John Doe, Sex Offender Registry Board No. 526553 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

23-P-249

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 526553

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

John Doe, Sex Offender Registry Board No. 526553 (Doe)

appeals from his classification as a level two sex offender.

See G. L. c. 6, § 178K (2) (b). He argues that the Sex Offender

Registry Board (SORB or board) hearing examiner (1) misapplied

regulatory factors 13 (noncompliance with community supervision)

and 37 (other information related to the nature of the sexual

behavior) in her analysis of Doe's risk of reoffense and degree

of dangerousness, without which she lacked substantial evidence

to support Doe's level two classification; (2) erred by

rejecting his expert's opinions; and (3) erred in finding that

public safety interests would be served by Internet publication.
We vacate the judgment and remand for further proceedings

consistent with this memorandum and order.

Background. We summarize the facts as set forth in the

hearing examiner's decision, "supplemented by undisputed facts

from the record." Doe, Sex Offender Registry Bd. No. 10800 v.

Sex Offender Registry Bd., 459 Mass. 603, 606 (2011).

A twelve year old boy (the victim) disclosed to his

therapist that Doe, then fifteen years old, had physically and

sexually abused him in a home daycare facility run by Doe's

mother. During a forensic interview, the victim disclosed that

Doe had been hitting and pinching him, causing bruising, for

over a year. The victim also reported that Doe had several

times forced his penis into the victim's mouth. Doe had

threatened the victim with violence -- that Doe would cut off

his penis or kill him -- to force the victim to comply.

Additionally, the victim disclosed that on several occasions Doe

had forced the victim to lick Doe's anus and had used a

broomstick to penetrate the victim's anus, which caused him

pain. The victim stated that the first sexual assault occurred

in October 2014 and that he was assaulted several times until

approximately February 2015.1

1 The parties disagree about the length of time over which
these events occurred, and the hearing examiner's analysis is
inconsistent on this point. We describe the events using the
timeline in the reports outlining the victim's statements and

2
On August 23, 2018, based on the events described, Doe was

adjudicated a youthful offender by a judge of the Juvenile Court

on two counts of rape of a child with force in violation of

G. L. c. 265, § 22A, and one count of indecent assault and

battery on a child under fourteen in violation of G. L. c. 265,

§ 13B. He was committed to the custody of the Department of

Youth Services (DYS) until age twenty-one, followed by an adult

sentence of two and one-half years in the house of correction,

suspended with a term of probation.

In November 2019, the board notified Doe of its preliminary

recommendation that he be classified as a level two sex

offender. After a de novo hearing challenging the

recommendation, the board issued a decision on October 23, 2020,

finally classifying Doe as a level two sex offender, concluding

he posed a moderate risk to reoffend and a moderate degree of

dangerousness and that a public interest is served by Internet

access to his sex offender registry information. Doe sought

judicial review of the board's decision. A judge of the

Superior Court remanded the matter to SORB, concluding that the

hearing examiner had inappropriately disregarded Doe's expert's

opinion.

address the hearing examiner's timeline of events in our
discussion.

3
Following the remand, on November 3, 2021, the hearing

examiner again classified Doe as a level two sex offender.2 Doe

again sought judicial review. A Superior Court judge affirmed

the level two classification, and this appeal followed. On

January 13, 2023, a judge of the Superior Court granted Doe's

emergency motion to stay Internet dissemination pending the

outcome of this action.

Discussion. "We review a judge's consideration of an

agency decision de novo." Doe, Sex Offender Registry Bd. No.

523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89

(2019). In reviewing the board's decision, "we 'give due weight

to the experience, technical competence, and specialized

knowledge of the [board].'" Doe, Sex Offender Registry Bd. No.

205614 v. Sex Offender Registry Bd., 466 Mass. 594, 602 (2013),

quoting G. L. c. 30A, § 14 (7). We may only set aside the

board's decision on a finding that the decision is unsupported

by substantial evidence, arbitrary and capricious, an abuse of

discretion, or not in accordance with the law. See Doe, Sex

Offender Registry Bd. No. 6729 v. Sex Offender Registry Bd., 490

Mass. 759, 762 (2022) (Doe No. 6729).

2 After Doe filed a complaint for judicial review of this
decision, the board rescinded it. A final amended
classification on remand issued on November 19, 2021.

4
1. Sufficiency of the evidence and application of the

regulatory factors. Doe contends that the level two

reclassification was not supported by substantial evidence

because the examiner erred in the application of board factors

13 and 37. We address factor 37 first.

a. Factor 37. The hearing examiner applied factor 37

because she found "the recurring nature of [Doe]'s offending

against the vulnerable boy concerning and considered this as

further evidence of [Doe]'s degree of dangerousness," and she

also "consider[ed] this repeated sexual behavior in relation to

the nature and scope of harm to future [v]ictims should he re-

offend." Doe argues that the hearing examiner inappropriately

considered evidence of repetitive behavior that SORB concedes

cannot be considered for risk of reoffense under factor 2 by

incorporating it into her evaluation through factor 37.3 SORB

counters that the hearing examiner considered the repetitive

3 In 2021, a Middlesex Superior Court judge invalidated the
second and third sentences of 803 Code Mass. Regs. § 1.33(2)
(2016), finding that there was insufficient scientific support
for factor 2's correlation between repetitive conduct and a
higher risk of reoffense, where the perpetrator has not been
confronted between offenses. See Doe, Sex Offender Registry Bd.
No. 22188 vs. Sex Offender Registry Bd., Mass. Super. Ct., No.
2081CV1130B, at 1, 20-22 (Middlesex County Apr. 16, 2021). SORB
did not appeal from the Superior Court judge's decision and has
conceded that it is bound by the ruling in that case. See Doe
No. 6729, 490 Mass. at 765-767 (evidence of confrontation
between sexual offenses sufficient to show compulsive as well as
repetitive conduct).

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nature of Doe's offenses in a specific manner -- as other

information permitted under factor 37 in determining

dangerousness, not risk of reoffense, and the harm that would

befall a victim if Doe reoffends.

For the purposes of this decision, we assume without

deciding that a hearing examiner can consider repetitive

behavior under factor 37 to determine degree of dangerousness.

We nonetheless remand the matter because the hearing examiner

relied on factor 37 in a way that appears to have duplicated

risk-elevating factors on which the hearing examiner also

relied. Put another way, we remand because we are unable to

determine whether the hearing examiner's application of factor

37 double counted factors that she had already considered in her

analysis. The hearing examiner refers to "the nature and scope

of harm to future [v]ictims" in her factor 37 analysis, but she

had already applied factor 8 (weapon, violence or infliction of

bodily injury) and factor 19 (level of physical contact) to

account for the Doe's degree of dangerousness should he reoffend

in the future. See 803 Code Mass. Regs. § 1.33(8)(c), (19)(c)

(2016). Similarly, the hearing examiner refers to the victim as

a "vulnerable boy" in her analysis of factor 37, and she also

applied factor 17 (male offender against male victim). See 803

6
Code Mass. Regs. § 1.33(17)(c).4 The hearing examiner's

reference to the boy as "vulnerable" also injects concern that

she may have considered the victim "extravulnerable" though SORB

conceded, and the hearing examiner elsewhere accepted, that

factor 18 (extravulnerable victim) did not apply.

We cannot be confident that these apparent duplications did

not materially influence the hearing examiner's level two

classification. Accordingly, we vacate the judgment and remand

the matter for further proceedings. Doe, Sex Offender Registry

Bd. No. 22188 v. Sex Offender Registry Bd., 101 Mass. App. Ct.

797, 804 (2022).

b. Factor 13. Doe argues that the hearing examiner

incorrectly applied minimal weight to factor 13 by attributing

"negative behaviors in the beginning of [Doe's DYS] residential

placement" as evidence of noncompliance with community

supervision. See 803 Code Mass. Regs. § 1.33(13)(c). Doe, then

a teen, failed to comply with community supervision when

entering custody of the DYS by being disrespectful to staff,

attempting to instigate fellow peers, and failing to adhere to

program routine. "[O]ur review does not turn on whether, faced

with the same set of facts, we would have drawn the same

4 On remand, we suggest the hearing examiner consider adding
detail to the characterization of the victim as "vulnerable"; we
note that the examiner did not apply factor 18 (extravulnerable
victim), and SORB conceded this factor did not apply.

7
conclusion as an agency or local board, but only whether a

contrary conclusion is not merely a possible but a necessary

inference" (quotation and citation omitted). Doe, Sex Offender

Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass.

102, 110 (2014). We discern no abuse of discretion in the

hearing examiner's application of factor 13 with minimal weight.

2. Other issues on remand. Given our decision to remand

based on the factor 37 issue alone, we only address those

additional issues that may be relevant on remand.

a. Medical expert testimony. Doe introduced expert

medical testimony that concluded his risk of reoffense is

"extremely low," and he presented as "an extremely low danger to

the public." Doe contends that the hearing examiner abused her

discretion in failing to state an adequate reason for declining

to adopt the expert's opinion that Doe posed a low risk of

sexual reoffense. Although the hearing examiner was required to

carefully consider expert testimony, Doe "is not entitled to a

guarantee that SORB will reach the same conclusion as his

expert." Doe, Sex Offender Registry Bd. No. 23656 v. Sex

Offender Registry Bd., 483 Mass. 131, 137 (2019). A hearing

examiner may reject uncontradicted expert testimony, provided

she articulates an "objectively adequate reason" for doing so.

Id. at 137.

8
Here, the expert opinion relied on Doe's self-reports of

the effects of testosterone injections for delayed puberty. The

hearing examiner discounted the expert's testimony because Doe

"did not submit any of the aforementioned medical records

relating to his previous pre-pubertal diagnosis nor the

subsequent medical notes which would corroborate his self-

reported side effects of the testosterone therapy." We do not

address the merits of this argument because, on remand, Doe has

the opportunity to address the hearing examiner's concerns by

submitting the records or explaining whether the standard of

care would not have been to document such concerns.5

b. Incident timeline. When initially remanding to SORB

for a new hearing in 2022, the Superior Court judge noted in his

order that "the hearing examiner states that [Doe] assaulted the

Victim over a nine-month period. However, the factual

recitation of [Doe's] index offenses at the beginning of her

decision indicates that the offenses only occurred over a four-

month period" and instructed that "[t]hese discrepancies should

be resolved on remand." However, the hearing examiner failed to

correct this inconsistency in her amended decision. Without

explanation, the hearing examiner continued to use the nine-

5 Doe is now entitled to a reclassification hearing. We
leave it to Doe and SORB whether to hold an entirely new hearing
or to supplement the existing administrative record.

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month time frame in her decision. The time period of the

offenses is relevant because the medical expert gave the opinion

that the rapid increase in testosterone levels for treatment of

delayed puberty was a consideration in Doe's offenses. We note

that the victim disclosed that the assaults occurred in October

2014 and continued until February 2015.6 On remand, the hearing

examiner should make a finding on the period of time that the

victim was abused and use that length of time consistently in

the classification evaluation.

Conclusion. We vacate the judgment of the Superior Court

affirming SORB's decision classifying Doe as a level two sex

offender. A new judgment shall enter vacating SORB's decision

and remanding this matter to SORB for further proceedings

consistent with this memorandum and order.

So ordered.

By the Court (Henry,
Hershfang & Smyth, JJ.7),

Clerk

Entered: April 17, 2025.

6 The indictments allege a longer period, to June 2015.
Should the hearing examiner continue to rely on this longer
period, she should explain why the indictments are more reliable
than the victim's statements as to the period of abuse.

7 The panelists are listed in order of seniority.

10