Jane Doe, Sex Offender Registry Board No. 300581 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-386

JANE DOE, SEX OFFENDER REGISTRY BOARD NO. 300581

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Jane Doe, appeals from a Superior Court

summary judgment in favor of the defendant, the Sex Offender

Registry Board (SORB), on Doe's complaint seeking declaratory

and injunctive relief that SORB's regulations are arbitrary and

capricious as applied to her and therefore violate her

constitutional right to due process of law. Doe argues that a

genuine issue of material fact is shown by the affidavit of her

expert averring that the SORB regulations "as applied to females

convicted of sexual offenses, including . . . Doe, are not

consistent with the empirical literature and do not reflect best

practices for risk assessment for this population." Because

Doe's expert affidavit does not set forth any facts calling into
question how the SORB regulations were applied to Doe

individually, as opposed to female offenders as a group, it does

not present a dispute of fact that is material in an as-applied

challenge, and thus we affirm the judgment.

Background. In August 2010, Doe pleaded guilty to two

counts of indecent assault and battery on children under

fourteen. The convictions were based on an incident in which

Doe, then twenty years old, forced a twelve year old boy to put

his penis into her "butt," forced the head of a different twelve

year old boy toward her genitals for cunnilingus, and asked one

of the boys to engage in sex acts with an eight year old girl.

At sentencing, the judge considered an evaluation in aid of

sentencing of Doe by forensic psychologist Dr. Charlotte Denton.

After multiple hearings, SORB in 2018 classified Doe as a

level two sex offender, based on a finding by clear and

convincing evidence that her risk of reoffense was moderate, her

dangerousness was moderate, and a public safety interest was

served by Internet publication of her registry information. See

G. L. c. 6, § 178K (2) (b). In making that classification, the

hearing examiner applied SORB's regulations, 803 Code Mass.

Regs. § 1.33 (2016), which recognize that the rate of reoffense

among female sex offenders is low, and as a result female sex

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offenders are entitled to "mitigating weight."1 The hearing

examiner considered Dr. Denton's aid in sentencing evaluation

and the testimony of Doe's expert, clinical psychologist Dr.

Frederick Winsmann, about female sex offenders' recidivism

rates. In addition, the hearing examiner considered two studies

submitted by Doe dated 2005 and 2007 on recidivism in female sex

offenders.2 The hearing examiner concluded that the studies

support a low risk of reoffense for female sex offenders

generally, but they also point to several risk-aggravating

factors present here. Unlike most female sex offenders, Doe

committed her sex offenses alone rather than with a male

accomplice. Other risk-aggravating factors recognized by those

studies include that Doe was victimized in childhood, had

difficulties maintaining intimate relationships, and had

problems with mental health and substance use.

1 As to the factors listed in 803 Code Mass. Regs. § 1.33,
the hearing examiner gave maximum weight to high-risk factor 3
(adult offender with child victim), and also found elevated risk
based on factors 7 (relationship between offender and victim),
21 (diverse victim type), and 22 (number of victims). Among the
other factors that the hearing examiner considered to be risk-
elevating were factors 9 (alcohol and substance use) and 13
(noncompliance with community supervision). Among the factors
that the hearing examiner considered risk-mitigating were
factors 28 (supervision by probation), 29 (offense-free time in
the community), and 33 (home situation and support systems).

2 Those two studies were discussed by the court in Doe, Sex
Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd.,
466 Mass. 594, 603, 605 (2013).

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Doe filed her Superior Court complaint seeking judicial

review of her classification as a level two sex offender, G. L.

c. 30A, § 14, and a separate claim for declaratory and

injunctive relief challenging the SORB regulations as applied to

her, G. L. c. 231A, §§ 1 & 2. Doe moved for judgment on the

pleadings on the chapter 30A claim, arguing that the level two

classification was not supported by substantial evidence and

that the SORB regulations "are invalid as-applied to Doe." A

judge denied the motion, concluding that the SORB regulations

were not arbitrary and capricious as applied to Doe, because the

hearing examiner considered evidence presented by Doe on the

subject of recidivism in female sex offenders, including Dr.

Winsmann's testimony and the two scholarly articles. G. L.

c. 6, § 178K (1) (l) ("any materials submitted by the sex

offender"); 803 Code Mass. Regs. § 1.33(37) ("any information

that [SORB] deems useful"). The judge ordered that judgment

enter affirming SORB's determination that Doe is a level two sex

offender.

On the remaining counts for declaratory and injunctive

relief, SORB moved for summary judgment, supported by an

affidavit of clinical psychologist Dr. Alexandria M. Weida. Doe

opposed summary judgment, supported by an affidavit of forensic

psychologist Dr. Kaitlyn Peretti. Another Superior Court judge

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granted summary judgment in favor of SORB. That judge noted

that in denying Doe's motion for judgment on the pleadings, the

first judge had already considered and rejected Doe's argument

that SORB's regulations were invalid as applied to Doe because

they were not based on a scientific understanding of recidivism

rates of female sex offenders. The second judge then concluded

that, were she to consider Doe's as-applied challenge anew, it

would not succeed, because the hearing examiner "performed a

careful and individualized assessment of Doe," applying the SORB

regulations that treated as mitigating Doe's status as a female

sex offender and considering the expert testimony and scholarly

articles submitted by Doe. Final judgment entered for SORB.

Doe now appeals from the summary judgment on her claims for

declaratory and injunctive relief.3

Discussion. Summary judgment is appropriate if, as shown

by materials comprised of the pleadings, discovery responses,

and affidavits, "there is no genuine issue of material fact."

Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). See

DuPont v. Commissioner of Correction, 448 Mass. 389, 397 (2007).

In reviewing the allowance of summary judgment, we view the

evidence in the light most favorable to Doe, the nonmoving

3 Doe does not appeal from the judgment on the pleadings in
favor of SORB on her G. L. c. 30A, § 14 claim for judicial
review of her classification as a level two sex offender.

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party, and determine whether SORB is entitled to judgment as a

matter of law. See Edwards v. Commonwealth, 488 Mass. 555, 562

(2021). Because Doe as plaintiff has the burden of proof at

trial, SORB is entitled to summary judgment if it demonstrates

by reference to the rule 56 (c) materials, "unmet by

countervailing materials," that Doe has no reasonable

expectation of proving an essential element of her case.

DuPont, supra at 397, quoting Kourouvacilis v. General Motors

Corp., 410 Mass. 706, 716 (1991). Our review is de novo,

without deference to the motion judge's reasoning. See Doe v.

Massachusetts Parole Bd., 82 Mass. App. Ct. 851, 857 (2012).

Consideration of administrative record on summary judgment.

Doe argues that in granting summary judgment to SORB, the second

judge improperly conflated Doe's claim that the SORB regulations

were invalid as applied to her with her claim for judicial

review of her sex offender classification.4 Doe contends that in

ruling on her as-applied challenge to the constitutionality of

the SORB regulations, the second judge improperly "refer[red]

back to the SORB record" which was "largely stale," and instead

the parties should have conducted further discovery beyond the

administrative record so that a "separate adjudication" could be

4 We pass over the question whether, in denying Doe's motion
for judgment on the pleadings, the first judge had already
rejected Doe's as-applied challenge to the SORB regulations.

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made on the counts for declaratory and injunctive relief. We

are not persuaded.

The administrative record was entered as SORB's answer on

the docket of the Superior Court and thus was among the

"pleadings," Mass. R. Civ. P. 56 (c), comprising the summary

judgment materials. In closing argument at the administrative

hearing, Doe's counsel argued that although the SORB regulations

had been amended in 2016 to consider a female sex offender's

gender in assessing her risk of reoffense, the amended

regulations failed to "differentiate females from males" and

were "still inconsistent with the research."

In those circumstances, Doe's challenge to the SORB

regulations as applied to her was "closely intertwined" with the

evidence in the administrative record supporting her

classification as a level two sex offender. Doe, Sex Offender

Registry Bd. No. 339940 v. Sex Offender Registry Bd., 488 Mass.

15, 19-20 (2021) (plaintiff raised as-applied challenge to

statutory registration requirement before SORB and in Superior

Court chapter 30A action). Contrast Doe, Sex Offender Registry

Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 630

(2011) (facial challenge to SORB's classification regulations

must be asserted through claim for declaratory judgment).

Simply put, the hearing examiner's decision classifying Doe, and

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the administrative record materials to which it referred, were

the central evidence of how SORB's regulations had been applied

to Doe, and that was the target of Doe's declaratory judgment

claim. It may well be questioned whether such a claim (as

opposed to a chapter 30A or similar claim) is an appropriate way

to challenge how a regulation has been applied to a particular

person. See Frawley v. Police Comm'r of Cambridge, 473 Mass.

716, 724-726 (2016). Assuming arguendo that it is, in ruling on

the summary judgment motion on Doe's claims for declaratory and

injunctive relief, the second judge properly considered the

administrative record.

Absence of genuine issue of material fact. Doe argues that

the second judge erred in granting summary judgment, asserting

that a genuine dispute of material fact exists whether SORB's

regulations may constitutionally be applied to Doe because they

do not adequately account for differences in recidivism between

male and female sex offenders. From the summary judgment record

before us, we conclude that Doe did not set forth facts that

raised a genuine issue of material fact whether SORB's

regulations are unconstitutional as they were applied to her.

In Doe, Sex Offender Registry Bd. No. 205614 v. Sex

Offender Registry Bd., 466 Mass. 594, 606 (2013) (Doe No.

205614), the Supreme Judicial Court held that the then-current

8
SORB regulations, which had been promulgated in 2002, "developed

as they were from studies of male offenders, could not predict

accurately the recidivism risk of a female offender, and . . .

such risk could not be evaluated without examining the effect of

gender." The court cautioned that "it is not necessarily the

case that all risk factors contained in the guidelines are

categorically inapplicable to females," but the research before

the court "strongly indicates that the factors have a weaker

predictive value for females." Id. at 606-607. In 2016 in

response to that case, SORB promulgated the regulations that

were applied here.

On summary judgment, Doe's expert, Dr. Peretti, averred

that because of the "lack of empirical support" for assessment

practices for female sex offenders, it is inappropriate to apply

to them the assessment practices for male sex offenders. Dr.

Peretti opined that the SORB regulations "as applied to females

convicted of sexual offenses, including Jane Doe, are not

consistent with the empirical literature and do not reflect best

practices for risk assessment for this population."

Absent from Dr. Peretti's affidavit was any discussion of

how the SORB regulations were applied to Doe individually, i.e.,

as apart from other female sex offenders. The affidavit did not

discuss whether the hearing examiner's having accorded

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mitigating weight to Doe's status as a female offender, 803 Code

Mass. Regs. § 1.33, and having considered expert testimony and

scholarly articles presented by Doe about recidivism in female

sex offenders, G. L. c. 6, § 178K (1) (l); 803 Code Mass. Regs.

§ 1.33(37), sufficiently tailored the SORB regulations to Doe.

See 803 Code Mass. Regs. § 1.33 (final classification is based

on "a qualitative analysis of the individual sex offender's

history and personal circumstances"). We conclude that Doe did

not demonstrate a genuine issue of material fact by proffering

her expert's opinion that regulations based on scientific

studies of male sex offenders cannot be applied to females

generally, without discussion of how the SORB regulations were

applied to Doe in this case.

Dr. Peretti's opinion that, as applied to female sex

offenders generally, the SORB regulations were inconsistent with

research and best practices did not amount to "specific facts

showing that there is a genuine issue for trial," Mass.

R. Civ. P. 56 (e), 365 Mass. 824 (1974), on a challenge to the

regulations as applied to Doe. As for Doe's claim that she

should have been permitted to develop a further record in

discovery, it is unavailing. Doe did not file an affidavit

invoking Mass. R. Civ. P. 56 (f), 365 Mass. 824 (1974), and

explaining how she anticipated challenging the regulations as

10
applied to her. See First Nat'l Bank of Boston v. Slade, 379

Mass. 243, 244-245 (1979). See also G. L. c. 30A, § 14 (6).

In DuPont, 448 Mass. at 402, the plaintiff, a male inmate,

argued that Department of Correction (DOC) regulations imposing

disciplinary confinement on the most predatory and dangerous

inmates were unconstitutional as applied to him because those

regulations had not been applied to any female inmates. Based

on the summary judgment record including an affidavit of the DOC

commissioner that a similar disciplinary unit was not presently

necessary at the women's prison and, should the need arise, one

could be established there, id. at 397, the Supreme Judicial

Court held that the plaintiff had "no reasonable expectation of

establishing that he and female prisoners are similarly

situated," id. at 402, and thus summary judgment for DOC was

appropriate.

We conclude that Doe had no reasonable expectation of

proving that the SORB regulations, as amended in 2016 to

consider the relevance of gender in assessing the risk of

11
reoffense, and as applied to Doe by the hearing examiner in

2018, are unconstitutional as applied to her.

Judgment entered August 16,
2022, affirmed.

By the Court (Sacks,
Englander & Grant, JJ.5),

Clerk

Entered: November 8, 2024.

5 The panelists are listed in order of seniority.

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