John Doe, Sex Offender Registry Board No. 528140 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-181

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 528140

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe, appeals from a Superior Court

judgment affirming a decision of the Sex Offender Registry Board

(board) classifying him as a level two sex offender. On appeal,

Doe argues that the hearing examiner erred in (1) concluding

that Doe and the victim had an extrafamilial relationship, and

thereby in applying regulatory factor 7 (relationship between

offender and victim); and (2) concluding that a public safety

interest is served by Internet dissemination of Doe's

registration information. We affirm.

Background. On March 25, 2021, Doe, then twenty-nine years

old, assaulted a woman he was living with at the time. The

victim reported to the police that she and Doe were drinking
alcohol together when, at some point, Doe demanded to have sex

with her, which she refused. As a result, Doe jumped on top of

the victim and grabbed her by the neck with both hands. The

victim stated that she was able to free herself, but Doe grabbed

her again and threw her back onto the futon they were sitting

on. Doe once again got on top of the victim, forcefully grabbed

her hair, and bit her on the lip, causing her to bleed. The

victim was able to free herself, stood up, and grabbed her cell

phone to call for help. Doe took the phone out of her hand and

threw it on the ground. The victim then pleaded with Doe to

allow her to use the bathroom.

Once the victim was in the bathroom, Doe entered shortly

thereafter and again attempted to have sex with her. The victim

eventually pushed Doe out of the bathroom, got dressed, and went

back out to the living room, where she was able to retrieve her

phone and text a friend for help, who in turn called 911.

When the police arrived, the victim informed them that she

had been assaulted by her roommate, Doe. The victim also told

the police that she and Doe had known each other for just over

three years and had been living together. She went on to state

that, although they were not in an official relationship, they

"share[d] occasional intimacy." The police observed that the

victim had a large cut on her lip and a reddened area on her

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chest. They also saw a broken coffee table, a shattered

entertainment center, and several items strewn on the floor

within the apartment. Doe fled the apartment when the police

arrived but was arrested a short time later when he returned to

the area.

After he was in police custody, Doe admitted to the police

that he and the victim were drinking alcohol earlier in the

evening and that he became upset when the victim refused to have

sex with him. Doe stated that he had known the victim for about

three years and that they have been living together for "a

while." He also confirmed that they occasionally "share[d]

intimate moments."

On October 6, 2021, Doe pleaded guilty to attempted

indecent assault and battery on a person fourteen or older,1

assault and battery on a family or household member, and

intimidation of a witness. On all three counts, Doe was given a

two-year committed sentence, six months to serve, with the

balance suspended until October 5, 2023.

On February 17, 2023, following a classification hearing

before the board, Doe was ordered to register as a level two sex

1 This charge was reduced from assault with intent to rape,
in violation of G. L. c. 265, § 24.

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offender.2 On November 6, 2023, a judge of the Superior Court

affirmed the board's classification.

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). In reviewing a board's

decision, "we 'give due weight to the experience, technical

competence, and specialized knowledge of the agency.'" Doe, Sex

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

466 Mass. 594, 602 (2013), quoting G. L. c. 30A, § 14 (7). "A

reviewing court may set aside or modify [the board's]

classification decision where it determines that the decision is

in excess of [the board's] statutory authority or jurisdiction,

violates constitutional provisions, is based on an error of law,

or is not supported by substantial evidence." Doe, Sex Offender

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

643, 649 (2019) (Doe No. 496501), citing G. L. c. 30A, § 14 (7).

"Substantial evidence is 'such evidence as a reasonable mind

might accept as adequate to support a conclusion.'" Doe, Sex

2 In February 2022, the board notified Doe of his duty to
register as a level three sex offender. Doe challenged that
decision and received a de novo hearing in December 2022,
resulting in the level two classification.

4
Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd.,

459 Mass. 603, 632 (2019), quoting G. L. c. 30A, § 1 (6).

To classify an individual as a level two sex offender, the

hearing examiner must make three explicit findings by clear and

convincing evidence: "(1) that the risk of reoffense is

moderate; (2) that the offender's dangerousness, as measured by

the severity and extent of harm the offender would present to

the public in the event of reoffense, is moderate; and (3) that

a public safety interest is served by Internet publication of

the offender's registry information." Doe No. 496501, 482 Mass.

at 644.

2. Relationship between offender and victim. Doe argues

that the evidence was insufficient to support the hearing

examiner's conclusion that his relationship with the victim was

extrafamilial. We disagree.

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

number of potential victims substantially increases when

offenders choose to sexually offend against extrafamilial

victims" and that "[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).3 Thus,

3 The regulation was amended in 2025. See 803 Code Mass.
Regs. § 1.33(7) (2025).

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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). Extrafamilial is defined by the

regulation 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). In

contrast, for a victim to be considered intrafamilial, the

parties must have lived together for two or more years. See 803

Code Mass. Regs. § 1.33(7)(a)(1). Whether a victim is

extrafamilial or intrafamilial is a "subsidiary fact" pertaining

to an offender's risk of reoffense that must be proved by a

preponderance of the evidence. See Doe No. 496501, 482 Mass. at

656.

Here, contrary to Doe's arguments, the board proved by a

preponderance of the evidence that the victim was extrafamilial

to Doe. The evidence presented at the classification hearing

regarding the nature of Doe's relationship with the victim came

from both the victim's and Doe's statements to police. For

example, the victim characterized herself and Doe as "roommates"

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who shared occasional intimacy. Additionally, both Doe and the

victim told police that they had known one another for about

three years and that they had been living together at the time

Doe assaulted the victim.4 Importantly, there was no evidence

presented that Doe and the victim had lived in the same

household for two or more years prior to the assault. See 803

Code Mass. Regs. § 1.33(7)(a)(2). Furthermore, Doe did not

offer any evidence that contradicted the victim's

characterization that they were roommates who shared occasional

intimacy. Even putting aside how long they had lived together,

the hearing examiner could view this roommate relationship as

similar to the "family member substitute[]" or "familial

household 'live-in' relationship" the regulation envisions. As

a result, it was not unreasonable for the hearing examiner to

conclude that Doe and the victim were roommates and that their

relationship was extrafamilial. See John Doe, Sex Offender

Registry Bd. No. 23656 v. Sex Offender Registry Board, 483 Mass.

131, 139 (2019) (Doe No. 23656) ("[o]ur review of a hearing

examiner's decision does not turn on whether, faced with the

same set of facts, we would have drawn the same conclusion, but

4 Doe makes a passing argument for the first time on appeal
that this evidence amounts to unreliable hearsay. The argument
is waived. See John Doe, Sex Offender Registry Bd. No. 3974 v.
Sex Offender Registry Board, 457 Mass. 53, 56 (2010) (failure to
raise issue before board constitutes waiver).

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only whether a contrary conclusion is not merely a possible but

a necessary inference" [citation omitted]).

Doe also asserts that the hearing examiner "chose to

ignore" and demonstrated a "blatant disregard" for relevant

evidence suggesting that the victim's relationship with Doe was

not extrafamilial. He contends this "relevant evidence"

includes the fact that Doe was charged with assault and battery

on a family or household member, in violation of G. L. c. 265,

§ 13M. We disagree. The definition of a family or household

member under G. L. c. 265, § 13M, serves a different purpose

from and does not control the meaning of extrafamilial as set

forth by the board's regulations.5 See G. L. c. 6, § 178K (1)

(instructing board to consider relationship between offender and

victim in determining offender's risk of reoffense and degree of

dangerousness).6

5 Under the criminal statute, the victim's status as a
family or household member is an aggravating factor. In
contrast, in the board's classification scheme, such a status
may indicate that the offender has a lower risk of reoffense.

6 We also disagree with Doe that the hearing examiner
engaged in a mechanical or "checklist" application of the
factors. Rather, the hearing examiner identified each
regulatory factor applied and explained the reason for its
application. As such, the hearing examiner's "[analytical] path
may reasonably be discerned," NSTAR Elec. Co. v. Department of
Pub. Utils., 462 Mass. 381, 387 (2012), quoting Costello v.
Department of Pub. Utils., 391 Mass. 527, 535-536 (1984), from
the decision, and it is clear that "the classification is based

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3. Internet publication of registration information. Doe

makes multiple arguments regarding how the hearing examiner

erred in concluding that a public safety interest is served by

the online publication of Doe's registration information.

First, Doe repeats that the hearing examiner "did not consider

that Doe's relationship with the victim was intrafamilial." As

noted above, the board proved by a preponderance of the evidence

that Doe had an extrafamilial relationship with the victim. Doe

further contends that the hearing examiner "did not adequately

explain why the evidence supported a conclusion that Doe

presents a moderate degree of dangerousness." To the contrary,

we agree with the board that the hearing examiner "applied the

regulatory factors to the evidence and articulated his findings

in a thoughtful analysis." The board is also correct that the

hearing examiner, notwithstanding Doe's ultimate plea to a

lesser crime, "explicitly stated that the facts supported a

finding that Doe committed assault with intent to rape, which is

defined as a sexually violent offense." See G. L. c. 6, § 178C.

on a sound exercise of informed discretion rather than the
mechanical application of a checklist or some other reflex,"
Doe, Sex Offender Registry Bd. No. 136652 v. Sex Offender
Registry Bd., 81 Mass. App. Ct. 639, 651 (2012). Furthermore,
to the extent Doe takes issue with the weight assigned to any
factor, it is well established that the hearing examiner has
broad discretion to determine how much weight to ascribe to each
factor, and we discern no abuse of that discretion here. See
Doe No. 23656, 483 Mass. at 139.

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Accordingly, the hearing examiner did not err in concluding that

Doe's level two classification was supported by clear and

convincing evidence, and that a public interest is served by the

online publication of his registration information. See Doe No.

496501, 482 Mass. at 644.

Judgment affirmed.

By the Court (Desmond,
Sacks & Brennan, JJ.7),

Clerk

Entered: August 19, 2025.

7 The panelists are listed in order of seniority.

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