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
24-P-707
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 527940
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 classification by the Sex Offender
Registry Board (SORB or board) as a level two sex offender. On
appeal, Doe argues that the hearing examiner (examiner), who
reduced his sex offender classification from a level three to a
level two, failed to provide adequate consideration of (1) Doe's
offense-free time in the community (factor 29) and (2) his
participation in sex offender treatment (factor 32).1 Doe also
1We refer to SORB's classification factors by number, or name and number, it being understood that each of them appears in the corresponding subpart of 803 Code Mass. Regs. § 1.33 (2016). SORB's regulations were updated in 2025, but the 2016 version of the regulations were in effect at the time of the examiner's decision in this case and therefore govern our analysis. argues that the examiner misapplied factor 2 (repetitive and
compulsive behavior) to him. For the reasons set forth below,
we conclude that a remand is necessary for the examiner to
address what weight, if any, to give Doe's offense-free time in
the community prior to his 2022 conviction and to reconsider the
decision to give moderate rather than full weight to Doe's
participation in sex offender treatment.
Background. In 2011, the parents of a ten year old boy
reported to police that Doe had sexually assaulted their son at
day camp, where Doe was working as a camp counselor. The boy's
parents did not wish to press criminal charges, and Doe was
never formally charged.2 From February 2012 until March 2013,
Doe worked at a mental health service provider as a therapeutic
mentor. In 2013, the mother of a nine year old boy with autism
reported that Doe, the boy's therapeutic mentor at the time, had
sexually assaulted her son. The victim reported during a Sexual
Assault Intervention Network (SAIN) interview that Doe had
"touched and rubbed" the victim's buttocks over his clothing
while at a local wildlife rehabilitation center. Doe was
arraigned on one count of indecent assault and battery on a
2 Although Doe was never criminally charged with sexually assaulting the ten year old boy, the examiner found "sufficient reliable and credible evidence" to find the allegations that Doe had assaulted the boy as fact.
2 child under the age of fourteen and one count of assault and
battery on a disabled person with injury. On June 1, 2016, Doe
pleaded guilty to a single count of simple assault and battery
and was sentenced to a three-year probation term.3 As part of
his probation, the plaintiff was referred to and enrolled in sex
offender treatment.
In 2019, a few months before Doe completed his probationary
term, additional allegations surfaced from Doe's former role as
a therapeutic mentor -- a mother reported that in 2013 Doe had
sexually assaulted her son, who was between nine and ten years
old at the time. During a SAIN interview, the victim reported
that Doe would drive him to isolated locations, touch the
victim's penis and testicles, and take pictures of the victim's
penis with his cell phone. The victim also reported that Doe
had asked that the victim touch him, but the victim had refused.
In June 2021, Doe pleaded guilty to two counts of indecent
assault and battery on a child under fourteen and one count of
enticing a child under sixteen. He was sentenced to a three-
year probation term and was required to enroll in a sex offender
3 Although the indecent assault charge was amended to simple assault and battery, the examiner found "sufficient reliable and credible evidence" to find as fact that Doe had sexual assaulted the victim.
3 treatment program, register with SORB, and have no unsupervised
visits or employment with children under the age of sixteen.
In 2021, the board initially classified Doe as a level
three sex offender, which he requested a hearing to challenge.
The hearing was held in February 2022, at which Doe's father and
brother testified in his favor. The examiner reviewed the
witness testimony as well as several exhibits offered by SORB
and Doe, including police reports, Doe's probation record, a
victim impact statement, and letters of support for Doe. The
examiner found evidence to support two high-risk factors, five
risk-elevating factors, and gave full or partial weight to four
risk-mitigating factors. The examiner issued a decision on June
7, 2022, ordering Doe to register as a level two sex offender
and that his sex offender registry information be disseminated
on the Internet.4 A Superior Court judge affirmed the examiner's
order, and this appeal followed.
Discussion. "To determine the validity of an agency's
decision, the reviewing court must determine whether the
decision is supported by substantial evidence" (citation
omitted). Doe, Sex Offender Registry Bd. No. 6969 v. Sex
Offender Registry Bd., 99 Mass. App. Ct. 533, 536 (2021). "The
4 Doe sought and obtained a number of stays to the public dissemination of his sex offender registry information.
4 decision may only be set aside if the court determines that the
decision is unsupported by substantial evidence or is arbitrary
or capricious, an abuse of discretion, or not in accordance with
law." Id. at 537, quoting Doe, Sex Offender Registry Bd. No.
356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 76
(2015). "In reviewing [the board's] decisions, we give due
weight to the experience, technical competence, and specialized
knowledge of the agency" (quotation and citation omitted). Doe,
Sex Offender Registry Bd. No. 234076 v. Sex Offender Registry
Bd., 484 Mass. 666, 670 (2020) (Doe No. 234076). Doe challenges
the examiner's application of factors 29 (offense-free time in
the community), 32 (sex offender treatment), and 2 (repetitive
and compulsive behavior). We address each argument in turn.
a. Factor 29: Offense-free time in the community. Doe
argues that the examiner's decision was arbitrary and capricious
because it ignored the mitigating effect of his nine years of
offense-free time while in the community. We agree.
Factor 29 states that, for an adult male such as Doe, the
"likelihood of sexual recidivism decreases the longer the sex
offender has had access to the community without committing any
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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
24-P-707
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 527940
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 classification by the Sex Offender
Registry Board (SORB or board) as a level two sex offender. On
appeal, Doe argues that the hearing examiner (examiner), who
reduced his sex offender classification from a level three to a
level two, failed to provide adequate consideration of (1) Doe's
offense-free time in the community (factor 29) and (2) his
participation in sex offender treatment (factor 32).1 Doe also
1We refer to SORB's classification factors by number, or name and number, it being understood that each of them appears in the corresponding subpart of 803 Code Mass. Regs. § 1.33 (2016). SORB's regulations were updated in 2025, but the 2016 version of the regulations were in effect at the time of the examiner's decision in this case and therefore govern our analysis. argues that the examiner misapplied factor 2 (repetitive and
compulsive behavior) to him. For the reasons set forth below,
we conclude that a remand is necessary for the examiner to
address what weight, if any, to give Doe's offense-free time in
the community prior to his 2022 conviction and to reconsider the
decision to give moderate rather than full weight to Doe's
participation in sex offender treatment.
Background. In 2011, the parents of a ten year old boy
reported to police that Doe had sexually assaulted their son at
day camp, where Doe was working as a camp counselor. The boy's
parents did not wish to press criminal charges, and Doe was
never formally charged.2 From February 2012 until March 2013,
Doe worked at a mental health service provider as a therapeutic
mentor. In 2013, the mother of a nine year old boy with autism
reported that Doe, the boy's therapeutic mentor at the time, had
sexually assaulted her son. The victim reported during a Sexual
Assault Intervention Network (SAIN) interview that Doe had
"touched and rubbed" the victim's buttocks over his clothing
while at a local wildlife rehabilitation center. Doe was
arraigned on one count of indecent assault and battery on a
2 Although Doe was never criminally charged with sexually assaulting the ten year old boy, the examiner found "sufficient reliable and credible evidence" to find the allegations that Doe had assaulted the boy as fact.
2 child under the age of fourteen and one count of assault and
battery on a disabled person with injury. On June 1, 2016, Doe
pleaded guilty to a single count of simple assault and battery
and was sentenced to a three-year probation term.3 As part of
his probation, the plaintiff was referred to and enrolled in sex
offender treatment.
In 2019, a few months before Doe completed his probationary
term, additional allegations surfaced from Doe's former role as
a therapeutic mentor -- a mother reported that in 2013 Doe had
sexually assaulted her son, who was between nine and ten years
old at the time. During a SAIN interview, the victim reported
that Doe would drive him to isolated locations, touch the
victim's penis and testicles, and take pictures of the victim's
penis with his cell phone. The victim also reported that Doe
had asked that the victim touch him, but the victim had refused.
In June 2021, Doe pleaded guilty to two counts of indecent
assault and battery on a child under fourteen and one count of
enticing a child under sixteen. He was sentenced to a three-
year probation term and was required to enroll in a sex offender
3 Although the indecent assault charge was amended to simple assault and battery, the examiner found "sufficient reliable and credible evidence" to find as fact that Doe had sexual assaulted the victim.
3 treatment program, register with SORB, and have no unsupervised
visits or employment with children under the age of sixteen.
In 2021, the board initially classified Doe as a level
three sex offender, which he requested a hearing to challenge.
The hearing was held in February 2022, at which Doe's father and
brother testified in his favor. The examiner reviewed the
witness testimony as well as several exhibits offered by SORB
and Doe, including police reports, Doe's probation record, a
victim impact statement, and letters of support for Doe. The
examiner found evidence to support two high-risk factors, five
risk-elevating factors, and gave full or partial weight to four
risk-mitigating factors. The examiner issued a decision on June
7, 2022, ordering Doe to register as a level two sex offender
and that his sex offender registry information be disseminated
on the Internet.4 A Superior Court judge affirmed the examiner's
order, and this appeal followed.
Discussion. "To determine the validity of an agency's
decision, the reviewing court must determine whether the
decision is supported by substantial evidence" (citation
omitted). Doe, Sex Offender Registry Bd. No. 6969 v. Sex
Offender Registry Bd., 99 Mass. App. Ct. 533, 536 (2021). "The
4 Doe sought and obtained a number of stays to the public dissemination of his sex offender registry information.
4 decision may only be set aside if the court determines that the
decision is unsupported by substantial evidence or is arbitrary
or capricious, an abuse of discretion, or not in accordance with
law." Id. at 537, quoting Doe, Sex Offender Registry Bd. No.
356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 76
(2015). "In reviewing [the board's] decisions, we give due
weight to the experience, technical competence, and specialized
knowledge of the agency" (quotation and citation omitted). Doe,
Sex Offender Registry Bd. No. 234076 v. Sex Offender Registry
Bd., 484 Mass. 666, 670 (2020) (Doe No. 234076). Doe challenges
the examiner's application of factors 29 (offense-free time in
the community), 32 (sex offender treatment), and 2 (repetitive
and compulsive behavior). We address each argument in turn.
a. Factor 29: Offense-free time in the community. Doe
argues that the examiner's decision was arbitrary and capricious
because it ignored the mitigating effect of his nine years of
offense-free time while in the community. We agree.
Factor 29 states that, for an adult male such as Doe, the
"likelihood of sexual recidivism decreases the longer the sex
offender has had access to the community without committing any
new sex offense or non-sexual violent offense." In cases in
which an offender was not committed to custody, as here,
offense-free time is calculated from "the most recent date of
5 conviction or adjudication of a sex offense or non-sexual
violent offense."
Factor 29 also includes a temporal element, which states
that an offender's risk of reoffense begins to decrease "after
living in the community offense-free" for five or more years.
Because Doe's most recent sex-offense adjudication was less than
a year old when the board's decision issued in 2022, the plain
language of factor 29 precludes its application here.
The conduct underlying Doe's 2021 adjudication, however,
occurred in 2013, the same year that he committed the offense
that resulted in his 2016 assault and battery conviction. It is
undisputed that Doe did not commit any new offenses between 2013
and his February 2022 classification hearing. Therefore,
although factor 29 cannot formally be applied, the record
reflects that Doe lived in the community without reoffending for
approximately nine years since his last known offenses, and
nearly six years after being convicted of one of those offenses.
At the hearing, Doe raised the fact that he had substantial
offense-free time in the community multiple times.5 The
5 Doe argues he should be given credit for offense-free time in the community dating back to 2013, when the offenses actually occurred. But factor 29 applies to offense-free time post- conviction, so even had Doe not been convicted again in 2021, his plea in 2016 would be the operative point of reference under the plain terms of factor 29. The question remains whether the examiner could nonetheless give Doe credit for additional years
6 examiner's decision nevertheless does not address how Doe's
years of offense-free time in the community may affect his
likelihood of recidivism.6
"[A] SORB classification decision will be deemed
'[a]rbitrary or capricious,' G. L. c. 30A, § 14 (7) (g), if it
fails to take into account reliable evidence that a factor
relevant to a given offender affects the likelihood that the
offender will recidivate." Doe, Sex Offender Registry Bd. No.
68549 v. Sex Offender Registry Bd., 470 Mass. 102, 112 (2014)
(Doe No. 68549). We conclude that it is arbitrary for a hearing
examiner to issue a decision that neglects to mention Doe's
offense-free time in the community where the regulations
indicate that such time indicates a lower risk of recidivism,
even if such time cannot be considered under factor 29.
"Troublesome facts . . . are to be faced rather than ignored"
(citation omitted). Doe, Sex Offender Registry Bd. No. 11204 v.
of offense-free time, if not under factor 29 than under catch- all factor 37. This is a question to be addressed by the examiner in the first instance.
6 Because factor 29 appears to be based on research evaluating offense-free time following a conviction or incarceration, expert testimony may be required to aid the board in determining how the research applies to cases such as Doe's, in which a retroactive conviction would seemingly wipe out six years of postconviction offense-free time in the community. Cf. Doe No. 234076, 484 Mass. at 670-671.
7 Sex Offender Registry Bd., 97 Mass. App. Ct. 564, 575 (2020)
(Doe No. 11204).
We offer no opinion as to whether Doe should receive credit
for his offense-free time in the community prior to his guilty
plea in 2021. We acknowledge that the clock likely reset in
2021 for purposes of a direct application of factor 29. The
facts in this case, however, require some explanation -- whether
under factor 29 or the catch-all factor 37 -- of why a later
conviction for an earlier crime undermines the predictive value
of the multiple postconviction offense-free years Doe spent in
the community. This is particularly true where Doe raised the
issue of his offense-free time in the community and the factor
in question suggests that such time lowers an offender's risk of
recidivism.7
b. Factor 32: Participation in sex offender treatment.
Doe also argues the examiner erred in applying factor 32 by
giving it only moderate rather than full weight with no
explanation. Again, we agree. For adult males, "participation
in or successful completion of sex offense-specific treatment
. . . is a risk-reducing factor." Here, the examiner considered
a letter from Doe's therapist indicating that Doe had
7 Because we are vacating the classification decision and remanding for further proceedings, Doe's information may not be disseminated until the board issues a new decision.
8 participated in sex offender treatment from July 2016 to January
2022, the date of the letter. The therapist described the
substantial effect sex offender treatment had on Doe, and,
according to the therapist, Doe's participation in treatment
reduced his dynamic risk from high to low. Doe's therapist
completed a form provided by SORB describing Doe's treatment
status. The therapist reported that Doe consistently attended
and was an active participant in treatment, was able to fully
describe all four phases of the deviant cycle, could identify
his triggers, and demonstrated a capacity for victim empathy.
In sum, the therapist provided uniformly positive feedback and
indicated that Doe had successfully addressed all of the sixteen
areas identified by the board on its status report form. Doe's
father also testified at the hearing that Doe continued to
participate in treatment "religiously" and the therapist noted
that Doe stated he would continue to participate in treatment
even after the expiration of the court order requiring him to do
so. The examiner also reviewed a letter written by Doe,
describing the positive effect sex offender treatment had on
him.
At the same time, the record indicates that Doe remained
subject to approximately two additional years of treatment,
required by the terms of his probation, at the time of the
9 hearing. Under factor 32, the fact that Doe was attending
treatment while under community supervision bears on the weight
to be assigned.
The examiner appeared to credit all of the aforementioned
evidence but nevertheless accorded Doe only moderate weight for
factor 32 without explanation.8 We acknowledge that the examiner
has discretion "to consider which statutory and regulatory
factors are applicable and how much weight to ascribe to each
factor." Doe No. 68549, 470 Mass. at 109-110. And we agree
that an examiner need not provide a lengthy explanation in
response to "every argument or piece of evidence that the
parties present." Doe, Sex Offender Registry Bd. No. 524174 v.
Sex Offender Registry Bd., 106 Mass. App. Ct. 331, 338 n.6
(2025). Still, "we will not supply a reasoned basis for the
agency's action that the agency itself has not given" (quotation
and citation omitted). NSTAR Elec. Co. v. Department of Pub.
Utils., 462 Mass. 381, 387 (2012). Here, we cannot discern
whether the examiner assigned factor 32 moderate weight because
8 We decline Doe's invitation to expand the record to include materials that were filed in support of his motion to stay before the judge of the Superior Court. These affidavits were created approximately two years after his classification hearing. Because we are remanding the case for a new hearing, we leave it to the examiner to determine whether to consider materials submitted by Doe in support of his position that he poses a low degree of dangerousness and risk to reoffend.
10 Doe's participation remained court ordered rather than voluntary
or for some other reason. Where, as here, the record
demonstrates meaningful and effective participation in
treatment, but also that the treatment was ongoing and required,
the examiner was required to explain how these considerations
bore on the weight assigned.
SORB now suggests that the examiner declined to give full
weight because Doe had not "completed" sex offense-specific
treatment. Although the record would support such a finding
given that Doe remained in court-ordered treatment at the time
of the hearing, that rationale does not appear in the examiner's
decision and we cannot supply it on her behalf. A reasoned
analysis is required, as "[a]ny other approach would effectively
insulate the SORB's action from effective review" (citation
omitted). See Doe No. 11204, 97 Mass. App. Ct. at 576.
Our review "does not turn on whether, faced with the same
set of facts, we would have drawn the same conclusion" as the
examiner (citation omitted). Doe, Sex Offender Registry Bd. No.
356315 v. Sex Offender Registry Bd., 99 Mass. App. Ct. 292, 300
(2021). Here, where the examiner has credited substantial
evidence of Doe's effective participation in treatment,
including evidence that his dynamic risk had decreased, yet
assigned only moderate weight without explaining how the
11 regulatory distinctions between participation in treatment and
completion were applied, remand is required. Id. (review turns
on whether "a contrary conclusion is not merely a possible but a
necessary inference" [citation omitted]).
c. Factor 2: Repetitive and compulsive behavior.
Finally, Doe argues that it was erroneous for the examiner to
apply factor 2, repetitive and compulsive behavior, to his case.
We disagree. The board may apply factor 2 when an offender
commits a sex offense after having been (1) "discovered and
confronted (by someone other than the victim)"; or
(2) "investigated by an authority for sexual misconduct." Doe
committed two offenses in 2013, after being investigated by the
Department of Children and Families for sexually assaulting a
child in 2011. These facts fall within the plain language of
factor 2. Doe's argument that factor 2 should not apply to him
appears to be based on the mistaken assumption that, if he were
credited with years of offense-free time under factor 29, that
would preclude the application of factor 2. To the contrary,
nothing in the regulations precludes the application of high-
risk factors despite the presence of strongly mitigating
factors. Indeed, "[t]hese factors may be present to varying
degrees in any individual case." 803 Code Mass. Regs. § 1.33.
Furthermore, even were the hearing examiner to conclude that
12 factor 29 should apply in full force, a "hearing examiner . . .
may consider an offender's older sexual offenses where they are
relevant to a holistic assessment of the offender's current
degree of dangerousness." Doe, Sex Offender Registry Bd. No.
496501 v. Sex Offender Registry Bd., 482 Mass. 643, 651 (2019)
(Doe No. 496501).
Conclusion. On this record, we cannot be certain that the
examiner's final determination of Doe's risk of reoffense and
degree of dangerousness was supported by substantial evidence.
See Doe No. 496501, 482 Mass. at 649, citing G. L. c. 30A,
§ 14 (7). The judgment of the Superior Court affirming SORB's
classification decision is vacated, and a new judgment shall
13 enter vacating the decision of SORB and remanding the matter to
SORB for further proceedings consistent with this decision.9
So ordered.
By the Court (Shin, Walsh & Allen, JJ.10),
Clerk
Entered: April 30, 2026.
9 Although Doe urges this court to order that he be classified as a level one offender, we do not know that the examiner would conclude that Doe is a level one offender even if risk-mitigating factors 29 and 32 were given full weight. "It is appropriate for such issues to be resolved in the first instance by the agency in the adjudicatory process, not in judicial review of that process" (citation omitted). Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender Registry Bd., 101 Mass. App. Ct. 797, 804 (2022).
10 The panelists are listed in order of seniority.