John Doe, Sex Offender Registry Board No. 523460 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-357

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 523460

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe, appeals from a Superior Court

judgment upholding his classification by the Sex Offender

Registry Board (SORB) as a level three sex offender. He claims

the examiner abused her discretion by denying his motion for

expert funds and misapplying risk-elevating and risk-mitigating

factors. He also contends that the combination of these errors

deprived him of a fair hearing and a classification based on

substantial evidence. We affirm.

Background. On March 9, 2015, Doe pleaded guilty to

indictments that included offenses against two fourteen year old

females: rape of a child (seven counts), indecent assault and

battery (two counts), posing or exhibiting a child in a state of
nudity (three counts), possession of child pornography, and

reckless endangerment of a child. The convictions stemmed from

incidents occurring in March and April 2013. In April, Doe,

then age thirty-one, repeatedly sexually assaulted his neighbor

(victim one) over the course of three days. On one occasion,

assaults included Doe penetrating her mouth, vagina, and anus

with his penis. On another occasion he did the same while

joined by an adult female who provided marijuana to victim one

and joined in the sexual assault. Doe also cut victim one's

back with a scalpel and licked her blood, made her sign a "slave

contract," and took nude photographs of her. After Doe's

arrest, his cousin (victim two) reported to the police that in

March and April of 2013, Doe touched her breasts, upper thigh,

and "private area" and tried to move her hand to touch him. On

November 2, 2022, a hearing examiner issued an amended final

decision classifying Doe as a level three sex offender. A

Superior Court judge denied Doe's motion for judgment on the

pleadings and affirmed the level three classification. Doe

appeals.

Discussion. A reviewing court can only "set aside or

modify [SORB's] classification decision where it determines that

the decision is in excess of [SORB's] statutory authority or

jurisdiction, is based on an error of law, is not supported by

substantial evidence, or is an arbitrary and capricious abuse of

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discretion." Doe, Sex Offender Registry Bd. No. 3177 v. Sex

Offender Registry Bd., 486 Mass. 749, 754 (2021). Doe "bears a

heavy burden of establishing that [SORB's] decision was

incorrect." Id. at 757, quoting Boston Police Dep't v. Civil

Serv. Comm'n, 483 Mass. 461, 469 (2019).

1. Motion for expert funds. The motion sought funds to

hire an expert regarding Doe's "lifestyle choice" of consensual

bondage, discipline, and sadomasochism (BDSM). Doe argued that

BDSM was "misunderstood" in his comprehensive evaluation at the

Treatment Center, and an expert would be required to "educate

those in the hearing." We discern no abuse of discretion where

the hearing examiner denied the motion because Doe failed to

provide any supporting affidavit or documentation and failed to

explain how an expert on BDSM could shed any light on the

classification decision. See Doe, Sex Offender Registry Bd. No.

89230 v. Sex Offender Registry Bd., 452 Mass. 764, 775 (2008)

(Doe No. 89230) (sex offender has burden "to identify and

articulate the reason or reasons, connected to a condition or

circumstance special to him, that he needs to retain a

particular type of expert"). See also 803 Code Mass. Regs.

§ 1.16(4)(a) (2016) (motion for funds must "explain how that

condition is connected to [the offender's] risk of reoffense or

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level of dangerousness . . . [and] include supporting

documentation or affidavits").1

We also note that BDSM played a limited role in the

examiner's decision. The examiner did not consider BDSM as a

mental abnormality (factor 1) where expert evidence "may be most

relevant and material." Doe No. 89230, 452 Mass. at 775. To

the extent that she considered BDSM at all under factor 35

(psychological or psychiatric profiles) and factor 37 (other

information related to the nature of the sexual behavior), the

examiner carefully distinguished acts of BDSM between consenting

adults from Doe's conduct with a fourteen year old child. In

other words, while the examiner considered the comprehensive

report reflecting Doe's BDSM lifestyle, the examiner ultimately

limited her decision to noting elements of BDSM that appeared in

the sexual assault on victim one (such as cutting her with a

scalpel and imposing a slave contract). Nothing in Doe's motion

or his brief explains how an expert opinion would have been

relevant and material to the examiner's understanding of that

assault.

2. Application of the regulatory factors. "[A] hearing

examiner has discretion . . . to consider which statutory and

1 All citations to 803 Code Mass. Regs. §§ 1.00 are to the
2016 version in effect at the time of Doe's final classification
decision. The regulations were amended effective as of April
25, 2025.

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regulatory factors are applicable and how much weight to ascribe

each factor." Doe, Sex Offender Registry Bd. No. 356315 v. Sex

Offender Registry Bd., 99 Mass. App. Ct. 292, 299 (2021) (Doe

No. 356315), quoting Doe, Sex Offender Registry Bd. No. 68549 v.

Sex Offender Registry Bd., 470 Mass. 102, 109-110 (2014). "We

'give due weight to the experience, technical competence, and

specialized knowledge of the agency, as well as to the

discretionary authority conferred upon it.'" Doe, Sex Offender

Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass.

App. Ct. 85, 88 (2019), quoting Doe, Sex Offender Registry Bd.

No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73,

76 (2015). Doe contends that the hearing examiner erred in the

application of factor 9 (alcohol and substance abuse), factor 10

(contact with the criminal justice system), factor 13

(noncompliance with community supervision), and factor 28

(supervision by probation or parole). We address each factor.

Contrary to Doe's claim, the record supports the

application of factor 9 (alcohol and substance abuse). In

particular, in a 2017 comprehensive evaluation Doe admitted that

he began drinking alcohol at age thirteen, drank socially but

had not been drunk since age sixteen, had been intoxicated less

than ten times, tried smoking marijuana at age thirteen, began

using LSD (four or five times) at age fifteen, and snorted

cocaine twice when he was seventeen or eighteen. In a

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questionnaire that asked about behavior that "made it easier for

[him] to act out," Doe admitted "I was drinking" during one of

the charged sexual assaults. Based on evidence showing a

substance abuse history as well as drinking that contributed to

one of the sexual assaults, the examiner did not err in applying

factor 9. See 803 Code Mass. Regs. § 1.33(9) (factor 9 applies

where offender has "history of substance abuse . . . or when the

offender's substance use was a contributing factor in the sexual

misconduct").

Similarly, we discern no error with respect to the

application of factor 10 (contact with criminal justice system).

Doe argues that the hearing examiner erroneously applied factor

10 because she failed to acknowledge that some of the charges on

Doe's record resulted in dismissals, and she failed to

meaningfully consider that most of the enumerated offenses

occurred when Doe was a juvenile. In her application of factor

10, the hearing examiner listed (apart from the sexual offenses

described herein) sixteen juvenile offenses, seven adult

offenses, dates, and some dispositions during the period from

1995 through 2012. Based on our own review of Doe's probation

record that includes crimes against persons and property, the

examiner provided a sampling of the entries and, if anything,

understated Doe's contact with the criminal justice system.

Although the examiner did not denote the precise disposition of

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every charge, some of which were dismissed, the administrative

record supports the application of factor 10 because Doe had "a

persistent disregard for rules, laws, and the violation of the

rights of others" over a period of about seventeen years. 803

Code Mass. Regs. § 1.33(10). "[F]actor 10 does not confine the

examiner to consider only convictions." Doe, Sex Offender

Registry Bd. No. 390261 v. Sex Offender Registry Bd., 98 Mass.

App. Ct. 219, 226 (2020). Given Doe's extensive contact with

the criminal justice system, the examiner properly applied

factor 10 as it bore on both his risk to reoffend and his degree

of dangerousness.

Finally, we disagree with Doe's assertion that the hearing

examiner misapplied risk-elevating factor 13 (noncompliance with

community supervision), which led to the misapplication of risk-

mitigating factor 28 (supervision by probation or parole). In

applying factor 13, the hearing examiner considered that Doe

violated the terms of his probation numerous times. See 803

Code Mass. Regs. § 1.33(13)(a). The hearing examiner noted

seven violations of probation (two as a juvenile and five as an

adult). Our own review of the record shows nine probation

violations (three as a juvenile and six as an adult). While the

examiner undercounted the number of probation violations and

misstated the apportionment between juvenile and adult

violations, Doe "has failed to show how this alleged error

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prejudiced his substantial rights." Doe, Sex Offender Registry

Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 642

(2011). Furthermore, Doe's latest probation violation in 2012

occurred within just eighteen months of Doe receiving a

committed sentence of one year. Thus, despite a minor error in

tallying the numerous violations of probation, the examiner

could properly apply factor 13 because Doe was "[a]n offender

who unsatisfactorily adjusts to the external controls inherent

to community supervision." 803 Code Mass. Regs. § 1.33(13)(a).

Accordingly, the examiner also could properly give less weight

to factor 28, which recognizes that "[s]upervision of sex

offenders released into the community increases public safety."

803 Code Mass. Regs. § 1.33(28). "Factor 28 may be given less

weight if there is a history of probation violations." Id. The

administrative record supported the examiner's application of

these factors, and she had the discretion to decide "how much

weight to ascribe each factor." Doe No. 356315, 99 Mass. App.

Ct. at 299.

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Upon review, we discern no error, or combination of errors,

that prejudiced the substantial rights of Doe.

Judgment affirmed.

By the Court (Blake, C.J.,
Hodgens & Toone, JJ.2),

Clerk

Entered: July 3, 2025.

2 The panelists are listed in order of seniority.

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