John Doe, Sex Offender Registry Board No. 1712 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

21-P-1093

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 17121

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe, appeals from a judgment of the

Superior Court affirming the Sex Offender Registry Board's

(SORB's) final decision reclassifying him from a level three sex

offender to a level two sex offender. He argues that the

hearing examiner failed to ascribe a specific weight to eight

risk factors, lacked sufficient evidence to support his

reclassification decision, and, because of that insufficiency of

evidence, violated his constitutional rights by ordering the

public dissemination of his sex offender registration

information. We affirm.

1 As is our custom, in appeals from classification decisions
under G. L. c. 6, § 178M, we refer to the plaintiff using the
pseudonym "John Doe" notwithstanding that, throughout these
proceedings, the plaintiff has referred to himself using the
pseudonym "H.T."
 Background. We recite the portions of the hearing

examiner's findings that are relevant to our discussion.

1. First victim. On October 26, 1991, a fifteen year old

girl reported to Chicopee Police that during the previous month

she and the plaintiff, then twenty-six years old, had sexual

intercourse on two occasions in a parking lot. On October 21,

1992, the plaintiff pleaded guilty in Hampden Superior Court to

two counts of rape and abuse of a child. See G. L. c. 265,

§ 23.

2. Second victim. On June 5, 1998, a thirteen year old

girl (Victim #2) reported to Springfield Police that the

plaintiff had sexually assaulted her on three separate

occasions. First, in July or August of 1997, Victim #2 and her

brother were sleeping over in a spare bedroom in the plaintiff's

home. Victim #2 woke up to the plaintiff touching her breasts

and her vagina. She told him to stop, but he said that if she

screamed, he would get the Latin Kings, a gang, to hurt her. He

then covered her mouth and put his fingers in her vagina. Upon

hearing his wife moving around, the plaintiff left but told

Victim #2 that he would be back. Victim #2 reported that, a

"little while later," the plaintiff came back and put his finger

back inside of her for about twenty minutes. Before leaving, he

told Victim #2 to remember what he had said about the Latin

Kings.

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 Next, in October of 1997, Victim #2 went out with the

plaintiff for ice cream. But instead of taking Victim #2 for

ice cream, the plaintiff drove her to a field she did not

recognize and proceeded to touch her breasts and put his finger

inside of her for forty-five minutes.

Finally, in March or April of 1998, Victim #2 returned to

the plaintiff's home for a sleepover with his daughter and

another friend. She awoke to the plaintiff with his hands on

her breast and his finger inside of her vagina.

The plaintiff was indicted on three counts of forcible rape

of a child and two counts of indecent assault and battery of a

child under fourteen. On June 28, 1999, the plaintiff pleaded

guilty in Superior Court to one count of indecent assault and

battery on a child under fourteen. See G. L. c. 265, § 13B.

The hearing examiner concluded that, despite the plaintiff's

"pleading to a lesser charge," Victim #2's statements were

"sufficiently detailed and that [the plaintiff] did in fact

digitally penetrate her vagina."

3. Third victim. On May 18, 1998, a fourteen year old

girl (Victim #3) reported to Springfield Police that the

plaintiff had sexually assaulted her on three separate

occasions. She reported that sometime in March, she had spent

the night at the plaintiff's home, with a friend, because her

parents were out of town. The first night, the plaintiff gave

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her beer and marijuana. Victim #3 and her friend spent the

night eating food, watching TV, and talking on the phone. They

went to bed in a bedroom together, and slept without blankets

because it was hot. Later that night, the plaintiff came into

the room, touched Victim #3's thighs, and put his fingers in her

vagina for several seconds. Victim #3 repeatedly told the

plaintiff to stop. Eventually, he left the room and Victim #3

hid beneath the bed for the rest of the night.

Two or three nights later, Victim #3 smoked some more

marijuana with the plaintiff and his girlfriend before going to

bed. That night, the plaintiff entered Victim #3's room, pulled

down her underwear, got on top of her, and put the head of his

penis into her vagina. He eventually got off Victim #3 and

ejaculated onto her inner thigh.

Around that same time, the plaintiff again tried to place

his finger in the vagina of Victim #3 while he was driving her

home in the morning to get ready for school.

The plaintiff was indicted on three counts of forcible rape

of a child. The plaintiff pleaded guilty on June 28, 1999, to

two counts of a lesser charge of indecent assault and battery on

a person over fourteen. See G. L. c. 265, § 13H. Despite the

plaintiff's pleading to a lesser charge, the hearing examiner

found that Victim #3's statements were sufficiently detailed to

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conclude that the plaintiff did in fact penetrate her vagina

with his penis and finger.

4. Fourth victim. Sometime in April of 1998, while a

fifteen year old girl was sleeping over at a friend's house, the

plaintiff attempted, several times, to place his hands on her

vaginal area. The plaintiff pleaded guilty to one count of

indecent assault and battery on a person over fourteen. See

G. L. c. 265, § 13H.

5. Fifth victim. On May 3, 1998, while at a sleepover at

plaintiff's home, a sixteen year old girl (Victim #5) woke up to

the plaintiff touching her body, rubbing her breasts and putting

his hand on her buttocks beneath her underwear. He then moved

his hand and digitally penetrated her vagina.

The plaintiff was indicted on two counts of indecent

assault and battery on a person over fourteen and one count of

rape of a child with force. He pleaded guilty to three counts

of indecent assault and battery on a person over fourteen and

was sentenced to two years of incarceration on each count. The

hearing examiner found the victim's statements to be

sufficiently detailed to conclude that, despite the plaintiff's

pleading to a lesser charge, the plaintiff had in fact digitally

penetrated Victim #5.

6. Contact with criminal justice system. In addition to

his sexual offenses, the plaintiff has a criminal history of

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nonsexual offenses beginning in 1987. He has been arraigned for

assault, disorderly conduct, shoplifting, assault and battery by

means of a dangerous weapon, motor vehicle-related offenses,

substance-related offenses, malicious destruction of property,

abuse prevention violations, and threat-related offenses. Most

recently, in 2015, the plaintiff was charged with larceny and

breaking and entering in the daytime with intent to commit a

felony. The hearing examiner found that each of these offenses

had been disposed of via either "dismissals, fines, nolle

prossed, probation, commitments, guilty filed, not guilty, and

continued without a finding." He also found that the plaintiff

had no contact with the criminal justice system for more than

five years. Despite that, the hearing examiner concluded that

the plaintiff persistently had disregarded rules, laws, and the

rights of others.

7. Restraining orders. The plaintiff was also subject to

restraining orders pursuant to G. L. c. 209A from three

different women between 1993 and 2008. One of the women

reported, on August 9, 1992, to Springfield police that the

plaintiff had called her and told her that when he made bail the

next day he would come over to her apartment to kill her. On

September 10, 1992, she reported that the plaintiff had violated

the restraining order by calling her several times and

approaching her car in a parking lot and opening the door. In

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an affidavit signed November 12, 2003, she reported that the

plaintiff came to her house, yelled at her, and hit her on the

back. She reported in an affidavit signed May 17, 2006, that

the plaintiff had called her, threatening to hit her and take

her children.

8. Reclassification decision. On December 23, 2002, the

Board classified the plaintiff as a level three sex offender.

The plaintiff later sought reclassification and a de novo

hearing took place on January 26, 2021. At that point, the

plaintiff was fifty-three years old and had not sexually

reoffended for twenty-two years. The hearing examiner's

reclassification decision relied on the application of two high

risk factors, nine risk elevating factors, and five mitigating

factors, all as set forth in 803 Code Mass. Regs. § 1.33 (2016).

Finding that the plaintiff continued to sexually reoffend

after having been convicted of a sexual offense in 1992, the

hearing examiner applied factor 2 (repetitive and compulsive

behavior), giving it increased weight. The hearing examiner

also applied factor 3 (adult offender with child victim),

finding that the plaintiff had sexually assaulted at least five

teenage girls, all of whom were between the ages of twelve and

fifteen.

The examiner also applied nine risk elevating factors

because the plaintiff sexually assaulted five (factor

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22 -- number of victims), sleeping (factor 18 -- extravulnerable

victim), extrafamilial victims (factor 7 -- relationship between

the offender and victim), with at least some of the assaults

taking place where the plaintiff had no expectation of privacy

(factor 16 -- public place), and while using his fingers and,

for two victims, his penis (factor 19 -- level of physical

contact). The plaintiff also exhibited a disregard for the law

(factor 10 -- contact with criminal justice system), had a

history of violence unrelated to sexual assault (factor 11), did

not comply with a restraining order while under supervision

(factor 13 -- noncompliance with community supervision), and

displayed hostility towards women (factor 15).

The hearing examiner balanced these aggravating factors

against several mitigating factors, applying factors 29

(offense-free time in the community) on account of the

plaintiff's twenty-plus years of sex offense-free time in the

community; factor 30 (advanced age) on account of the plaintiff

being fifty-three years old; factor 32 (sex offender treatment)

on account of the plaintiff's somewhat satisfactory

participation in sex offender treatment; factor 33 (home

situation and support systems) on account of the plaintiff's

living situation being a positive and supportive environment;

and factor 34 (materials submitted by the sex offender regarding

stability in the community) on account of the plaintiff having

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been married for over twenty years with four adult children and

having found a job as a machinist.

As a result of this balancing, the examiner concluded that

the plaintiff should be reclassified as a level two sex

offender.

Discussion. "A reviewing court may set aside or modify

SORB's classification decision where it determines that the

decision is in excess of SORB's statutory authority or

jurisdiction, violates constitutional provisions, is based on an

error of law, or is not supported by substantial evidence."

Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender

Registry Bd., 482 Mass. 643, 649 (2019) (Doe No. 496501), citing

G. L. c. 30A, § 14 (7). "In reviewing SORB's decisions, we

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

specialized knowledge of the agency.'" Doe No. 496501, supra at

649, quoting Doe, Sex Offender Registry Bd. No. 205614 v. Sex

Offender Registry Bd., 466 Mass. 594, 602 (2013).

The plaintiff's first argument is that the hearing

examiner's decision is not susceptible to review by this court

due to the examiner's failure to ascribe a specific weight to

eight factors. This level of specificity would certainly aid

the court's review of classification decisions and further

ensure the integrity of the present sex offender classification

system, one that implicates a sex offender's significant

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"liberty and privacy interests." Doe, Sex Offender Registry Bd.

No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 311

(2015). However, the plaintiff does not cite to any authority

that requires the board to ascribe to each factor a specific

weight. The hearing examiner was required to consider a number

of discrete, objective factors and did so in a fashion that was

not "general and conclusory," as the plaintiff suggests. The

examiner's written discussion of each factor included an

application of the relevant regulation to the plaintiff's

specific, factual background. For example, the plaintiff

complains that the examiner's discussion of factor 32 (sex

offender treatment) was deficient. But, there, the hearing

examiner studiously listed out the criteria relevant to the

determination of weight and compared that with the report

provided by a licensed independent clinical social worker, who

stated that though the plaintiff had attended nine of eleven sex

offender treatment group sessions and related well to his peers,

he could not fully describe all four phases of the deviant

cycle, identify triggers for sexually deviant thoughts, control

deviant arousal via behavioral techniques, and did not have a

specific and realistic written relapse prevention plan. The

examiner noted that, in a treatment status report, the social

worker indicated "that for most of the treatment criteria, [the

plaintiff's] participation was 'somewhat.'" The discussion of

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the hearing examiner is not so "general and conclusory" as to

evade proper appellate review.

The plaintiff's second argument is that there is

insufficient evidence to support the hearing examiner's

conclusion that the plaintiff presents a moderate risk to

reoffend sexually or that a public safety interest is served by

Internet publication of the plaintiff's registry information.

Regarding reoffense, the plaintiff's primary argument is

that, according to a certain study (Hanson)2 cited by SORB as

supporting its promulgation of factor 29, see 803 Code Mass.

Regs. § 1.33(29)(a) (2016), the plaintiff's risk of reoffense

most likely statistically was nonexistent at the time of

reclassification. The Hanson study calculated sexual recidivism

over twenty years, using a sample of 7,740 sexual offenders

aggregated from twenty-one samples collected in previous

studies. Based on five, ten, and fifteen-year follow-ups, the

researchers found that the five-year recidivism rate of high

risk offenders dropped from 22% at release, to 8.6% after five

years offense-free, to 4.2% after ten years offense-free, which

was still higher than the expected rate for nonsexual offenders.

The researchers noted that the recidivism rate dropped by "half

2 See Hanson, Harris, Helmus, & Thornton, High-Risk Sex Offenders
May Not be High Risk Forever, J. Interps. Violence, 29(15):2792-
2813 (2013).

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for each [five] years that the offender was sexual offense-free

in the community," and speculated that high risk sex offenders

who remain offense-free could eventually cross a threshold such

that their risk of sexual reoffense becomes indistinguishable

from the risk presented by nonsexual offenders. Hanson, supra

at 2800, 2805.

The plaintiff argues that, extrapolating from the data

trend presented in the Hanson study, his particularized risk of

reoffense at the time of the 2021 reclassification hearing was

"nearly zero." Even assuming that the plaintiff's projection is

accurate, acceptance of this argument would require us to treat

this one article, and offense-free time in the community, as

dispositive of every offender's risk of sexual recidivism. But

the article itself cautions that it offers little guidance as to

a causal link between "years crime-free and desistance."

Hanson, supra at 2805. Indeed, the researchers noted that

access to information regarding an offender's "involvement in

non-sexual crime" and other background information would provide

an evaluator "increased capacity to discriminate recidivists

from non-recidivists." Id. at 2806.

The case-by-case approach of the reclassification process,

with its consideration of multiple factors, affords a hearing

examiner exactly this sort of information. In his analysis, the

examiner gave full weight to the plaintiff's offense-free time

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in the community, but noted that he also needed to consider

"risk elevating factors not directly related to the sexual

offending," including the plaintiff's involvement in "non-sexual

crim[e] . . . some of which may have been violent," his

"problems with community supervision," and "demonstrated

hostility towards women." We conclude that the hearing

examiner, having given full weight to the plaintiff's offense-

free time in the community, did not err in choosing to treat

this mitigating risk factor as one part of a larger, holistic

analysis rather than as the single, dispositive factor.

Regarding Internet dissemination, the plaintiff argues that

the examiner's conclusion was unsupported where (1) the

plaintiff's risk of reoffense purportedly was zero and (2) the

underlying convictions involved known victims within the

plaintiff's home or familiar settings. Both arguments are

without merit. We have already discussed the first, and need

not accept the premise that, contrary to the hearing examiner's

conclusion, which is supported by substantial evidence, the

plaintiff posed no risk of reoffense. The plaintiff's argument

that Internet dissemination would not serve a public safety

interest because several of the plaintiff's underlying

convictions occurred within his home is untenable. The

plaintiff's victims, teenage girls, were extrafamilial. They

came for sleepovers with their friends. They came when their

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own parents were out of town. Their guardians did not have

notice of the plaintiff's dangerousness. The determination that

public dissemination might aid others who might otherwise be

harmed by any reoffense the plaintiff might commit was

adequately supported. As the hearing examiner rightfully

observed, based on the plaintiff's past sexual offending

behavior, if he "were to reoffend, he would most likely offend

against an extrafamilial girl, similar to the five Victims on

record. . . . [G]irls and anyone who is the caretaker of young

girls and who may become acquainted with the [plaintiff], ha[ve]

a right to know . . . about the [plaintiff's] past sexual

offenses." The examiner properly concluded that Internet

dissemination was warranted.

Finally, the plaintiff argues that because the hearing

examiner's decision lacked sufficient evidence, his

reclassification as a level two sex offender violates his

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constitutional rights. Because we reject his insufficiency

argument, this argument fails as well.

Judgment affirmed.

By the Court (Meade, Rubin &
Blake, JJ.3),

Clerk

Entered: March 24, 2023.

3 The panelists are listed in order of seniority.

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