender has regular and ongoing opportunities for interaction with
potential victims through such things as coaching, teaching, or volunteering;
2. whether the sex offender has regular and ongoing opportunities for interaction with
potential victims through his living, employment, or relationship settings; or
3. whether the sex offender appears to be intentionally seeking circumstances similar
to those in which he accessed past victims..
For sex offenders targeting stranger victims, Factor 23 applies when the sex offender's
conduct suggests an intentional seeking out of circumstances like his prior sex offense(s) or
sexual misconduct.
803 CMR 1.33(23)(a) includes adults whose only sex offense(s) were committed as
juveniles. (Hanson et al., 2007; Hanson and Harris, 2000)
(c) Juvenile. Risk of re-offense and degree of dangerousness increases when juvenile sex
offenders have frequent, unsupervised access to similar potential victims or appear to be
intentionally seeking circumstances that allow such access. (Spice, et al., 2013; Carpentier
and Proulx, 2011; Worling and Langstrom, 2006)
(24) Factor 24: Less than Satisfactory Participation in Sex Offender Treatment.
(a)
Adult Male. Sex offenders who refused to participate in, dropped out of, or were
terminated by their treatment provider from sex offender treatment present an increased risk
of re-offense and degree of dangerousness.
Where the treatment offered is nonconfidential, this factor only applies where evidence
exists that the sex offender's refusal was for a reason unrelated to the nonconfidentiality.
The Board shall consider the sex offender who, during his most recent opportunity to
participate in a sex offender treatment program while in custody, or when required by
community supervision, refused to participate in a sex offender treatment program or
dropped out or was involuntarily terminated to present an increased risk of re-offense and
degree of dangerousness. (Lösel and Schmucker, 2005; Hanson et al., 2002; Hanson and
Harris, 2000)
(c) Juvenile. Factor 24 applies to juvenile sex offenders in the same manner. (Epperson et
al., 2009; Powers-Sawyer and Miner, 2009; Vitacco et al., 2009; Curwen and Costin, 2007;
Gerhold, et al., 2007; Worling and Langstrom, 2006; Worling and Curwen, 2001)
(25) Factor 25: Prostitution of Children by Female Sex Offenders.
(a) Adult Male. Factor 25 does not apply to male sex offenders.
(b) Adult Female. Female sex offenders convicted of sex offenses or who committed
sexual misconduct related to promoting the prostitution of a child present an increased risk
of re-offense. For purposes of Factor 25, a child victim is a person under the age of eighteen.
(Cortoni et al., 2015; Sandler and Freeman, 2009)
(c) Juvenile. Factor 25 does not apply to juvenile sex offenders.
(26) Factor 26: Female Sex Offenders Having a History of Abusing Children.
(a) Adult Male. Factor 26 does not apply to male sex offenders.
(b) Adult Female. Female sex offenders who have a history of engaging in any type of
non-sexual child abuse present an increased risk of re-offense. Female sex offenders who
have a history of engaging in physical child abuse present an increased degree of
dangerousness. The Board shall consider evidence of prior child abuse, including but not
limited to:
1. the number and nature of investigations;
2. the number of charges; and
3. the number of convictions.
For purposes of Factor 26, a child victim is a person under the age of eighteen years old.
(Wijkman and Bijleveld, 2013; Cortoni and Gannon, 2011; Sandler and Freeman, 2009)
(c) Juvenile. Factor 26 does not apply to juvenile sex offenders.
(27) Factor 27: Juvenile Sex Offenders' Age of Victim.
(a) Adult Male. Factor 27 does not apply to male sex offenders.
(b) Adult Female. Factor 27 does not apply to female sex offenders.
(c) Juvenile. Factor 27 only applies to juvenile sex offenders who were 13 years of age or
older at the time of the sex offense or sexual misconduct.
1. Child Victims. Juvenile sex offenders who targeted younger child victims outside
of their peer age group present an increased risk of re-offense and degree of
dangerousness. For purposes of Factor 27, the Board shall consider child victim as
younger than 13 years old and at least five years younger than the offender at the time
of the offense.
2.
Adult Victims. Juvenile sex offenders who targeted adult victims present an
increased risk of re-offense and degree of dangerousness. For purposes of Factor 27, the
Board shall consider adult victim as 18 years of age or older and at least five years older
than the offender at the time of offense.
803 CMR 1.33(27)(c) includes adults whose only sex offense(s) were committed as
a juvenile. (Rich, 2017; ATSA, 2012; McCann and Lussier, 2008; Worling and
Langstrom, 2006; Nisbet, et al, 2004; Worling and Curwen, 2001)
RISK-MITIGATING FACTORS:
(28) Factor 28: Community Supervision.
(a) Adult Male. Community supervision of sex offenders released into the community
increases public safety. A sex offender's risk of re-offense and degree of dangerousness are
reduced while serving any form of community supervision. Factor 28 also applies to sex
offenders who are incarcerated or civilly committed at the time of the classification hearing
and will be under community supervision upon release. Factor 28 may be given less weight
if there is a history of probation violations. For purposes of Factor 28, community
supervision does not include pretrial release conditions.
803 CMR 1.33(28)(a) includes adults whose only sex offense(s) were committed as a
juvenile. (de Vries Robbé and Vogel, 2013; English et al., 1995)
(b) Adult Female. Factor 28 applies to female sex offenders in the same manner.
(c) Juvenile. Community supervision reduces a juvenile sex offender's risk of re-offense
and degree of dangerousness. For purposes of Factor 28, juvenile sex offenders are
considered under community supervision when they are supervised in the community by
probation, DYS, or when they are in a residential treatment program or a DYS residential
program that is not hardware secure. (Rich, 2017)
(29) Factor 29: Offense-Free Time in the Community.
Risk of re-offense decreases the longer the sex offender has access to the community without
committing a new sex offense or sexual misconduct. Offense-free time in the community begins
on the date of the sex offender's most recent release from custody for a sex offense. For sex
offenders who are not committed, the offense-free time in the community begins on the most
recent date of conviction or adjudication of a sex offense.
Factor 29 may be given less mitigating weight where:
1.
the sex offender committed sexual misconduct for which they were not charged or
convicted during their time in the community;
2. the sex offender is removed from the community for some portion of time since last
committing a sex offense or sexual misconduct for any reason, including but not limited to
probation revocation, violation of terms of supervision or release, or any incarceration.
Under these circumstances, the decrease in mitigation, if any, should be commensurate with
the amount of time removed from the community; or
3. the sex offender demonstrated ongoing criminal activity, especially where such activity
involves non-sexual violence.
a.
Adult Male. Risk of re-offense decreases for most sex offenders after living
offense-free in the community for five to ten years. Risk of re-offense decreases
substantially for most sex offenders after living offense-free in the community for ten or
more years. (SAARNA: User's Manual for the Lifetime and Residual Risk Calculator,
2021;Thorton, et al., 2021; Hanson, et al., 2018; Hanson et al., 2014; Harris & Hanson,
2004)
b. Adult Female. Factor 29 applies to female sex offenders in the same manner.
c. Juvenile. Adolescence is a time of rapid social, sexual, physical, cognitive, and
emotional developmental changes. Thus, increased mitigating weight should be given
to juvenile sex offenders demonstrating offense-free time in the community. Risk of
re-offense decreases for most juvenile sexual offenders after living in the community
offense-free for three years. Risk of re-offense decreases substantially for most juvenile
sex offenders after living offense-free in the community ten or more years.
Offense-free time in the community begins on the most recent date the juvenile sex
offender is released from DYS hardware secure facility for a sex offense. For juvenile
sex offenders who are not placed in a hardware secure DYS facility, offense-free time
in the community begins on the most recent date of adjudication for a sex offense.
803 CMR 1.33(29)(c) includes adults whose only sex offense(s) were committed as
a juvenile. (Prentky et al., 2010; Worling, et al., 2010; Worling and Langstrom, 2006)
(30) Factor 30: Advanced Age.
(a) Adult Male. Risk of re-offense incrementally decreases as the sex offender gets older,
especially as the sex offender moves into his later years. While advanced age alone does not
outweigh other risk-elevating factors present, advancing age has a mitigating effect on risk
of re-offense.
Factor 30 does not apply uniformly to all sex offenders. Although risk of re-offense
gradually decreases when the sex offender is in his 40s, the Board considers advanced age
to have a significant mitigating effect when the offender is 50 years of age or older or, for
those with a child victim, when the offender is 60 years of age or older. For Factor 30, the
Board will consider the offender's age at the time of the classification.
Factor 30 should be given reduced weight when the sex offender continues to
demonstrate general criminality or inappropriate sexual behavior.
803 CMR 1.33(30)(a) includes adults whose only sex offense(s) were committed as a
juvenile. (Nicholaichuk et al., 2014; Lussier and Healy, 2009; Barbaree and Blanchard,
2008; Skelton and Vess, 2008; Prentky and Lee, 2007; Hanson, 2006; Fazel et al., 2006;
Thornton, 2006; Hanson, 2002)
(c) Juvenile. Factor 30 applies in the same manner to juvenile sex offenders except that the
Board shall consider child victim as younger than 13 years old and at least five years
younger than the offender at the time of the offense.
(31) Factor 31: Physical Condition.
(a) Adult Male. Pursuant to M.G.L. c. 6, § 178K(1)(d), the Board shall consider the sex
offender who, due to a physical condition, including a debilitating illness that has been
documented by a treating medical provider, presents a decreased risk of re-offense or degree
of dangerousness. At minimum, the medical documentation should:
1. identify the sex offender's physical condition;
2. identify the onset or date of diagnosis of the sex offender's physical condition;
3.
provide a detailed description of the sex offender's limitations connected to the
physical condition; and
4. provide a summary of the sex offender's treatment and prognosis relative to the
physical condition.
(c) Juvenile. Factor 31 applies to juvenile sex offenders in the same manner.
(32) Factor 32: Sex Offender Treatment. The Board may consider credible documentation
verifying the sex offender's sex offender treatment participation or completion. This
documentation should, at minimum, include: the sex offender treatment provider's name and
license number; the sex offender treatment provider's description of the treatment program's
milieu, methodology, goals, and objectives; and a record of the sex offender's attendance, level
of participation, and degree of progress.
The risk-mitigating weight applied to Factor 32 varies in degrees based on the following:
(a) Treatment Completion. In general, the sex offender who successfully completed a sex
offender treatment program presents at a lower risk of re-offense than those who have not.
Participation in sex offender treatment through the end of a term of incarceration or
community supervision is not considered treatment completion unless there is documentation
that the sex offender met all the goals of the sex offender treatment program.
(b) Current Treatment Participation. The Legislature has identified current participation
in sex offender treatment as a risk mitigating factor. The sex offender who voluntarily
participates in sex offender treatment in the community, not solely as a condition of
supervised release, and the sex offender who continues to participate in sex offender
treatment after their sex offender treatment providers have determined that they have
completed the sex offender treatment program, may receive increased mitigating weight.
(c)
Past Treatment Participation. The Board shall consider the sex offender's past
participation in sex offender treatment. The sex offender who participated in sex offender
treatment while incarcerated or civilly committed or under community supervision, but did
not complete the sex offender treatment program, may receive less mitigating weight.
(d) Denial. One of the primary goals of successful sex offender treatment is accepting
responsibility for engaging in harmful sexual offending behavior. While some sex offenders
who deny committing their sex offense can benefit from sex offender treatment, any ongoing
lack of responsibility or minimization for their behaviors may diminish the mitigating weight
assigned. (Gannon, et al., 2019; Schumucker & Losel, 2015; Olver et al., 2013; Ware &
Mann, 2012; Levenson, 2011; Hanson et al., 2009; Lösel and Schmucker, 2005; Marques
et al., 2005; Saleh and Guidry, 2003)
1. Adult Male. The Board has determined that participation in or successful completion
of sex offense-specific treatment, specifically in programs utilizing a
cognitive-behavioral modality, such as Relapse Prevention, Risk-Needs-Responsivity,
or Good Lives, reduces the sex offender's risk of re-offense. The Board may also
consider pharmacological treatment for paraphilic disorders as reducing the sex
offender's risk of re-offense. The Board should also consider the duration of treatment,
and a sex offender's attendance and engagement when assessing the amount of mitigating
weight applicable.
2. Adult Female. Many female sex offenders have treatment needs that may not be
addressed in traditional sex offender treatment programs created for male sex offenders.
The Board shall give mitigating weight to participation in, or successful completion of,
a treatment program utilizing a cognitive-behavioral modality such as Relapse
Prevention, Risk-Needs-Responsivity, and Good Lives or for general psychological
therapy. The Board shall consider the degree of participation in treatment and denial in
the same manner as adult males. (Blanchette and Taylor, 2010; Ford, 2010; Blanchette
and Brown, 2006)
3. Juvenile. Juvenile sex offenders may have broader treatment needs than their adult
counterparts. Because juvenile sex offenders are still maturing and developing, they may
be more amenable to treatment.
The Board has determined that participation in any psychological therapy addressing
various areas of a sex offender's life, such as family, school, emotional, and social
domains, or sex offense specific treatment is risk-mitigating. The mitigating weight
assigned increases with the sex offender's level of participation, progress in treatment,
family involvement, level of accountability, focus on sex offending behavior, or whether
the sex offender completed a treatment program.
When classifying adults whose only sex offense(s) were committed as a juvenile, the
Board shall consider their past participation in treatment as a juvenile and participation
in sex offender treatment as an adult. (Kim, Benekos & Merlo, 2016; ATSA, 2012;
Worling et al., 2010; Borduin et al., 2009; Caldwell et al., 2008; Reitzel and Carbonell,
2006)
(33) Factor 33: Home Situation and Social Support Systems.
(a) Adult Male. The sex offender who currently has a positive social support network
presents a decreased risk of re-offense.
Greater mitigating weight shall be given where credible evidence indicates the sex
offender's support network is aware of the sex offender's sex offense history and provides
active support.
803 CMR 1.33(33)(a) includes adults whose only sex offense(s) were committed as a
juvenile. (de Vries Robbé et al., 2015; de Vries Robbé and Vogel, 2013; Tabachnick and
Klein, 2011)
(Gannon and Rose, 2008)
(c) Juvenile. The juvenile sex offender who currently has a positive social support network
presents a decreased risk of re-offense. Factor 33 is applied when there is credible evidence
of stable relationships with family, stable and therapeutically supportive family, pro-social
friends and acquaintances, or positive engagement with social services, teachers or other
adults.
Greater mitigating weight shall be given where credible evidence indicates the sex
offender's support network is aware of the sex offender's sex offense history and provides
active support. (Prentky et al., 2010; Bremer, 2006; Prentky and Righthand, 2003; Worling
and Curwen, 2001)
(34) Factor 34: Stability in Home Environment and in the Community.
(a) Adult Male. Pursuant to M.G.L. c. 6, § 178K(1)(l), the Board shall consider, and give
mitigating weight to the sex offender demonstrating stability in their home environment and
in the community. The Board may consider, but is not limited to, evidence of the sex
offender's:
1. active participation in mental health and/or substance abuse treatment;
2. recent behavior and lifestyle;
3. residential stability;
4. sustained sobriety;
5. continuing education;
6. employment stability, type of employment; and
7. non-work related activities.
(de Vries Robbé et al., 2015; de Vries Robbé and Vogel, 2013; Tabachnick and Klein,
2011)
(Gannon and Rose, 2008)
(c) Juvenile. Factor 34 applies to juvenile sex offenders in the same manner. (Bremer,
2006; Prentky et al., 2010)
ADDITIONAL FACTORS:
(35) Factor 35: Psychological or Psychiatric Profiles Indicating Risk to Reoffend.
(a) Adult Male. The Board shall consider evaluative reports, including but not limited to,
documentary reports generated during sexually dangerous person proceedings, risk
assessment reports completed for sentencing, probation or treatment planning, empirically
based risk assessment instruments, or a licensed mental health professional's testimony
discussing psychological and psychiatric issues, including major mental illness, as they relate
to the sex offender's risk of re-offense.
The ultimate risk opinion of the evaluator, if any, will be excluded from consideration
unless the evaluator testifies as an expert witness at the classification hearing. (Looman &
Abracen, 2013; Kafka, 2012; Fazel et. al. 2007; Hanson and Harris, 2000; Hanson and
Bussière, 1998)
(Gannon, et al., 2014; Cortoni, 2010; Rousseau and Cortoni, 2010; Vandiver and Kercher,
2004; Hart et al., 2003)
(c) Juvenile. Factor 35 applies to juvenile sex offenders in the same manner. (Kafka, 2012).
(36) Factor 36: Online Only Offending Behavior.
Factor 36 applies to sex offenders whose sex offense(s) and sexual misconduct solely
involved online or remote electronic communication and interaction. Sex offenders who actually
traveled to meet the victim, are not online only offenders.
Sex offenders who limited their sexual offense(s) and sexual misconduct to online offending
may present a lower risk of re-offense and degree of dangerousness than sex offenders
committing contact offenses. However, the presence of antisocial factors may increase the risk
of re-offense and degree of dangerousness. Other regulatory factors must be considered when
assessing the online sex offender's risk of re-offense and degree of dangerousness in conjunction
with this factor.
(a) Adult Male. The Board categorizes online offending behavior in the following ways:
1. Child Sexual Abuse Material (CSAM) Otherwise Known as Child Pornography.
Sex offenders who possessed or passively shared CSAM through peer-to-peer networks
generally present a lower risk of re-offense and degree of dangerousness than sex offenders
who commit contact offenses.
Sex offenders in this category demonstrating evidence of sexual deviance may present
an increased risk to commit contact sex offenses and therefore increased degree of
dangerousness to the public. Sexual deviance indicators include, but are not limited to
evidence of: actively trading CSAM or participating in online discussions about sex with
children; actively searching for images of prepubescent children; collecting larger amounts
of prepubescent CSAM relative to postpubescent CSAM or adult pornography; collecting
larger amounts of CSAM relative to adult pornography; and primarily focusing on CSAM
depicting boys or a higher boy to girl ratio in a collection. (Steel, et al., 2021; Stephens, et
al., 2017; Seto, 2015; Seto & Eke, 2015; Babchishin et al., 2015; Babchishin et. al., 2011;
Eke et al., 2011; Seto et al., 2011; Kim, 2004)
2.
Online Communicating. Sex offenders who engaged in sexually explicit
communications with, or sent pornographic photographs or videos, to minors or persons
they believed to be minors by any electronic means present an increased degree of
dangerousness among online only sex offenders. This subsection is applicable where:
a. the sex offender made no attempt to lure the minor into meeting them; and
b. the sex offender made no attempt to manipulate the minor into anything beyond
perceiving (seeing or listening to) the sexually offensive material. This subsection
does not apply where an offender actively engaged in sexual behavior with a minor
through electronic means, or encouraged a minor to take and/or share pornographic
materials of themselves. (Meridian et al., 2018; Seto, 2015; Babchishin et al., 2015)
3. Solicitation Offending. Sex offenders who communicated online with minors or
persons they believed to be minors by any electronic means to receive pornographic
material of the victim or to discuss meeting in-person to engage in sexual misconduct
present the greatest degree of dangerousness among online sex offenders. Such
offenders present an increased risk of re-offense and degree of dangerousness compared
to other online only sex offenders.
803 CMR 1.33(36)(a)3. does not apply where an offender actually traveled or made
arrangements for the victim to travel for the purpose of meeting in-person. Such offenders
are more akin to contact offenders and are best considered outside of this factor in assessing
risk of re-offense and degree of dangerousness. (Meridian et al., 2018; Seto,
2015;Babchishin et al., 2015; Seto et al., 2012; Babchishin et al., 2011; Briggs et al, 2011;
Eke et al., 2011; Seto et al., 2011; Seto & Eke, 2005)
(c) Juvenile. Factor 36 applies to juvenile sex offenders in the same manner.
Juvenile sex offenders whose online sex offenses and sexual misconduct only targeted
similarly aged peers may present a lower risk of re-offense and degree of dangerousness
than adult sex offenders who target juveniles as they are less likely to be sexually deviant.
(Saleh et al., 2014)
(37) Factor 37: Other Useful Information.
(a)
Adult Male. Pursuant to M.G.L. c. 6, § 178L(1), the Board shall consider any
information that it deems useful in determining risk of re-offense and degree of
dangerousness posed by any sex offender.
(c) Juvenile. Factor 37 applies to juvenile sex offenders in the same manner.
(38) Factor 38: Victim Impact Statement.
(a) Adult Male. The Board recognizes the substantial impact sex offenses have on victims.
Pursuant to M.G.L. c. 6, § 178K(1)(k), the Board shall consider any written statement
authored by the victim, the parent or guardian of a minor victim or a deceased victim, or the
guardian of an adult victim of a sex offense that resulted in a conviction or adjudication as
it relates to the sex offender's degree of dangerousness.
(c) Juveniles. Factor 38 applies to juvenile sex offenders in the same manner.