JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 285142 vs. 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
24-P-1066
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 285142
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2020, Doe was classified by the Sex Offender Registry
Board (board) as a level two sex offender pursuant to G. L.
c. 6, § 178K (2) (b). In 2022, he filed a motion to terminate
registration and the board recommended that he continue to
register as a level two sex offender. He requested and received
a de novo hearing pursuant to G. L. c. 6, § 178L, at which the
hearing examiner concluded that Doe posed a moderate risk to
reoffend and a moderate degree of dangerousness and classified
him as a level two sex offender. The hearing examiner also
concluded that Internet dissemination of Doe's personal
information would realistically serve a public interest and
ordered such publication. Doe appealed to the Superior Court,

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which affirmed the level two classification decision. Doe now
appeals.
At a de novo classification hearing, the hearing examiner
must determine the offender's obligation to register and
classification level. See 803 Code Mass. Regs. § 1.04(3)
(2016). The board must prove the appropriateness of an
offender's risk classification by clear and convincing evidence.
Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender
Registry Bd., 473 Mass. 297, 298 (2015). Under this standard,
"[t]he evidence must be sufficient to convey a 'high degree of
probability' that the contested proposition is true" (citation
omitted). Id. at 309. "The requisite proof must be strong and
positive; it must be 'full, clear and decisive.'" Adoption of
Iris, 43 Mass. App. Ct. 95, 105 (1997), S.C., 427 Mass. 582
(1998), quoting Callahan v. Westinghouse Broadcasting Co., 372
Mass. 582, 584 (1977). The findings must be "specific and
detailed . . . [,] demonstrating that close attention has been
given to the evidence." Adoption of Quentin, 424 Mass. 882, 886
(1997).
Doe claims that the hearing examiner's decision was
arbitrary and capricious and an abuse of discretion because of
errors in applying the regulatory factors applicable to his
classification decision, and that there was not substantial
evidence supporting the conclusion by clear and convincing

3
evidence that Doe poses a moderate risk of reoffending. The
facts are well known to the parties and will be repeated only as
necessary to our discussion.
Discussion. Between the time he was twenty and twenty-two,
Doe raped his half-sister, then aged between twelve and
fourteen, at their home, including in the living room of the
house, while her mother was also in the house sleeping. This
led to her becoming pregnant.
Doe's first argument relates to factor 16. Factor 16
provides,
"The 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 Board may
apply less weight to factor 16 if there is evidence that
the offender made a clear and concerted effort to conceal
his offending behavior from others. For purposes of factor
16, a 'public place' includes any area maintained for or
used by the public and any place that is open to the
scrutiny of others or where there is no expectation of
privacy."
803 Code Mass. Regs. § 1.33(16)(a) (2016).
The examiner applied risk-elevating factor 16, with full
weight to Doe. Doe argues that this risk-elevating factor
should have been given decreased weight because there was
evidence that Doe "attempted to 'conceal his offending behavior
from others' as it occurred while the mother was sleeping." He
also notes that there are many circumstances that are not known
or described in the record that may bear on this, for example,

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how far away the mother was sleeping, and whether the living
room has a door that was closed.
We are not persuaded. In a house where more than one
person lives, a living room is generally a common area, a room
to which others have access. At least in this case, it was a
public place, even if entry to it required opening a door or
arriving from some other part of the house. As to concealment,
the question is not whether an effort was made to conceal the
offending behavior, but whether there is evidence that the
offender made a "clear and concerted" effort to do so. 803 Code
Mass. Regs. § 1.33(16)(a). In this case, engaging in sexual
misconduct in the living room while the victim's mother was
asleep in the house does not amount to a clear and concerted
effort to conceal this conduct. We thus see no error in the
examiner's giving this risk-elevating factor full weight.
Doe also argues that the examiner erroneously used factor
37, entitled "Other Information Related to the Nature of the
Sexual Behavior," which allows the Board to "consider any
information that it deems useful in determining risk of
reoffense and degree of dangerousness posed by any offender," to
conclude that Doe's victim pool was not limited to intrafamilial
victims. 803 Code Mass. Regs. § 1.33(37)(a). The basis of the
hearing examiner's use of this factor was a report to the police
by the victim's then thirteen year old friend claiming that

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during the same time period he was raping his half-sister, the
defendant had stated more than once to the friend that he
"wanted to be with her," which she said she understood to mean
that he wanted to have sex with her. Doe argues that using his
statement to conclude that his victim pool contained
extrafamilial potential victims was error because the girl's
signed statement to the police indicated that Doe "has never
touched me or tried to touch me."
On the facts and circumstances of this case, this argument
is not availing. The offenses to which Doe pleaded guilty were
not forcible rape but statutory rape of a child. Any sex with
the thirteen year old friend would have been statutory rape.
See G. L. c. 265, § 23. Doe's sexual interest in the friend
therefore suggests that, for the sex offense of conviction, his
pool of victims was broader than his own family.
Given that these factors were properly applied, we see no
abuse of discretion or other error of law in the hearing
examiner's balancing of the risk-elevating and risk-mitigating
factors.
The hearing examiner must also determine whether and to
what degree public access to the offender's personal and sex
offender information is in the interest of public safety. See
G. L. c. 6, § 178K (2); 803 Code Mass. Regs. § 1.20(2)(c)
(2016). The Supreme Judicial Court has explained that what must

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be shown by clear and convincing evidence is that the safety
interest is "realistically" served by Internet publication. See
Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender
Registry Bd., 482 Mass. 643, 655 (2019). Because this
determination is not based on any particular expertise of the
hearing examiner, our review may be more searching.
Doe argues that the public interest will not be served
because Doe has one index crime, one victim, and the crime
occurred many years ago when he was in his twenties. At the
time of the hearing, he was thirty-six. Doe argues that "[t]his
is especially so when taking into consideration that the victim
of the index crime was intrafamilial and they lived together,
therefore, his possible victim pool is extremely low."
Of course, we have concluded that there was no error or
abuse of discretion in the conclusion that Doe's victim pool was
not so limited, and the possibility of extrafamilial victims
gives support to a need for Internet dissemination. Doe raped
his twelve year old victim multiple times. He had interest in
another minor, and he was unable to comply with the terms of his
probation. There were some contrary facts, as well: At the
time of the board hearing, Doe had been in a relationship with
his girlfriend for nine years and was living with her, and the
examiner identified no evidence that Doe had expressed sexual

7
interest in underage persons at any time since his 2014 release
from incarceration.
Nonetheless, there is substantial evidence supporting the
examiner's finding by clear and convincing evidence that
Internet dissemination will realistically serve a public safety
purpose.
Judgment affirmed.
By the Court (Rubin, Sacks &
Smyth, JJ.1),
Clerk
Entered: October 13, 2026.
1 The panelists are listed in order of seniority.