“The defendant … is not an employee but an independent contractor, and publishing his clients’ addresses as though his clients were his employers would mischaracterize the relationship,” Gants wrote.
The SJC ruling was sought by Francis X. Harding Jr. a self-employed home contractor whom the Sex Offender Registry Board has classified as a Level 3 sex offender, the most likely to reoffend.
According to the SJC, Harding pleaded guilty in 2015 to charges of indecent assault and battery on a child under 14 and possession of child pornography and was sentenced to five years of probation among other sanctions in Fall River District Court.
He was required to register as a sex offender and in the years since has listed his Newton home — where he has a workshop — as both his work and home address with the board, the SJC said.
The self-employed contractor has also regularly shared detailed invoices about the homes or businesses where he had worked with probation officers and was considered to be in compliance with his sentence, the SJC said.
But in March 2018, a Revere police officer spotted Harding at a shopping plaza where the officer was conducting a drug investigation, stopped him, and learned he was working at a house in Lynn repairing gutters, the SJC said.
Lynn police confirmed the information and also confirmed an infant child lived there – Harding was barred from working “with’ children under his sentence – leading District Court Judge Cynthia M. Brackett to find that Harding violated his probation.
Harding appealed, drawing support from the Committee for Public Counsel Services and the non-profit Massachusetts Association for the Treatment of Sexual Abusers.
They jointly argued sex offenders already face major problems getting work and the public disclosure would drive drive away potential customers. Steady employment, they argued, has been proven to reduce recidivism among sex offenders, citing several studies, including one that showed 54 percent of unemployed sex offenders in Indiana committed new crimes.
But Bristol District Attorney Thomas M. Quinn III, whose office prosecuted Harding, wrote in court papers that the major focus of the law was to protect children. Prosecutors said that the Lynn family did not know Harding was a registered sex offender and that he was on site for 30 days.
“The entire purpose that registration serves [is] ensuring that authorities know where sex offenders live and work so they can monitor the offenders to prevent recidivism and protect the public, particularly where children are at risk,” prosecutors said.
Gants, who died last month, wrote that Harding had twice been hired by the Lynn homeowners and the second employment took place after they had a child. .
Gants wrote that the sex offender registry law requires offenders to notify local police and the board they have a new employer 10 days before they start work and in those cases where a homeowner needs help right away, the offender could lose the contract.
“We will not infer that the Legislature intended to give ‘work address’ a meaning that could create significant obstacles to an independent contractor’s ability to work, which could, in turn, increase the likelihood of reoffense,” Gants wrote.
The SJC also said that Harding did not violate terms of his probation by working at a house where an infant lives.
“The defendant did not violate this probation condition by working on the exterior of a home while a supervised infant was present inside the house,” Gants wrote. “He did not ‘work with children’ in replacing a gutter or restoring exterior woodwork, nor could he, where the child was an infant.”
The SJC noted, however, that a judge could properly fashion a sentence that would clearly require to an offender working as a self-employed contractor inside a home to stay away from children of any age.
Read the full ruling below: