Jane Doe, Sex Offender Registry Board No. 527139 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-1323

JANE DOE, SEX OFFENDER REGISTRY BOARD NO. 527139

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Jane Doe (Doe), appeals from a Superior

Court judgment affirming her classification by the Sex Offender

Registry Board (SORB) as a level two sex offender. On appeal,

Doe claims that (1) the hearing examiner erred in using invalid

factor 2 considerations as part of his analysis under factor 37;

(2) the evidence does not support the hearing examiner's

application of factor 3; and (3) the hearing examiner erred in

failing to reconsider expert testimony after remand. We affirm.

Background. We summarize the facts as found by the hearing

examiner, "supplemented by undisputed facts from the record,"

and reserve certain facts for later discussion. Doe, Sex

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

459 Mass. 603, 606 (2011) (Doe 10800).
With respect to the governing offenses, the hearing

examiner found as follows. On September 19, 2003, Clark County

Arkansas Sheriff's Office investigators and Arkadelphia Arkansas

police investigators interviewed a fourteen year old girl

(victim) who stated that she had been forcibly sexually

assaulted, repeatedly, by an adult male for "three years or

over." Doe, the victim's mother, knew of the sexual assaults,

received money from the adult male offender in exchange for

facilitation of the sexual assaults, forced the victim to go to

the offender's home, and was present on "four to ten" occasions

when the victim was sexually assaulted. Doe also forced the

victim to watch Doe and the male engage in intercourse and other

sex acts and to participate in "a 'threesome' where the male

raped the [v]ictim with his penis," and Doe "physically held the

[v]ictim down so the male could sexually assault her on at least

three occasions." The victim reported the sexual assaults to a

school counselor who contacted the police.

Doe was subsequently convicted in Arkansas of twenty counts

of rape and sentenced to fourteen years of incarceration. Doe

was released in 2016 before relocating to Massachusetts.

In January 2020, SORB notified Doe that she had a duty to

register as a level two sex offender, pursuant to G. L. c. 6,

§ 178K (2) (b). Doe requested a hearing to challenge SORB's

recommended classification.

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After hearing evidence presented by SORB and Doe, including

the report and testimony of Doe's expert, Dr. Laurie Guidry, the

hearing officer issued a written decision ordering that Doe

register as a level two sex offender, in accordance with G. L.

c. 6, § 178K (2) (b).

Doe then filed a complaint for judicial review pursuant to

G. L. c. 6, § 178M, and G. L. c. 30A, § 14, and a motion for

judgment on the pleadings in the Superior Court. The judge

issued a memorandum and order allowing Doe's motion for judgment

on the pleadings, vacating SORB's classification decision and

remanding the matter to SORB for further proceedings because the

hearing examiner applied two sentences of factor 2 that had

since been invalidated. 1

On November 1, 2021, the hearing examiner issued a written

amended decision again ordering Doe to register as a level two

sex offender. Subsequently, on a second action for judicial

review, Doe filed a motion for judgment on the pleadings and

memorandum of law, and, after a hearing, a different Superior

Court judge denied Doe's motion and affirmed SORB's amended

decision. Doe filed a timely notice of appeal on July 17, 2023.

Appellate proceedings were stayed on March 11, 2024, pending a

1 See Doe, Sex Offender Registry Bd. No. 22188 v. Sex
Offender Registry Bd., 101 Mass. App. Ct. 797, 800 (2022).

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decision in Doe, Sex Offender Registry Board No. 527962 v. Sex

Offender Registry Bd., 496 Mass. 543 (2025) (Doe 527962).

Discussion. 1. Standard of review. A reviewing court may

set aside a decision of SORB if it determines "that the decision

is unsupported by substantial evidence or is arbitrary or

capricious, an abuse of discretion, or not in accordance with

law" (quotation omitted). Doe, Sex Offender Registry Bd. No.

22188 v. Sex Offender Registry Bd., 101 Mass. App. Ct. 797, 801

(2022) (Doe 22188). The reviewing court shall "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. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 787

(2006), quoting G. L. c. 30A, § 14 (7). Doe therefore "bears a

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

incorrect" (quotation omitted). Doe, Sex Offender Registry Bd.

No. 3177 v. Sex Offender Registry Bd., 486 Mass. 749, 757

(2021).

2. Application of regulatory factors. a. Factor 37. Doe

contends that the hearing examiner erroneously applied Doe's

multiple offenses to the catchall factor 37 by considering the

impact of the offenses on risk of reoffense, in a manner

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precluded by the law governing factor 2. 2 See Doe, Sex Offender

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

759, 765-766 (2022). Following the decision in Doe 527962,

supra, we disagree.

Factor 37 of the board's regulations dictates that,

"pursuant to G. L. c. 6, § 178L (1), the [b]oard shall consider

any information that it deems useful in determining risk of

reoffense and degree of dangerousness posed by any offender."

803 Code Mass. Regs. § 1.33(37)(a) (2016). 3 See id.,

§ 1.33(37)(b) ("Factor 37 applies in the same manner to adult

female offenders"). Section 178L treats risk of reoffense and

degree of dangerousness as distinct inquiries: "dangerousness

is measured by the severity and extent of harm should an

offender recidivate; the risk of reoffense measures the

likelihood an offender will recidivate." Doe 527962, 496 Mass.

at 548. See Doe, Sex Offender Registry Bd. No. 496501 v. Sex

2 The second and third sentences of factor 2, as promulgated
under the 2016 revision, "unlawfully exceed[ed] [SORB's]
authority and violate[d] due process by attributing a high risk
of reoffense whenever an offender committed two or more episodes
of sexual misconduct, whether or not the offender was
discovered, confronted or investigated between episodes
[quotation omitted]." Doe 22188, 101 Mass. App. Ct. at 800.

3 Unless otherwise indicated, all references to 803 Code
Mass. Regs. § 1.33 are to the 2016 revision applicable at the
relevant times. Section 1.33 was revised in 2025; for present
purposes the pertinent language of the 2025 revision did not
materially change.

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Offender Registry Bd., 482 Mass. 643, 651, 659 (2019); 803 Code

Mass. Regs. § 1.20(2) (2025). Thus, the hearing examiner did

not err in considering Doe's repetitive offenses to determine

only degree of dangerousness, but not risk of reoffense, under

factor 37. As the court held in Doe 527962, supra at 548-549,

the law restricting the application of factor 2 does not apply

to a hearing examiner's determination of dangerousness.

Moreover, in considering the impact of Doe's multiple

offenses on her future dangerousness -- including that Doe held

the victim down multiple times such that she could be sexually

assaulted -- the hearing examiner was following SORB's statutory

mandate. See Doe 527962, 496 Mass. at 549. Factor 37, intended

as a catchall provision, encompasses considerations such as

Doe's repeated offenses against a single victim -- an element

not addressed under other factors. 4 803 Code Mass. Regs.

§ 1.33(37). Thus, on the present record, we discern no error in

the hearing examiner's consideration of Doe's multiple offenses

in his determination of dangerousness. See Doe 527962, 496

Mass. at 449-550 (declining to address "issue of empirical

support for a link between multiple offenses and degree of

4 For example, factor 22 accounts for the dangerousness of
crimes against multiple victims, but does not capture the
dangerousness reflected in the repetitive nature of Doe's
offenses because she offended against the same victim. 803 Code
Mass. Regs. § 1.33(22).

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dangerousness" where issue had "not been adequately raised or

litigated in the instant case").

b. Factor 3. Doe also contends that the hearing examiner

erroneously applied factor 3 because the record contains

insufficient evidence to find that the victim was "targeted"

within the meaning of 803 Code Mass. Regs. § 1.33(3). The

argument is unavailing.

First, Doe did not raise this issue before the hearing

examiner; nor did Doe raise it on judicial review before the

Superior Court, and thus it is waived. See Doe, Sex Offender

Registry Bd. No. 203108 v. Sex Offender Registry Bd., 87 Mass.

App. Ct. 313, 321 (2015). Even assuming this argument was not

waived, it is nevertheless unpersuasive. Doe's argument with

respect to factor 3 is that the "mere happenstance" that the

victim was a prepubescent child "does not provide substantial

evidence" to show that Doe "targeted" a child or that she "was

driven to offend against a child by a mental abnormality." We

disagree. "[W]e do not read the words of the regulation in

isolation"; they "gain[] meaning from other [] [words] with

which [they] are associated" (citations omitted). Freiner v.

Secretary of the Executive Office of Health & Human Servs., 494

Mass. 198, 212 (2024). Under 803 Code Mass. Regs. § 1.33(3)(a)

adult sex offenders who have "target[ed] children" pose a high

risk of reoffense. See id., § 1.33(3)(b) ("Factor 3 will apply

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in the same manner to adult female offenders"). To "target" is

to "set as a goal." Merriam-Webster Online Dictionary,

https://www.merriam-webster.com/dictionary/target

[https://perma.cc/LUN8-P7AY]. Thus, "if an individual 'set[s]

as a goal' a sexual encounter with persons whom [she] believes

to be children, [she] thereby 'targets' children for a sexual

encounter." Doe, Sex Offender Registry Bd. No. 528042 v. Sex

Offender Registry Bd., 496 Mass. 437, 443 (2025) (Doe 528042).

Here, it cannot be said that Doe did not set as a goal a sexual

encounter with someone she believed was a child. Doe sexually

offended against her daughter, the victim, when the victim was

age ten or eleven, forced the victim to both watch and engage in

sexual encounters with her, and forcibly held the victim down

during multiple sexual assaults. See id. at 443-444 (entering

car and driving to sexual encounter knowing victims were

children is enough to target prepubescent children). "[T]he

plain terms of the regulations themselves imply that Doe is an

'[a]dult offender[] who target[ed] children" (quotation,

citations omitted). Doe 528042, 496 Mass. at 444. See 803 Code

Mass. Regs. § 1.33(3).

3. Doe's expert's opinion. Finally, Doe contends that the

manner in which the hearing examiner considered Doe's expert's

opinion constituted an arbitrary and capricious exercise of his

discretion because he failed to reexamine it in light of the

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elimination of factor 2. She further argues that the hearing

examiner's refusal to accept Dr. Guidry's opinion did not have a

basis in the record. We disagree.

In the context of a SORB classification hearing, a hearing

examiner must consider the evaluative reports, empirically based

risk assessments, and testimony "from a licensed mental health

professional that discuss psychological and psychiatric

issues . . . as they relate to the offender's risk of

reoffense." 803 Code Mass. Regs. § 1.33(35)(a). See Doe, Sex

Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd.,

483 Mass. 131, 135 (2019) (Doe 23656); 803 Code Mass. Regs.

§ 1.33(35)(b) (adult female offender). However, the "opinion of

a witness testifying on behalf of a sex offender need not be

accepted by the hearing examiner even where the board does not

present any contrary expert testimony." Doe, Sex Offender

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

102, 112 (2014), quoting Doe 10800, 459 Mass. at 637.

The hearing examiner did not, as Doe asserts, reject Dr.

Guidry's opinion without a basis for such rejection. Rather, as

evidenced by his written decision, the examiner considered Dr.

Guidry's testimony, evaluation, and opinion, and explained his

basis for disagreement and deviation therefrom. The hearing

examiner found that Dr. Guidry did not consider factors 3, 9,

and 19 -- factors he found to be applicable -- thus meriting

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less weight for her opinion. 5 The hearing examiner's application

of these factors was well reasoned. He gave increased weight to

factor 3 because Doe sexually offended against a prepubescent

child; minimal weight to factor 9, because Doe's alcohol abuse

was dated and not involved in the index offenses; and increased

weight to factor 19 due to penile penetration, a high level of

physical contact. The hearing examiner thus considered Dr.

Guidry's opinion and gave it appropriate weight but came to a

different conclusion supported by the record, as he was entitled

to do. See Doe 23656, 483 Mass. at 137 ("Doe is not entitled to

a guarantee that SORB will reach the same conclusion as his

5 Factor 3, adult offender with child victim; factor 9
substance use; and factor 19, level of physical contact.

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expert; he is entitled only to careful consideration of his

expert's testimony").

For the reasons detailed in the examiner's decision and the

reasons stated herein, we cannot conclude that the examiner's

decision was arbitrary, capricious, or an abuse of discretion.

Judgment affirmed.

By the Court (Neyman, Shin &
Wood, JJ. 6),

Clerk

Entered: November 5, 2025.

6 The panelists are listed in order of seniority.

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