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-249
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 526553
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
John Doe, Sex Offender Registry Board No. 526553 (Doe)
appeals from his classification as a level two sex offender.
See G. L. c. 6, § 178K (2) (b). He argues that the Sex Offender
Registry Board (SORB or board) hearing examiner (1) misapplied
regulatory factors 13 (noncompliance with community supervision)
and 37 (other information related to the nature of the sexual
behavior) in her analysis of Doe's risk of reoffense and degree
of dangerousness, without which she lacked substantial evidence
to support Doe's level two classification; (2) erred by
rejecting his expert's opinions; and (3) erred in finding that
public safety interests would be served by Internet publication. We vacate the judgment and remand for further proceedings
consistent with this memorandum and order.
Background. We summarize the facts as set forth in the
hearing examiner's decision, "supplemented by undisputed facts
from the record." Doe, Sex Offender Registry Bd. No. 10800 v.
Sex Offender Registry Bd., 459 Mass. 603, 606 (2011).
A twelve year old boy (the victim) disclosed to his
therapist that Doe, then fifteen years old, had physically and
sexually abused him in a home daycare facility run by Doe's
mother. During a forensic interview, the victim disclosed that
Doe had been hitting and pinching him, causing bruising, for
over a year. The victim also reported that Doe had several
times forced his penis into the victim's mouth. Doe had
threatened the victim with violence -- that Doe would cut off
his penis or kill him -- to force the victim to comply.
Additionally, the victim disclosed that on several occasions Doe
had forced the victim to lick Doe's anus and had used a
broomstick to penetrate the victim's anus, which caused him
pain. The victim stated that the first sexual assault occurred
in October 2014 and that he was assaulted several times until
approximately February 2015.1
1 The parties disagree about the length of time over which these events occurred, and the hearing examiner's analysis is inconsistent on this point. We describe the events using the timeline in the reports outlining the victim's statements and
2 On August 23, 2018, based on the events described, Doe was
adjudicated a youthful offender by a judge of the Juvenile Court
on two counts of rape of a child with force in violation of
G. L. c. 265, § 22A, and one count of indecent assault and
battery on a child under fourteen in violation of G. L. c. 265,
§ 13B. He was committed to the custody of the Department of
Youth Services (DYS) until age twenty-one, followed by an adult
sentence of two and one-half years in the house of correction,
suspended with a term of probation.
In November 2019, the board notified Doe of its preliminary
recommendation that he be classified as a level two sex
offender. After a de novo hearing challenging the
recommendation, the board issued a decision on October 23, 2020,
finally classifying Doe as a level two sex offender, concluding
he posed a moderate risk to reoffend and a moderate degree of
dangerousness and that a public interest is served by Internet
access to his sex offender registry information. Doe sought
judicial review of the board's decision. A judge of the
Superior Court remanded the matter to SORB, concluding that the
hearing examiner had inappropriately disregarded Doe's expert's
opinion.
address the hearing examiner's timeline of events in our discussion.
3 Following the remand, on November 3, 2021, the hearing
examiner again classified Doe as a level two sex offender.2 Doe
again sought judicial review. A Superior Court judge affirmed
the level two classification, and this appeal followed. On
January 13, 2023, a judge of the Superior Court granted Doe's
emergency motion to stay Internet dissemination pending the
outcome of this action.
Discussion. "We review a judge's consideration of an
agency decision de novo." Doe, Sex Offender Registry Bd. No.
523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89
(2019). In reviewing the board's decision, "we 'give due weight
to the experience, technical competence, and specialized
knowledge of the [board].'" Doe, Sex Offender Registry Bd. No.
205614 v. Sex Offender Registry Bd., 466 Mass. 594, 602 (2013),
quoting G. L. c. 30A, § 14 (7). We may only set aside the
board's decision on a finding that the decision is unsupported
by substantial evidence, arbitrary and capricious, an abuse of
discretion, or not in accordance with the law. See Doe, Sex
Offender Registry Bd. No. 6729 v. Sex Offender Registry Bd., 490
Mass. 759, 762 (2022) (Doe No. 6729).
2 After Doe filed a complaint for judicial review of this decision, the board rescinded it. A final amended classification on remand issued on November 19, 2021.
4 1. Sufficiency of the evidence and application of the
regulatory factors. Doe contends that the level two
reclassification was not supported by substantial evidence
because the examiner erred in the application of board factors
13 and 37. We address factor 37 first.
a. Factor 37. The hearing examiner applied factor 37
because she found "the recurring nature of [Doe]'s offending
against the vulnerable boy concerning and considered this as
further evidence of [Doe]'s degree of dangerousness," and she
also "consider[ed] this repeated sexual behavior in relation to
the nature and scope of harm to future [v]ictims should he re-
offend." Doe argues that the hearing examiner inappropriately
considered evidence of repetitive behavior that SORB concedes
cannot be considered for risk of reoffense under factor 2 by
incorporating it into her evaluation through factor 37.3 SORB
counters that the hearing examiner considered the repetitive
3 In 2021, a Middlesex Superior Court judge invalidated the second and third sentences of 803 Code Mass. Regs. § 1.33(2) (2016), finding that there was insufficient scientific support for factor 2's correlation between repetitive conduct and a higher risk of reoffense, where the perpetrator has not been confronted between offenses. See Doe, Sex Offender Registry Bd. No. 22188 vs. Sex Offender Registry Bd., Mass. Super. Ct., No. 2081CV1130B, at 1, 20-22 (Middlesex County Apr. 16, 2021).
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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-249
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 526553
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
John Doe, Sex Offender Registry Board No. 526553 (Doe)
appeals from his classification as a level two sex offender.
See G. L. c. 6, § 178K (2) (b). He argues that the Sex Offender
Registry Board (SORB or board) hearing examiner (1) misapplied
regulatory factors 13 (noncompliance with community supervision)
and 37 (other information related to the nature of the sexual
behavior) in her analysis of Doe's risk of reoffense and degree
of dangerousness, without which she lacked substantial evidence
to support Doe's level two classification; (2) erred by
rejecting his expert's opinions; and (3) erred in finding that
public safety interests would be served by Internet publication. We vacate the judgment and remand for further proceedings
consistent with this memorandum and order.
Background. We summarize the facts as set forth in the
hearing examiner's decision, "supplemented by undisputed facts
from the record." Doe, Sex Offender Registry Bd. No. 10800 v.
Sex Offender Registry Bd., 459 Mass. 603, 606 (2011).
A twelve year old boy (the victim) disclosed to his
therapist that Doe, then fifteen years old, had physically and
sexually abused him in a home daycare facility run by Doe's
mother. During a forensic interview, the victim disclosed that
Doe had been hitting and pinching him, causing bruising, for
over a year. The victim also reported that Doe had several
times forced his penis into the victim's mouth. Doe had
threatened the victim with violence -- that Doe would cut off
his penis or kill him -- to force the victim to comply.
Additionally, the victim disclosed that on several occasions Doe
had forced the victim to lick Doe's anus and had used a
broomstick to penetrate the victim's anus, which caused him
pain. The victim stated that the first sexual assault occurred
in October 2014 and that he was assaulted several times until
approximately February 2015.1
1 The parties disagree about the length of time over which these events occurred, and the hearing examiner's analysis is inconsistent on this point. We describe the events using the timeline in the reports outlining the victim's statements and
2 On August 23, 2018, based on the events described, Doe was
adjudicated a youthful offender by a judge of the Juvenile Court
on two counts of rape of a child with force in violation of
G. L. c. 265, § 22A, and one count of indecent assault and
battery on a child under fourteen in violation of G. L. c. 265,
§ 13B. He was committed to the custody of the Department of
Youth Services (DYS) until age twenty-one, followed by an adult
sentence of two and one-half years in the house of correction,
suspended with a term of probation.
In November 2019, the board notified Doe of its preliminary
recommendation that he be classified as a level two sex
offender. After a de novo hearing challenging the
recommendation, the board issued a decision on October 23, 2020,
finally classifying Doe as a level two sex offender, concluding
he posed a moderate risk to reoffend and a moderate degree of
dangerousness and that a public interest is served by Internet
access to his sex offender registry information. Doe sought
judicial review of the board's decision. A judge of the
Superior Court remanded the matter to SORB, concluding that the
hearing examiner had inappropriately disregarded Doe's expert's
opinion.
address the hearing examiner's timeline of events in our discussion.
3 Following the remand, on November 3, 2021, the hearing
examiner again classified Doe as a level two sex offender.2 Doe
again sought judicial review. A Superior Court judge affirmed
the level two classification, and this appeal followed. On
January 13, 2023, a judge of the Superior Court granted Doe's
emergency motion to stay Internet dissemination pending the
outcome of this action.
Discussion. "We review a judge's consideration of an
agency decision de novo." Doe, Sex Offender Registry Bd. No.
523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89
(2019). In reviewing the board's decision, "we 'give due weight
to the experience, technical competence, and specialized
knowledge of the [board].'" Doe, Sex Offender Registry Bd. No.
205614 v. Sex Offender Registry Bd., 466 Mass. 594, 602 (2013),
quoting G. L. c. 30A, § 14 (7). We may only set aside the
board's decision on a finding that the decision is unsupported
by substantial evidence, arbitrary and capricious, an abuse of
discretion, or not in accordance with the law. See Doe, Sex
Offender Registry Bd. No. 6729 v. Sex Offender Registry Bd., 490
Mass. 759, 762 (2022) (Doe No. 6729).
2 After Doe filed a complaint for judicial review of this decision, the board rescinded it. A final amended classification on remand issued on November 19, 2021.
4 1. Sufficiency of the evidence and application of the
regulatory factors. Doe contends that the level two
reclassification was not supported by substantial evidence
because the examiner erred in the application of board factors
13 and 37. We address factor 37 first.
a. Factor 37. The hearing examiner applied factor 37
because she found "the recurring nature of [Doe]'s offending
against the vulnerable boy concerning and considered this as
further evidence of [Doe]'s degree of dangerousness," and she
also "consider[ed] this repeated sexual behavior in relation to
the nature and scope of harm to future [v]ictims should he re-
offend." Doe argues that the hearing examiner inappropriately
considered evidence of repetitive behavior that SORB concedes
cannot be considered for risk of reoffense under factor 2 by
incorporating it into her evaluation through factor 37.3 SORB
counters that the hearing examiner considered the repetitive
3 In 2021, a Middlesex Superior Court judge invalidated the second and third sentences of 803 Code Mass. Regs. § 1.33(2) (2016), finding that there was insufficient scientific support for factor 2's correlation between repetitive conduct and a higher risk of reoffense, where the perpetrator has not been confronted between offenses. See Doe, Sex Offender Registry Bd. No. 22188 vs. Sex Offender Registry Bd., Mass. Super. Ct., No. 2081CV1130B, at 1, 20-22 (Middlesex County Apr. 16, 2021). SORB did not appeal from the Superior Court judge's decision and has conceded that it is bound by the ruling in that case. See Doe No. 6729, 490 Mass. at 765-767 (evidence of confrontation between sexual offenses sufficient to show compulsive as well as repetitive conduct).
5 nature of Doe's offenses in a specific manner -- as other
information permitted under factor 37 in determining
dangerousness, not risk of reoffense, and the harm that would
befall a victim if Doe reoffends.
For the purposes of this decision, we assume without
deciding that a hearing examiner can consider repetitive
behavior under factor 37 to determine degree of dangerousness.
We nonetheless remand the matter because the hearing examiner
relied on factor 37 in a way that appears to have duplicated
risk-elevating factors on which the hearing examiner also
relied. Put another way, we remand because we are unable to
determine whether the hearing examiner's application of factor
37 double counted factors that she had already considered in her
analysis. The hearing examiner refers to "the nature and scope
of harm to future [v]ictims" in her factor 37 analysis, but she
had already applied factor 8 (weapon, violence or infliction of
bodily injury) and factor 19 (level of physical contact) to
account for the Doe's degree of dangerousness should he reoffend
in the future. See 803 Code Mass. Regs. § 1.33(8)(c), (19)(c)
(2016). Similarly, the hearing examiner refers to the victim as
a "vulnerable boy" in her analysis of factor 37, and she also
applied factor 17 (male offender against male victim). See 803
6 Code Mass. Regs. § 1.33(17)(c).4 The hearing examiner's
reference to the boy as "vulnerable" also injects concern that
she may have considered the victim "extravulnerable" though SORB
conceded, and the hearing examiner elsewhere accepted, that
factor 18 (extravulnerable victim) did not apply.
We cannot be confident that these apparent duplications did
not materially influence the hearing examiner's level two
classification. Accordingly, we vacate the judgment and remand
the matter for further proceedings. Doe, Sex Offender Registry
Bd. No. 22188 v. Sex Offender Registry Bd., 101 Mass. App. Ct.
797, 804 (2022).
b. Factor 13. Doe argues that the hearing examiner
incorrectly applied minimal weight to factor 13 by attributing
"negative behaviors in the beginning of [Doe's DYS] residential
placement" as evidence of noncompliance with community
supervision. See 803 Code Mass. Regs. § 1.33(13)(c). Doe, then
a teen, failed to comply with community supervision when
entering custody of the DYS by being disrespectful to staff,
attempting to instigate fellow peers, and failing to adhere to
program routine. "[O]ur review does not turn on whether, faced
with the same set of facts, we would have drawn the same
4 On remand, we suggest the hearing examiner consider adding detail to the characterization of the victim as "vulnerable"; we note that the examiner did not apply factor 18 (extravulnerable victim), and SORB conceded this factor did not apply.
7 conclusion as an agency or local board, but only whether a
contrary conclusion is not merely a possible but a necessary
inference" (quotation and citation omitted). Doe, Sex Offender
Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass.
102, 110 (2014). We discern no abuse of discretion in the
hearing examiner's application of factor 13 with minimal weight.
2. Other issues on remand. Given our decision to remand
based on the factor 37 issue alone, we only address those
additional issues that may be relevant on remand.
a. Medical expert testimony. Doe introduced expert
medical testimony that concluded his risk of reoffense is
"extremely low," and he presented as "an extremely low danger to
the public." Doe contends that the hearing examiner abused her
discretion in failing to state an adequate reason for declining
to adopt the expert's opinion that Doe posed a low risk of
sexual reoffense. Although the hearing examiner was required to
carefully consider expert testimony, Doe "is not entitled to a
guarantee that SORB will reach the same conclusion as his
expert." Doe, Sex Offender Registry Bd. No. 23656 v. Sex
Offender Registry Bd., 483 Mass. 131, 137 (2019). A hearing
examiner may reject uncontradicted expert testimony, provided
she articulates an "objectively adequate reason" for doing so.
Id. at 137.
8 Here, the expert opinion relied on Doe's self-reports of
the effects of testosterone injections for delayed puberty. The
hearing examiner discounted the expert's testimony because Doe
"did not submit any of the aforementioned medical records
relating to his previous pre-pubertal diagnosis nor the
subsequent medical notes which would corroborate his self-
reported side effects of the testosterone therapy." We do not
address the merits of this argument because, on remand, Doe has
the opportunity to address the hearing examiner's concerns by
submitting the records or explaining whether the standard of
care would not have been to document such concerns.5
b. Incident timeline. When initially remanding to SORB
for a new hearing in 2022, the Superior Court judge noted in his
order that "the hearing examiner states that [Doe] assaulted the
Victim over a nine-month period. However, the factual
recitation of [Doe's] index offenses at the beginning of her
decision indicates that the offenses only occurred over a four-
month period" and instructed that "[t]hese discrepancies should
be resolved on remand." However, the hearing examiner failed to
correct this inconsistency in her amended decision. Without
explanation, the hearing examiner continued to use the nine-
5 Doe is now entitled to a reclassification hearing. We leave it to Doe and SORB whether to hold an entirely new hearing or to supplement the existing administrative record.
9 month time frame in her decision. The time period of the
offenses is relevant because the medical expert gave the opinion
that the rapid increase in testosterone levels for treatment of
delayed puberty was a consideration in Doe's offenses. We note
that the victim disclosed that the assaults occurred in October
2014 and continued until February 2015.6 On remand, the hearing
examiner should make a finding on the period of time that the
victim was abused and use that length of time consistently in
the classification evaluation.
Conclusion. We vacate the judgment of the Superior Court
affirming SORB's decision classifying Doe as a level two sex
offender. A new judgment shall enter vacating SORB's decision
and remanding this matter to SORB for further proceedings
So ordered.
By the Court (Henry, Hershfang & Smyth, JJ.7),
Clerk
Entered: April 17, 2025.
6 The indictments allege a longer period, to June 2015. Should the hearing examiner continue to rely on this longer period, she should explain why the indictments are more reliable than the victim's statements as to the period of abuse.
7 The panelists are listed in order of seniority.