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  • 02/20/2007 11:15 518-457-4152 NYSBOE PAGE 02/30SEX OFFENDER REGISTRATION ACTRiskAssessment Guidelinesand Commentary2006
  • 3: The offender engagedin sexual intercourse, oral sexual conduct, anal sexualconduct, or aggravated sexual abuse with the victim (25 pts)The offender engagedin a continuing course of sexualmisconduct with at least onevictim (20 pts)The victim suffered from a mental disability, mental incapacity, or physical helplessness(20 pts)PAGE 03/30NYSBOESEXOFFENDER GUIDELINES518-457-4~522: The offenderinflictedphysical injury (15 pts)3: The offenderwasarmed with a dangerous instrument (30pts)1: The offenderused forcible compulsion(10 pts)1: The Offender/Victim contactwas over clothing (5 pts)2: The Offender/Victim contact was under clothing (10 pts)1: Therewere two, victims (20 pts)1: Thevictim was 11 through 16 years ofage (20 pts)2: The victim was 10years old or less, or 63 years ofage or more (30 pts)2: There were three or more victims (30 pts)I. CURRENT OFFENSE(S)Factor 1: Use ofViolence (Choose only one)Factor 2: Sexual Contact with VictimFactor 4: Duration ofOffense Conduct with VictimFactor 5: Age of VictimFactor 3: Number of VictimsFactor 6: Other Victim Characteristics2007 11:15
  • 02/20/2007 11:16 518-457-4152 NYSBOE PAGE 04/30Factor 7: Relationship Between Offender RDd Victim·The offenders crime (i) was directedat a stranger or a person with whom a relationshiphad been established or promotedfor the primary purpose of victimization Or (ii) aroseinthe contextofa professionalor avocational relationship between the offender and thevictim and was an abuse ofthat relationship (20 pts)II. CRIMINAL mSTORYFactor 8: Age at First Sex CrimeTheoffendercommitted a sex offense, that subsequentlyresulted in an adjudication orconviction for a sex crime, at age 20 or less (10 pts)Factor 9: Number and Nature ofPrior Crimes1: The offenderhas a prior criminalhistorybut no convictions or adjudications for asex crime or felony(5 pta)2: Theoffenderhas a prior criminal historythat includes a felony convictionoradjudicationbut not for a violentfelonyor sex crime (15pts)3: The offenderhas a prior criminalhistorythat includesa conviction or adjudication.for the class Afelonies of Murder,Kidnaping or Arson, a violent felony, amisdemeanorsex crime,or endangering the welfareofa child,or any adjudicationfor a sex offense (30 pts). Pleasenote that when an offender has a prior felonysexcrime conviction, it is an automatic overrideto a level 3 risk. Inthe past,when a case was an override, the instrumentwas not scored. However, pursuantto People v. Sanchez (20 A.D.3r 693 [2005]), a companion score is nowprovided. Because there is no mechanism in the instrument to score adequately aprior felony sex offenseconvictionand it is consideredto be an automatic level 3risk, a prior felony sex: offense convictionisscored conservativelyat only30points. However, in all caseswherethere is a prior felony sex offenseconviction,the companionscore is overriden bythe Board and the Board recommendation isan automatic overrideto risk level 3. unlessthere is some cause for departurefrom that level.Factor 10: Recency ofPrior Felony or Sex CriineThe offenderhas a prior convictionor adjudication for a felony or sex crimethat occurredlessthan three yearsbefore the instantoffense (10 pts) .Faetor 11; Drug or Alcohol AbuseThe offender has a historyof drugor alcohol abuse (15 pts)
  • 02/20/2007 11:15 518-457-4152 NYSBOE PAGE 05/30III. POST-OFFENSE BEHAVIORFactor 12: Acceptance ofResponsibility1: The offender has not accepted responsibility for his sexual misconduct (10 pts)2: The offender has refused or been expelled from treatment subsequent tosentencing (15 pts)Factor 13: Conduct While Con:fmed or Under Supervision,1: The offenders adjustment to confmement or supervision has been unsatisfactory(10pts)2: The offenders adjustment to confinement orsupervision has been unsatisfactoryand has included inappropriate sexual conduct (20 pts)IV. RELEASE ENVIRONMENTFactor 14: Supervision1: The offender will be released under the supervision ofa probation, parole ormental health professional whospecializes in the management ofsexual offendersor oversees a sex offendercaseload (0 pts)2: The offender will be released under the supervision ofa probation, parole or.mental health professional, but not one whospecializes in the management ofsexualoffenders or oversees a sex offender caseload (5 pts)3: The offender willbe released with no official supervision (15 pts)Factor 15: Living or Employment SituationThe offenders living or employment situation is inappropriate (l0 pts)V. OVERRIDES1: Prior sex felony convictionThe offenderhas a prior felony conviction for a sex crime2: Serious Physical Injury or DeathThe offender inflicted serious physical injuryor caused deathto the victim
  • 02/20/2007 11:15 518-457-4152 NYSBOE PAGE 05/303: Recent ThreatThe offender has made a recent threat that he will reoffend by committing a sexualor violentcrime4: Mental AbnormalityTherehas been a clinical assessment that the offender has a psychological,physical, or organic abnormality thatdecreases his ability to control impulsivesexualbehavior
  • 02/20/2007 11:15 518-457-4152 NYSBOE PAGE 07/30SEXOFFENDER GUIDELINES: COMMENTARYThe Sex OffenderRegistrationAct ("Act"),set forth in; CorrectionLaw Article 6-C,requires the Board ofExaminersofSex Offenders ("Board") to "develop guidelinesandprocedures to assess the risk ofa repeat offenseby [a] sexoffender and the threat posedto publicsafety." CorrectionLaw §168-1(5). There are three levelsofrisk depending upon the offendersdangerto the community: level I (lowrisk), level 2 (moderate risk), and level 3 (high risk). Theoffenders risk level determines the amount ofinformation that canbe disseminated abouthim tothe public underthe Acts notificationprocedures. In addition, an offenderreceives adesignation as a Sexually Violent Offender, Predicate. Sex Offender,Sexual Predator or no suchdesignation. A designation, in combinationwith the risk level, determinesthe length of anoffenders registration.This commentarydiscussesthe generalprinciplesthat underliethe guidelines andexplainsthe specificfactors included in them. As set forth in the appendix,the guidelines weredeveloped with the assistanceofa groupofexperts with diverse experienceindealing with sexoffenders. With their aid, the Board soughtto establishguidelines that would bring academicknowledge and practical acumento the difficulttask of predictingwhether a person convictedofa sex crimeis likelyto reoffend. No one should attemptto assess a sex offenders level of riskwithoutfirst carefullystudyingthis commentary.The 2006 revisions do not changethe scoringofthe instrumentbut, rather, simplyincludeupdatedstatutorylanguage and clarification. Furtherinformationregardingthe Act canbe found at IDYW.criminaliustice.state.ny.us.1 The guidelines and commentary use the masculine pronoun (he or him) to refer to a sexoffender. Most sex offendersare males,and the masculine is thereforeused for convenience, asit is in the Act.
  • 02/20/2007 11:16 518-457-4162 NVSBOEA. GeneralPrinciplesPAGE 08/30~2~In developing the guidelines, the Board adheredto the following general principles:1. As the Act makes clear, the threat posed by a sex offender depends upon twofactors: (i) the offenderslikelihood ofreoffense and (ii) the harmthat would be inflicted ifhe didreoffend. Someoffenders repeatedlyreoffend, but the harm they inflict, while not insubstantial,is less grave. Others may pose a lesser likelihoodof recidivism, especiallyifproperlysupervised, but the harm would be great were theyto reoffend. The sex offender whose modusoperandi is to rub himselfagainst women in a crowdedsubway car generally falls into the formercategory; the child molester into the latter. The guidelinesseek to capture both these elements-~the probabilityof reoffense and the harm therefrom-- in determining an offendersrisk level. Itis importantto note that the risk level seeksto capturenot only an offenders risk of reoffensebutalsotheharmposed by a particularoffendershould he reoffend. .2. What is somewhat less clearis whetheroffenders who are convicted of certainviolentsex: crimes (~first-degree rape) shouldautomaticallybe designated level 3, regardlessofthe facts ofthe particular case or the offenders prior history. A careful reading ofthe statutesupportsthe conclusionthat the guidelines shouldeschewpm: ~ rules and that risk shouldbeassessedon the basis of a review of all pertinentfactors (see Correction Law §168-1[5]&[6]).Such anindividualizedapproach is also mandatedby thefederal Violent Crime:2 This is not to suggestthat offenderswho commit "lesser" sex crimes do not also commitoffenses that cause greater harm. An offender who engagesin public lewdness by exposinghimself also may commit crimes that involvedirect "handson" contactwith a victim (McGrath1991; Abel et al. 1988;Romero &"Williams 1985),
  • 02/20/2007 11:16 518-457-4162 NVSBOE PAGE 09/30-3-Control andLawEnforcement Act of 1994(:;ee, 42 U.S.C. §14071), with which the Legislatureintended the Boardcomply.3. Aftermuch discussion, the Hoard opted to create an objective assessmentinstrumentthatwouldprovidea risk levelcombining risk of reoffense and dangerposed by a sex offender."Asrequired by theAct, the instrument includes factors relatedto the offenders currentoffense,hiscriminal history, his post-offense behavior(~his conductwhileconfinedfor the offense),andhis plannedrelease environment (Correction Law §168-1[5]). It assignsnumericalvaluestoeach risk factor--~, 20 points if there weretwo victims; 30 points ifthere werethree or morevictims. Thepresumptive risk levelis then calculated by addingthe points that the offenderscores in eachcategory. If the total score is 70 pointsor less. the offenderis presumptively level1;ifmorethan 70 but less than 110, he is presumptively level 2; if 110or more, he ispresumptively level3.4. The guidelines contain four "overrides" that automatically result in a presumptiverisk assessment oflevel 3: (i) a prior felony conviction for a sex crime; (ii) the infliction ofserious physical injuryor the causing of death; (iii) a recent threatto reoffendby committing a3 Thelegislative purposesectionofthe Act statesthat its enactmentwill bring "thestate intocompliance with the federal crimecontrolact." Federa1law eschews~ se rules and requires acourt to makean individualized determination that a personis ahigh risk offender(see, 42U.S.C. §1407-l[a][2]).4 New Jerseyhas also adopted an objective risk assessment scaleto implementits "MegansLaw" (see,New JerseySex: Offender Risk Assessment ScaleManual, [dated 9/14/95]). That.scale wasdesigned "to providean objective standard on whichto base the communitynotification decision "++and to insure that the notification law is appliedin a uniformmannerthroughout the state." (id). As discussed in the appendix, the New Jerseyscale was the startingpointforthe development of New Yorks assessment instrument,5 Where the category does not apply to the offender, he shouldbe scored 0 points. Forexample, ifhis crime involved onevictim, that factorshouldbe scored0; ifthere was not acontinuing course ofsexualmisconduct with the victim. that fRr.tnT ~l11n IOlhnnlil 101", ctnr.. rf n
  • 02/20/2007 11:15 518-457-4152 NVSBOE PAGE 10/30-4-sexual or violentcrime; or (iv),a clinicalassessment that the offenderhas a psychological,physical, or organic abnormality that decreases his abilityto control impulsive sexualbehavior.If any ofthese factors exist, the offenderis presumptively level 3. The Board decidedto treatthesefactors as overrides(ratherthan scoringthem heavily) becauseeach provides compellingevidence that an offenderposes a serious riskto public safety(Quinsey, et at 1995;Rice &Harris 1995; Schram& MUlroy 1995;Serin 1994; Quinsey1992; Rice, Harris & Cormier 1992;Romero & Williams1985). As notedpreviouslyin Part II ofthe Guidelines (Criminal History)Factor9, the fact that the offenderhas a prior felony sex crime conviction automatically resultsina presumptive risk assessmentof level3.5. The risk level calculatedfrom aggregating the risk factors and from applying theoverrides is "presumptive" becausethe Board or courtmay depart from it if specialcircumstances warrant. The abilityto departis premisedon a recognitionthat an objectiveinstrument, no matter how well designed, willnot fully capturethe nuancesof every case. Not toallowfor departures would, therefore, deprivetheBoard or a court ofthe abilityto exercisesoundjudgmentand to apply its expertise to the offender. Of course, ifthere was to be adeparture in everycase,the objectiveinstrumentwouldbe.of minimal value. The expectation isthat the instrument willresult in the proper classification in most cases so that departures will bethe exception -- not the rule.6. Generally, the Boardor a courtmaynot depart from the presumptiverisk levelunless it concludes that there exists an aggravating or mitigatingfactor of a kind, or to a degree,that is otherwise not adequatelytaken into account by the guidelines(ff., 18U.S.C. §3553[federal sentencing guidelinesdepartureprovision]). Circumstances that may warrant a departurecannot. bytheirvery nature. be comprehensively listedin advance. Departuresmay beupward
  • 02/20/2007 11:15 518-457-4152 NYSBOE PAGE 11/30-5-(~, from level 1 to 2) or downward (~, fromlevel 3 to 2). Forexample, if an offenderspresumptive risk level is 3 but he suffers from a physical condition that minimizes his risk ofreoffense, suchas advanced age or debilitating illness, a downward departure may be warranted.7. Completing the risk assessment instrument will often requite the Board or a courtto review the case file to determine what occurred. Points should not be assessed for a factor --~, the use ofa dangerous instrument -- unless there is clearaad convincing evidence oftheexistence ofthat factor. This evidence can be derived fromthe sex offenders admissions; thevictims statements; the evaluative reports ofthe supervising probation officer, parole officerorcorrections counselor; or from anyother reliable source. Notably, the Board is not limited to thecrime of conviction but may consider the above in determining an offenders risk level.Similarly, the fact that an offender was arrested or indicted for an offense is not, by itself,evidence that the offense occurred. By contrast, the fact that an offender was not indicted for anoffense may be strong evidence that the offense did not occur. For example, where a defendant isindicted for rape in thefirst degree on the theorythat his victim was less than 11 (penal Law§130.35[3]),but not on the theory that he used forcible compulsion (Penal Law §130.35[1]),theBoard or court should be reluctant to conclude that the offenders conduct involved forciblecompulsion.8. The risk assessment instrument is divided intofour parts: CurrentOffense[s];CriminalHistory; Post-Offense Behavior; and Release Erivironment. The Current Offense[s]section should be completed on the basis of all of the crimes that were part of the instantdisposition. For example, ifthe offender pleaded guiltyto two indictments in two differentcounties, both indictments should be considered in scoring the section. Ifone indictmentinvolvedone victim and the other involved two victims and ifthere is clear and convincing
  • assessment instrument,For an offender who has been sentenced to an incarcerative sentence, the Post-Offense9. In scoring the categories in the Current Offense[s] sectionofthe instrument, the-6-PAGE 12/NYSBOE518-457-415210. The CriminalHistorysection ofthe instrument asks for information abouttheRelease Enviromnent sectionwill involveanassessment of the offenders plannedwork anddangerous instrument (fromcrime #1) and 30 points for victimizing a person underthe age of 11(from crime #2). The.offenders willingness to use a weapon and to attack a young child are eachBehavior section will usuallyinvolve an assessment of hisconductwhile in custody. Thein category 3.Board or court should lookto the most serious wrongdoing in each category. For example, if theevidence thatall three were abused, the offender shouldreceive 30 points (threeor morevictims)and. canreadily change, the Boardchosenot to weighthis sectionas heavily as othersin thelivingarrangements upon his release fromcustody. Because those arrangements are prospectiveoffenders priorcrimes. As used therein, the term "crime" includes criminal convictions, youthfulassessing an offenders likelihood ofreoffense and danger to public safety." Convictions forfactors that addto the risk level,even iftheydidnot occur together in anyone criminal incident.6Although an adjudication as a youthful offender is not a conviction, it constitutes a reliabledetermination that an offender committed the underlying criminalconduct~eo~ v, Compton.38 A.D. 2d 788 [4thDept., 1972])~ g. Peo,ple v. Cook. 37 N.Y. 2d 591 [1975][a person canbequestioned asto conductunderlying a youthful offender adjudication for purposesofimpeachingcredibilitvl).determinations arereliable indicators of wrongdoing and, therefore, should be considered inoffender committed two crimes, a knifepoint rapeof a 21-year-old woman and a rape of a 1o~offender adjudications andjuvenile delinquency findings. The Boardconcluded that theseyear-Old girlin whichno weapon wasused,he should be assessed 30 points for using a2007 11: 15
  • 1212/2121/21211217 11:15 518-457-4152 NYSBOE PAGE 13/30-7-PenalLawoffensesand unclassifiedmisdemeanors should be considered. Where an offender hasadmitted committing an act of sexualmisconductfor whichthere has been no suchjudicialdetermination, it shouldIW1 be used in scoringhis criminalhistory. It may, however,form thebasis for an upward departureif there is clear and convincing evidence that the conduct occurred.II. The guidelinesassumethat the Boardor a courtwill generallyapplytraditionalprinciples ofaccessorial liabilityin calculating an offenders presumptiverisk level (~ PenalLaw§20). That means that if an offenderheld the victim down while his co-defendanthadsexual intercourse With her, the offender should receive 25 points in the categoryfor sexualcontactwith the victim. The Boardor court, however, may chooseto depart from the risk levelso calculated ifit determinesthat this point score resultsin an over-assessment ofthe offendersrisk to public safety.B. SpecificGuidelinesFactor 1: Use ofViolenceResearchon sex offenders showsthat an offenders use ofviolenceis positively correlatedwithhislikelihood of reoffending (Quinsey et aL 1995; Limandri& Sheridan 1995; Riceet al.1991). It is, of course,also a factorstrongly associatedwith how dangerous an offenderis to thecommunity. A sex offenderwho rapes at knifepointor inflictsphysicalinjury.to the victimposesafar greater threat to public safetythan onewho rubshimself against another on a crowdedsubway (see,p.2,n.2, supra). The guidelinesreflectthis fact byassessingan offender 30 pointsifhe was armed with a dangerous instrument; 15 points if he inflictedphysical injury; and 10points ifhe used forcible compulsion. There is an override ifthe offender caused seriousphysical injury or death, so thathe is presumptively level 3. See infra p. 17.
  • 02/20/2007 11:16 518-457-4162 NYSBOE PAGE 14/30-8-To avoid ambiguity, the guidelinesuse terms that are defined in the Penal Law. Forciblecompulsion means to compel by either" (a) use ofphysicalforce or (b) a threat, express orimplied, whichplaces a person in fear ofimmediatedeath or physical injury to himself,herself oranotherperson,or in fear that he, she or anotherperson will immediately be kidnappedt"?"(penalLaw §130.00[8)]. As the New York State CourtofAppeals has observed,"the point ***is not whatthedefendants would have done, but rather what the victim observingtheir conduct,feared they *** might do if she did not complywith their demands." (People v. Coleman. 42N.Y.2d 500,505 [1977]). Discrepancies in age, size, or strength are relevant factors in ,determining whether there was such compulsion(~People v. Yeaden, 156A.D.2d 208 [1stDept., 1989] [forcible compulsion shown "byevidenceof defendantsdominating his smallerandweakerdaughterand preventing her from leavinghimT). The victims age, by itself, however,isnot a sufficient. basis for a finding offorcible compulsion.. Dangerous instrument means "anyinstrument,article or substance, which, underthecircumstances in which it is used, attemptedto be used or threatened to be used, is readilycapable of causing death or other seriousphysicalinjury" (penal Law §10.00[13]). Physicalinjurymeans"impairment ofphysicalconditionor substantialpain."(penal Law §10.00[9]). Itdoesnot includepetty slaps, shoves, kicks and the like. (see, ~ Matter gf~ As.. 49 N.Y.2d198 [1980] [twopunches to the face causingred marks, crying, and unspecified degree of painwas insufficient to prove physical injury];People v. Tabachnik, 131 A.D.2d 611 [2d Dept, 1987][testimony about "verysore" upper thigh did not establishphysical injury],
  • 02/20/2007 11:15 518-457-4152 NYSBClE PAGE 15/30-9-Factor2: Sexual Contact with VictimThis factor is also associatedwith the offendersdanger to the community. Theguidelines distinguishamong offenderswhose contactwith their victims was touchingover theclothing(5 points), touching underthe clothing(10 points), or sexual intercourse,oral sexualconduct, anal sexual conduct or aggravated sexual abuse (25 points) as defined in Penal LawArticle 130.The Board or a court may choose to depart downwardin an appropriate case andin thoseinstances where (i) the victims lack ofconsentis due only to inabilityto consent by virtue of ageand{ii) scoring2Spoints in thiscategoryresults in an over-assessment ofthe offendersrisktopublic safety.Considerationwas givento modifyingthis categoryso that an offender who intendedtohave sexualintercourse with his victim but whose attemptwas prevented by some factor otherthanhis own change of mind (e.g., police intervention)would still receive a significantnumber .of points. Such a mens rea-based approach, however, was rejected in favor ofa more workableguideline that focusesupon the offendersconduct.Thus, if there wasno sexual contact,the offender shouldreceive 0 points in thiscategory even ifhis intentwas to have forced sexual intercoursewith his victim. In suchinstances, whereit is evident thatan offender intended to rape his victim, the Board or a courtmaychoosean upward departureifit concludesthat the lack of points in this categoryresults inan under-assessment ofthe offendersactual risk to public safety.
  • 02/20/2007 11:15 518-457-4152 NYSBOE PAGE 15/30-10-Factor3: Number9f.VictimsThis categoryfocuses upon the numberofpeoplewhom the offendervictimizedin thecase (or cases)that ultimatelyresultedin the instantconviction. Clear and convincing evidenceof sexualconduct by the actor againstvictimsmaybe taken into consideration. The existence ofmultiplevictimsis indicativeof compulsive behavior and is, therefore, a significantfactorinassessing the offendersrisk of reoffense and dangerousness (Rice & Harris 1995; Abelet a1.1993; Toch& Adams 1989; Abel et~. 1987). The guidelines assess 20 points ifthereweretwovictims, and 30 pointsifthere were three or more victims.Factor4: DurationofOffense Conductwith VictimThis categOlY is designedto reflectthe fact that some offenders,particularlythosewhopreyonyoungchildren, manifesttheir compulsive behaviorby engagingin a continuing courseof sexualcontactwith the samevictim, The offender who sexuallyabuses his girlfriends youngdaughter overa period of severalweeksfalls intothis 20-pointcategory,The Boardopted for a definitionof continuing course of sexual contact that includes boththe natureand lengthofthe offenders conduct. For purposesof these guidelinesan offender hasengaged in a continuingcourse of sexualcontactwhenhe engagesin either (i) two or moreactsof sexual contact, at least one ofwhich is an act of sexualintercourse,oral sexual conduct, analsexual conduct, or aggravated sexualcontact, which actsare separatedin time by at least24hours,or (ii)threeor more acts of sexualcontactover a period of at least two weeks.7Since the issuanceofthe originalguidelines in January 1996,the Legislature has enacted acontinuing courseof sexual misconductcrime,whichaddressesconduct occurringover a periodof morethanthree months. See Penal Law §§130.75, 130.80. The Legislativehistoryof this lawmakes clearthat the three-monthperiod was selected for reasons related to the law of pleadingsand narticulars -- i.e.. because court rler.isinns had marie .ir difficult to nrosermte !ilPY C.rlmp.!il
  • 02/20/2007 11:15 518-457-4152 NVSBOE PAGE 17/30-11-Factor 5: Age ofVictimOffenders who target young children as their victims are more likely to reoffend (Abel etaI. 1993; Weinrott & Saylor 1991). Moreover, such offenders pose a heightened risk to publicsafety since young children lack the physical strength to resist and can be more easily lured intodangerous situations than adults. The guidelines therefore assess 20 points ifthe victim was 11through 16 years old and 30 points ifthe victim was 10 years old or younger. These ages areadopted from the Penal Law (see, Y.:., Penal Law §§130.05[3][a]; 130.35[3]; 130.50[3]). Anoffender who preys on an elderly person, defined as a person 63 years old or more, is treated thesame as one who chooses a young child as his victim.Factor 6: Other Victim CharacteristicsFor much the same reason as in Factor 5, the guidelines assess 20 points ifthe victimsuffered from a mental disability, mental incapacity or physical helplessness. The terms mentaldisability, mental incapacity and physical helplessness have their same meaning as in the PenalLaw (~Penal Law §130.00 [5],[6],[7] and Penal Law §130.05[3][b], [c], [dD. Offenders whoprey upon such victims consciously choose people who cannot protect themselves or effectivelyreport their abuse (McGrath 1991). Such offenders pose a greater risk to public safety since theircrimes are more difficult to detect and prosecute. Absent extraordinary circumstances, anoffender who has been assessed points for the age ofhis victim (factor 5) should not be assessedpoints in this category in order to avoid double-counting.occurring over a period in excess ofthree months when the child victim could not specify theprecise dates on which the crimes occurred. The history does not suggest that the legislaturebelieved that repeated crimes occurring over a shorter period -- Y:.. two weeks -- were not asound basis for finding an offender to be compulsive in his misconduct. Hence, the Board hasdetermined not to modifv this guideline. ...
  • 02/20/2007 11:15 518-457-4152 NVSBOE PAGE 18/30-12-Factor7: Relationshipbetween Offenderand VictimThe guidelinesassess 20 points if the offenderscrime (i) was directed at a strangeror apersonwithwhom a relationship hadbeen established or promoted for the primary purposeofvictimization or (ii) arose in the context of a professionalor avocational relationship betweentheoffenderand the victim and was anabuse ofsuch relationship. Each of these situationsis one inwhichthereis a heightened concern for public safetyand need for communitynotification.(Schwartz1995;McGrath 1991).8As used herein, the term "stranger" includesanyonewho is not an actual acquaintance ofthe victim. It can include a person living in the same apartment building ifthe relationshipbetween the offenderand victim is limited to their passing in the hallway or sharing an elevator.The phrase"establishedor promoted for the primarypurpose ofvictimization" is adoptedfromthe Act itself (CorrectionLaw §168-a[9]). An uncle who offends against his niece generallywouldnot fall into this category. A scout leader who chooses his profession or vocationto gainaccessto victimsand "grooms"his victims before sexuallyabusing them would qualify, Thefinal category -- the abuse of a professionalrelationship-- reaches health care providersandotherswho exploit a professional relationshipin order to victimize those who reposetrust inthem. A dentistwho sexually abuses his patientwhile the patient is anesthetized wouldfallsquarely withinthis category.8 This, ofcourse, is not meant to minimizethe seriousnessofcases where the relationship isotherthan that of stranger or professional-- ~ familial. The need for communitynotification,however, is generally greater when the offenderstrikesat persons who do not know him well orwhohave soughtout his professionalcare,
  • 02/20/2007 11:15 518-457-4152 NVSBOE PAGE 19/30-13-Factor8: Age at First Sex CrimeThe offendersage at the commissionof his first sex crime,which includes his age at thetime of the commissionofthe instantoffense,is a factorassociatedwith recidivism: those whooffendat a youngage are more proneto reoffend(Schwartz 1995;Barbaree,st&.. 1993~McConaghy, et al. 1989;Groth & Lorendo 1987). For this reason,the guidelinesassess 10pointsif an offendersfirst sex crime,whether a felonyor misdemeanor, was at age 20 or less.Asdiscussedabove,criminalconvictions, youthfuloffenderadjudications andjuveniledelinquency fmdings are to be consideredin scoringthis category, as well as categories9 and 10~,p.6,~.Factor9: Number and Nature ofPrior CrimesAn offenders prior criminalhistoryis significantly related to his likelihood ofsexualrecidivism, particularlywhenhis past includesviolent crimesor sex offenses (QuinseysaID·1995; McGrath 1991;Quinsey1990;Romero & Williams 1985;Longo & Groth 1983;Groth,Longo & McFadin 1982). This categoryincorporates this researchby assessing an offender30pointsifhe has a prior £Onviction or adjudication for a ClassA felonyofMurder, Kidnaping, orArson, a violent felony, a misdemeanor sex crime, or endangering the welfare of a child, or anyadjudication for a sex offense; 15points if he has a priorfelony convictionor adjudicationfor acrimeotherthan a ClassA felonyof Murder,Kidnaping, or Arson, a violent felony,or a sexoffense ~, drug dealing);and 5 points ifhe has anycriminalhistoryother than a felonyor sexcrime. As noted previouslyin Factor9, underPan II ofthe Guidelines (CriminalHistory), thefactthat the offenderhas a prior felonysex crimeconvictionautomatically results in apresumptive risk assessmentoflevel3. Ifan offenderhas a convictionfor a felonysex crime,
  • 02/20/2007 11:15 518-457-4152 NYSBOE PAGE 20/30-14-thereis an override, and he is presumptivelylevel3 (seep. 17, infra). Thetermviolentfelony,as used in the guideline;has the samemeaningas in the Penal Law (:;lee Penal Law §70.02[1]).TheBoarddecidedto treat endangering the welfareof a child as if it were a sex crimebecauseitgenerally involves sexual misconduct,especially whenit is part of a plea bargaineddisposition.Where a reviewof the record indicatesthat therewasno such misconduct, a departuremaybewarranted.Notably, this categorylooks to anoffenders prior criminal history. However, somesexoffenders haveconcurrentor subsequentoffenses not scored in this category. Althoughsuchconcurrent or subsequentcriminalhistoryis not coveredby this particular category, it maybe thebasisfor anupward departure if it is indicative that the offenderposes an increasedrisk to publicsafety..Factor 10:Recencyof Prior Felon~ or SexCrimeIn weighing an offenderscriminalhistory, the nature ofhis prior crime is not the onlyimportant factor; the recencyofthose crimesmattersas well. To capture this factor, theguidelines assess 10points if an offenderhas a priorfelonyor sex crime within threeyearsof theinstantoffense. This three-yearperiod shouldbe measuredwithout regard to the timeduringwhichthe offenderwas incarceratedor civillycommitted. It is anoffenders behaviorduringhistimeat liberty that is relevant in assessinghis likelihood to reoffend. In other words,thiscategory measures the time from whenthe offenderis releasedinto the communityuntilthe datehe commits the instant offense.
  • 02/20/2007 11:16 518-457-4162 NYSBOE PAGE 21/31-15-Factor 11: Drug or Alcohol AbuseAlcohol and drug abuse are highly associated with sex offending (Lightfoot and Barbaree1993; Langevin & Lang1990; Crowe & George 1989;Rada 1976). The literature indicates thatuse ofthese substances does not cause deviate behavior; rather, it serves as a disinhibitor andthereforeis a precursorto offending (Green 1995). The guidelinesreflect this fact by adding 15points if anoffender has a substanceabuse history or was abusing drugs and or alcohol at thetime of the offense.. The category focuses on the offendershistory ofabuse and thecircumstances at the time of the offense. it is not meant to include occasional social drinking. Ininstanceswhere the offender abused drugs and/or alcohol in the distant past, but his more recenthistoryis one of prolonged abstinence, the Board or court may choose to score zero points in thiscategory. An offenderneed not be abusing alcohol or drugs at the time ofthe instant offensetoreceivepointsin this category.Factor 12: AcceptanceofResponsibilityAn offenderwho does not acceptresponsibilityfor his conduct or minimizes whatoccurredis a poor prospect for rehabilitation (Strate et al. 1995; Byrum & Rogers 1993;Simkinset al. 1989). Such acknowledgementis critical,since an offenders ability to identify and modifythe thoughtsand behaviors that are proximal to his sexual misconduct is often a prerequisite tostoppingthat misconduct (McGrath 1991). The guidelines assess 10points to an offender whohas not acceptedresponsibilityfor his conduct and 15points are assessedto an offender who hasrefusedor been expelled from a sex offender program. In scoring this category, the Boardorcourtshouldexamine the offendersmost recent credible statements and should seek evidenceofgenuine acceptanceofresponsibility. An offenderwho pleads guilty but tells his pre-sentence
  • 02/20/2007 11:16 518-457-4162 NVSBOE PAGE 22/30-16-investigator thathe did so onlyto escapea Stateprisonsentencehas not acceptedresponsibility.The guidelines add five points if the offender has refused or been expelledfrom treatment sincesuchconduct is powerfulevidenceofthe offenders continueddenial andhis unwillingness toalterhis behavior. Ifanoffenderwho has historically not accepted responsibility and historicallyhasrefused sex offendertreatmentbut, subsequently participates in such programming, the Boardor courtshould-seek to examinewhether thereis evidence of a genuineacceptance ofresponsibility.Factor 13: Conduct While Confined or Under SupervisionThisfactor looks to the offenders conduct while in custodyor under supervision as apredictor offuture behavior. For example, anoffender who hasnumerouscitationsfordisciplinary violations or who accrues disciplinary dispositions ofa seriousnatureor whoreceives dispositions for behaviorsuchas attempting to contactthe victim may be assessedpoints in this category. An offenderwho has incurred seriousdisciplinaryviolations in prisonposes a heightened risk of recidivism: his misconduct bodesill for his retumto the streets. Anoffenders adjustment to confinement in prisonalso is unsatisfactory ifhe has a recentTierThreedisciplinary violation," His adjustment on probation or paroleis unsatisfactory ifhe has violateda condition of hisrelease. The guidelines assess the offender10points for unsatisfactoryadjustment.Evenmoretroublingare instances where theoffender, while in custodyor undersupervision, has beeninvolvedin inappropriate sexualbehavior or receivesdispositions for9 Tier3 disciplinary violations are the mostserious infractions under DOCS three-Tierdisoinlinarv svstem ~l1r:h vinlAtinn.Q r.An rP-Qll1t in rhe ln~!: nf annit t;mp. r.Tprt;t~ f"r ,:n inm:fP!
  • 02/20/2007 11:15 518-457-4152 NYSBDE PAGE 23/30-17-behaviorsuch as possessingpornographyor any factorrelatedto his sexual acting out. In suchinstances, the guidelinesassessthe offender20 points.Factor 14: SupervisionStrict supervisionis essentialwhen a sex offenderis released into the community.(Englishet al. 1995). This categoryis premised on the theorythat a sex offender shouldbe.. supervised by a probation or parole officer who overseesa sex offender caseload or whootherwisespecializesin the managementofsuch offenders. Sex offender caseloads generallypermit more intensivesupervisionand provide for the offendersenrollment in a treatmentprogram. An offenderwho is released without such intensivesupervision is assessedpoints inthis category. The Board initiallyconsideredhavinga separatecategoryfor whether the offenderwas in a treatmentprogram. Becausethe efficacyofsex offendertreatment is open toquestion, this approachwas rejected (Kau11993;Marshall,Laws & Barbaree 1990). Anoffenders response to treatment,ifexceptional,can be the basis for a downward departure.There are cases receivedby the Board in whichthe offenderwas convicted in ajurisdictionother than New York and subsequentlyrelocatesto New York. Ifsuch an offendersatisfactorily completedthe terms of that jurisdictions communitysupervision,he will be scoredopoints in this category.Factor15: Living or EmploymentSituationManysex offendersare opportunisticcriminalswhoselikelihood ofreoffending increaseswhentheir release environmentgivesthem accessto victims or a reducedprobability of detection(Pettettand Weinnan 1995). An exampleofan offenderin an inappropriatework situationis a
  • 02/20/2007 11:15 518-457-4152 NYSBOE PAGE 24/30-18-child molester employed in an arcade or as a school bus driver. Ifthe same offender were to livenearanelementary school playground. hislivingenvironment wouldbe inappropriate. Anoffender is assessed 10pointsin this category ifeitherhis workor livingenvironment isinappropriate.
  • 02/20/2007 11:15 518-457-4152 NYSBOE PAGE 25/30-19-A Note on OverridesAs indicatedabove, the guidelinescontainfour overridesthat automaticallyresult in apresumptive riskassessment of level 3: (i) a prior felonyconviction for a sex crime; (ii) theinflictionofseriousphysical injuryor the causingof death; (iii) a recentthreat to reoffend bycommitting a sexual or violent crime; or (iv)a clinical assessmentthatthe offender has apsychological, physical,or organic abnormality that decreaseshis abilityto control impulsivesexualbehavior. 1bree matters require some explanation. First, the term serious physicalinjuryhas its PenalLaw meaning: "physical injury which createsa substantial risk ofdeath, or whichcausesdeath or serious and protracted disfigurement, protracted impairment ofhealth, orprotracted loss or impairment of the function of anybodily organ" (PenalLaw §lO.OO[lO]).Second, the Board initiallyconsidereda requirementthat the threat to reoffend must haveoccurredwithin the previous year. It decided,however,not to impose such a rigid time limit;ifthe threat-is recent enoughthat there is causeto believe that the offender may act upon it, anoverride is warranted. Finally,the Board choseto require a clinical assessment of an abnormalityso that looselanguagein a pre-sentencereport would not become the basis for an override.Examples.of a clinical assessmentthat would support an override are pedophilia and sexualsadism(Schwartz1995;Rice & Harris 1995; Andrews & Bonta 1994; Serin 1994).
  • 02/20/2007 11:15 518-457-4152 NYSBOE PAGE 25/30-20-SEXOFFENDER GUIDELINES BffiLIOGRAPHYAbel, G.~ Osborne, C. & Twiggs, D.~ "Sexual assault through the lifespan: Adult offenderswithjuvenile histories." In H.E. Barbaree, W.L. Marshall, S.M.Hudson(eds.), TheJuvenile SexOffender, (NewYork: The GuilfordPress, 1993).Abel, G., et al.,"Multiple paraphillic diagnoses among sex offenders, " Bulletin oftheAmericanAcademy ofPsychiatry and the Law, 16, 153-168 (1988).Abel, G., Becker,J., Mittleman, M., Cunningham-Rathner, J.~ Rouleau,J. Murphy, W., "Self-reported sexcrimes ofnonincarcerated paraphilacs," Journal ofInterpersonalViolence, 2,3-25(1987). Andrews, D.A. & Bonta, J., "Exceptional offenders,"in The Psychology ofCriminal Conduct(Cincinnati, Ohio: Anderson Publishing Co., 1994).Barbaree, H.E., Hudson, S.M., and Seto, M.e., "Sexual assault in society: the role. ofthe juvenileoffender." InH.E.Barbaree, W.L. Marshall, S.M. Hudson(eds.), The JuvenileSex Offender,(NewYork: The GuilfordPress, 1993).Byrum, L., & S. Rogers, "Offender denial," (Distributedbythe NationalInstitute of Corrections:National Institute of Corrections Academy at the seminar, "Sex OffenderTreatment Skills forProfessionals," Longmont, Colorado, September 1, 1993).Crowe; L. & George W., "Alcohol and human sexuality:review and integration," PsychologicalBulletin; 105,374-386 (1989).English, K., Pullen, S., Jones, 1., and Krauth,B.,(In press), "The model process: A containmentapproach." In K. English,S. Pullen,& L. Jones (eds.), ManagingAdult Sex Offenders: AContainment Approach) (Alexandria, VA: AmericanProbationand Parole Association, 1995)(DRAFT Version provided by the Colorado Division of Criminal Justice).Green, Randy, "Comprehensive treatmentplanning for sex offenders." In B.K. Schwartz andH.R. Celleni(eds.),The Sex Offender: Corrections, Treatment and Legal Practice,(New Jersey:Civic R-esearch Institute, 1995).Groth, N. & Lorendo, C.M., "Juvenile sexual offenders; guidelinesfor assessment,"Psychological Bulletin. 25, (1), 31-32 (1987).Groth,N., Longo,R., & McFadin, J" "Undetectedrecidivism among rapists and child molesters,Crime andDelinquency, 450-458 (1982).
  • 132/213/213137 11:15 518-457-4152 NYSBOE PAGE 27/313-21-Kaul, A., «Sex offenders - cure or management"," Medical Science Law, Vol. 33, No.3, 207-212(1993).Langevin, R. & Lang, R., "Substance abuse among sex offenders," Annals ofSex Research. 3,397-424(1990).Lightfoot. L.O, & Barbaree,H.E. "The relationship between substance use and abuse and sexualoffendingin adolescents." In Barbaree, HoE., Marshall, W.L. andHudson, S.M. (eds.), TheJuvenile SexOffender (New York: The Guilford Press, 1993).Limandri,B. J., & Sheridan, D. J., "Prediction ofintentionalinterpersonal violence: Anintroduction." In J.C. Campbell (ed.), Assessing Dangerousness: Violence by SexualOffenders,Batterers, and cut«Abusers(Thousand Oaks, CA:-Sage, 1995).Longo, R. & Groth, N., "Juvenile sexual offensesin the histories ofadult rapists and childmolesters," International Journal ofOffender Therapy and Comparative Criminology, 27 (2),150-155 (1983).Marshall. W.L. Laws,D.R. & Barbaree, H.E., "Presentstatus andfuture directions." In W.L.Marshall, H.R. Laws, andH.E.Barbaree (eds.), Handbook a/Sexual Assault(New York: PlenumPress, 1990).McConaghy, N., Blaszczynksi, A., Armstrong, M., and Kidson, W.,"Resistance to treatmentofadolescentsex offenders."Archives ofSexual Behavior, 18, 97-107 (1989).McGrath, R, "Sex-Offender Risk Assessment and Disposition Planning: A Review ofEmpiricalandClinical Findings," International Journal ofOffenderTherapy and ComparativeCriminology, 35 (4),335-336 (1991)."New JerseySex Offender Risk Assessment ScaleManual." Released by the New Jersey Officeofthe Attorney General, (September, 1995).Pettett, J. and Weirman, D., On press), "Monitoring with surveillance officers." In K. English. S.Pullen,& L. Jones (eds.), Managing AdultSex Offenders: A Containment Approach, .(Alexandria, VA: American Probation and ParoleAssociation, 1995),(DRAFT Version providedbythe Colorado DivisionofCriminal Justice). .Quinsey, V.•Lalumiere, M., Rice, M., & Harris, G., "Predicting sexual offenses." In le.Campbell (ed.), AssessingDangerousness: .Violence by Sexual Offenders, Batterers, andChildAbusers (California: SagePublications, 1995).Quinsey, v., "Review ofsexual predatorprogram: communityprotection research project" 8,Anpendix 1 (Predictingsexual recidivism), (Olympia, WA: Washington State Institute for PublicPolicy, 1992).
  • 02/20/2007 11:15 518-457-4152 NYSBOE PAGE 28/30-22-Quinsey, V.,"A follow-up of rapists assessed ina maximum security psychiatric facility, "Journal ofInterpersonal Violence, 5, 435-448 (1990).Rada, R., "Alcoholism and the child molester," Annals of New YorkAcademy ofSciences, 273,492·496.(1976).Rice, M.,&Harris, G., "Cross-validation and extension of an actuarial instrumentfortheprediction of recidivism amongsex offenders," Penetanguishene Mental Health Centre ResearchReport, XII (2) (1995).Rice, M.,Quinsey, V.,&Harris, G., "Sexualrecidivism amongchildmolesters released from amaximum security psychiatric.institution," JournalofConsulting andClinicalPsychology, 59,381·386 (1991).Rice, M., Harris, G., & Cormier, C., "An evaluation ofa maximum security therapeuticcommunity-fer psycopaths and othermentallydisordered individuals," Law and HumanBehavior. 16(4) 399-412(1992).Romero, J. & Williams, L., "Recidivism among convicted sex offenders: A 10-year follow-upstudy," Federal Probation, 49. 58-64 (1985).Schram, D., & Millroy, c., "Community notification: A studyof offender characteristic andrecidivism," ii, 13, and Appendix C-3 (Offender Characteristics and Recidiviml) (Olympia:WA: TheUrbanPolicyInstitute, for,the Washington StateInstitute for PublicPolicy, 1995).Schwartz, R, "Characteristicsand typologies of sex offenders."In B.K. Schwartz and H. R.Celleni (eds.), The Sex Offender: Corrections, Treatment aridLegal Practice.(New Jersey: Civic~se~chlnstitute, 1995). .Serin..R, Malcolm, P., Khanna,A., and Barabaree, H., "Psychopathy and deviantsexual arousalin incarcerated sexual offenders, " Journal ofInterpersonal Violence, 9 (1), 3-11 (March, 1994).Simkins et al, "The multiphasic sexinventory: diagnosis andprediction of treatment response inchildsexabusers," Annalsa/Sex Research, 2,205-226 (1989).Strate, D.,Jones, L., Pullen,1., English, K., Crouch,1., Colling-Chadwick, So, & Patzman, J., (Inpress), "Criminal justicepoliciesandsex offender denial." In K. English, S. Pullen, & L.Jones(eds.), Managing Adult Sex Offenders: A Containment Approach (Alexandria,VA:AmericanProbation andParoleAssociation, 1995), (DRAFT Version providedby the Colorado Divisionof Criminal Justice).Toch,H. & Adams, K., TheDisturbed Violent Offender, (NewHaven: YaleUniversity Press,1989).Weinrott, M.,& Saylor, M.,"Self-report of crimes committed by sex offenders," Journal ofInterpersonal Violence, 6(3)287, 291-292, (1991).
  • 02/20/2007 11:15 518-457-4152 NYSBOE PAGE 29/30-23-APPENDIX:Developmentofthe GuidelinesThe Sex OffenderGuidelineswere developed with the assistance ofKim. English, theDirectorof the Office ofResearchand Statisticsfor the ColoradoDivision of CriminalJustice.Ms. Englishis the author of Adult Sex Offenderson Probation and Parole: A National Survey(December 1995), prepared for the United States Departmentof Justice. Drawing on guidelinesin use in New Jerseyand applyingthe factors enumeratedinNew Yorks Act, Ms. Englishprepareda workingdraft forNew Yorks guidelines. The draft incorporated risk assessmentcriteriathat find support in the academic literatureand are commonlyused by sex offenderexperts.Thereafter, with Ms. Englishscontinuedassistance,the Board modified the.draftassessment instrumentin an effortto make it as objectiveas possible. The Board recognized thatthe instrumentwould be used by courts throughoutthe State andthat unnecessary complexitywouldfrustrate uniform results. The review process lastedtwo months; it included testingtheguidelines againsta large sample ofcases to insure that accurateresultswere produced.Afterthe Board was satisfiedthat the guidelines were workable, it invited a panel ofexpertsto reviewthem and propose improvements. The panel was comprised ofeightprofessionals with diverse experiencerelated to the behaviorand treatment of sex offenders:LindaFairstein,Chief, Sex CrimesProsecution Unit, New York County District AttorneysOffice; MarjorieFischer, Bureau Chief, SpecialVictims Bureau, Queens County DistrictAttorneys Office; Kenneth Cullen, Clinical Directorof c.A.P. Behavior Associates and formercoordinator ofthe Sex OffenderTreatmentprogram at Bronx-Lebanon ~ospital (1983-1993);CaptainTimothyMcAuliffe,New York State Police; Dr: David Barry,University ofRochesterSchool of Medicine;Judith Cox. Acting Director, Bureau of Forensic Services, New YorkState
  • 02/20/2007 11:15 518-457-4152 NVSBClE PAGE 30/30Officeof Mental Health; Ed Varela, Probation Officer, Westchester County; and MichaelRossetti, DeputyAttorney General for LegalPolicy.The panelists met for two days, carefullyreviewed the guidelines, and applied them to 20cases. Basedupon the concerns expressed duringthose sessions.the Board modified theguidelines in several ways. For example, the panelists noted that the guidelines, as thenproposed,failedto assess points if an. offenderhadexploited a professional relationshipto abusehis victim. The panelists emphasizedthat where such exploitation had occurred., there was aheightened need for community notification. Factor 7 was modified to incorporate this concern.The panelistsalso suggested that an offendershistoryofviolence or sex offending should beweighted more heavily. This was accomplishedby modifyingthe scoring system for Factor 9and by creatingan override for a prior sex felony. Finally,the panelists encouragedskepticismtoward treatment, recommending that an offenders participation in a treatment program,byItself.should not reduce his risk level. The Board acceptedthis recommendation as well.