John Doe, Sex Offender Registry Board No. 526715 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-226

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 526715

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe, appeals from a Superior Court

judgment that affirmed, on judicial review under G. L. c. 6,

§ 178M, and G. L. c. 30A, § 14, the decision of the Sex Offender

Registry Board (board) to classify him as a level three sex

offender. He argues that the hearing examiner erred in

considering hearsay evidence of Doe's 2005 misconduct and in

applying numerous risk factors. We conclude that the examiner's

reliance on the hearsay may have been reasonable, but that her

analysis requires further explanation, and that errors or

potential errors in applying four factors require a remand to

the board to reconsider Doe's classification. We therefore

vacate the judgment.
Our review is limited: "[w]e reverse or modify the board's

decision only if we determine that the decision is unsupported

by substantial evidence or is arbitrary or capricious, an abuse

of discretion, or not in accordance with law." Doe, Sex

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

459 Mass. 603, 633 (2011). The examiner makes subsidiary

findings using the preponderance of the evidence standard. See

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

Registry Bd., 95 Mass. App. Ct. 85, 92 (2019) (Doe No. 523391).

For ultimate findings, the evidence before the examiner must be

clear and convincing. Doe, Sex Offender Registry Bd. No. 380316

v. Sex Offender Registry Bd., 473 Mass. 297, 298 (2015).

1. Hearsay. The examiner considered hearsay evidence of

Doe's 2005 conduct toward a fifteen year old girl (whom we shall

call Jane) in a residential facility for troubled teens, where

Doe was a twenty-four year old direct care worker. The evidence

was set forth in a Department of Children and Families (DCF)

investigative report under G. L. c. 119, § 51B (§ 51B report).

The § 51B report supported allegations that Doe had touched Jane

inappropriately (on the back and stomach and by kissing her

cheek) and made sexualized comments to her (including that he

liked a particular type of underwear she wore and that she

should date someone older, like him). Based on the § 51B

report, Doe's employment at the facility was terminated.

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"[H]earsay evidence may be admissible if it bears

sufficient indicia of reliability." Doe No. 523391, 95 Mass.

App. Ct. at 89. "[W]e ask whether it was reasonable for the

examiner to admit and credit the facts described in the hearsay

evidence" (quotation and citation omitted). Id. "Factors that

the examiner should consider include the general plausibility

and consistency of the victim's or witness's story, the

circumstances under which it is related, the degree of detail,

the motives of the narrator, the presence or absence of

corroboration and the like" (quotation and citation omitted).

Id.

Here, in ruling that the evidence of sexual misconduct was

reliable, the examiner acknowledged these governing standards.

She discussed several of them. Doe now argues that the examiner

failed to consider certain factors bearing on the reliability of

the § 51B report and of Jane's statements contained in it.

First, Doe points out that the DCF investigator in 2005 was

both applying a lower standard and making a different finding

than what was required of the examiner in 2022. At both times,

to "support" a report of suspected abuse, DCF need not have

found that any abuse occurred, but only that there is

"reasonable cause to believe" that abuse occurred or was at

substantial risk of occurring. 110 Code Mass. Regs. § 4.32(2)

(2009); 110 Code Mass. Regs. § 4.32(2) (2000). See Cobble v.

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Commissioner of Dep't of Social Servs., 430 Mass. 385, 394

(1999); Kyle K. v. Department of Children & Families, 103 Mass.

App. Ct. 452, 453 (2023). The "reasonable cause to believe"

standard1 falls short of the preponderance standard that the

board must meet to establish subsidiary facts. See Doe No.

523391, 95 Mass. App. Ct. at 92.

The fact at issue here was whether sexual misconduct

actually occurred. The examiner credited Jane's allegations of

Doe's sexual misconduct against her and found them as fact.

However, to Doe's point, the examiner unnecessarily muddled

these findings by references to DCF's assessment of Doe's

behaviors toward Jane and the result of DCF's investigation. On

remand, the examiner should make clear that the appropriate

standard for board proceedings was applied and should set forth

fully the factors she considered in assessing the reliability of

Jane's hearsay allegations. Although the examiner may properly

consider hearsay information contained in a § 51B report, DCF's

own findings and conclusions regarding that hearsay would appear

1 In 2005 and 2022, "reasonable cause to believe" was
defined to mean "a collection of facts, knowledge or
observations which tend to support or are consistent with the
allegations, and when viewed in light of the surrounding
circumstances and credibility of persons providing information,
would lead one to conclude that a child has been abused or
neglected." 110 Code Mass. Regs. § 4.32(2). The new definition
is not materially different. See 110 Code Mass. Regs. § 4.32(3)
(2023).

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to be of limited relevance to whether the hearsay was

substantially reliable to the extent necessary to establish the

fact at issue.2

Doe makes several other arguments as to why the 2005 § 51B

report was unreliable hearsay, but those arguments do not

persuade us. In particular, Doe points to Jane's motives to

fabricate her allegations against him. During the § 51B

investigation, Doe suggested that Jane had such motives, as did

one of Doe's coworkers. The DCF investigator acknowledged those

suggestions, however, and also considered other factors

suggesting that Jane's allegations were reliable. These

included that Jane appeared sincere and upset and was crying

when she made the allegations to facility staff; that another

resident -- whom staff had reason to think would not support a

false allegation against a staff member -- corroborated some of

Jane's allegations; and that Jane was generally consistent in

the allegations she made to staff. See Doe No. 523391, 95 Mass.

App. Ct. at 90 & n.7 (consistency in allegations not dispositive

but may be considered).

2 If the examiner believes it is appropriate to give weight
to DCF's contemporaneous assessment of Jane's reliability, the
examiner should explain her reasons for doing so. Relatedly,
Doe points to a statement in the report that prompted the § 51B
investigation, that prior to 2005, Jane had alleged staff abuse
at another facility but a different investigator concluded that
she had lied. If the examiner gives any weight to that
conclusion, she should explain her reasons.

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No doubt, as Doe's brief highlights, some of the evidence

discussed by the § 51B investigator tended to support Doe.

Numerous other facility staff had not observed Doe do anything

improper, and to the extent that Doe corroborated some of the

details stated by Jane, those details were relatively innocuous.

Nevertheless, the examiner found Jane's allegations sufficiently

credible to conclude that sexual misconduct occurred.

The question for us is not whether we ourselves would view

the hearsay as reliable if the matter were before us de novo,

but whether the examiner's decision to treat it as reliable was

reasonable. See Doe, Sex Offender Registry Bd. No. 23656 v. Sex

Offender Registry Bd., 483 Mass. 131, 143-144 (2019); Doe No.

523391, 95 Mass. App. Ct. at 89. Further analysis by the

examiner will help clarify the matter.

2. Application of risk factors. Doe argues that the

examiner misapplied seven board risk factors. See 803 Code

Mass. Regs. § 1.33 (2016).3 Two of them (factor 2, repetitive

and compulsive behavior, and factor 32, sex offender treatment)

depend on whether Doe committed sexual misconduct in 2005. If,

after further analysis on remand, the examiner concludes that

the 2005 hearsay was reliable, then those two factors appear to

3 Hereinafter we refer to the classification factors by
number, or name and number, it being understood that each of
them appears in the corresponding subpart of 803 Code Mass.
Regs. § 1.33.

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have been permissibly applied. And we are unpersuaded by Doe's

claims regarding factor 33 (home situation and support systems).

We conclude, however, that errors or potential errors in

applying four other factors should be addressed on remand.

a. Factor 2. Based on her determination to credit Jane's

allegations in the § 51B report, and on Doe's 2018 guilty pleas

to sex offenses against a fourteen year old girl, the examiner

applied factor 2. "Factor 2 is applied when a sex offender

engages in two or more separate episodes of sexual misconduct."

Factor 2(a). We are unpersuaded by Doe's argument that Jane's

allegations, if treated as reliable, did not constitute evidence

of sexual misconduct for factor 2 purposes. Contrary to Doe's

contentions, it was not essential to the application of factor 2

that Doe have had sexual contact with Jane, have abused her

within the meaning of DCF regulations, or have committed

indecent assault and battery or any other sex offense against

her as defined in G. L. c. 6, § 178C.4 Nor was it essential that

the examiner agreed with the § 51B investigator's conclusion

4 Doe also claims that, under the 2016 coding rules for
scoring the Static-99R assessment of sex offender recidivism
risk, the fact that he was not arrested or charged means the
§ 51B report has "no predictive value." The cited passages of
the coding rules say no such thing; instead, they discuss what
should be considered a sex offense for scoring purposes.

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that Doe's conduct toward Jane could be viewed as "grooming"

behavior.5

Doe's conduct, if Jane's allegations are credited, could

reasonably be viewed as motivated by his sexual desire, see Doe,

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

Bd., 466 Mass. 594, 610 n.13 (2013). It could also be viewed as

misconduct, given that Jane was a fifteen year old girl under

Doe's supervision at a residential facility for troubled teens.

In short, the examiner could reasonably consider Doe to have

engaged in sexual misconduct for factor 2 purposes.

b. Factor 32. Doe argues that the examiner erred in

giving only moderate rather than full weight to factor 32. The

examiner did so because, despite Doe's "excellent" record in

treatment from 2019 through the time of the 2022 hearing, it was

5 We do not view the examiner, or for that matter the § 51B
investigator, to have used the term "grooming" in any
specialized sense requiring expert evidence. Rather, the word
appears to have been used in a lay sense, to describe conduct
aimed at preparing an un- or less-experienced person to engage
in unfamiliar behavior or take on a new role. Likewise, we do
not understand the examiner's statement that Doe's behavior was
"indicative of a potential deviant sexual interest in minor
females" as involving any clinical judgment requiring expert
evidence. Under the board's factor 3(a) (adult offender with
child victim), "[o]ffenders who target prepubescent children,
generally younger than 13 years old, are more likely to have a
deviant sexual interest and therefore, pose an even higher risk
of reoffense and degree of dangerousness" (emphasis added).
Although neither Jane nor Doe's 2018 victim was under thirteen
years old, they were both children. Doe has not challenged the
examiner's application of factor 3 here.

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"concerning" that, during that treatment, Doe had not revealed

what the examiner concluded was his 2005 sexual misconduct. Doe

argues that the examiner could not make this judgment without

"specialized knowledge in treatment pedagogy," which he says she

lacked.

What this overlooks is that the text of factor 32 embodies

just such a judgment. Factor 32(a)(4) states, for adult men

like Doe, that its weight may vary based on considerations such

as:

"4. Denial. One of the primary goals of successful sex
offender treatment is accepting responsibility for engaging
in harmful sexual offending behavior. While some
individuals who deny committing their sex offense can
benefit from treatment, their lack of responsibility or
degree of minimization for their behaviors may diminish the
weight assigned to factor 32."

If Jane's allegations of sexual misconduct were reliable, then

the examiner could reasonably conclude that Doe's failure during

treatment to take responsibility for that misconduct should

diminish the weight to be given his sex offender treatment in

assessing his risk of reoffense.

Doe also suggests that the record does not show that he

failed to discuss his 2005 conduct during his sex offender

treatment. Yet, during a comprehensive and lengthy assessment

of his offending, his history, and his treatment, Doe mentioned

only that at age twenty-four he had been fired from a kitchen

job for "yell[ing] at the boss." Whether this was a disguised

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referenced to his 2005 termination from the residential

facility, or a reference to some other experience, is unclear.

What is clear is that Doe points to nothing in the detailed

assessment or in his other treatment records reflecting that he

disclosed and grappled in treatment with his 2005 termination,

or his history (aside from his 2018 offenses) of alleged sexual

misconduct toward a young girl. The examiner could reasonably

find that Doe had not discussed that conduct in treatment.

c. Factor 33. Doe argues that the examiner erred in

giving only moderate rather than full weight to factor 33 (home

situation and support systems). The examiner did so because,

although Doe had many supportive friends and family who said

they knew of his crimes, there was no evidence that they knew

what those specific crimes were, nor did they state specifically

how they would support his efforts toward rehabilitation upon

release. The examiner's approach was permissible. Factor 33(a)

calls for giving "greater mitigating consideration to evidence

of a support network that is aware of the offender's sex offense

history and provides guidance, supervision, and support of

rehabilitation."

d. Factors 8 and 16. The board's brief concedes that the

examiner misapplied factor 8 (use of weapon or violence or

infliction of bodily injury) and factor 16 (public place) to

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find that Doe posed a greater risk of reoffense and degree of

dangerousness.

e. Factor 9. Doe argues that the examiner was

inconsistent in applying factor 9 (alcohol and substance use) as

a risk-aggravating factor. At one point in her decision, the

examiner gave factor 9 "minimal weight," but elsewhere she gave

it "increased weight." The board's brief does not explain this

discrepancy.

f. Factor 35. Doe contends that the examiner misapplied

factor 35 (psychological or psychiatric profiles indicating risk

to reoffend) by giving Doe's scores on empirically based risk

assessment instruments only "some weight to the extent they were

correctly applied to the facts by a qualified provider." Each

of the three assessments arguably indicated that Doe posed

something less than a high risk of reoffense, and Doe argues

that the examiner lacked the specialized knowledge to question

whether the assessments were correctly performed. Indeed, the

examiner pointed to nothing suggesting any problem with how

those assessments were done in Doe's case, let alone

articulating any basis for opining on how such problems might

have affected the results.6 But we see a more basic problem:

6 The examiner cited a statement, in the report on Doe's
penile plethysmograph (PPG) assessment, that although Doe had
shown "[a]rousal to appropriate stimuli," defined as adult
women, he showed "no significant physiological arousal to

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the examiner failed to state clearly whether she did reduce the

weight given to these assessments on the ground that they were

improperly conducted. We cannot provide effective judicial

review where we are unsure what weight the examiner gave factor

35 and why she did so. The matter should be clarified on

remand.

3. Disposition. The proper standard of review when an

offender successfully challenges the application of a regulatory

factor "is to ask whether the error may have affected the

classification and, if so, to remand to [the board]. This best

comports with our statutory mandate to determine whether 'the

substantial rights of any party may have been prejudiced'

(emphasis added)." Doe, Sex Offender Registry Bd. No. 22188 v.

Sex Offender Registry Bd., 101 Mass. App. Ct. 797, 804 (2022)

(Doe No. 22188), quoting G. L. c. 30A, § 14. Here, Doe has

successfully challenged whether four factors were properly

applied in classifying him as a level three offender, and the

application of two others depends on the examiner's further

analysis of the reliability of the 2005 allegations. Because

deviant stimuli," defined to include children and adolescents,
and so his "data was not appropriate for statistical analysis of
sexual preferences." It is unclear from this statement whether
the PPG result's lack of utility for such statistical analysis
calls into question its result that Doe was unaroused by
children and adolescents. On remand, if the examiner relies on
this statement as a ground for giving reduced weight to the PPG
result, she should explain her basis for doing so.

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the "examiner has discretion . . . to consider which statutory

and regulatory factors are applicable and how much weight to

ascribe to each factor" and a number of factors are in play, we

are unsure whether the examiner, even without regard to those

four factors, would have given Doe a level three classification.

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

Registry Bd., 470 Mass. 102, 109-110 (2014). See Doe, Sex

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

482 Mass. 643, 657 n.4 (2019); Doe No. 22188, supra at 802.

Conclusion. The judgment affirming the board's decision is

vacated. The case is remanded to the Superior Court for entry

of a new judgment vacating the decision and remanding the case

to the board for further proceedings consistent with this

memorandum and order.

So ordered.

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

Clerk

Entered: June 5, 2025.

7 The panelists are listed in order of seniority.

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