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-181
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 528140
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court
judgment affirming a decision of the Sex Offender Registry Board
(board) classifying him as a level two sex offender. On appeal,
Doe argues that the hearing examiner erred in (1) concluding
that Doe and the victim had an extrafamilial relationship, and
thereby in applying regulatory factor 7 (relationship between
offender and victim); and (2) concluding that a public safety
interest is served by Internet dissemination of Doe's
registration information. We affirm.
Background. On March 25, 2021, Doe, then twenty-nine years
old, assaulted a woman he was living with at the time. The
victim reported to the police that she and Doe were drinking alcohol together when, at some point, Doe demanded to have sex
with her, which she refused. As a result, Doe jumped on top of
the victim and grabbed her by the neck with both hands. The
victim stated that she was able to free herself, but Doe grabbed
her again and threw her back onto the futon they were sitting
on. Doe once again got on top of the victim, forcefully grabbed
her hair, and bit her on the lip, causing her to bleed. The
victim was able to free herself, stood up, and grabbed her cell
phone to call for help. Doe took the phone out of her hand and
threw it on the ground. The victim then pleaded with Doe to
allow her to use the bathroom.
Once the victim was in the bathroom, Doe entered shortly
thereafter and again attempted to have sex with her. The victim
eventually pushed Doe out of the bathroom, got dressed, and went
back out to the living room, where she was able to retrieve her
phone and text a friend for help, who in turn called 911.
When the police arrived, the victim informed them that she
had been assaulted by her roommate, Doe. The victim also told
the police that she and Doe had known each other for just over
three years and had been living together. She went on to state
that, although they were not in an official relationship, they
"share[d] occasional intimacy." The police observed that the
victim had a large cut on her lip and a reddened area on her
2 chest. They also saw a broken coffee table, a shattered
entertainment center, and several items strewn on the floor
within the apartment. Doe fled the apartment when the police
arrived but was arrested a short time later when he returned to
the area.
After he was in police custody, Doe admitted to the police
that he and the victim were drinking alcohol earlier in the
evening and that he became upset when the victim refused to have
sex with him. Doe stated that he had known the victim for about
three years and that they have been living together for "a
while." He also confirmed that they occasionally "share[d]
intimate moments."
On October 6, 2021, Doe pleaded guilty to attempted
indecent assault and battery on a person fourteen or older,1
assault and battery on a family or household member, and
intimidation of a witness. On all three counts, Doe was given a
two-year committed sentence, six months to serve, with the
balance suspended until October 5, 2023.
On February 17, 2023, following a classification hearing
before the board, Doe was ordered to register as a level two sex
1 This charge was reduced from assault with intent to rape, in violation of G. L. c. 265, § 24.
3 offender.2 On November 6, 2023, a judge of the Superior Court
affirmed the board's classification.
Discussion. 1. Standard of review. We review de novo a
judge's consideration of an agency decision. See Doe, Sex
Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd.,
95 Mass. App. Ct. 85, 89 (2019). In reviewing a board's
decision, "we 'give due weight to the experience, technical
competence, and specialized knowledge of the agency.'" Doe, Sex
Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd.,
466 Mass. 594, 602 (2013), quoting G. L. c. 30A, § 14 (7). "A
reviewing court may set aside or modify [the board's]
classification decision where it determines that the decision is
in excess of [the board'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
2 In February 2022, the board notified Doe of his duty to register as a level three sex offender. Doe challenged that decision and received a de novo hearing in December 2022, resulting in the level two classification.
4 Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd.,
459 Mass. 603, 632 (2019), quoting G. L. c. 30A, § 1 (6).
To classify an individual as a level two sex offender, the
hearing examiner must make three explicit findings by clear and
convincing evidence: "(1) that the risk of reoffense is
moderate; (2) that the offender's dangerousness, as measured by
the severity and extent of harm the offender would present to
the public in the event of reoffense, is moderate; and (3) that
a public safety interest is served by Internet publication of
the offender's registry information." Doe No. 496501, 482 Mass.
at 644.
2. Relationship between offender and victim. Doe argues
that the evidence was insufficient to support the hearing
examiner's conclusion that his relationship with the victim was
extrafamilial. We disagree.
The regulation defining factor 7 explains that "[t]he
number of potential victims substantially increases when
offenders choose to sexually offend against extrafamilial
victims" and that "[h]aving victims outside the family
relationship is empirically related to an increased risk of
reoffense." 803 Code Mass. Regs. § 1.33(7)(a)(2) (2016).3 Thus,
3 The regulation was amended in 2025. See 803 Code Mass. Regs. § 1.33(7) (2025).
5 if an offender sexually offends against an extrafamilial victim,
factor 7 applies with risk-elevating weight; if the victim is
intrafamilial, factor 7 is neutral. See Doe, Sex Offender
Registry Bd. No. 524553 v. Sex Offender Registry Bd., 98 Mass.
App. Ct. 525, 533 (2020). Extrafamilial is defined by 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
24-P-181
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 528140
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court
judgment affirming a decision of the Sex Offender Registry Board
(board) classifying him as a level two sex offender. On appeal,
Doe argues that the hearing examiner erred in (1) concluding
that Doe and the victim had an extrafamilial relationship, and
thereby in applying regulatory factor 7 (relationship between
offender and victim); and (2) concluding that a public safety
interest is served by Internet dissemination of Doe's
registration information. We affirm.
Background. On March 25, 2021, Doe, then twenty-nine years
old, assaulted a woman he was living with at the time. The
victim reported to the police that she and Doe were drinking alcohol together when, at some point, Doe demanded to have sex
with her, which she refused. As a result, Doe jumped on top of
the victim and grabbed her by the neck with both hands. The
victim stated that she was able to free herself, but Doe grabbed
her again and threw her back onto the futon they were sitting
on. Doe once again got on top of the victim, forcefully grabbed
her hair, and bit her on the lip, causing her to bleed. The
victim was able to free herself, stood up, and grabbed her cell
phone to call for help. Doe took the phone out of her hand and
threw it on the ground. The victim then pleaded with Doe to
allow her to use the bathroom.
Once the victim was in the bathroom, Doe entered shortly
thereafter and again attempted to have sex with her. The victim
eventually pushed Doe out of the bathroom, got dressed, and went
back out to the living room, where she was able to retrieve her
phone and text a friend for help, who in turn called 911.
When the police arrived, the victim informed them that she
had been assaulted by her roommate, Doe. The victim also told
the police that she and Doe had known each other for just over
three years and had been living together. She went on to state
that, although they were not in an official relationship, they
"share[d] occasional intimacy." The police observed that the
victim had a large cut on her lip and a reddened area on her
2 chest. They also saw a broken coffee table, a shattered
entertainment center, and several items strewn on the floor
within the apartment. Doe fled the apartment when the police
arrived but was arrested a short time later when he returned to
the area.
After he was in police custody, Doe admitted to the police
that he and the victim were drinking alcohol earlier in the
evening and that he became upset when the victim refused to have
sex with him. Doe stated that he had known the victim for about
three years and that they have been living together for "a
while." He also confirmed that they occasionally "share[d]
intimate moments."
On October 6, 2021, Doe pleaded guilty to attempted
indecent assault and battery on a person fourteen or older,1
assault and battery on a family or household member, and
intimidation of a witness. On all three counts, Doe was given a
two-year committed sentence, six months to serve, with the
balance suspended until October 5, 2023.
On February 17, 2023, following a classification hearing
before the board, Doe was ordered to register as a level two sex
1 This charge was reduced from assault with intent to rape, in violation of G. L. c. 265, § 24.
3 offender.2 On November 6, 2023, a judge of the Superior Court
affirmed the board's classification.
Discussion. 1. Standard of review. We review de novo a
judge's consideration of an agency decision. See Doe, Sex
Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd.,
95 Mass. App. Ct. 85, 89 (2019). In reviewing a board's
decision, "we 'give due weight to the experience, technical
competence, and specialized knowledge of the agency.'" Doe, Sex
Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd.,
466 Mass. 594, 602 (2013), quoting G. L. c. 30A, § 14 (7). "A
reviewing court may set aside or modify [the board's]
classification decision where it determines that the decision is
in excess of [the board'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
2 In February 2022, the board notified Doe of his duty to register as a level three sex offender. Doe challenged that decision and received a de novo hearing in December 2022, resulting in the level two classification.
4 Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd.,
459 Mass. 603, 632 (2019), quoting G. L. c. 30A, § 1 (6).
To classify an individual as a level two sex offender, the
hearing examiner must make three explicit findings by clear and
convincing evidence: "(1) that the risk of reoffense is
moderate; (2) that the offender's dangerousness, as measured by
the severity and extent of harm the offender would present to
the public in the event of reoffense, is moderate; and (3) that
a public safety interest is served by Internet publication of
the offender's registry information." Doe No. 496501, 482 Mass.
at 644.
2. Relationship between offender and victim. Doe argues
that the evidence was insufficient to support the hearing
examiner's conclusion that his relationship with the victim was
extrafamilial. We disagree.
The regulation defining factor 7 explains that "[t]he
number of potential victims substantially increases when
offenders choose to sexually offend against extrafamilial
victims" and that "[h]aving victims outside the family
relationship is empirically related to an increased risk of
reoffense." 803 Code Mass. Regs. § 1.33(7)(a)(2) (2016).3 Thus,
3 The regulation was amended in 2025. See 803 Code Mass. Regs. § 1.33(7) (2025).
5 if an offender sexually offends against an extrafamilial victim,
factor 7 applies with risk-elevating weight; if the victim is
intrafamilial, factor 7 is neutral. See Doe, Sex Offender
Registry Bd. No. 524553 v. Sex Offender Registry Bd., 98 Mass.
App. Ct. 525, 533 (2020). Extrafamilial is defined by the
regulation to include "[a]ny persons who are family member
substitutes (e.g. foster, step-relatives, or any other type of
familial household 'live-in' relationship) who lived in the same
household with the offender for less than two years prior to the
offending behavior." 803 Code Mass. Regs. § 1.33(7)(a)(2). In
contrast, for a victim to be considered intrafamilial, the
parties must have lived together for two or more years. See 803
Code Mass. Regs. § 1.33(7)(a)(1). Whether a victim is
extrafamilial or intrafamilial is a "subsidiary fact" pertaining
to an offender's risk of reoffense that must be proved by a
preponderance of the evidence. See Doe No. 496501, 482 Mass. at
656.
Here, contrary to Doe's arguments, the board proved by a
preponderance of the evidence that the victim was extrafamilial
to Doe. The evidence presented at the classification hearing
regarding the nature of Doe's relationship with the victim came
from both the victim's and Doe's statements to police. For
example, the victim characterized herself and Doe as "roommates"
6 who shared occasional intimacy. Additionally, both Doe and the
victim told police that they had known one another for about
three years and that they had been living together at the time
Doe assaulted the victim.4 Importantly, there was no evidence
presented that Doe and the victim had lived in the same
household for two or more years prior to the assault. See 803
Code Mass. Regs. § 1.33(7)(a)(2). Furthermore, Doe did not
offer any evidence that contradicted the victim's
characterization that they were roommates who shared occasional
intimacy. Even putting aside how long they had lived together,
the hearing examiner could view this roommate relationship as
similar to the "family member substitute[]" or "familial
household 'live-in' relationship" the regulation envisions. As
a result, it was not unreasonable for the hearing examiner to
conclude that Doe and the victim were roommates and that their
relationship was extrafamilial. See John Doe, Sex Offender
Registry Bd. No. 23656 v. Sex Offender Registry Board, 483 Mass.
131, 139 (2019) (Doe No. 23656) ("[o]ur review of a hearing
examiner's decision does not turn on whether, faced with the
same set of facts, we would have drawn the same conclusion, but
4 Doe makes a passing argument for the first time on appeal that this evidence amounts to unreliable hearsay. The argument is waived. See John Doe, Sex Offender Registry Bd. No. 3974 v. Sex Offender Registry Board, 457 Mass. 53, 56 (2010) (failure to raise issue before board constitutes waiver).
7 only whether a contrary conclusion is not merely a possible but
a necessary inference" [citation omitted]).
Doe also asserts that the hearing examiner "chose to
ignore" and demonstrated a "blatant disregard" for relevant
evidence suggesting that the victim's relationship with Doe was
not extrafamilial. He contends this "relevant evidence"
includes the fact that Doe was charged with assault and battery
on a family or household member, in violation of G. L. c. 265,
§ 13M. We disagree. The definition of a family or household
member under G. L. c. 265, § 13M, serves a different purpose
from and does not control the meaning of extrafamilial as set
forth by the board's regulations.5 See G. L. c. 6, § 178K (1)
(instructing board to consider relationship between offender and
victim in determining offender's risk of reoffense and degree of
dangerousness).6
5 Under the criminal statute, the victim's status as a family or household member is an aggravating factor. In contrast, in the board's classification scheme, such a status may indicate that the offender has a lower risk of reoffense.
6 We also disagree with Doe that the hearing examiner engaged in a mechanical or "checklist" application of the factors. Rather, the hearing examiner identified each regulatory factor applied and explained the reason for its application. As such, the hearing examiner's "[analytical] path may reasonably be discerned," NSTAR Elec. Co. v. Department of Pub. Utils., 462 Mass. 381, 387 (2012), quoting Costello v. Department of Pub. Utils., 391 Mass. 527, 535-536 (1984), from the decision, and it is clear that "the classification is based
8 3. Internet publication of registration information. Doe
makes multiple arguments regarding how the hearing examiner
erred in concluding that a public safety interest is served by
the online publication of Doe's registration information.
First, Doe repeats that the hearing examiner "did not consider
that Doe's relationship with the victim was intrafamilial." As
noted above, the board proved by a preponderance of the evidence
that Doe had an extrafamilial relationship with the victim. Doe
further contends that the hearing examiner "did not adequately
explain why the evidence supported a conclusion that Doe
presents a moderate degree of dangerousness." To the contrary,
we agree with the board that the hearing examiner "applied the
regulatory factors to the evidence and articulated his findings
in a thoughtful analysis." The board is also correct that the
hearing examiner, notwithstanding Doe's ultimate plea to a
lesser crime, "explicitly stated that the facts supported a
finding that Doe committed assault with intent to rape, which is
defined as a sexually violent offense." See G. L. c. 6, § 178C.
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). Furthermore, to the extent Doe takes issue with the weight assigned to any factor, it is well established that the hearing examiner has broad discretion to determine how much weight to ascribe to each factor, and we discern no abuse of that discretion here. See Doe No. 23656, 483 Mass. at 139.
9 Accordingly, the hearing examiner did not err in concluding that
Doe's level two classification was supported by clear and
convincing evidence, and that a public interest is served by the
online publication of his registration information. See Doe No.
496501, 482 Mass. at 644.
Judgment affirmed.
By the Court (Desmond, Sacks & Brennan, JJ.7),
Clerk
Entered: August 19, 2025.
7 The panelists are listed in order of seniority.