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
25-P-31
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 524375
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The petitioner, Doe, appeals from a Superior Court judgment
upholding his classification by the Sex Offender Registry Board
(SORB) as a level three sex offender. Doe argues that the
decision of the hearing examiner (examiner) did not reflect the
informed reasoning that our case law requires and that the
examiner abused her discretion by not giving proper weight to
the applicable mitigating factors in Doe's case. We affirm.
Background. Doe, starting at the age of nineteen,
frequently and repeatedly sexually abused and raped his sister
for three years. Doe further threatened to break her neck and
kill her if she ever disclosed the abuse. Doe pleaded guilty to
three counts of rape and abuse of a child and was sentenced to prison for eight to ten years followed by a seven-year probation
term.
Discussion. A level three classification is warranted
where the examiner "make[s] explicit" findings, supported by
clear and convincing evidence, that the offender presents "a
high risk of reoffense, a high degree of dangerousness, and
[that] a public safety interest is served by active
dissemination of the offender's registry information." Doe, Sex
Offender Registry Bd. No. 6729 v. Sex Offender Registry Bd., 490
Mass. 759, 768 (2022). See G. L. c. 6, § 178K (2) (c). "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
Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass.
643, 649 (2019) (Doe No. 496501), citing G. L. c. 30A, § 14 (7).
"Substantial evidence" is "such evidence as a reasonable mind
might accept as adequate to support a conclusion." Doe, Sex
Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd.,
470 Mass. 102, 109 (2014) (Doe No. 68549), quoting G. L. c. 30A,
§ 1 (6).
2 "A hearing examiner has discretion . . . to consider which
statutory and regulatory factors are applicable and how much
weight to ascribe to each factor, and . . . a reviewing court is
required to give due weight to the [examiner's] experience,
technical competence, and specialized knowledge" (quotation and
citation omitted). Doe No. 68549, 470 Mass. at 109-110. When
an examiner does not sufficiently address an offender's evidence
concerning the application of a regulatory factor, we "ask
whether the error may have affected the classification and, if
so, . . . remand to SORB," thus "comport[ing] with our statutory
mandate to determine whether the substantial rights of any party
may have been prejudiced" (quotation and citation omitted).
Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender
Registry Bd., 101 Mass. App. Ct. 797, 804 (2022) (Doe No.
22188).
Here, the examiner concluded by clear and convincing
evidence that Doe posed "a high risk to reoffend and a high
degree of dangerousness such that a substantial public safety
interest is served by active dissemination . . . of his sex
offender registry information." The examiner applied high-risk
factor 3 (adult offender with child victim), and risk-elevating
factors 8 (weapon, violence, or infliction of bodily injury), 9
(alcohol and substance abuse), 16 (public place), 18
3 (extravulnerable victim), and 19 (level of physical contact)
because she found that Doe had repeatedly raped his six year old
prepubescent sister, an age considered extravulnerable, with a
high level of physical contact, and that during the offending
behaviors Doe threatened to kill both the victim and her care
givers. The examiner additionally applied risk elevating
factors 10 (contact with criminal justice system), 11 (violence
unrelated to sexual assaults), 12 (behavior while incarcerated
or civilly committed), and 13 (non-compliance with community
supervision) because Doe had extensive contact with the criminal
justice system beginning at a young age, which included episodes
of violence unrelated to the sexual assaults of his sister, [RA
VI:15-19], and had accrued a "voluminous number of disciplinary
reports while incarcerated which includes drug related charges
and violence."
1. Factor 7. Factor 7 recognizes three categories of
relationships between an offender and a victim: intrafamilial,
extrafamilial, and strangers. 803 Code Mass. Regs. § 1.33(7)
(2016).
"The relationship between an offender and the victim is an important variable in determining risk of reoffense and degree of dangerousness. . . . Offenders who only target intrafamilial victims may be at a lower risk to reoffend as compared to offenders who target unrelated victims. However, having an intrafamilial victim is not a risk mitigating, nor a risk elevating, factor. It is included for definitional purposes only." Id.
4 A hearing examiner is required to rely on the factors set
forth in the SORB regulations in determining an offender's risk
and danger. 803 Code Mass. Regs. § 1.33 (2016). Doe suggests
that, based on an article he submitted, the examiner should have
ignored the language of the factor 7 regulation and considered
the relationship between Doe and the victim as a risk-mitigating
factor. It is clear, based on the language of the regulation,
that SORB considered scientific research about intrafamilial
relationships between offenders and victims in adopting
factor 7. Plainly, the examiner considered the relationship
between Doe and the victim; "how much weight to ascribe to each
factor" is a matter within the examiner's discretion. Doe No.
68549, 470 Mass. at 109-110. Doe has given us no sound basis on
which to conclude that this discretion was abused.
2. Factors 9 and 19. Factor 9 applies where an offender
"has a history of substance abuse." 803 Code Mass. Regs.
§ 1.33(9)(a) (2016). It was within the examiner's discretion to
apply it here, given Doe's continuance without a finding for
possession of marijuana in 2007, and multiple drug-related
infractions during his present incarceration, including the
"introduction of [S]uboxone through the mail system" in 2017, a
positive drug test in 2018, tampering with a urine sample in
2020, and stealing drugs from other inmates. The examiner did
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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
25-P-31
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 524375
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The petitioner, Doe, appeals from a Superior Court judgment
upholding his classification by the Sex Offender Registry Board
(SORB) as a level three sex offender. Doe argues that the
decision of the hearing examiner (examiner) did not reflect the
informed reasoning that our case law requires and that the
examiner abused her discretion by not giving proper weight to
the applicable mitigating factors in Doe's case. We affirm.
Background. Doe, starting at the age of nineteen,
frequently and repeatedly sexually abused and raped his sister
for three years. Doe further threatened to break her neck and
kill her if she ever disclosed the abuse. Doe pleaded guilty to
three counts of rape and abuse of a child and was sentenced to prison for eight to ten years followed by a seven-year probation
term.
Discussion. A level three classification is warranted
where the examiner "make[s] explicit" findings, supported by
clear and convincing evidence, that the offender presents "a
high risk of reoffense, a high degree of dangerousness, and
[that] a public safety interest is served by active
dissemination of the offender's registry information." Doe, Sex
Offender Registry Bd. No. 6729 v. Sex Offender Registry Bd., 490
Mass. 759, 768 (2022). See G. L. c. 6, § 178K (2) (c). "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
Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass.
643, 649 (2019) (Doe No. 496501), citing G. L. c. 30A, § 14 (7).
"Substantial evidence" is "such evidence as a reasonable mind
might accept as adequate to support a conclusion." Doe, Sex
Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd.,
470 Mass. 102, 109 (2014) (Doe No. 68549), quoting G. L. c. 30A,
§ 1 (6).
2 "A hearing examiner has discretion . . . to consider which
statutory and regulatory factors are applicable and how much
weight to ascribe to each factor, and . . . a reviewing court is
required to give due weight to the [examiner's] experience,
technical competence, and specialized knowledge" (quotation and
citation omitted). Doe No. 68549, 470 Mass. at 109-110. When
an examiner does not sufficiently address an offender's evidence
concerning the application of a regulatory factor, we "ask
whether the error may have affected the classification and, if
so, . . . remand to SORB," thus "comport[ing] with our statutory
mandate to determine whether the substantial rights of any party
may have been prejudiced" (quotation and citation omitted).
Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender
Registry Bd., 101 Mass. App. Ct. 797, 804 (2022) (Doe No.
22188).
Here, the examiner concluded by clear and convincing
evidence that Doe posed "a high risk to reoffend and a high
degree of dangerousness such that a substantial public safety
interest is served by active dissemination . . . of his sex
offender registry information." The examiner applied high-risk
factor 3 (adult offender with child victim), and risk-elevating
factors 8 (weapon, violence, or infliction of bodily injury), 9
(alcohol and substance abuse), 16 (public place), 18
3 (extravulnerable victim), and 19 (level of physical contact)
because she found that Doe had repeatedly raped his six year old
prepubescent sister, an age considered extravulnerable, with a
high level of physical contact, and that during the offending
behaviors Doe threatened to kill both the victim and her care
givers. The examiner additionally applied risk elevating
factors 10 (contact with criminal justice system), 11 (violence
unrelated to sexual assaults), 12 (behavior while incarcerated
or civilly committed), and 13 (non-compliance with community
supervision) because Doe had extensive contact with the criminal
justice system beginning at a young age, which included episodes
of violence unrelated to the sexual assaults of his sister, [RA
VI:15-19], and had accrued a "voluminous number of disciplinary
reports while incarcerated which includes drug related charges
and violence."
1. Factor 7. Factor 7 recognizes three categories of
relationships between an offender and a victim: intrafamilial,
extrafamilial, and strangers. 803 Code Mass. Regs. § 1.33(7)
(2016).
"The relationship between an offender and the victim is an important variable in determining risk of reoffense and degree of dangerousness. . . . Offenders who only target intrafamilial victims may be at a lower risk to reoffend as compared to offenders who target unrelated victims. However, having an intrafamilial victim is not a risk mitigating, nor a risk elevating, factor. It is included for definitional purposes only." Id.
4 A hearing examiner is required to rely on the factors set
forth in the SORB regulations in determining an offender's risk
and danger. 803 Code Mass. Regs. § 1.33 (2016). Doe suggests
that, based on an article he submitted, the examiner should have
ignored the language of the factor 7 regulation and considered
the relationship between Doe and the victim as a risk-mitigating
factor. It is clear, based on the language of the regulation,
that SORB considered scientific research about intrafamilial
relationships between offenders and victims in adopting
factor 7. Plainly, the examiner considered the relationship
between Doe and the victim; "how much weight to ascribe to each
factor" is a matter within the examiner's discretion. Doe No.
68549, 470 Mass. at 109-110. Doe has given us no sound basis on
which to conclude that this discretion was abused.
2. Factors 9 and 19. Factor 9 applies where an offender
"has a history of substance abuse." 803 Code Mass. Regs.
§ 1.33(9)(a) (2016). It was within the examiner's discretion to
apply it here, given Doe's continuance without a finding for
possession of marijuana in 2007, and multiple drug-related
infractions during his present incarceration, including the
"introduction of [S]uboxone through the mail system" in 2017, a
positive drug test in 2018, tampering with a urine sample in
2020, and stealing drugs from other inmates. The examiner did
5 acknowledge that Doe completed a recovery program in 2023. The
examiner, nevertheless, acted within her discretion in applying
factor 9 based on Doe's history of substance abuse. See Doe No.
22188, 96 Mass. App. Ct. at 742 ("[A] hearing examiner has
discretion . . . to consider which statutory and regulatory
factors are applicable and how much weight to ascribe to each
factor" [quotation and citation omitted]).
Doe also unsuccessfully claims that the examiner misapplied
factor 19 by failing to include a more detailed discussion of a
scientific article Doe submitted. At the time of the hearing,
factor 19 stated, "Sexual assault[s] involving penetration
[have] been shown to cause increased psychological harm to the
victim. The offender who engages in penetration, especially
penile penetration, as part of the sexual assault poses an
increased degree of dangerousness." 803 Code Mass. Regs.
§ 1.33(19) (2016). Doe purports this his article shows "that
the use of force, injury or the degree of sexual contact has
little predictive value for making a determination for future
sexual recidivism."
By claiming that the premise of Factor 19 is at odds with
the scientific research, Doe's argument effectively aims at the
scientific validity -- and, implicitly, the constitutionality --
of factor 19 generally, and for that reason must fail here. "A
6 challenge to the constitutionality of a regulation of general
application is appropriately presented as an action for
declaratory judgment." Doe, Sex Offender Registry Bd. No. 10800
v. Sex Offender Registry Bd., 459 Mass. 603, 629 (2011). As
discussed supra, a hearing examiner is required to rely on
SORB's factors in determining the risk posed by an offender. A
hearing examiner has no "authority to determine the
constitutionality of [SORB's] regulations" and "is obligated to
apply the risk factors . . . irrespective of the examiner's
opinion as to their constitutionality." See id. at 630.
Consequently, in this appeal stemming from an agency
determination, and in the absence of an original action for
declaratory relief in Superior Court, this claim is not properly
before us. Id.
3. Factors 8, 10, 11, 12, and 37. Issues not raised in
the Superior Court cannot be raised on appeal. Doe, Sex
Offender Registry Bd. No. 3974, v. Sex Offender Registry Board,
457 Mass. 53, 57-58 (2010). Although Doe did challenge the
examiner's findings as to factors 10 and 11 in the Superior
Court, those challenges were limited to how the examiner
interpreted those factors in light of a scientific article Doe
submitted; Doe did not challenge, as he does here, whether the
examiner's decision was "based on [Doe's] current
7 circumstances." And Doe did not challenge the examiner's
findings related to factors 8, 12, or 37, whatsoever. These
claims are thus waived.
4. Internet publication. We are unpersuaded by Doe's
argument that the examiner abused her discretion in concluding
that Internet publication is warranted. "Where a sexually
violent offender presents a moderate risk to reoffend and a
moderate degree of dangerousness, Internet publication will
almost invariably serve a public safety interest by notifying
potential victims of the risks presented by the offender in
their geographic area." Doe No. 496501, 482 Mass. at 655. This
conclusion is even more compelling where, as here, the offender
presents "a high risk to reoffend and a high degree of
dangerousness."
We discern no error in the examiner's conclusion. She
noted that much of Doe's conduct, which included threats of
violence, spoke "to [Doe]'s dangerousness and impulsiveness,"
and that even while incarcerated "he has continued to defy rules
and regulations." The examiner also considered that the young
age of the victim indicates a risk that future victims may also
be of a similarly vulnerable age, further recommending
publication to protect against that risk. Doe's argument that
he poses no risk to anyone except for his family (and that he
8 will never have access to his family again) flies in the face of
his high risk for recidivism. The examiner's conclusion that
Internet publication is warranted was not an abuse of
discretion.
Judgment affirmed.
By the Court (Vuono, Ditkoff & D'Angelo, JJ.1),
Clerk
Entered: March 12, 2026.
1 The panelists are listed in order of seniority.