John Doe, Sex Offender Registry Board No. 526978 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

24-P-69

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 526978

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 classification by the Sex Offender

Registry Board (SORB) as a level two sex offender. Doe argues

that the evidence was "in equipoise" as to whether he and the

eleven year old sexual assault victim were in an extrafamilial

relationship, and so the hearing examiner erred in assigning

risk-elevating weight under the regulation defining factor 7,

803 Code Mass. Regs. § 1.33(7) (2016). Doe further contends

that the hearing examiner did not give sufficient weight to

mitigating evidence and thus Doe's classification as a level two

sex offender was not based on substantial evidence. We affirm.
Background. In 2016, Doe was in a romantic relationship

with the victim's mother. On the night of June 6, 2016, the

victim was sharing a bed with her cousin. While the cousin

slept, Doe entered the bedroom and got on top of the victim.

Doe touched the victim's breast and buttocks with his hand,

rubbed her buttocks with his penis, and penetrated her vulva

with his finger. When Doe tried to pull off the victim's pants,

she kicked him. The victim struggled to get away, falling to

the floor and bruising her right forearm and leg.

The next day, the victim told several friends, a teacher,

and a school nurse about the sexual assaults, and then described

them to a police officer in the presence of Department of

Children and Families (DCF) social workers. On June 8, 2016,

the victim underwent a forensic interview. Based on those

statements, DCF reports related that the victim had referred to

Doe as her "stepfather," and had said that Doe spent "every

night" at the home where she lived with her mother and siblings.

As a result of his conduct on June 6, 2016, Doe pleaded guilty

to one count of statutory rape, G. L. c. 265, § 23, and three

counts of indecent assault and battery on a child under the age

of fourteen, G. L. c. 265, § 13B.

In 2019, SORB notified Doe of his duty to register as a

level three sex offender in Massachusetts. Doe challenged his

classification. At an evidentiary hearing in September 2021, a

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hearing examiner considered documentary evidence including DCF

reports. In assessing the evidence, the hearing examiner

applied high-risk factor 3 (adult offender with child victim),

and risk-elevating factors 7 (relationship between offender and

victim), 16 (public place), and 19 (level of physical contact).

The hearing examiner considered risk-mitigating factors 28

(supervision by probation or parole), 30 (advanced age), 33

(home situation and support systems), and 34 (stability in the

community). The hearing examiner also considered scientific

studies under factor 37 (other useful information) and the

victim's impact statement under factor 38.

The hearing examiner found by clear and convincing evidence

that Doe presented a moderate risk to reoffend as well as a

moderate degree of dangerousness, and that a public safety

interest was served by Internet publication of his registry

information. The hearing examiner further found that Doe

"gained access to the 11-year-old extrafamilial [v]ictim by

dating her mother," and "women he may date in the future, who

may have children or grandchildren, should know of his sexual

offense history and risk." Accordingly, the hearing examiner

classified Doe as a level two sex offender.

Doe appealed his level two classification by filing a

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

Doe and SORB filed cross motions for judgment on the pleadings.

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A Superior Court judge denied Doe's motion and affirmed SORB's

decision. Doe appeals from that judgment.

Discussion. 1. Standard of review. We review de novo a

judge's consideration of an agency decision. See Doe, Sex

Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd.,

95 Mass. App. Ct. 85, 89 (2019) (Doe No. 523391).

"A reviewing court will not disturb SORB's decision unless
that decision was (a) in violation of constitutional
provisions; (b) in excess of SORB's authority; (c) based
upon an error of law; (d) made upon unlawful procedure;
(e) unsupported by substantial evidence; (f) unwarranted by
facts found by the court, where the court is
constitutionally required to make independent findings of
fact; or (g) arbitrary or capricious, an abuse of
discretion, or otherwise not in accordance with law."

Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender

Registry Bd., 470 Mass. 102, 108-109 (2014) (Doe No. 68549).

See G. L. c. 30A, § 14 (7).

2. Relationship between offender and victim. Doe argues

that because the victim referred to him as her "stepfather" and

reported that Doe spent "every night" in her household, their

relationship was intrafamilial. As a result, Doe contends, the

hearing examiner erred in finding that the relationship was

extrafamilial and thus misapplied factor 7. We are not

persuaded.

The regulation defining factor 7 explains that "[t]he

number of potential victims substantially increases when

offenders choose to sexually offend against extrafamilial

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victims," and "[h]aving victims outside the family relationship

is empirically related to an increased risk of reoffense." 803

Code Mass. Regs. § 1.33(7)(a)(2) (2016). Thus, if an offender

sexually offends against an extrafamilial victim, factor 7

applies with risk-elevating weight; if the victim is

intrafamilial, factor 7 is neutral. See Doe, Sex Offender

Registry Bd. No. 524553 v. Sex Offender Registry Bd., 98 Mass.

App. Ct. 525, 533 (2020). Whether a victim is extrafamilial or

intrafamilial is a "subsidiary fact" pertaining to an offender's

risk of reoffense that SORB is required to prove by a

preponderance of the evidence. Doe, Sex Offender Registry Bd.

No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 656

(2019) (Doe No. 496501).

As in effect at the time of Doe's classification, the

regulation defined an "extrafamilial victim" to include "[a]ny

persons who are family member substitutes (e.g. foster, step-

relatives, or any other type of familial household 'live-in'

relationship) who lived in the same household with the offender

for less than two years prior to the offending behavior." 803

Code Mass. Regs. § 1.33(7)(a)(2) (2016).1 Conversely, a family

member substitute who lived in the same household as the

1 That regulation was amended in 2025. See 803 Code Mass.
Regs. § 1.33(7)(a)(3)(c) (2025).

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offender for two or more years was defined by that regulation as

an "intrafamilial victim."2 See 803 Code Mass. Regs.

§ 1.33(7)(a)(1). Doe argues that because the hearing examiner

acknowledged that the "evidence regarding [Doe's] residence with

the Victim is contradictory and/or vague," that showed that

there was insufficient evidence to support a conclusion by a

preponderance of the evidence that the victim was extrafamilial.

On the issue of whether Doe lived in the same household as

the victim, the hearing examiner considered the DCF reports

documenting the victim's statements, including that she said

that Doe slept at her home "every night."3 The hearing examiner

also considered the statements of the victim's other family

members. The victim's mother reported to DCF that, as of June

2016, she had been romantically involved with Doe for two years.

The mother specifically denied that Doe lived with her and her

2 Doe does not argue, and did not argue in the Superior
Court or during the administrative proceedings, that in defining
factor 7 the regulation inappropriately draws a "bright line" by
using two years as the benchmark delineating an extrafamilial
victim from an intrafamilial one. See 803 Code Mass. Regs.
§ 1.33(7)(a). We do not consider that issue.

3 As for a DCF report relating the statements of a school
nurse and school psychologist that the victim had referred to
Doe as her stepfather, we note that the DCF report also stated
that when the victim spoke to DCF workers she referred to Doe as
her mother's boyfriend. Because the definition of an
extrafamilial victim does not turn on whether the offender was
married to the victim's parent or how the victim referred to the
offender, the point is immaterial.

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children; she stated that Doe spent about two to three nights a

week at the victim's home, but Doe lived in a different section

of Boston. Similarly, the victim's brother stated that Doe

often visited and stayed overnight, but did not live at the

victim's home. In addition, a neighbor of Doe's submitted a

letter of support stating that Doe "has been living next to

[her] for the past 15 years" at an address in the same section

of Boston where the mother reported that Doe lived.

Based on that evidence, the hearing examiner concluded that

Doe had lived in the same household as the victim "for less than

two years prior to the offending behavior," 803 Code Mass. Regs.

§ 1.33(7)(a)(2), and therefore the victim was extrafamilial to

him. Merely because Doe and the mother had been romantically

involved for two years did not establish that they began living

together at the very start of their relationship. From the

victim's statement that Doe was at their home "every night," the

hearing examiner was not required to find that Doe had lived in

that household for two years. See Doe No. 523391, 95 Mass. App.

Ct. at 90-91. Moreover, the hearing examiner noted that the

victim's father reported to DCF that, about three months before

the victim's disclosure in June 2016, the victim told her father

that Doe was touching her inappropriately. Based on that, the

hearing examiner found that Doe began the "offending behavior,"

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803 Code Mass. Regs. § 1.33(7), at least three months before the

June 6, 2016, date of offense set forth in the indictments.

It was "for the hearing examiner to weigh the evidence

presented." Doe, Sex Offender Registry Bd. No. 356315 v. Sex

Offender Registry Bd., 99 Mass. App. Ct. 292, 298 (2021). When

evidence conflicts, "[i]t is the province of [SORB], not this

court, to weigh[] the credibility" of the evidence and "resolve

any factual disputes." Doe, Sex Offender Registry Bd. No. 10800

v. Sex Offender Registry Bd., 459 Mass. 603, 633 (2011). The

hearing examiner properly resolved the conflicting evidence

before her, and found by a preponderance of the evidence that

the victim was extrafamilial to Doe. See Doe No. 523391, 95

Mass. App. Ct. at 92 (subsidiary facts must be proved by

preponderance of evidence). This finding was sufficiently

"specific and detailed" as to demonstrate that "close attention

has been given to the evidence" (quotation omitted). Doe, Sex

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

Mass. App. Ct. 564, 570 (2020). We conclude that the hearing

examiner properly applied factor 7 with risk-elevating weight.

3. Substantial evidence. Doe argues that the hearing

examiner's classification of him as a level two sex offender was

not based on substantial evidence, which is "such evidence as a

reasonable mind might accept as adequate to support a

conclusion." Doe No. 496501, 482 Mass. at 658, quoting G. L.

8
c. 30A, § 1 (6). Specifically, Doe contends that the hearing

examiner did not "holistically and interactively" evaluate risk-

mitigating evidence.

In accordance with 830 Code Mass. Regs. § 1.33, the hearing

examiner applied risk-mitigating factors 28 (supervision by

probation or parole), 30 (advanced age), 33 (home situation and

support systems), and 34 (stability in the community). The

hearing examiner explained the weight she gave to each of those

factors. The weight to be assigned was within her discretion

and is entitled to deference. See Doe No. 68549, 470 Mass. at

109-110. The hearing examiner also discussed each of these

mitigating factors, the evidence that supported them, and how

they affected Doe's risk of reoffense. That demonstrated the

holistic nature of the hearing examiner's analysis. We conclude

that the classification of Doe as a level two sex offender was

supported by substantial evidence.

Judgment affirmed.

By the Court (Hand, Grant &
Wood, JJ.4),

Clerk

Entered: June 6, 2025.

4 The panelists are listed in order of seniority.

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