John Doe, Sex Offender Registry Board No. 527087 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-860

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 527087

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff appellant was convicted, after a guilty plea,

of three counts of indecent assault and battery on a child under

age fourteen, see G. L. c. 265, § 13B, and one count of

providing obscene material to a minor, see G. L. c. 272, § 28.

In 2019, the Sex Offender Registry Board (SORB) notified the

appellant, pursuant to G. L. c. 6, § 178L (1) (a), that it had

preliminarily designated him as a level three sex offender. A

hearing examiner issued a decision finding that Doe currently

poses a high risk of reoffending and high level of dangerousness

and was required to register as a level three sex offender. Doe

sought judicial review, and a Superior Court judge affirmed his

level three classification. Doe then appealed.
During the pendency of the appeal, however, SORB accepted

and declined to appeal Superior Court Judge Wilkins's

injunction, preventing SORB from utilizing factor 2, Doe, Sex

Offender Registry Bd. No. 22188 vs. Sex Offender Registry Bd.,

Mass. Super. Ct., No. 20-1130-B (Middlesex County April 16,

2021), concerning repetitive and compulsive behavior, in certain

circumstances.

Because that decision was relevant to Doe's classification,

by agreement of the parties, the appeal was dismissed, Doe's

classification was vacated, and he received a new hearing at

which factor 2 was not considered. The same hearing examiner

conducted the second hearing, finding by clear and convincing

evidence that Doe currently poses a moderate risk of reoffending

and moderate level of dangerousness, and that he was, therefore,

required to register as a level two sex offender. Doe brought a

complaint for judicial review pursuant to G. L. c. 6, § 178M,

and G. L. c. 30A, § 14. A judge of the Superior Court affirmed

Doe's level two classification, and he has now appealed.

Discussion. The facts of the plaintiff's underlying crimes

and of the findings and analysis of the hearing examiner are

well known to the parties and will be repeated here only as

necessary.

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1. Factors 10, 11, and 15. Doe argues first that the

hearing examiner committed an abuse of discretion in his

treatment of regulatory factor 11, related to violence unrelated

to sexual assaults, and regulatory factor 15, related to

hostility against women. He argues that the hearing examiner

failed to provide any meaningful explanation why he assigned

minimal weight to factor 10, Contact with Criminal Justice

System, 803 Code Mass. Regs. § 1.33(10) (2016), while giving

full weight to factor 11, Violence Unrelated to Sexual Assaults,

803 Code Mass. Regs. § 1.33(11) (2016), and applying factor 15,

Hostility Towards Women, 803 Code Mass. Regs. § 1.33(15) (2016).

Doe notes that these factors all focus on the exact same

behavior, Doe's history of non-sexual criminal conduct.1

In this case, the hearing examiner assigned only minimal

weight to factor 10, concluding, after examining Doe's nominal

criminal record beyond his index offenses, that he "[did] not

1 The plaintiff asserts that an offender's criminal history lacks
predictive value. He cites Hanson & Bussière, Predicting
Relapse: A Meta-Analysis of Sexual Offender Recidivism Studies,
66 J. of Consulting & Clinical Psychol. 348, 348-362 (1998). In
response, SORB states that, in promulgating the regulatory
factors, SORB considered both the article cited by the plaintiff
and several subsequent articles that apparently contradict it.
A determination that criminal history is irrelevant to risk of
recidivism would amount to a facial challenge, at least to
factor 10, Contact with Criminal Justice System. Doe has not
made any such challenge here, and we express no opinion on the
question.

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find evidence of a persistent disregard for rules, laws, and the

violation of the rights of others."

Contrary to the plaintiff's argument, the judge's

assignment of full weight to factor 11 is neither inexplicable

nor nonsensical, even given the minimal weight given to factor

10. That is because, although his criminal record was minimal,

the acts that led to his contact with the criminal justice

system, aside from the index offenses, were violent. Factor 11

asks whether the plaintiff "has previously demonstrated that he

can act violently and with no regard to the safety of others."

803 Code Mass. Regs. § 1.33(11)(a) (2016).

In 2014, he punched an eight and one-half months pregnant

woman in the stomach. After this altercation, he slashed the

woman's husband's car tires and stabbed one of the car doors

multiple times. When police arrived, they saw him shirtless and

in the middle of the street yelling and ranting and holding a

closed folding knife.

In 2017, another woman, Doe's girlfriend, told police that

the plaintiff had become enraged and, in the presence of their

children, slapped her face with an open hand and smashed her

cell phone.

Likewise, these events involving the pregnant woman and

Doe's girlfriend supported application by the hearing examiner

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of factor 15, Hostility Towards Women. See 803 Code Mass. Regs.

§ 1.33(15)(a) (2016).

Notwithstanding the limited nature of his criminal history,

there was substantial evidence to support the hearing examiner's

treatment of factors 11 and 15, and we see no error in the

manner they were applied.

2. Factor 37. Doe next contends that factor 37, Other

Information Related to the Nature of Sexual Behavior, 803 Code

Mass. Regs. § 1.33(37) (2016), should not be applied, because

Doe's behavior with the sister of his prepubescent victim did

not constitute an actual act of sexual misconduct. The hearing

officer "considered," however, Doe's attempts to force his hand

into the sister's pants when evaluating Doe's dangerousness and

risk of reoffense, because the allegations were substantially

reliable, and Doe might have committed another act had she not

removed herself from the situation out of fear.

The hearing examiner is entitled to draw reasonable

inferences from the evidence, 803 Code Mass. Regs. § 1.19(1)(h)

(2016), and that Doe was attempting a sexual assault is a very

reasonable inference to draw from his attempt, around the time

he was abusing a prepubescent girl, to put his hands down her

then seven year old sister's pants.

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3. Application of the factors. Doe next argues that the

hearing examiner's decision is inadequate, reflecting a

mechanical application or a checklist approach, rather than

reasoned analysis for the level 2 classification. See Doe, Sex

Offender Registry Bd. No. 11204 v. Sex Offender Registry Bd., 97

Mass. App. Ct. 564, 575-576 (2020) (requiring hearing examiners

to engage in reasoned analysis, rather than "perfunctory

effort[s] based on a tally sheet of aggravating and mitigating

factors"). See also 803 Code Mass. Regs. § 1.33 (2016) ("The

final classification level is not based on a cumulative analysis

of the applicable factors, but rather a qualitative analysis of

the individual sex offender's history and personal

circumstances").

Although the hearing examiner does state that his

conclusion that Doe presents both a moderate risk to reoffend

and a moderate degree of dangerousness is based on consideration

of the factors, the hearing examiner's discussions of the facts

relevant to the factors considered demonstrate a qualitative

analysis of Doe's history and personal circumstances. See 803

Code Mass. Regs. § 1.33 (2016).

4. Internet publication. Finally, Doe argues that the

hearing examiner failed to make explicit factual findings

regarding the likely efficacy of publishing Doe's registration

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information on the Internet. See Doe, Sex Offender Registry Bd.

No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 654

(2019) (Doe, No. 496501) (prohibiting SORB from classifying

offender as level two unless "a public safety interest is served

by public availability of [their] registration information"

[citation omitted]).

The hearing examiner's analysis of the public safety

interest served by Internet publication was adequate. He noted

that when the petitioner was twenty-two years old, he began

sexually assaulting his prepubescent female cousin -- actually,

the child of his first cousin -- who was then ten years old.

This involved serious sexual conduct as described by the hearing

examiner. Doe also showed the victim a pornographic video

recording and sent inappropriate photos to her. His acts were

committed despite the fact that the victim's grandmother and, in

one instance, Doe's girlfriend, were in the same residence. The

hearing examiner noted that Doe's probation had not yet started

and that Doe was participating in sex offender treatment --

although no one suggests that he had completed it.

Because any reoffence would likely be against a vulnerable

girl, the hearing examiner concluded that it is in the interest

of public safety that anyone who is the caretaker of young girls

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and may become acquainted with Doe be able to obtain the

information that he is a registered sex offender.

This complies with the requirement of Doe, No. 496501, 482

Mass. at 654 (hearing examiners must determine "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").

The hearing examiner's conclusions that, by clear and

convincing evidence, Doe posed a moderate risk of reoffence, a

moderate degree of dangerousness, and that a public safety

interest was served by public Internet access to Doe's registry

information was not arbitrary and capricious, unsupported by

substantial evidence, an abuse of discretion, or otherwise not

in accordance with law. See G. L. c. 30A, § 14 (7).

Judgment affirmed.

By the Court (Rubin, D'Angelo
& Smyth, JJ.2),

Clerk

Entered: May 23, 2025.

2 The panelists are listed in order of seniority.

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