NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-462
J. MOE, SEX OFFENDER REGISTRY BOARD NO. 3548
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, J. Moe No. 3548, appeals from a Superior
Court judgment affirming his classification by the Sex Offender
Registry Board (SORB or board) as a level two sex offender. He
contends that the hearing examiner failed to provide adequate
consideration of (1) his psychologist's expert opinion and (2)
scholarly articles that contend that offense-free time in the
community reduces the risk of reoffending. We agree.
Accordingly, we vacate the judgment of the Superior Court and
direct that the case be remanded to the board for further
proceedings.
Background. The plaintiff was originally required to
register as a sex offender in 2002. At that time his record
included two sex offenses. The first was a 1986 adjudication of
delinquency for indecent assault on a child under fourteen. The plaintiff was fifteen years old at the time; the victim was a
four year old girl. The hearing examiner found that this
offense amounted to rape because digital penetration of the
girl's vagina was involved. The second offense was a 1990
conviction for indecent assault and battery of a child under
fourteen. This victim was ten years old; the plaintiff was
nineteen. He was classified as a level one sex offender.
In 2005, after receiving information that the plaintiff had
engaged in sexual misconduct involving another female child, the
board notified the plaintiff of his obligation to register as a
level three sex offender. The hearing examiner found that this
offense, although never prosecuted, occurred in late 2004 when
the plaintiff, then thirty-four years old, sexually abused a
five year old girl. After the plaintiff failed to comply with a
procedural order, he was finally classified as a level three sex
offender.
In 2019 the plaintiff requested reclassification. A
reclassification hearing was held over three dates in 2021 and
2022. Applying three high-risk factors, twelve risk-elevating
factors, and three risk-mitigating factors, and declining to
apply two other mitigating factors, the hearing examiner found
clear and convincing evidence that the plaintiff posed a
moderate risk to reoffend, a moderate degree of danger, and that
a public safety interest would be served by Internet
2 publication, and classified the plaintiff as a level two
Discussion. The plaintiff argues, as he did in the
Superior Court, that his classification as a level two sex
offender must be vacated because the hearing examiner failed to
offer an adequate explanation for rejecting the testimony and
report of the plaintiff's expert. The expert, Leonard R. Bard,
Ph.D., opined that the plaintiff's thirty-one years without a
conviction for a sex offense indicated a low risk to reoffend.
"Where offered by the individual, a hearing examiner must
consider testimony 'from a licensed mental health professional
that discuss[es] psychological and psychiatric issues, including
major mental illness, as they relate to the offender's risk of
reoffense.'" Doe, Sex Offender Registry Bd. No. 23656 v. Sex
Offender Registry Bd., 483 Mass. 131, 135 (2019) (Doe No.
23656), quoting 803 Code Mass. Regs. § 1.33(35) (2016). While
the hearing examiner is free to reject the expert's conclusions,
the plaintiff is entitled to "careful consideration" of the
expert's testimony and an explanation of the examiner's reasons
for rejecting it. See Doe No. 23656, supra at 136-137. We
agree with the plaintiff that the hearing examiner's explanation
was insufficient.
The hearing examiner devoted several pages of his decision
to a discussion of his commendable allowance of the plaintiff's
3 motion for expert funds and the content of Bard's opinion.
However, he summarily rejected Bard's opinion, primarily because
it did not address the issue of dangerousness. This was
error -- the very same error identified in Doe No. 23656, 483
Mass. at 135. "That Bard did not focus on 'degree of
dangerousness' factors is not disqualifying. An expert need not
examine every factor relevant to a fact finder's determination
in order to provide helpful testimony." Id. With respect to
Bard's focus on the plaintiff's offense-free time in the
community, the hearing examiner merely stated that "[he], too,
fully considered this under Factor 29 above." The hearing
examiner's approach is summarized in a footnote at the end of
his discussion of Bard's opinion, where the hearing examiner
cites two cases for the proposition that he is required to
consider, but not to accept, proffered expert testimony.1
The hearing examiner's perfunctory treatment of Bard's
opinion does not reflect a careful consideration. The board's
brief ably assembles numerous reasons on which the hearing
1 Moreover, the two cases cited are inapt. Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779 (2006), stands for the proposition that the board does not need to introduce expert testimony to support a classification decision. Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594 (2013), reversed a classification decision because the board erroneously failed to consider studies submitted by the petitioner and denied the petitioner's request for expert witness funds.
4 examiner could have relied to reject Bard's opinion, but those
reasons are absent from the hearing examiner's analysis. The
hearing examiner's decision "must show that the classification
is based on a sound exercise of informed discretion rather than
the mechanical application of a checklist or some other reflex."
Doe, Sex Offender Registry Bd. No. 136652 v. Sex Offender
Registry Bd., 81 Mass. App. Ct. 639, 651 (2012).
The plaintiff further argues that the hearing examiner
erred by failing to consider five authoritative scholarly
articles submitted by the plaintiff (and on which Bard also
relied), which, the plaintiff contends, are not incorporated in
the board's regulations regarding offense-free time in the
community, factor 29. See 803 Code Mass. Regs. § 1.33(29)
(2016).2 A hearing examiner has an obligation to consider "the
development of evolving research" offered by the offender in the
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-462
J. MOE, SEX OFFENDER REGISTRY BOARD NO. 3548
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, J. Moe No. 3548, appeals from a Superior
Court judgment affirming his classification by the Sex Offender
Registry Board (SORB or board) as a level two sex offender. He
contends that the hearing examiner failed to provide adequate
consideration of (1) his psychologist's expert opinion and (2)
scholarly articles that contend that offense-free time in the
community reduces the risk of reoffending. We agree.
Accordingly, we vacate the judgment of the Superior Court and
direct that the case be remanded to the board for further
proceedings.
Background. The plaintiff was originally required to
register as a sex offender in 2002. At that time his record
included two sex offenses. The first was a 1986 adjudication of
delinquency for indecent assault on a child under fourteen. The plaintiff was fifteen years old at the time; the victim was a
four year old girl. The hearing examiner found that this
offense amounted to rape because digital penetration of the
girl's vagina was involved. The second offense was a 1990
conviction for indecent assault and battery of a child under
fourteen. This victim was ten years old; the plaintiff was
nineteen. He was classified as a level one sex offender.
In 2005, after receiving information that the plaintiff had
engaged in sexual misconduct involving another female child, the
board notified the plaintiff of his obligation to register as a
level three sex offender. The hearing examiner found that this
offense, although never prosecuted, occurred in late 2004 when
the plaintiff, then thirty-four years old, sexually abused a
five year old girl. After the plaintiff failed to comply with a
procedural order, he was finally classified as a level three sex
offender.
In 2019 the plaintiff requested reclassification. A
reclassification hearing was held over three dates in 2021 and
2022. Applying three high-risk factors, twelve risk-elevating
factors, and three risk-mitigating factors, and declining to
apply two other mitigating factors, the hearing examiner found
clear and convincing evidence that the plaintiff posed a
moderate risk to reoffend, a moderate degree of danger, and that
a public safety interest would be served by Internet
2 publication, and classified the plaintiff as a level two
Discussion. The plaintiff argues, as he did in the
Superior Court, that his classification as a level two sex
offender must be vacated because the hearing examiner failed to
offer an adequate explanation for rejecting the testimony and
report of the plaintiff's expert. The expert, Leonard R. Bard,
Ph.D., opined that the plaintiff's thirty-one years without a
conviction for a sex offense indicated a low risk to reoffend.
"Where offered by the individual, a hearing examiner must
consider testimony 'from a licensed mental health professional
that discuss[es] psychological and psychiatric issues, including
major mental illness, as they relate to the offender's risk of
reoffense.'" Doe, Sex Offender Registry Bd. No. 23656 v. Sex
Offender Registry Bd., 483 Mass. 131, 135 (2019) (Doe No.
23656), quoting 803 Code Mass. Regs. § 1.33(35) (2016). While
the hearing examiner is free to reject the expert's conclusions,
the plaintiff is entitled to "careful consideration" of the
expert's testimony and an explanation of the examiner's reasons
for rejecting it. See Doe No. 23656, supra at 136-137. We
agree with the plaintiff that the hearing examiner's explanation
was insufficient.
The hearing examiner devoted several pages of his decision
to a discussion of his commendable allowance of the plaintiff's
3 motion for expert funds and the content of Bard's opinion.
However, he summarily rejected Bard's opinion, primarily because
it did not address the issue of dangerousness. This was
error -- the very same error identified in Doe No. 23656, 483
Mass. at 135. "That Bard did not focus on 'degree of
dangerousness' factors is not disqualifying. An expert need not
examine every factor relevant to a fact finder's determination
in order to provide helpful testimony." Id. With respect to
Bard's focus on the plaintiff's offense-free time in the
community, the hearing examiner merely stated that "[he], too,
fully considered this under Factor 29 above." The hearing
examiner's approach is summarized in a footnote at the end of
his discussion of Bard's opinion, where the hearing examiner
cites two cases for the proposition that he is required to
consider, but not to accept, proffered expert testimony.1
The hearing examiner's perfunctory treatment of Bard's
opinion does not reflect a careful consideration. The board's
brief ably assembles numerous reasons on which the hearing
1 Moreover, the two cases cited are inapt. Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779 (2006), stands for the proposition that the board does not need to introduce expert testimony to support a classification decision. Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594 (2013), reversed a classification decision because the board erroneously failed to consider studies submitted by the petitioner and denied the petitioner's request for expert witness funds.
4 examiner could have relied to reject Bard's opinion, but those
reasons are absent from the hearing examiner's analysis. The
hearing examiner's decision "must show that the classification
is based on a sound exercise of informed discretion rather than
the mechanical application of a checklist or some other reflex."
Doe, Sex Offender Registry Bd. No. 136652 v. Sex Offender
Registry Bd., 81 Mass. App. Ct. 639, 651 (2012).
The plaintiff further argues that the hearing examiner
erred by failing to consider five authoritative scholarly
articles submitted by the plaintiff (and on which Bard also
relied), which, the plaintiff contends, are not incorporated in
the board's regulations regarding offense-free time in the
community, factor 29. See 803 Code Mass. Regs. § 1.33(29)
(2016).2 A hearing examiner has an obligation to consider "the
development of evolving research" offered by the offender in the
2 The plaintiff offered the following studies, four of which postdate the board's most recent regulations: D.A. Harris, Desistance from Sexual Offending, Current Psychiatry Reports § 23:7, at 2, 5 (2021); R.K Hanson, Long-Term Recidivism Studies Show that Desistance Is the Norm, Criminal Justice & Behavior 45:9, at 1340-1346 (2018); R.K. Hanson, A.J.R. Harris, L. Helmus & D. Thornton, High Risk Sex Offenders May Not Be High Risk Forever, J. Interpersonal Violence (2013); R.K. Hanson, A.J.R Harris, E. Letourneau, L.M. Helmus, & D. Thornton, Reductions in Risk Based on Time Offense Free in the Community: Once a Sexual Offender, Not Always a Sexual Offender, Psychology, Public Policy, & Law 24(1), at 48-63 (2017); D. Thornton, R.K. Hanson, S.M. Kelley & J.C. Mundt, Estimating Lifetime and Residual Risk for Individuals Who Remain Sexual Offense Free in the Community: Practical Applications, Sexual Abuse 33(1), at 3-33 (2019).
5 classification hearing, and to evaluate how it may affect
existing risk factors. Doe, Sex Offender Registry Bd. No.
205614 v. Sex Offender Registry Bd., 466 Mass. 594, 605, 607-608
(2013). See Doe, Sex Offender Registry Bd. No. 89230 v. Sex
Offender Registry Bd., 452 Mass. 764, 774 (2008), quoting Roe v.
Attorney Gen., 434 Mass. 418, 430 (2001) ("[i]t is in everyone's
best interests . . . that the board work from accurate, up to
date, and thorough information").
The hearing examiner's decision does not reflect careful
consideration or evaluation of the studies supplied by the
plaintiff. To the contrary, the hearing examiner's decision
lumped them together and dismissed them as already incorporated
in factor 29, stating, "Each article essentially draws the same
conclusion -- the longer an offender is living offense free in
the community, the lower their risk of re-offense." Here,
again, board counsel offers us a thorough and nuanced evaluation
of the studies and why their conclusions do not apply to the
plaintiff's circumstances. It was incumbent on the hearing
examiner to conduct a similar analysis in the first instance.
"A reviewing court may set aside or modify SORB's
classification decision where it determines that the decision is
in excess of SORB's statutory authority or jurisdiction,
violates constitutional provisions, is based on an error of law,
or is not supported by substantial evidence." Doe, Sex Offender
6 Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass.
643, 649 (2019), citing G. L. c. 30A, § 14 (7). The hearing
examiner's failure to offer an adequate explanation for
rejecting the plaintiff's expert opinion and scholarly studies
was legal error requiring that the classification decision be
set aside. However, to the extent the plaintiff claims that a
level two classification was not supported by substantial
evidence, we disagree. Therefore, we decline to order that the
plaintiff be classified as a level one offender.
Conclusion. The judgment of the Superior Court affirming
the board's classification decision is vacated, and the matter
is remanded to the Superior Court for entry of an order of
remand to the board for further proceedings consistent with this
decision.
So ordered.
By the Court (Massing, Shin & D'Angelo, JJ.3),
Assistant Clerk
Entered: June 14, 2024.
3 The panelists are listed in order of seniority.