803 Code Mass. Regs. § 1.40(9)(c)(2) provides that, in determining a sex offender’s likelihood of recidivism — which in turn bears on what sort of registration requirements apply to the sex offender — one factor should be whether the offender is a “male offender who commits a sex offense, as defined in M.G.L. c. 6, § 178C, against a male victim. This demonstrates the degree of sexual deviance associated with this offender (Hanson & Bussiere, 1998; Hanson & Bussiere, 1996; Freund & Watson, 1991).” Doe v. Sex Offender Registry Board (Mass. 2008) upheld this against an Equal Protection Clause challenge (paragraph break added):
In determining the plaintiff’s likelihood of recidivism and degree of dangerousness, the hearing examiner also considered the fact that the plaintiff’s victim was a male. Title 803 Code Mass. Regs. § 1.40(9)(c)(2) advises that among the elements to consider in assessing the nature of a particular sex offense is whether the offense was committed by a male offender on a male victim. The plaintiff claims that the hearing examiner’s application of this regulation to his case penalized him for being homosexual in violation of his equal protection rights. This claim has no merit.
The equal protection analysis under both the State and Federal Constitutions is the rational basis test. The challenged regulation was drawn from findings of sex offender experts (as cited in the regulation) in order to assist the board in determining more accurately a sex offender’s risk to reoffend and level of dangerousness. Prefatory language to the regulation explains: “Much can be learned about an offender by studying the nature of the offenses he has committed…. Based on its review of the research, the [b]oard found the presence of deviant sexual interests dramatically increases the risk of reoffending and that the strongest deviant sexual interests have empirically been found to be more prevalent among those offenders who victimize strangers, prepubescent children, non-consenting males, [or] vulnerable persons…. The [b]oard otherwise, or unless indicated in this [subsection], does not consider sexual gender orientation of either the offender or the victim in determining the risk to reoffend [or] degree of dangerousness posed.”
We have no difficulty concluding that the regulation serves a legitimate State interest and does not seek to punish, or impose an adverse classification on, the sexual behavior of consenting male adults. It follows that cases relied on by the plaintiff, see Lawrence v. Texas, 539 U.S. 558, 563 (2003), and State v. Limon, 280 Kan. 275, 284 (2005), do not support his equal protection claim.
Is this right? In particular, should this be viewed as discrimination based on sexual orientation, or discrimination based on the offender’s sex, which is subject to a rather demanding form of “intermediate scrutiny” under the U.S. Constitution and “strict scrutiny” under the Massachusetts Constitution? And even if heightened scrutiny is required — whether because this is a sex classification, or because you think that sexual orientation classifications should be subject to heightened scrutiny — should that scrutiny be satisfied if there is indeed sufficient evidence that male offenders against male victims are especially likely to repeat their crimes?