John Doe, Sex Offender Registry Board No. 527940 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-707

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 527940

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe, appeals from a Superior Court

judgment affirming his classification by the Sex Offender

Registry Board (SORB or board) as a level two sex offender. On

appeal, Doe argues that the hearing examiner (examiner), who

reduced his sex offender classification from a level three to a

level two, failed to provide adequate consideration of (1) Doe's

offense-free time in the community (factor 29) and (2) his

participation in sex offender treatment (factor 32).1 Doe also

1We refer to SORB's 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
(2016). SORB's regulations were updated in 2025, but the 2016
version of the regulations were in effect at the time of the
examiner's decision in this case and therefore govern our
analysis.
argues that the examiner misapplied factor 2 (repetitive and

compulsive behavior) to him. For the reasons set forth below,

we conclude that a remand is necessary for the examiner to

address what weight, if any, to give Doe's offense-free time in

the community prior to his 2022 conviction and to reconsider the

decision to give moderate rather than full weight to Doe's

participation in sex offender treatment.

Background. In 2011, the parents of a ten year old boy

reported to police that Doe had sexually assaulted their son at

day camp, where Doe was working as a camp counselor. The boy's

parents did not wish to press criminal charges, and Doe was

never formally charged.2 From February 2012 until March 2013,

Doe worked at a mental health service provider as a therapeutic

mentor. In 2013, the mother of a nine year old boy with autism

reported that Doe, the boy's therapeutic mentor at the time, had

sexually assaulted her son. The victim reported during a Sexual

Assault Intervention Network (SAIN) interview that Doe had

"touched and rubbed" the victim's buttocks over his clothing

while at a local wildlife rehabilitation center. Doe was

arraigned on one count of indecent assault and battery on a

2 Although Doe was never criminally charged with sexually
assaulting the ten year old boy, the examiner found "sufficient
reliable and credible evidence" to find the allegations that Doe
had assaulted the boy as fact.

2
child under the age of fourteen and one count of assault and

battery on a disabled person with injury. On June 1, 2016, Doe

pleaded guilty to a single count of simple assault and battery

and was sentenced to a three-year probation term.3 As part of

his probation, the plaintiff was referred to and enrolled in sex

offender treatment.

In 2019, a few months before Doe completed his probationary

term, additional allegations surfaced from Doe's former role as

a therapeutic mentor -- a mother reported that in 2013 Doe had

sexually assaulted her son, who was between nine and ten years

old at the time. During a SAIN interview, the victim reported

that Doe would drive him to isolated locations, touch the

victim's penis and testicles, and take pictures of the victim's

penis with his cell phone. The victim also reported that Doe

had asked that the victim touch him, but the victim had refused.

In June 2021, Doe pleaded guilty to two counts of indecent

assault and battery on a child under fourteen and one count of

enticing a child under sixteen. He was sentenced to a three-

year probation term and was required to enroll in a sex offender

3 Although the indecent assault charge was amended to simple
assault and battery, the examiner found "sufficient reliable and
credible evidence" to find as fact that Doe had sexual assaulted
the victim.

3
treatment program, register with SORB, and have no unsupervised

visits or employment with children under the age of sixteen.

In 2021, the board initially classified Doe as a level

three sex offender, which he requested a hearing to challenge.

The hearing was held in February 2022, at which Doe's father and

brother testified in his favor. The examiner reviewed the

witness testimony as well as several exhibits offered by SORB

and Doe, including police reports, Doe's probation record, a

victim impact statement, and letters of support for Doe. The

examiner found evidence to support two high-risk factors, five

risk-elevating factors, and gave full or partial weight to four

risk-mitigating factors. The examiner issued a decision on June

7, 2022, ordering Doe to register as a level two sex offender

and that his sex offender registry information be disseminated

on the Internet.4 A Superior Court judge affirmed the examiner's

order, and this appeal followed.

Discussion. "To determine the validity of an agency's

decision, the reviewing court must determine whether the

decision is supported by substantial evidence" (citation

omitted). Doe, Sex Offender Registry Bd. No. 6969 v. Sex

Offender Registry Bd., 99 Mass. App. Ct. 533, 536 (2021). "The

4 Doe sought and obtained a number of stays to the public
dissemination of his sex offender registry information.

4
decision may only be set aside if the court determines that the

decision is unsupported by substantial evidence or is arbitrary

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

law." Id. at 537, quoting Doe, Sex Offender Registry Bd. No.

356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 76

(2015). "In reviewing [the board's] decisions, we give due

weight to the experience, technical competence, and specialized

knowledge of the agency" (quotation and citation omitted). Doe,

Sex Offender Registry Bd. No. 234076 v. Sex Offender Registry

Bd., 484 Mass. 666, 670 (2020) (Doe No. 234076). Doe challenges

the examiner's application of factors 29 (offense-free time in

the community), 32 (sex offender treatment), and 2 (repetitive

and compulsive behavior). We address each argument in turn.

a. Factor 29: Offense-free time in the community. Doe

argues that the examiner's decision was arbitrary and capricious

because it ignored the mitigating effect of his nine years of

offense-free time while in the community. We agree.

Factor 29 states that, for an adult male such as Doe, the

"likelihood of sexual recidivism decreases the longer the sex

offender has had access to the community without committing any

new sex offense or non-sexual violent offense." In cases in

which an offender was not committed to custody, as here,

offense-free time is calculated from "the most recent date of

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conviction or adjudication of a sex offense or non-sexual

violent offense."

Factor 29 also includes a temporal element, which states

that an offender's risk of reoffense begins to decrease "after

living in the community offense-free" for five or more years.

Because Doe's most recent sex-offense adjudication was less than

a year old when the board's decision issued in 2022, the plain

language of factor 29 precludes its application here.

The conduct underlying Doe's 2021 adjudication, however,

occurred in 2013, the same year that he committed the offense

that resulted in his 2016 assault and battery conviction. It is

undisputed that Doe did not commit any new offenses between 2013

and his February 2022 classification hearing. Therefore,

although factor 29 cannot formally be applied, the record

reflects that Doe lived in the community without reoffending for

approximately nine years since his last known offenses, and

nearly six years after being convicted of one of those offenses.

At the hearing, Doe raised the fact that he had substantial

offense-free time in the community multiple times.5 The

5 Doe argues he should be given credit for offense-free time
in the community dating back to 2013, when the offenses actually
occurred. But factor 29 applies to offense-free time post-
conviction, so even had Doe not been convicted again in 2021,
his plea in 2016 would be the operative point of reference under
the plain terms of factor 29. The question remains whether the
examiner could nonetheless give Doe credit for additional years

6
examiner's decision nevertheless does not address how Doe's

years of offense-free time in the community may affect his

likelihood of recidivism.6

"[A] SORB classification decision will be deemed

'[a]rbitrary or capricious,' G. L. c. 30A, § 14 (7) (g), if it

fails to take into account reliable evidence that a factor

relevant to a given offender affects the likelihood that the

offender will recidivate." Doe, Sex Offender Registry Bd. No.

68549 v. Sex Offender Registry Bd., 470 Mass. 102, 112 (2014)

(Doe No. 68549). We conclude that it is arbitrary for a hearing

examiner to issue a decision that neglects to mention Doe's

offense-free time in the community where the regulations

indicate that such time indicates a lower risk of recidivism,

even if such time cannot be considered under factor 29.

"Troublesome facts . . . are to be faced rather than ignored"

(citation omitted). Doe, Sex Offender Registry Bd. No. 11204 v.

of offense-free time, if not under factor 29 than under catch-
all factor 37. This is a question to be addressed by the
examiner in the first instance.

6 Because factor 29 appears to be based on research
evaluating offense-free time following a conviction or
incarceration, expert testimony may be required to aid the board
in determining how the research applies to cases such as Doe's,
in which a retroactive conviction would seemingly wipe out six
years of postconviction offense-free time in the community. Cf.
Doe No. 234076, 484 Mass. at 670-671.

7
Sex Offender Registry Bd., 97 Mass. App. Ct. 564, 575 (2020)

(Doe No. 11204).

We offer no opinion as to whether Doe should receive credit

for his offense-free time in the community prior to his guilty

plea in 2021. We acknowledge that the clock likely reset in

2021 for purposes of a direct application of factor 29. The

facts in this case, however, require some explanation -- whether

under factor 29 or the catch-all factor 37 -- of why a later

conviction for an earlier crime undermines the predictive value

of the multiple postconviction offense-free years Doe spent in

the community. This is particularly true where Doe raised the

issue of his offense-free time in the community and the factor

in question suggests that such time lowers an offender's risk of

recidivism.7

b. Factor 32: Participation in sex offender treatment.

Doe also argues the examiner erred in applying factor 32 by

giving it only moderate rather than full weight with no

explanation. Again, we agree. For adult males, "participation

in or successful completion of sex offense-specific treatment

. . . is a risk-reducing factor." Here, the examiner considered

a letter from Doe's therapist indicating that Doe had

7 Because we are vacating the classification decision and
remanding for further proceedings, Doe's information may not be
disseminated until the board issues a new decision.

8
participated in sex offender treatment from July 2016 to January

2022, the date of the letter. The therapist described the

substantial effect sex offender treatment had on Doe, and,

according to the therapist, Doe's participation in treatment

reduced his dynamic risk from high to low. Doe's therapist

completed a form provided by SORB describing Doe's treatment

status. The therapist reported that Doe consistently attended

and was an active participant in treatment, was able to fully

describe all four phases of the deviant cycle, could identify

his triggers, and demonstrated a capacity for victim empathy.

In sum, the therapist provided uniformly positive feedback and

indicated that Doe had successfully addressed all of the sixteen

areas identified by the board on its status report form. Doe's

father also testified at the hearing that Doe continued to

participate in treatment "religiously" and the therapist noted

that Doe stated he would continue to participate in treatment

even after the expiration of the court order requiring him to do

so. The examiner also reviewed a letter written by Doe,

describing the positive effect sex offender treatment had on

him.

At the same time, the record indicates that Doe remained

subject to approximately two additional years of treatment,

required by the terms of his probation, at the time of the

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hearing. Under factor 32, the fact that Doe was attending

treatment while under community supervision bears on the weight

to be assigned.

The examiner appeared to credit all of the aforementioned

evidence but nevertheless accorded Doe only moderate weight for

factor 32 without explanation.8 We acknowledge that the examiner

has discretion "to consider which statutory and regulatory

factors are applicable and how much weight to ascribe to each

factor." Doe No. 68549, 470 Mass. at 109-110. And we agree

that an examiner need not provide a lengthy explanation in

response to "every argument or piece of evidence that the

parties present." Doe, Sex Offender Registry Bd. No. 524174 v.

Sex Offender Registry Bd., 106 Mass. App. Ct. 331, 338 n.6

(2025). Still, "we will not supply a reasoned basis for the

agency's action that the agency itself has not given" (quotation

and citation omitted). NSTAR Elec. Co. v. Department of Pub.

Utils., 462 Mass. 381, 387 (2012). Here, we cannot discern

whether the examiner assigned factor 32 moderate weight because

8 We decline Doe's invitation to expand the record to
include materials that were filed in support of his motion to
stay before the judge of the Superior Court. These affidavits
were created approximately two years after his classification
hearing. Because we are remanding the case for a new hearing,
we leave it to the examiner to determine whether to consider
materials submitted by Doe in support of his position that he
poses a low degree of dangerousness and risk to reoffend.

10
Doe's participation remained court ordered rather than voluntary

or for some other reason. Where, as here, the record

demonstrates meaningful and effective participation in

treatment, but also that the treatment was ongoing and required,

the examiner was required to explain how these considerations

bore on the weight assigned.

SORB now suggests that the examiner declined to give full

weight because Doe had not "completed" sex offense-specific

treatment. Although the record would support such a finding

given that Doe remained in court-ordered treatment at the time

of the hearing, that rationale does not appear in the examiner's

decision and we cannot supply it on her behalf. A reasoned

analysis is required, as "[a]ny other approach would effectively

insulate the SORB's action from effective review" (citation

omitted). See Doe No. 11204, 97 Mass. App. Ct. at 576.

Our review "does not turn on whether, faced with the same

set of facts, we would have drawn the same conclusion" as the

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

356315 v. Sex Offender Registry Bd., 99 Mass. App. Ct. 292, 300

(2021). Here, where the examiner has credited substantial

evidence of Doe's effective participation in treatment,

including evidence that his dynamic risk had decreased, yet

assigned only moderate weight without explaining how the

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regulatory distinctions between participation in treatment and

completion were applied, remand is required. Id. (review turns

on whether "a contrary conclusion is not merely a possible but a

necessary inference" [citation omitted]).

c. Factor 2: Repetitive and compulsive behavior.

Finally, Doe argues that it was erroneous for the examiner to

apply factor 2, repetitive and compulsive behavior, to his case.

We disagree. The board may apply factor 2 when an offender

commits a sex offense after having been (1) "discovered and

confronted (by someone other than the victim)"; or

(2) "investigated by an authority for sexual misconduct." Doe

committed two offenses in 2013, after being investigated by the

Department of Children and Families for sexually assaulting a

child in 2011. These facts fall within the plain language of

factor 2. Doe's argument that factor 2 should not apply to him

appears to be based on the mistaken assumption that, if he were

credited with years of offense-free time under factor 29, that

would preclude the application of factor 2. To the contrary,

nothing in the regulations precludes the application of high-

risk factors despite the presence of strongly mitigating

factors. Indeed, "[t]hese factors may be present to varying

degrees in any individual case." 803 Code Mass. Regs. § 1.33.

Furthermore, even were the hearing examiner to conclude that

12
factor 29 should apply in full force, a "hearing examiner . . .

may consider an offender's older sexual offenses where they are

relevant to a holistic assessment of the offender's current

degree of dangerousness." Doe, Sex Offender Registry Bd. No.

496501 v. Sex Offender Registry Bd., 482 Mass. 643, 651 (2019)

(Doe No. 496501).

Conclusion. On this record, we cannot be certain that the

examiner's final determination of Doe's risk of reoffense and

degree of dangerousness was supported by substantial evidence.

See Doe No. 496501, 482 Mass. at 649, citing G. L. c. 30A,

§ 14 (7). The judgment of the Superior Court affirming SORB's

classification decision is vacated, and a new judgment shall

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enter vacating the decision of SORB and remanding the matter to

SORB for further proceedings consistent with this decision.9

So ordered.

By the Court (Shin, Walsh &
Allen, JJ.10),

Clerk

Entered: April 30, 2026.

9 Although Doe urges this court to order that he be
classified as a level one offender, we do not know that the
examiner would conclude that Doe is a level one offender even if
risk-mitigating factors 29 and 32 were given full weight. "It
is appropriate for such issues to be resolved in the first
instance by the agency in the adjudicatory process, not in
judicial review of that process" (citation omitted). Doe, Sex
Offender Registry Bd. No. 22188 v. Sex Offender Registry Bd.,
101 Mass. App. Ct. 797, 804 (2022).

10 The panelists are listed in order of seniority.

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