Doe, SORB No. 524553 v. Sex Offender Registry Board

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19-P-369 Appeals Court

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 524553
vs. SEX OFFENDER REGISTRY BOARD.

No. 19-P-369.

Essex. July 15, 2020. - September 29, 2020.

Present: Blake, Sacks, & Ditkoff, JJ.

Sex Offender. Sex Offender Registration and Community
Notification Act. Evidence, Sex offender, Expert opinion.
Practice, Civil, Sex offender.

Civil action commenced in the Superior Court Department on
October 25, 2017.

The case was heard by James F. Lang, J., on a motion for
judgment on the pleadings.

Kate A. Frame for the plaintiff.
Rachael A. Michaud for the defendant.

SACKS, J. The plaintiff, John Doe, appeals from a Superior

Court judgment affirming, on judicial review under G. L. c. 6,

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

Offender Registry Board (board) classifying Doe as a level two

sex offender. Doe argues that the board's hearing examiner
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(examiner) erred or abused his discretion (1) in declining to

consider whether public dissemination of Doe's information will

serve a public safety interest, (2) in excluding a transcript of

assertedly relevant expert testimony from another case, and

(3) in failing to give appropriate weight to various regulatory

factors. We conclude that a remand to the board is necessary,

in order to allow the examiner to reconsider the public

dissemination issue in light of Doe, Sex Offender Registry Bd.

No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643 (2019)

(Doe No. 496501), to consider the expert testimony, and to

reconsider certain regulatory factors.

Background. In 2017, Doe pleaded guilty to four counts of

indecent assault and battery on a child. The victims were Doe's

two stepdaughters; the offenses occurred in 2011 or 2012, when

the victims were between the ages of eleven and thirteen. Three

of the offenses occurred on the steps by the back door of their

family home; the other offense occurred in Doe's bedroom.

Victim 1 reported that on one occasion Doe, while

intoxicated, had touched her vagina over her clothes. On a

second occasion they were watching television on his bed and,

after he caused her to put her hand on his erect penis, he

inserted his fingers into her vagina. Victim 2 reported that,

on the same day of the first offense against Victim 1, Doe,

intoxicated, twice touched her breasts over her clothes.
 3

In his final decision, the examiner applied two "[h]igh

[r]isk" factors to Doe: factor 2 (repetitive and compulsive

behavior) and factor 3 (adult offender with child victim). See

803 Code Mass. Regs. § 1.33(2), (3) (2016). He also found that

the following factors elevated Doe's risk: factor 9 (alcohol

and substance abuse), factor 10 (contact with criminal justice

system), factor 16 (commission of offense in public place),

factor 19 (level of physical contact), and factor 22 (number of

victims).1 See 803 Code Mass. Regs. § 1.33(9), (10), (16), (19),

(22) (2016). The examiner assigned varying degrees of risk-

mitigating weight to factor 28 (supervision on probation or

parole), factor 33 (home situation and support systems), and

factor 34 (stability in the community), but gave no weight to

factor 32 (sex offender treatment) and essentially no weight to

factor 37 (other useful information -- here, scholarly articles

submitted by Doe regarding recidivism). See 803 Code Mass.

Regs. § 1.33(28), (32), (33), (34), (37) (2016). He ultimately

determined that Doe presented a moderate risk of reoffense and a

moderate degree of dangerousness. The examiner declined to

assess the efficacy of Internet dissemination, stating that he

1 The examiner also gave "minimal aggravating weight" to
factor 11 (violence unrelated to sexual assaults) and factor 15
(hostility toward women). See 803 Code Mass. Regs. § 1.33(11),
(15) (2016).
 4

did "not have the statutory authority to make dissemination

determinations."2

Discussion. "[T]o find that an offender warrants a level

two classification, the board must find by clear and convincing

evidence that (1) the offender's risk of reoffense is moderate;

(2) the offender's dangerousness is moderate; and (3) a public

safety interest is served by Internet publication of the

offender's registry information." Doe No. 496501, 482 Mass. at

656. Our review is limited, and "[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."3 Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender

Registry Bd., 459 Mass. 603, 633 (2011).

The examiner, in so ruling in 2017, did not have the
2

benefit of the court's 2019 decision in Doe No. 496501, 482
Mass. at 650 (board must determine whether Internet access to
offender's information might realistically serve to protect
public against risk of offender committing new sexual offense).
Nor did the Superior Court judge, at the time he upheld the
examiner's decision.

Also, an appellate court reviewing a Superior Court's
3

ruling under G. L. c. 30A, § 14 (7), "is conducting an analysis
of the same agency record, and there is no reason why the view
of the Superior Court should be given any special weight. Both
in the Superior Court and in [the appellate] court the scope of
review is defined by . . . § 14" (citation omitted). Southern
Worcester County Regional Vocational Sch. Dist. v. Labor
Relations Comm'n, 377 Mass. 897, 903 (1979). See Doe, Sex
Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd.,
470 Mass. 102, 108 n.3 (2014).
 5

1. Active dissemination. First, Doe argues that the

examiner failed to separately evaluate and explicitly determine

by clear and convincing evidence, as required by Doe No. 496501,

482 Mass. at 656-657, "whether and to what degree public access

to the offender's personal and sex offender information . . . is

in the interest of public safety." 803 Code Mass. Regs.

§ 1.20(2)(c). For classification matters (such as this one)

where no such determination was made, and that were pending

before an appellate court when Doe No. 496501 was released, a

remand may not be necessary if the board's "existing findings

are sufficiently explicit to enable proper review," or when "the

underlying facts of the case . . . so clearly dictate the

appropriate classification level." Doe No. 496501, supra at 657

n.4.

Here, the examiner did not make explicit findings regarding

the need for Internet dissemination, or consider that issue in

his analysis of the regulatory factors, stating instead that he

did "not have the statutory authority to make dissemination

determinations." This leaves unanswered the question "whether,

in light of the particular risks posed by the particular

offender, Internet access to that offender's information might

realistically serve to protect the public against the risk of

the offender's sexual reoffense." Doe No. 496501, 482 Mass. at

655. "If the answer to this question is 'no,' classification as
 6

a level two offender is unjustified even where the offender

poses a moderate risk to reoffend and a moderate degree of

dangerousness."4 Id.

"Determining an individual's degree of dangerousness . . .

requires a hearing examiner to consider what type of sexual

crime the offender would likely commit if he or she were to

reoffend. Pragmatically, because past is prologue, a hearing

examiner would make this determination based on the sexual crime

or crimes that the offender committed in the past." Doe No.

496501, 482 Mass. at 651. See Doe, Sex Offender Registry Bd.

No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 144-146

(2019) (focusing on characteristics of offender's past sex

offenses in determining degree of dangerousness and efficacy of

Internet dissemination).

In this case, Doe's sex offenses were against intrafamilial

victims. The board agreed at oral argument that the record does

not suggest that Doe (who has a supportive spouse to whom he has

been married since 2009 and with whom he has two sons) is likely

4 To be sure, the court has stated that "[w]here 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." Doe No. 496501, 482 Mass. at 655. But
the court has also recognized that "[t]he efficacy of Internet
publication in protecting potential victims must be determined
based on the facts of each individual case." Id.
 7

to enter into additional familial relationships for the purpose

of gaining access to additional intrafamilial victims -- a

scenario that might tend to support Internet dissemination in

order to warn such other families about Doe. Also, while we

need not go so far as to accept Doe's claim that he offended

only "within the confines of his home," neither does the record

support the examiner's finding that three of the offenses

occurred "in an area open to public scrutiny" -- a scenario that

might tend to support Internet dissemination in order to warn

the general public.5

Thus this is not a case in which "the underlying facts

. . . clearly dictate" whether Internet dissemination is

warranted and thus make a remand unnecessary. Doe No. 496501,

482 Mass. at 657 n.4. Instead, we remand to the examiner to

consider explicitly whether clear and convincing evidence proves

that, to the extent Doe is likely to reoffend, a reoffense in

the nature of his previous offenses could be prevented, or its

5 The examiner found that three of Doe's offenses occurred
"outside the home by a set of steps in an area open to public
scrutiny." The most direct record evidence about the offenses
is a police report stating that, according to both victims,
these offenses occurred "outside on the back steps" or "on the
steps by the back door." Nothing in the record indicates
whether the area was open to public scrutiny. Whether a
reopened or new hearing is warranted on this or other issues is
for the board to determine in the first instance on remand. See
Doe No. 496501, 482 Mass. at 658.
 8

risk substantially reduced, by Internet dissemination of Doe's

sex offender registry information.

2. Expert testimony. Doe argues that the examiner erred

by excluding a transcript of the testimony of Dr. R. Karl Hanson

from a previous, unrelated board hearing. We agree. The same

hearing transcript was at issue in Doe, Sex Offender Registry

Bd. No. 22188 v. Sex Offender Registry Bd., 96 Mass. App. Ct.

738, 743-744 (2019) (Doe No. 22188). "In that hearing, Hanson

testified that [the board] misunderstood and misapplied his

research, and that of other researchers, in formulating its

regulations regarding repetitive and compulsive behavior." Id.

at 743. Here, as in Doe No. 22188, the transcript is "directly

relevant to the hearing examiner's assessment of the weight to

be given factor 2 [repetitive and compulsive behavior], because

Hanson's testimony addressed whether there is predictive value

in considering multiple offenses when the sexual offender has

not been confronted, apprehended, or charged before the

subsequent offense occurs." Id. "While we express no opinion

as to the weight, if any, to be given to this testimony, the

evidence should have been admitted and considered by the hearing

examiner," and a remand is therefore necessary.6 Id. at 744.

6 At oral argument the board asserted that, despite
differences in terminology, the examiner had already given
factor 2 the degree of weight that Dr. Hanson's views, if
accepted, would suggest is appropriate, and that would be
 9

3. Regulatory factors. Doe argues that the examiner

abused his discretion in determining the weight to give certain

regulatory factors. We address most of these contentions

relatively briefly, before turning to one that requires more

extended discussion, concerning certain scholarly articles

submitted by Doe. We keep in mind that "[a] hearing examiner

has discretion . . . to consider which statutory and regulatory

factors are applicable and how much weight to ascribe to each

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

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

"Accordingly, [o]ur review does not turn on whether, faced with

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

as [the board], but only whether a contrary conclusion is not

merely a possible but a necessary inference" (quotations and

citation omitted). Id. at 110.

First, Doe challenges the examiner's treatment of factor 10

(contact with criminal justice system). Doe claims that the

examiner erred in applying this aggravating factor because Doe

had not incurred any convictions in the twenty years preceding

his 2017 convictions for the offenses against his stepdaughters.

appropriate under Doe No. 22188. But, in view of the numerous
gradations of aggravating weight that the examiner's decision
here assigned to various factors -- ranging from "minimal
aggravating" to "aggravating" to "increased aggravating" to
"full aggravating," the examiner's treatment of factor 2
requires reconsideration and clarification.
 10

But factor 10 is not limited to convictions, see 803 Code Mass.

Regs. § 1.33(10), and the examiner, in applying this factor,

permissibly considered that numerous charges against Doe "were

disposed of via fines, [continuance without a finding],

dismissals, probation and commitments."

Second, Doe challenges the examiner's refusal to give any

mitigating weight to factor 32 (sex offender treatment). We see

no error. Doe had the burden "to provide documentation from a

treatment provider verifying his treatment participation or

completion." 803 Code Mass. Regs. § 1.33(32). This

documentation must include, among other things, "a record of the

offender's attendance, level of participation, and degree of

progress." Id. Here, as the examiner ruled, Doe failed to

provide the required information.

Third, Doe argues that the examiner abused his discretion

in giving only moderate weight to factor 33 (home situation and

support systems). Doe claims he should have received full

mitigating weight because he was "residing in a positive and

supportive environment," and his support network, specifically

his wife, was "aware of [his] sex offense history and

provid[ing] guidance, supervision, and support of

rehabilitation." 803 Code Mass. Regs. § 1.33(33)(a). But Doe's

wife testified at the board hearing that she does not know the

details of the sex offenses beyond "inappropriate touching";
 11

that she is "not super good at talking about these things"; and

that, in conversations with her, Doe has taken responsibility

"[t]o a certain degree but not a deep discussion about it, per

[her] wishes." The examiner could reasonably conclude that

these circumstances make it difficult for her to give "guidance"

or "supervision" regarding Doe's rehabilitation, and thus that

factor 33 should receive only moderate mitigating weight. Id.

Fourth, Doe argues that the examiner gave insufficient

weight to factor 34 (materials submitted by offender regarding

stability in the community). 803 Code Mass. Regs.

§ 1.33(34)(a). Factor 34 requires the examiner to "consider

evidence that directly addresses the offender's recent behavior

and lifestyle including . . . sustained sobriety, education or

employment stability . . . ." Id. Doe's argument also

implicates factor 9 (alcohol and substance abuse), which

provides in part that "[a]n offender's history of drug and

alcohol use and history of treatment, abstinence and relapse

should be considered in determining the weight given to factor

9." 803 Code Mass. Regs. § 1.33(9)(a). Doe and his wife both

testified at the hearing that, although he had previously had a

drinking problem, he had not had a drink since 2013, when the

allegations by one of his stepdaughters had come to light within

the family. That had resulted in his obtaining several months

of inpatient treatment, attending Alcoholics Anonymous (AA)
 12

meetings, and "graduat[ing] the 12 [s]teps." Doe testified that

he no longer attended AA meetings because his work schedule

required him to wake up at 4 A.M.

Although the examiner was not required to credit this

testimony, he was required at least to address it under factors

9 and 34. He did not do so. Instead, under factor 9 (alcohol

and substance abuse), the examiner acknowledged (without

indicating whether he credited) the testimony and then stated,

"Given [that] alcohol played a role in the offending behavior,

he has a history of alcohol abuse and that he is currently not

in treatment, I give this factor full aggravating weight." The

examiner did not mention the testimony in discussing factor 34.

On remand, the examiner should expressly address how he

considered the evidence of Doe's "history of treatment [and]

abstinence . . . in determining the weight given to factor 9,"

803 Code Mass. Regs. § 1.33(9)(a), and how he considered the

evidence of Doe's "recent . . . sustained sobriety," 803 Code

Mass. Regs. § 1.33(34)(a), in determining the weight to be given

factor 34.7 We, of course, do not require that either factor be

given any particular weight.

7 The examiner's discussion of factor 34 was limited to the
statement that Doe "testified that he is employed full-time
delivering lumber. I consider this mitigating factor."
 13

Doe's last argument is that the examiner erred in giving

little weight to certain scholarly articles that Doe submitted

under factor 37. See 803 Code Mass. Regs. § 1.33(37)(a) ("Board

shall consider any information that it deems useful in

determining risk of reoffense and degree of dangerousness").

Doe relied on statements in the articles such as, "[c]hild

molesters who only target intrafamilial victims (incest

offenders) have consistently lower recidivism risk than other

sexual offenders," and "[t]he recidivism rate of intrafamilial

child molesters was generally low (less than 10%)," with an

exception not relevant here. R.K. Hanson, Age and Sexual

Recidivism: A Comparison of Rapists and Child Molesters, at

iii, 2 (2001).8 Doe argues that factor 7 (relationship between

offender and victim), 803 Code Mass. Regs. § 1.33(7) (2016),

does not adequately address the research on incest offenders,

and is internally contradictory, requiring that the submitted

articles be given greater weight. Doe's essential argument

8 Dr. Hanson, the author of several of the articles Doe
submitted, also wrote a number of articles cited in the board's
classification regulations and is considered an "authority"
within the meaning of those regulations. See Doe, Sex Offender
Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass.
594, 603-604 (2013) (Doe No. 205614). The examiner inaccurately
described the articles as concerning only age and recidivism,
whereas they also refer to how recidivism rates vary according
to the relationship between the offender and the victim. For
the reason discussed infra, this mistaken reference did not
prejudice Doe.
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appears to be that the fact that he offended against only

intrafamilial victims should have been considered a risk-

mitigating factor.

To evaluate this argument, we must first briefly review the

most relevant provisions of factor 7 as it applies to adult

males such as Doe. Factor 7 recognizes and defines in detail

three categories of relationships between an offender and a

victim: "[i]ntrafamilial [v]ictim," "[e]xtrafamilial [v]ictim"

(known to the offender but not in an intrafamilial

relationship), and "[s]tranger [v]ictim" (unknown to the

offender, or known for less than twenty-four hours before the

offense). 803 Code Mass. Regs. § 1.33(7)(a). Factor 7 explains

the significance of these categories as follows:

"Offenders who only target intrafamilial victims may be at
a lower risk to reoffend as compared to offenders who
target unrelated victims. However, having an intrafamilial
victim is not a risk mitigating, nor a risk elevating,
factor. It is included for definitional purposes only.

. . .

"Having victims outside the family relationship is
empirically related to an increased risk of reoffense. The
number of potential victims substantially increases when
offenders choose to sexually offend against extrafamilial
victims.

. . .

"Sex offenders who have sexually offended against a
stranger victim have a higher risk of reoffense th[a]n
offenders who target victims known to them."

Id.
 15

Generally speaking, then, factor 7 treats offenders against

only intrafamilial victims as presenting what might be termed a

baseline level of risk of reoffense. Offenders against

extrafamilial victims are treated as presenting an "increased

risk," and offenders against stranger victims are treated as

presenting an even "higher risk." What factor 7 does not do is

recognize some baseline level of risk of reoffense that is

greater than the risk presented by offenders against

intrafamilial victims, and then treat offending against only

intrafamilial victims as a risk-mitigating factor.9 "[H]aving an

intrafamilial victim is not a risk mitigating, nor a risk

elevating, factor." 803 Code Mass. Regs. § 1.33(7)(a)(1).

Doe challenges this aspect of factor 7. He asserts that,

in light of its recognition that offenders who target only

intrafamilial victims may be at relatively lower risk to

reoffend, it is "clearly contradictory" for factor 7 not to give

risk-mitigating weight in classifying offenders who have

9 We use the term "baseline" for explanatory purposes only.
We do not purport to determine whether the board's regulations
actually presume any baseline level of risk of reoffense for
offenders generally. The regulations do not use the term
"baseline." See generally 803 Code Mass. Regs. § 1.33 (2016).
 16

targeted only such victims. He contends that the articles he

submitted should have been considered on this issue.10

The flaw in Doe's argument is that he points to nothing in

the articles actually addressing this issue -- i.e., nothing

explaining how the circumstance of having offended against only

intrafamilial victims should be weighed within a system (such as

the board's) for classifying sex offenders' risk of reoffense

and degree of dangerousness. The articles state generally that

such offenders have a lower risk of reoffense relative to other

offenders. Factor 7 reflects that view by assigning risk-

elevating weight when offenders target extrafamilial or stranger

victims. But Doe identifies nothing in the articles suggesting

that all offenders should initially be viewed as presenting a

level of risk that should then be adjusted downward in cases of

offenders who target only intrafamilial victims and upward to

varying degrees in other cases. Because the articles shed no

10In a similar vein, Doe argues that the examiner erred in
not specifically citing factor 7 and giving it risk-mitigating
weight in his case. Factor 7 expressly states that no such
weight shall be given, however, making it effectively
inapplicable to Doe's classification, and the examiner's
decision stated that inapplicable factors would not be
discussed. See Doe, Sex Offender Registry Bd. No. 10216 v. Sex
Offender Registry Bd., 447 Mass. 779, 788 (2006).
 17

light on the argument Doe sought to make, the examiner did not

err in giving the articles little weight.11

Conclusion. The judgment affirming the board's decision is

vacated, and a new judgment shall enter remanding the case to

the board for further proceedings consistent with this opinion.

So ordered.

11We therefore need not discuss the extent to which, had
the articles contradicted the regulation, the examiner would
have been required to consider them. See Doe No. 205614, 466
Mass. at 603-609; Doe No. 22188, 96 Mass. App. Ct. at 743-744 &
n.8. See generally Royce v. Commissioner of Correction, 390
Mass. 425, 427 (1983) (agency is bound by own regulations); Doe,
Sex Offender Registry Bd. No. 58574 v. Sex Offender Registry
Bd., 98 Mass. App. Ct. 307, 311 n.7 (2020) (noting cases where
examiner was not required to consider expert testimony on issues
addressed by board's regulations).