John Doe, Sex Offender Registry Board No. 98921 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-842

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 98921

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff appeals from a Superior Court judgment

affirming his classification by the Sex Offender Registry Board

(board) as a level three sex offender. He contends that the

board's classification decision was both arbitrary and

capricious and not supported by substantial evidence because the

hearing examiner misapplied three risk-elevating factors and one

risk-mitigating factor. He further contends that the board

erroneously ordered the public dissemination of his biographical

information without properly weighing his liberty and privacy

interests against the public's interest in accessing that

information. We affirm.
1. Evidence supporting level three classification. The

plaintiff was initially classified as a level two sex offender

in 2005 after, having been charged with rape and abuse of a

child under sixteen, he pleaded guilty to an amended charge of

indecent assault and battery on a child under fourteen. The

hearing examiner properly found that the offense involved

penetration of the thirteen year old victim's vagina (the

plaintiff was nineteen). See Doe, Sex Offender Registry Bd. No.

496501 v. Sex Offender Registry Bd., 482 Mass. 643, 656 (2019)

(Doe No. 496501) (in determining whether risk of reoffense,

dangerousness, and need for Internet publication "have been

established by clear and convincing evidence, a hearing examiner

may consider subsidiary facts that have been proved by a

preponderance of the evidence"); Doe, Sex Offender Registry Bd.

No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85,

89 (2019) ("hearsay evidence may be admissible if it bears

sufficient indicia of reliability").

For several years in the 2010s, the plaintiff repeatedly

sexually assaulted his stepdaughter; she was between the ages of

six and eleven or twelve when the abuse occurred. Although he

pleaded guilty to three counts of indecent assault and battery

on a child under fourteen, the hearing examiner properly found

that the offense involved penetration of the victim's vagina and

anus.

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In addition, in 2013, the plaintiff pleaded guilty to

assault and battery after his girlfriend reported that he had

barricaded her in a room, strangled and suffocated her, and

refused to let her leave until she admitted she was having an

affair with a coworker. In 2004, 2013, and 2021, the plaintiff

had abuse prevention orders entered against him involving two

different women. He was convicted of failure to register as a

sex offender in 2005 and 2014. He was found to have violated

the terms of his probation in March 2007 and December 2014.

Considering these facts and the mitigating circumstances

discussed below, in 2021 a hearing examiner found that the

plaintiff posed a high risk of reoffense and a high degree of

dangerousness, and that active dissemination and Internet

publication of his sex offender registry information would serve

a substantial public safety interest. Accordingly, the board

ordered that the plaintiff register as a level three sex

offender.

2. Challenge to classification decision. "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 No. 496501, 482

Mass. at 649, citing G. L. c. 30A, § 14 (7). "Substantial

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evidence is 'such evidence as a reasonable mind might accept as

adequate to support a conclusion.'" Doe, Sex Offender Registry

Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 632

(2011), quoting G. L. c. 30A, § 1 (6). "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" (quotation and citation omitted). Doe, Sex

Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd.,

88 Mass. App. Ct. 73, 76 (2015).

"[A] hearing examiner's decision must show that the

classification is based on a sound exercise of informed

discretion rather than the mechanical application of a checklist

or some other reflex" (quotation and citation omitted). Doe,

Sex Offender Registry Bd. No. 11204 v. Sex Offender Registry

Bd., 97 Mass. App. Ct. 564, 574 (2020) (Doe No. 11204). The

decision must reflect "reasoned analysis," not merely "a

perfunctory effort based on a tally sheet of aggravating and

mitigating factors, concluding in the end simply that the former

outweighed the latter." Id. at 575-576.

The plaintiff argues that the hearing examiner in this case

took the same "checklist approach" that was rejected in Doe No.

11204, citing sections of the hearing examiner's decision

analyzing his risk of reoffense and degree of dangerousness.

Viewed within the context of the hearing examiner's entire

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decision, however, these sections follow a detailed discussion

of the plaintiff's past offenses, with rigorous evaluation and

weighing of the applicable statutory and regulatory factors.

See 803 Code Mass. Regs. § 1.33 (2016);1 Doe, Sex Offender

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

102, 105 (2014) ("[board] is required to consider a list of

statutory factors in making its classification determinations").

Based on the facts summarized above, the hearing examiner found

that two high-risk factors2 and eight risk-elevating factors3

applied. In addition, the hearing examiner considered a

strongly worded victim impact statement written by the mother of

1 "Title 803 Code Mass. Regs. §§ 1.00 was recently amended,
effective April 25, 2025. We refer to the version of the
regulations in effect at the time of the hearing examiner’s
decision." Doe, Sex Offender Registry Bd. No. 528042 v. Sex
Offender Registry Bd., 496 Mass. 437, 440 n.3 (2025).

2 See 803 Code Mass. Regs. § 1.33(2) (repetitive and
compulsive behavior, factor applied with increased weight);
§ 1.33(3) (adult offender with child victim, factor applied with
increased weight).

3 See 803 Code Mass. Regs. § 1.33(7) (relationship between
sex offender and victim, factor applied); § 1.33(10) (contact
with criminal justice system, factor applied); § 1.33(11)
(violence unrelated to sexual assaults, factor applied with
moderate weight); § 1.33(13) (noncompliance with community
supervision, factor applied with moderate weight); § 1.33(15)
(hostility towards women, factor applied); § 1.33(18)
(extravulnerable victim, factor applied); § 1.33(19) (level of
physical contact, factor applied with increased weight);
§ 1.33(21) (diverse victim type, factor applied); § 1.33(22)
(number of victims, factor applied).

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the plaintiff's stepdaughter.4 The plaintiff does not challenge

the application of the high-risk factors, and he contests only

three of the eight risk-elevating factors.

The hearing examiner also considered risk-mitigating

factors, including that at the time of the hearing the plaintiff

was under probation supervision, was undergoing sex offender

treatment, and had found stable housing with his brother.5

Finally, the hearing examiner considered several scientific

papers the plaintiff submitted, including studies on rates of

recidivism and rearrest among male sex offenders, and on the

efficacy of community supervision and support on rates of

reoffending.6

Taken as a whole, the hearing examiner's findings and

conclusions reflect more than "a perfunctory effort" at

analysis. Contrast Doe No. 11204, 97 Mass. App. Ct. at 574-576

(judgment affirming classification decision vacated where

4 See 803 Code Mass. Regs. § 1.33(38) (victim impact
statement, factor applied).

5 See 803 Code Mass. Regs. § 1.33(28) (community
supervision, factor applied with moderate weight); § 1.33(32)
(sex offender treatment, factor applied with minimal weight);
§ 1.33(34) (stability in home environment and the community,
factor applied).

6 See 803 Code Mass. Regs. § 1.33(37) (other useful
information, factor applied). The hearing examiner also
considered but gave "little weight" to studies the plaintiff
submitted regarding the adverse impact of sex offender
restrictions and registration on offenders and their families.

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hearing examiner failed to address or even mention "detailed,

fact-specific evaluations" and other reports generated about

plaintiff during his commitment as sexually dangerous person).

The hearing examiner's decision demonstrates the kind of

"informed discretion" and "reasoned analysis" of the plaintiff's

individual history and personal circumstances that the law

requires. Id. at 574-575. The decision was based on

substantial evidence and was neither arbitrary nor capricious.

3. Challenges to application of regulatory factors. The

plaintiff claims that the hearing examiner misapplied factors

11, 13, 21, and 28. Based on the record available to us, it

appears that the plaintiff raised only the first of these

challenges in the Superior Court.7 In any event, we discern no

error.

The plaintiff argues the hearing examiner erred in applying

factor 11 (violence unrelated to sexual assaults) by failing to

explain why he applied the factor with "moderate weight," as

opposed to minimal or full weight. He also argues that the

hearing examiner failed to properly consider the severity and

7 The plaintiff's failure to include in the record appendix
his memorandum in support of his Superior Court motion for
judgment on the pleadings prevents us from determining which
issues were preserved. We infer from the Commonwealth's
opposition, which is included in the record appendix, and which
discusses only factors 2, 7, 10, 11, and 19, that the plaintiff
did not challenge the application of factors 13, 21, or 28.

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frequency of the plaintiff's violence toward others by

considering one charge that had been dismissed and another that

was "nearly a decade before the hearing." A hearing examiner is

required to make "particularized, specific, and detailed

findings" (citation omitted), Doe, Sex Offender Registry Bd. No.

380316 v. Sex Offender Registry Bd., 473 Mass. 297, 303 (2015)

(Doe No. 380316), to the extent necessary to permit effective

review. See Doe, Sex Offender Registry Bd. No. 136652 v. Sex

Offender Registry Bd., 81 Mass. App. Ct. 639, 651 (2012).

Where, as here, we can determine which facts formed the basis of

the hearing examiner's reasoning, that purpose is satisfied.

In applying factor 11, the hearing examiner primarily

considered the 2013 conviction for assault and battery, which

involved a serious instance of domestic violence. Although the

hearing examiner also mentioned an August 2006 charge of assault

and battery causing serious bodily injury, earlier in the

decision he had noted that because the record did not include a

police report, he lacked evidence of, and therefore did not

consider, this incident. Given the serious nature of the 2013

incident, but this being the only relevant incident, it is

evident why the hearing examiner gave this factor moderate, as

opposed to full, weight.

Next, the plaintiff argues that the hearing examiner

improperly applied risk-elevating factor 13 (noncompliance with

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community supervision) as well as the countervailing, risk-

mitigating factor 28 (supervision by probation or parole)

-- both of which were given moderate weight. The plaintiff

asserts that the hearing examiner gave too much weight to factor

13 because he considered only the number, but not the nature,

severity, disposition, or age, of the plaintiff's probation

violations. Conversely, the plaintiff asserts that the hearing

examiner gave too little weight to factor 28 because there were

only two violations. We discern no error. The regulations

permit, but do not require, the board to consider both the

number, seriousness, and age of probation violations. See 803

Code Mass. Regs. § 1.33(13). The regulations also state,

"Factor 28 may be given less weight if there is a history of

probation violations." 803 Code Mass. Regs. § 1.33(28). The

hearing examiner's decision, which included the dates of the two

violations and essentially balanced the risk-elevating impact of

factor 13 with the risk-mitigating impact of factor 28,

demonstrates that he considered the relevant facts when applying

these two factors.

Finally, the plaintiff contends that the hearing examiner

erroneously classified extrafamilial and intrafamilial victims

as "diverse" under factor 21 (diverse victim type) because the

studies underlying the regulation do not support this

classification. As noted, the plaintiff waived this argument by

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failing to raise it at the Superior Court. See Doe, Sex

Offender Registry Bd. No. 203108 v. Sex Offender Registry Bd.,

87 Mass. App. Ct. 313, 320-321 (2015). Putting aside the

plaintiff's challenge to the regulation itself, the hearing

examiner permissibly applied factor 21, which specifically lists

diversity of "relationship categories" as a risk-elevating

factor. 803 Code Mass. Regs. § 1.33(21). Furthermore, the

plaintiff's victims were also diverse in age, an application

supported by the regulation and underlying studies.

Accordingly, we see no need to remand the case for clarification

of how the hearing examiner applied and weighed the four

factors.

4. Internet dissemination. The plaintiff argues the

hearing examiner failed to weigh his liberty and privacy

interests when determining whether Internet dissemination of his

sex offender registry information would serve a substantial

public safety interest. Because a sex offender's risk

classification level affects his liberty and privacy interests,

the board must support its classification decisions with clear

and convincing evidence. See Doe No. 380316, 473 Mass. at 314-

315. In addition, hearing examiners must carefully evaluate the

need for publication on an individualized basis and determine

"whether, in light of the particular risks posed by the

particular offender, Internet access to that offender's

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information might realistically serve to protect the public

against the risk of the offender's sexual reoffense." Doe No.

496501, 482 Mass. at 655. Nothing more is required. See id. at

654-655 ("Where a sexually violent offender presents a moderate

risk to reoffend and a moderate degree of dangerousness,

Internet publication will almost invariably serve a public

safety interest by notifying potential victims of the risks

presented by the offender in their geographic area").

In performing his evaluation, the hearing examiner found by

clear and convincing evidence that the plaintiff posed a high

risk of reoffense and dangerousness, particularly to

extrafamilial acquaintances, prepubescent family members, or

live-in relatives, and that dissemination and Internet

publication of the plaintiff's sex offender registry information

would serve a substantial public safety interest. The hearing

examiner considered the requisite facts and did so with the

requisite care.

Judgment affirmed.

By the Court (Vuono,
Massing & Allen, JJ.8),

Clerk

Entered: October 23, 2025.

8 The panelists are listed in order of seniority.

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