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-1318
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 244176
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court
judgment affirming his reclassification by the Sex Offender
Registry Board (SORB) as a level two sex offender. On appeal,
Doe argues that (1) the hearing examiner's reclassification
decision was not supported by substantial evidence and (2) the
hearing examiner's findings concerning Internet dissemination
were not sufficiently particularized. 1 We affirm.
1Because we review the hearing examiner's decision de novo, we do not reach Doe's claim that the Superior Court judge's decision reflected the judge's unconscious racial bias in a manner detrimental to Doe. See Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89 (2019). Assuming arguendo the issue were before us, we see nothing from the judge's ruling to substantiate this claim. Background. In November 2007, Doe raped a twenty-one year
old woman, whom he initially met on MySpace, while she was
"almost asleep" at a mutual friend's house at around 6:30 A.M.
More specifically, the victim awoke with Doe on top of her. Doe
gagged the victim with his hand, bit her neck, ripped off her
clothes and removed her tampon, and proceeded to pin her down
forcefully on the couch as he raped her by forcing his penis
into her vagina. Doe then raped her again on the floor. During
the rapes, Doe repeatedly told the victim, "[D]on't say nothing"
and "[J]ust be quiet."
Doe was indicted for three counts of rape. A Superior
Court judge found him guilty of two counts after a bench trial
on March 3, 2009. The judge sentenced Doe to serve from three
to five years in prison for one count and three years of
probation following his release from prison for the second
count. In February 2013, after a hearing, SORB classified Doe
as a level three sex offender. In November 2020, Doe submitted
a motion for reclassification along with new information,
including letters of support from Doe's friends and photos of
Doe and his family. After a reclassification hearing, SORB
reclassified Doe as a level two sex offender. A judge of the
Superior Court affirmed the level two classification.
Discussion. "Our inquiry on appeal is similar to the
inquiry conducted by [the] Superior Court judge." Doe, Sex
2 Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd.,
470 Mass. 102, 108 n.3 (2014) (Doe No. 68549). We may set aside
or modify SORB's decision if we determine "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
Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass.
643, 649 (2019) (Doe No. 496501). We give due weight to the
SORB hearing examiner's experience, technical competence, and
specialized knowledge, as well as to the discretionary authority
conferred on SORB, mindful that SORB hearing examiners have
discretion "to consider which statutory and regulatory factors
are applicable and how much weight to ascribe to each factor."
Doe No. 68549, supra at 109-110.
If a sex offender seeking reclassification "has satisfied
[his] burden of production, the board has the ultimate burden to
prove, by clear and convincing evidence, the appropriateness of
the offender's existing classification." Noe, Sex Offender
Registry Bd. No. 5340 v. Sex Offender Registry Bd., 480 Mass.
195, 205 (2018) (Noe No. 5340). A level two classification is
appropriate where SORB shows that "the risk of reoffense is
moderate and the degree of dangerousness posed to the public is
such that a public safety interest is served by public
availability of registration information." G. L. c. 6,
3 § 178K (2) (b). "[T]o find that an offender warrants a level
two classification, the board must find by clear and convincing
evidence that (1) the offender's risk of reoffense is moderate;
(2) the offender's dangerousness is moderate; and (3) a public
safety interest is served by Internet publication of the
offender's registry information." Doe No. 496501, 482 Mass. at
656. "In determining whether these elements have been
established by clear and convincing evidence, a hearing examiner
may consider subsidiary facts that have been proved by a
preponderance of the evidence." Id.
1. Risk of reoffense. Here, the hearing examiner properly
applied and weighed several regulatory factors that support a
finding of a moderate risk of reoffense. 2 The examiner
appropriately applied factor 7 (relationship between offender
and victim) based on the extrafamilial relationship between Doe
and the victim because as the regulation provides, "[t]he number
of potential victims substantially increases when offenders
choose to sexually offend against extrafamilial victims." 803
Code Mass. Regs. § 1.33(7)(a)(2) (2016). The examiner also
properly applied factor 16 (public place) where Doe committed
the sex offenses in a common area of a home in which several
We find no abuse of discretion in the examiner's 2
conclusion that Doe met his burden of production at his reclassification hearing.
4 other people were staying and might have detected the offenses.
See 803 Code Mass. Regs. § 1.33(16)(a) ("commission of a sex
offense or engaging in sexual misconduct in a place where
detection is likely reflects the offender's lack of impulse
control"). The examiner also gave minimum weight to factor 10
(contact with criminal justice system) where Doe had little
contact with the criminal justice system following his release
from incarceration. See 803 Code Mass. Regs. § 1.33(10).
As a counterbalance to the aggravating factors, the
examiner applied several risk-mitigating factors. The examiner
properly applied and gave moderate weight to factor 29 (offense-
free time in the community) where Doe had spent less than ten
years of offense-free time in his community. See 803 Code Mass.
Regs. § 1.33(29). 3 The examiner also properly gave minimum
weight to factor 32 (sex offender treatment). See 803 Code
Mass. Regs. § 1.33(32). Doe failed to complete sex offender
treatment while incarcerated. However, the hearing examiner did
credit Doe's representation that he attended sex offender
treatment during his term of probation, despite his not
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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-1318
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 244176
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court
judgment affirming his reclassification by the Sex Offender
Registry Board (SORB) as a level two sex offender. On appeal,
Doe argues that (1) the hearing examiner's reclassification
decision was not supported by substantial evidence and (2) the
hearing examiner's findings concerning Internet dissemination
were not sufficiently particularized. 1 We affirm.
1Because we review the hearing examiner's decision de novo, we do not reach Doe's claim that the Superior Court judge's decision reflected the judge's unconscious racial bias in a manner detrimental to Doe. See Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89 (2019). Assuming arguendo the issue were before us, we see nothing from the judge's ruling to substantiate this claim. Background. In November 2007, Doe raped a twenty-one year
old woman, whom he initially met on MySpace, while she was
"almost asleep" at a mutual friend's house at around 6:30 A.M.
More specifically, the victim awoke with Doe on top of her. Doe
gagged the victim with his hand, bit her neck, ripped off her
clothes and removed her tampon, and proceeded to pin her down
forcefully on the couch as he raped her by forcing his penis
into her vagina. Doe then raped her again on the floor. During
the rapes, Doe repeatedly told the victim, "[D]on't say nothing"
and "[J]ust be quiet."
Doe was indicted for three counts of rape. A Superior
Court judge found him guilty of two counts after a bench trial
on March 3, 2009. The judge sentenced Doe to serve from three
to five years in prison for one count and three years of
probation following his release from prison for the second
count. In February 2013, after a hearing, SORB classified Doe
as a level three sex offender. In November 2020, Doe submitted
a motion for reclassification along with new information,
including letters of support from Doe's friends and photos of
Doe and his family. After a reclassification hearing, SORB
reclassified Doe as a level two sex offender. A judge of the
Superior Court affirmed the level two classification.
Discussion. "Our inquiry on appeal is similar to the
inquiry conducted by [the] Superior Court judge." Doe, Sex
2 Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd.,
470 Mass. 102, 108 n.3 (2014) (Doe No. 68549). We may set aside
or modify SORB's decision if we determine "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
Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass.
643, 649 (2019) (Doe No. 496501). We give due weight to the
SORB hearing examiner's experience, technical competence, and
specialized knowledge, as well as to the discretionary authority
conferred on SORB, mindful that SORB hearing examiners have
discretion "to consider which statutory and regulatory factors
are applicable and how much weight to ascribe to each factor."
Doe No. 68549, supra at 109-110.
If a sex offender seeking reclassification "has satisfied
[his] burden of production, the board has the ultimate burden to
prove, by clear and convincing evidence, the appropriateness of
the offender's existing classification." Noe, Sex Offender
Registry Bd. No. 5340 v. Sex Offender Registry Bd., 480 Mass.
195, 205 (2018) (Noe No. 5340). A level two classification is
appropriate where SORB shows that "the risk of reoffense is
moderate and the degree of dangerousness posed to the public is
such that a public safety interest is served by public
availability of registration information." G. L. c. 6,
3 § 178K (2) (b). "[T]o find that an offender warrants a level
two classification, the board must find by clear and convincing
evidence that (1) the offender's risk of reoffense is moderate;
(2) the offender's dangerousness is moderate; and (3) a public
safety interest is served by Internet publication of the
offender's registry information." Doe No. 496501, 482 Mass. at
656. "In determining whether these elements have been
established by clear and convincing evidence, a hearing examiner
may consider subsidiary facts that have been proved by a
preponderance of the evidence." Id.
1. Risk of reoffense. Here, the hearing examiner properly
applied and weighed several regulatory factors that support a
finding of a moderate risk of reoffense. 2 The examiner
appropriately applied factor 7 (relationship between offender
and victim) based on the extrafamilial relationship between Doe
and the victim because as the regulation provides, "[t]he number
of potential victims substantially increases when offenders
choose to sexually offend against extrafamilial victims." 803
Code Mass. Regs. § 1.33(7)(a)(2) (2016). The examiner also
properly applied factor 16 (public place) where Doe committed
the sex offenses in a common area of a home in which several
We find no abuse of discretion in the examiner's 2
conclusion that Doe met his burden of production at his reclassification hearing.
4 other people were staying and might have detected the offenses.
See 803 Code Mass. Regs. § 1.33(16)(a) ("commission of a sex
offense or engaging in sexual misconduct in a place where
detection is likely reflects the offender's lack of impulse
control"). The examiner also gave minimum weight to factor 10
(contact with criminal justice system) where Doe had little
contact with the criminal justice system following his release
from incarceration. See 803 Code Mass. Regs. § 1.33(10).
As a counterbalance to the aggravating factors, the
examiner applied several risk-mitigating factors. The examiner
properly applied and gave moderate weight to factor 29 (offense-
free time in the community) where Doe had spent less than ten
years of offense-free time in his community. See 803 Code Mass.
Regs. § 1.33(29). 3 The examiner also properly gave minimum
weight to factor 32 (sex offender treatment). See 803 Code
Mass. Regs. § 1.33(32). Doe failed to complete sex offender
treatment while incarcerated. However, the hearing examiner did
credit Doe's representation that he attended sex offender
treatment during his term of probation, despite his not
providing the required documentation.
3 Additionally, the examiner reasonably assigned no weight to factor 37 (other useful information related to the nature of sexual behavior) where the articles Doe submitted reflected the language of factor 29 and thus assigning separate weight would have been redundant. See 803 Code Mass. Reg. § 1.33(37).
5 In addition, the examiner assigned moderate weight to
factor 33 (home situation and support systems) because while Doe
may have support as evidenced by four letters from his family
and friends who appear to be aware of his sex offense, the
letters did not address -- nor did Doe otherwise demonstrate --
how this support network would "provide him with guidance,
supervision, and support of rehabilitation." See 803 Code Mass.
Regs. § 1.33(33) ("The Board shall give greater mitigating
consideration to evidence of a support network that is aware of
the offender's sex offense history and provides guidance,
supervision, and support of rehabilitation" [emphasis added]).
The examiner also assigned full weight to factor 34
(stability in the community), where Doe has maintained steady
employment and enjoys residential stability. See 803 Code Mass.
Regs. § 1.33(34). Thus, we conclude the examiner, by
appropriately discussing the various applicable factors,
assessing weight to each factor based on the evidence, and
explaining why he applied such weight, conducted "a qualitative
analysis of the individual sex offender's history and personal
circumstances" in assessing his risk of reoffense (citation
omitted). Noe No. 5340, 480 Mass. at 197.
2. Dangerousness. The examiner also properly identified,
weighed, and discussed relevant regulatory factors in concluding
Doe poses a moderate degree of dangerousness. The examiner
6 appropriately applied factor 18 (extravulnerable victim), where
the victim was "almost asleep" and confused as to the identity
of her assailant at the time of Doe's sex offense. Her
condition rendered her more susceptible to sexual assault and
unable to effectively defend herself or cry for assistance. See
803 Code Mass. Regs. § 1.33(18).
The examiner properly assigned increased weight to factor
19 (level of physical contact), where Doe penetrated the victim
with his penis, considering that sexual assaults involving
penile penetration have been shown to result in increased
psychological harm to the victim and also reflect an increased
degree of the offender's dangerousness. See 803 Code Mass.
Regs. § 1.33(19).
The examiner also appropriately considered factor 38
(victim impact statement) by examining the severe "mental,
emotional, and physical" impact of the offense on the victim as
she expressed through her written statement to the trial judge.
See 803 Code Mass. Regs. § 1.33(38).
Where, as here, "the examiner's detailed written decision
was balanced and fair," Smith v. Sex Offender Registry Bd., 65
Mass. App. Ct. 803, 813 (2006), we discern no abuse of
discretion or other error in the examiner's conclusion that Doe
poses a moderate degree of dangerousness.
7 3. Internet dissemination. Doe argues that requiring
Internet dissemination of his personal information was not
supported by clear and convincing evidence that it would serve a
public safety interest. "[T]he determination of the degree to
which public access to an offender's personal and sex offender
information is in the interest of public safety must be made 'in
consideration of' the offender's risk of reoffense and
dangerousness" Doe No. 496501, 482 Mass. at 655, quoting 803
Code Mass. Regs. § 1.20(2) (2016). "We . . . require hearing
examiners to ask whether, in light of the particular risks posed
by the particular offender, Internet access to that offender's
information might realistically serve to protect the public
against the risk of the offender's sexual reoffense." Doe No.
496501, supra. "If the answer to this question is 'no,'
classification as a level two offender is unjustified even where
the offender poses a moderate risk to reoffend and a moderate
degree of dangerousness." Id.
Here, the examiner did not abuse his discretion in finding
that the applicable regulatory factors demonstrate a public
safety interest in Internet access to Doe's registry
information. See Doe No. 496501, 482 Mass. at 655. The
examiner properly examined Doe's current danger to the public,
finding that the regulatory factors demonstrate Doe's moderate
degree of reoffense and dangerousness and noting that Doe "while
8 being in the same house with his then girlfriend and other
people . . . repeatedly sexually assaulted an extra-vulnerable
(asleep and confused) Victim." See Doe, Sex Offender Registry
Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 145-
146 (2019). The examiner also properly found that publication
of Doe's registry information would serve a public interest,
noting "public access to his sex offender registry information
is necessary, in order to notify the families of, and protect,
women who may come in contact with the Petitioner online or
otherwise, from the potential danger and harm of sexual abuse."
See id. Because Doe used an Internet social platform to meet
and contact the victim, we cannot conclude that a contrary
conclusion was required by the evidence when considering that
9 other members of the public may also encounter Doe on the
Internet.
Judgment affirmed.
By the Court (Rubin, D'Angelo & Smyth, JJ. 4),
Clerk
Entered: August 4, 2025.
4 The panelists are listed in order of seniority.