John Doe, Sex Offender Registry Board No. 524656 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-811

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 524656

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2017, appellant Doe pleaded guilty to two counts of rape

and abuse of a child, G. L. c. 265, § 23, four counts of

indecent assault and battery on a child under fourteen, G. L.

c. 265, § 13B, one count of distribution of obscene matter to a

minor, G. L. c. 272, § 28, and one count of posing or exhibiting

a child in a state of nudity, G. L. c. 272, § 29A. These

convictions arose out of Doe's sexual abuse of his daughter over

a three-year period, from when she was ten years old until she

was thirteen years old. In 2016, she disclosed the abuse to her

school.

Prior to his release from incarceration, Doe was notified

by the Sex Offender Registry Board (SORB or Board) of a duty to
register as a level two sex offender, pursuant to G. L. c. 6,

§§ 178C-178Q, and 803 Code Mass. Regs. §§ 1.00 (2016). Doe

requested a hearing to challenge SORB's preliminary

classification pursuant to G. L. c. 6, § 178L. A de novo

hearing was held via videoconference on May 23, 2023, where Doe

appeared with counsel. Thereafter, on June 29, 2023, the

hearing examiner issued a twenty-nine-page decision classifying

Doe as a level two sex offender. A level two designation means

the Board concluded that Doe posed a moderate risk of

reoffending and moderate degree of dangerousness, and that

publication of his registry information, including via the

Internet, served a public safety interest. G. L. c. 6,

§ 178K (2) (c).

Doe challenged the decision by way of a complaint for

judicial review brought pursuant to G. L. c. 30A, § 14, and

G. L. c. 6, § 178M. The decision of the hearing examiner was

affirmed by a judge of the Superior Court, and Doe has now

appealed to this court. We affirm.

Discussion. 1. Arbitrary and capricious. Doe argues

first that the Board's decision was arbitrary and capricious and

not supported by substantial evidence. Doe argues that the

hearing examiner took a "checklist approach" to analyzing the

various factors relevant to his classification, arguing that the

2
hearing examiner's analysis was "perfunctory." Doe also

emphasizes several mitigating factors like his lack of any

disciplinary reports during his time in prison, excelling at sex

offender treatment there, and completion of many educational

programs including learning a fourth language, Spanish. He

notes that he has no prior criminal history and likewise has

never been the subject of any criminal harassment or abuse

prevention orders. He also emphasizes the letters of support

submitted on his behalf and the fact that he would be on

probation after release, with a number of conditions, including

having no unsupervised contact with anyone under the age of

sixteen except for his biological son.

The hearing examiner's decision, however, was not

perfunctory. Unlike the decision at issue in Doe, Sex Offender

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

App. Ct. 564, 573-574 (2020), it demonstrated analysis of the

various aggravating and mitigating circumstances specific to

Doe, not just a listing of them, followed by a conclusion.

In particular, the hearing examiner described several high-

risk and risk-elevating factors identified in 803 Code Mass.

Regs. § 1.33 (2016). The first was that Doe was an adult

offender with a child victim who "was prepubescent, during most

of [Doe's] offending." See id. at § 1.33(3)(a). An adult

3
offender with a child victim has a heightened risk of reoffense;

and offenders who target prepubescent children, the hearing

examiner noted, "pose an even higher risk of re-offense and

degree of dangerousness," so that those offenses are given

"greater weight."

The hearing examiner also applied factor eight, relating to

violence or the infliction of bodily injury, noting that "during

the sexual abuse [Doe] would hit [his daughter] and on one

occasion, he struck her on the head with enough force to cause

her to lose consciousness." See 803 Code Mass. Regs.

§ 1.33(8)(a). Finally, she concluded that factor nineteen

applied (addressing level of physical contact) because the

offenses in this case included penile penetration. See id. at

§ 1.33(19)(a).

Despite Doe's completion of sex offender treatment, the

hearing examiner noted that his skills have yet to be tested in

the community, "thus, young girls and/or their caregivers should

have access to [Doe]'s registry information to take the

appropriate steps to protect themselves."

The hearing examiner also applied several risk-mitigating

factors.1 The hearing examiner's analysis was thorough. With

1 Although Doe complains that the relapse prevention program
he prepared was not cited by the hearing examiner in her

4
respect to risk of reoffense, she did not merely recite the

various high-risk, risk-aggravating, and risk-mitigating factors

(of which there were more); she based her conclusion, at least

in part, on the fact that "research supports that the strongest

predictors of sexual recidivism for all sex offenders are

variables related to antisocial orientation and sexual

deviance," 803 Code Mass. Regs. § 1.33, and Doe "repeatedly

sexually abused a prepubescent girl beginning when she was [ten]

years old, which speaks to his sexual deviance." That

assessment is neither arbitrary nor capricious; and there is

substantial evidence supporting the hearing examiner's

conclusion, by clear and convincing evidence, that Doe's risk to

reoffend is moderate.

2. Repetitive behavior. The appellant argues that the

hearing examiner wrongly utilized the repetitive nature of the

offenses in her analysis. It is clear that the conduct at issue

did not meet the definition of repetitive and compulsive in

factor two, which the hearing examiner did not apply, because it

did not continue after Doe was confronted. See Doe, Sex

discussion of mitigating factors, we cannot see how that was
prejudicial. Whatever insight the plan shows, its only mention
of anything related to the high-risk fact that Doe was an adult
and his daughter a minor child, prepubescent for most of the
time that he sexually abused her, is the conclusory statement "I
have never had any attraction to children."

5
Offender Registry Bd. No. 22188 v. Sex Offender Registry Bd., 96

Mass. App. Ct. 738, 742-743 (2019), S.C., 101 Mass. App. Ct. 797

(2022).

Doe argues that the Board impermissibly employed his

repetitive conduct under factor thirty-seven, the catchall

factor for anything the hearing examiner finds to be relevant,

which amounted to an impermissible, "back door" way of giving

aggravating weight to repetitive but not compulsive behavior.

803 Code Mass. Regs. § 1.33(37)(a). This argument, however, is

foreclosed by the Supreme Judicial Court's recent decision in

Doe, Sex Offender Registry Bd. No. 527962 v. Sex Offender

Registry Bd., 496 Mass. 543, 548-550 (2025), which held that

repetitive offending that does not meet the definition of

compulsive under factor two can be considered in assessing the

degree of dangerousness of the petitioner under factor thirty-

seven.

3. Application of risk assessment tools. Doe argues next

that the use of results from two measures of risk, the STATIC-99

test and the STABLE-2007 test, was arbitrary and capricious.

Doe argues, without support, that there must be evidence that

the hearing examiner had the expertise necessary to interpret

the results of the tests as applied to Doe. Given the clarity

of the conclusions returned from administration of the tests

6
about level of risk of reoffense, and in the absence of any

citation supporting this argument, we are not persuaded.

Doe also argues that his current risk of reoffense and

degree of dangerousness were not properly assessed by these

tests, as they do not include consideration of the fact "that

Doe addressed all the issues that he was required to address as

suggested by the [c]omprehensive [e]valuation." These tests,

however, evaluate both static and dynamic risk factors, and

nothing in Doe's comprehensive evaluation undermines anything in

the hearing examiner's assessment.2

4. Denial of expert funds. Finally, Doe argues there was

error in the hearing examiner's denial of funds to engage the

services of an expert psychologist on adjustment disorder, with

which Doe has been diagnosed. Although we cannot expect counsel

to be aware of the conclusions an expert might reach in engaging

in an assessment of a particular person, we can say that merely

asserting that a petitioner has some diagnosis -- without

asserting some link between the diagnosis and possible effect on

risk of reoffense or degree of dangerousness -- is not

2 Doe complains that an article he submitted was improperly
excluded from "other information related to the nature of the
sexual behavior," which must be considered by the hearing
examiner. 803 Code Mass. Regs. § 133(37). As the article
relied for its conclusion on another article that was considered
by the Board in adoption of the regulations, we see no error.

7
sufficient to require a judge to provide funds for an expert.

See Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender

Registry Bd., 452 Mass. 764, 775 (2008).

In this case, Doe did not put forward even a hypothesis of

how the diagnosis of adjustment disorder might affect the

hearing examiner's analysis. Consequently, we see no abuse of

discretion or error of law in denial of the funds. For these

reasons, the judgment is affirmed.

So ordered.

By the Court (Rubin, Walsh &
Hershfang, JJ.3),

Clerk

Entered: May 14, 2026.

3 The panelists are listed in order of seniority.

8