John Doe, Sex Offender Registry Board No. 360651 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

22-P-482

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 360651

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff (Doe) appeals from a Superior Court judgment

upholding his classification as a level two sex offender. Doe

argues (1) that the classification decision was arbitrary and

capricious, and not supported by substantial evidence, (2) that

the Sex Offender Registry Board (SORB) hearing examiner used

regulatory factor 37 (other information related to the nature of

sexual behavior) to, in effect, apply factor 2 (repetitive and

compulsive behavior) in an impermissible manner, see 803 Code

Mass. Regs. § 1.33(2), (37) (2016), and (3) that his privacy and

liberty interests outweigh the public's interest in Internet

publication of his information. We affirm.

Background. Doe was classified as a level three sex

offender in 2012 and, after a rehearing, again in 2017. In

March of 2021, Doe sought reclassification under 803 Code Mass.
Regs. § 1.31 (2016). A SORB hearing examiner held a hearing in

September of 2021 and, the following month, issued a decision

reducing Doe's classification to a level two. We summarize the

facts as found, and relied on, by the hearing examiner.

Doe was convicted of sexual assault (second degree) in

Connecticut in 1992, 1 for assaulting his stepdaughter when she

was (approximately) between the ages of five and seven. The

assaults occurred on multiple occasions; among other things, Doe

digitally penetrated his stepdaughter's vagina and twice

threatened her with violence -- once with a knife and once with

a handgun. In 1993, Doe was convicted of a sex offense against

a different victim in Connecticut -- assault (fourth degree). 2

The conviction stemmed from Doe flicking a five year old boy's

penis. Doe was accused of other sexual offenses between 1991

and 2016, but the hearing examiner did not consider those as

additional instances of "sexual misconduct," mainly due to a

lack of evidence concerning those events.

Doe's criminal history extends beyond sexual offenses and

includes a history of violent behavior spanning from 1979 to

2017. For example, in 2005, Doe was convicted of assault for

repeatedly punching his wife in the face. More recently, two

1 The hearing examiner found this was the "like offense" in
Massachusetts of rape and abuse of a child.
2 According to the hearing examiner, the "like" Massachusetts sex

offense of indecent assault and battery on a child.

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women obtained abuse prevention orders against Doe (in 2013 and

2016); each averred that Doe physically assaulted them in

conjunction with their refusing to engage in sexual activity. 3

And in 2017, Doe was charged with attacking his roommate with a

knife and then an axe. Doe also has a history of substance

abuse, including several substance-related charges and incidents

between 1980 and 2020. Doe's substance abuse persisted despite

past participation in addiction treatment.

Applying the factors in 803 Code Mass. Regs. § 1.33, the

hearing examiner found that Doe posed a moderate risk of

reoffense and a moderate degree of dangerousness. As to Doe's

risk of reoffense, the hearing examiner cited that Doe offended

against children (factor 3), one of whom was intrafamilial

(factor 7) and another male (factor 17). She also considered

Doe's substance abuse (factor 9), violent criminal history and

abuse prevention orders (factors 10, 11, and 15), and that Doe

violated community supervision while on probation for his sex

offenses (factor 13). In mitigation, the hearing examiner

considered, among other things, that as of the 2021 hearing Doe

was sixty years old (factor 30) and had not committed a

3 We note the hearing examiner also declined to treat these
allegations as instances of "sexual misconduct," although she
likely could have. See Doe, Sex Offender Registry Bd. No.
356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 79
(2015) ("examiner may consider . . . uncharged conduct").

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qualifying sex offense in the nine years since his release from

prison (factor 29).

Regarding Doe's dangerousness, the hearing examiner cited

that Doe's victims were extravulnerable children (factors 3, 18,

and 22) of different genders and relationship categories (factor

21); the high-contact and violent nature of some of Doe's

offenses (factors 8 and 19); and Doe's criminal history. The

hearing examiner also found it "concerning" that Doe

"repetitive[ly] . . . assault[ed]" his stepdaughter "and then

sexually assault[ed]" a five year old boy, and considered that

as "other information related to the nature of sexual behavior"

(factor 37) in assessing Doe's dangerousness. Finally, the

hearing examiner concluded that Internet publication of Doe's

information was warranted to "prevent young boys and girls and

adult women known to [Doe] . . . from becoming [v]ictims of sex

offenses."

Doe sought review of his classification under G. L. c. 30A,

§ 14, and G. L. c. 6, § 178M. Doe's motion for judgment on the

pleadings was denied, and the level two classification was

affirmed. Doe now appeals.

Discussion. Doe raises three arguments seeking to overturn

his level two classification. The law and procedure applicable

to SORB proceedings is discussed in depth in Doe, Sex Offender

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

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643, 645-646 (2019) (Doe No. 496501). Our review is limited to

determining whether the hearing examiner's decision is

"unsupported by substantial evidence or is arbitrary or

capricious, an abuse of discretion, or not in accordance with

law." Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender

Registry Bd., 459 Mass. 603, 633 (2011).

1. Arbitrary and capricious and substantial evidence. Doe

first contends that the hearing examiner's decision was

arbitrary and capricious, and not supported by substantial

evidence, because the hearing examiner applied an impermissible

"checklist" approach and "failed to explain who Doe may offend

against and why, at present, Doe is a 'moderate' [risk] of

[re]offending." We discern no error.

The examiner's thoughtful and detailed decision discusses

and applies several regulatory risk factors indicative of an

increased risk of reoffense. Doe offended against two child

victims (factors 3 and 22), one of whom was an intrafamilial

female and the other an extrafamilial male (factors 7, 17, and

21); he violated community supervision while on probation for

those offenses (factor 13); and he has a lengthy (and recent)

history of violent criminal behavior (factors 10 and 11),

substance abuse (factor 9), and hostility toward women (factor

15).

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Doe does not argue that the hearing examiner erred in

applying those factors, but instead seems to challenge how the

hearing examiner weighed them given that Doe's index sex

offenses where somewhat dated -- from 1992 and 1993. It is

clear, however, that the hearing examiner's analysis of the

pertinent risk-mitigating factors, including that Doe had not

committed a qualifying sex offense in nine years, 4 is what drove

her conclusion that Doe posed only a moderate, rather than a

high, risk of reoffense. Despite the dated nature of Doe's sex

offenses, substantial evidence showed that Doe's criminal

behaviors and substance abuse persisted in the years immediately

prior to his 2021 hearing, and thus supported the hearing

examiner's determination that, as of that date, Doe posed a

moderate risk of reoffense. See, e.g., 803 Code Mass. Regs.

§ 1.33(10)(a) ("Ongoing criminal behavior weighs heavily in the

application of factor 10"). We are therefore satisfied that the

hearing examiner engaged in "a sound exercise of informed

4 To the extent Doe argues that the hearing examiner erred in the
weight she afforded to factor 29 (offense-free time in the
community), we disagree. The hearing examiner did not afford
Doe the full mitigating weight of that factor because he had not
remained sex offense free in the community for ten years, having
been released from prison only nine years prior to his hearing.
See 803 Code Mass. Regs. § 1.33(29) ("risk of reoffense lowers
substantially after ten years"). That decision was within the
hearing examiner's discretion. See Doe, Sex Offender Registry
Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 138-
139 (2019).

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discretion rather than the mechanical application of a

checklist." Doe, Sex Offender Registry Bd. No. 136652 v. Sex

Offender Registry Bd., 81 Mass. App. Ct. 639, 651 (2012).

Nor do we agree that the hearing examiner's analysis was

wanting as to Doe's degree of dangerousness. Doe contends that

the hearing examiner failed to provide a "detailed analysis of

the predicted future acts that Doe is likely to engage in." But

the hearing examiner considered that Doe had committed contact

offenses against "two five-year-old prepubescent extravulnerable

children," and that those contact offenses had been repeated,

and accompanied by threats of violence. She also considered

Doe's substantial and ongoing criminal history. This satisfied

the case law's command to "consider 'the severity and extent of

the harm the offender would present to the public in the event

of reoffense'" (citation omitted). See Doe No. 496501, 482

Mass. at 659. See also id. at 651 ("because past is prologue, a

hearing examiner would make [the dangerousness] determination

based on the sexual crime or crimes that the offender committed

in the past"). 5 At bottom, "the factors present were sufficient

to support a determination that Doe's degree of dangerousness

5 We also note that the hearing examiner identified Doe's likely
victim pool as "young boys and girls and adult women known to
[Doe]," albeit in a separate section of her analysis. That
conclusion is supported by the record evidence of Doe's
predicate sexual offenses and more recent history of hostility
toward women. See Doe No. 496501, 482 Mass. at 651.

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was 'moderate.'" Doe, Sex Offender Registry Bd. No. 23656 v.

Sex Offender Registry Bd., 483 Mass. 131, 145 (2019) (Doe No.

23656).

2. Factor thirty-seven. Doe next argues that the hearing

examiner erred when she considered, in connection with Doe's

degree of dangerousness, the facts that Doe "repetitive[ly]

sexual[ly] assault[ed] . . . [his stepdaughter (Victim 1)] and

then sexually assault[ed] [a five-year old boy (Victim 2)]"

(emphasis added). Doe argues that this analysis, which was made

under factor 37 (other information related to the nature of

sexual behavior), in essence misapplied factor 2 (repetitive and

compulsive behavior) through the "back door," because factor 2

cannot be applied where, as here, an offender is not confronted

between offenses.

To consider Doe's argument we have to start with what

factor 2 actually says, and compare it to what the hearing

examiner actually said. Factor 2 reads, in relevant part:

"Repetitive and compulsive behavior is associated with a
high risk of reoffense. Factor 2 is applied when a sex
offender engages in two or more separate episodes of sexual
misconduct. To be considered separate episodes there must
be time or opportunity, between the episodes, for the
offender to reflect on the wrongfulness of his conduct"
(emphasis added).
803 Code Mass. Regs. § 1.33(2)(a). Factor 2 thus considers

repetitive and compulsive behavior as predictive of an

offender's risk of reoffense. Here, the hearing examiner did

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not cite factor 2 in her decision, but did refer to some of

Doe's conduct as "repetitive." However, the hearing examiner's

reference to Doe's "repetitive" assaults had to do with his

degree of dangerousness, not with his risk of reoffense.

Specifically, she said:

"[Doe] sexually assaulted Victim 1 on multiple occasions
beginning at age [five]. While living with a woman and her
four children, [Doe] also sexually assaulted Victim 2. I
find [Doe's] repetitive sexual assaults of Victim 1 and
then sexually assaulting [Victim 2] concerning and consider
it as to [Doe's] degree of dangerousness" (emphasis added).

Relying solely on a Superior Court decision addressing the

legality of factor 2, Doe argues that the hearing examiner's

consideration of Doe's repeat offenses in this manner was

impermissible. See Doe, Sex Offender Registry Bd. No. 22188 vs.

Sex Offender Registry Bd., Mass. Super. Ct., No. 201130B, slip

op. (Middlesex County Apr. 16, 2021) (Doe No. 22188 I). In that

case, supra at 26, a Superior Court judge declared that:

"The second and third sentences of [factor 2] unlawfully
exceed [SORB's] authority and violate due process by
attributing a high risk of reoffense whenever an offender
committed two or more episodes of sexual misconduct,
whether or not the offender was discovered, confronted or
investigated between episodes" (emphasis added).

The judge reasoned that factor 2 violated due process, primarily

because the empirical evidence did not "support the notion that

repeated sex offenses, without apprehension, tend to show

compulsion or any increased risk of sexual recidivism" (emphasis

added). See id. at 16. SORB has not challenged this decision,

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and has acknowledged that factor 2 should not be considered to

show an increased risk of reoffense where a perpetrator is not

"discovered, confronted, or investigated" between sexual

assaults. Doe, Sex Offender Registry Bd. No. 22188 v. Sex

Offender Registry Bd., 101 Mass. App. Ct. 797, 804 (2022) (Doe

No. 22188 II).

As noted, here the hearing examiner did not consider Doe's

repeat offenses in analyzing his risk of reoffense, but only his

degree of dangerousness. Doe's reliance on the Superior Court's

reasoning in Doe No. 22188 I is therefore misplaced. Moreover,

the hearing examiner's consideration of Doe's repeat offenses in

assessing his potential for future dangerousness was, in our

view, reasonable. Such a consideration is supported by the SORB

statute itself, which permits SORB to consider "the number, date

and nature of prior offenses" "in determining . . . degree of

dangerousness" (emphasis added). G. L. c. 6, § 178K (1) (b)

(iii). The Supreme Judicial Court has recognized that the

dangerousness "determination naturally takes place on a

continuum," and on that continuum, for example, "contact

offenders are generally more dangerous than noncontact

offenders." Doe No. 496501, 482 Mass. at 659. It is reasonable

for SORB also to consider repeat contact offenders, such as Doe,

as falling on the "generally more dangerous" side of that

continuum. Furthermore, in other contexts courts have

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historically assessed an individual's dangerousness based, in

part, on whether an individual is a repeat offender. Similar

analyses occur at dangerousness hearings, G. L. c. 276,

§ 58A (5) (judge shall take into account, inter alia, "record of

convictions" and history of prior abuse prevention orders); in

sentencing, Massachusetts Sentencing Commission, Advisory

Sentencing Guidelines 39-43 (2017); and in deciding whether to

stay a sentence pending appeal, Commonwealth v. Hodge, 380 Mass.

851, 855 (1980). We are accordingly confident that the hearing

examiner's application of factor 37 was not "arbitrary or

capricious, an abuse of discretion," a means to thwart the

limitation of factor 2, or contrary to the law. See Doe No.

22188 II, 101 Mass. App. Ct. at 804.

3. Internet publication. Doe next suggests that reversal

is warranted because his "liberty and privacy interest[s]

outweigh the public's interest in" Internet publication of Doe's

biographical information. Once again, we disagree. The hearing

examiner explicitly found that publication of Doe's information

would serve public safety by "prevent[ing] young boys and girls

and adult women known to [Doe] . . . from becoming [v]ictims of

sex offenses." Such a decision was supported by substantial

evidence and was in accord with the case law. See Doe No.

496501, 482 Mass. at 655 ("Internet publication . . . almost

invariably serve[s] a public safety interest" where "sexually

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violent offender presents a moderate risk to reoffend and a

moderate degree of dangerousness").

Judgment affirmed.

By the Court (Henry,
Desmond & Englander, JJ. 6),

Clerk

Entered: August 3, 2023.

6 The panelists are listed in order of seniority.

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