John Doe, Sex Offender Registry Board No. 244176 v. Sex Offender Registry Board.

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

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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,

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§ 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.

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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).

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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

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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.

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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

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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

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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.

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