JOHN DOE SEX OFFENDER REGISTRY BOARD NO 527548 v. SEX OFFENDER REGISTRY BOARD (2023)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe,¹ appeals from a Superior Court judgment affirming his final classification by the Sex Offender Registry Board (SORB) as a level two sex offender. Concluding that the classification was supported by substantial evidence, the hearing examiner adequately considered the mitigating factors, and that the examiner reasonably concluded that the underlying offense supported a finding that Internet publication of Doe's registry information would serve a public safety interest, we affirm.

1. Standard of review. “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). “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.'” Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 88 (2019) (Doe No. 523391), quoting Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 76 (2015). “We review a judge's consideration of an agency decision de novo.” Doe No. 523391, supra at 89.

2. Substantial evidence. “Substantial 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). “A level two classification requires a finding, 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, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 138 (2019), quoting Doe No. 496501, 482 Mass. at 656. “Under the clear and convincing standard, '[t]he evidence must be sufficient to convey a “high degree of probability” that the contested proposition is true.'” Doe No. 523391, 95 Mass. App. Ct. at 94, quoting Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 309 (2015).

Here, there was substantial evidence to support Doe's classification as a level two sex offender. See Doe No. 523391, 95 Mass. App. Ct. at 94. At age fifty-six, Doe responded to an online Craigslist advertisement posted by an officer posing as a fifteen year old girl. Within twenty-four hours, Doe sent her sexually explicit messages and repeatedly encouraged her to sneak out and meet up with him. After the purported girl provided Doe with her address, Doe drove to the location with the intention of having sex with her. In light of these facts, the examiner applied factor 3 (adult offender with child victim), factor 7 (relationship between offender and victim), and factor 36 (online offending behavior) and classified Doe as a level two sex offender.²

Doe argues that, because the hearing examiner applied only these three high risk and risk elevating factors, he should not be classified as a level two sex offender. Yet under the regulations, “[t]he final classification level is not based on a cumulative analysis of the applicable factors, but rather a qualitative analysis of the individual sex offender's history and personal circumstances.” Noe, Sex Offender Registry Bd. No. 5340 v. Sex Offender Registry Bd., 480 Mass. 195, 197 (2018), quoting 803 Code Mass. Regs. § 1.33 (2016). Here, the examiner engaged in a qualitative analysis, applying the factors based on the underlying offense, and considering Doe's advanced age as well as submitted materials regarding Doe's stability in the community. In light of the underlying offense, the examiner's classification is supported by substantial evidence.

3. Mitigating factors. a. Advanced age (factor 30). SORB “considers advanced age to have a significant mitigating effect ․ for those [offenders] with child victims, when the offender is 60 years of age or older.” 803 Code Mass. Regs. § 1.33(30)(a). “Factor 30 should be given less weight when an offender continues to demonstrate an active sex drive or general criminality.” Id. Although Doe was sixty years old at the time of the hearing, because he committed the underlying offense when he was fifty-six years old, the examiner found that he “demonstrated an active sex drive and on-going criminality.” In the absence of any countervailing factors, it was reasonable for the examiner to extrapolate from Doe's active sex drive at fifty-six years old that he still had an active sex drive four years later. Accordingly, it was reasonable for the examiner to assign minimal weight to this factor.

b. Stability in the community (factor 34). Under factor 34, SORB “shall consider evidence that directly addresses the offender's recent behavior and lifestyle including, but not limited to: his residential stability, sustained sobriety, education or employment stability, type of employment, and non-work related activities.” 803 Code Mass. Regs. § 1.33(34)(a). Doe submitted affidavits stating that he was “currently fixing up [his] friend's house in exchange for rent” and that, although he was “collecting unemployment due to the COVID-19 pandemic,” he was confident that he would find work as a carpenter. In addition, Doe submitted a letter from his friend stating that Doe could live with him “until he gets on his feet.” The examiner could reasonably doubt whether these temporary arrangements exhibited the sort of stability contemplated in factor 34. Accordingly, it was reasonable for the examiner to assign moderate weight, as opposed to full weight, to this mitigating factor.

4. Internet publication. “An offender may not be given a level two classification unless 'the degree of dangerousness posed to the public' by the offender 'is such that a public safety interest is served by public availability of registration information,' that is, by the availability of registration information on SORB's website.” Doe No. 496501, 482 Mass. at 654, quoting G. L. c. 6, § 178K (2) (b). The examiner must determine “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) (2016).

Here, the examiner made explicit findings that Internet publication of Doe's registry information served a public safety interest. Cf. Doe, Sex Offender Registry Bd. No. 524553 v. Sex Offender Registry Bd., 98 Mass. App. Ct. 525, 528 (2020) (“examiner did not make explicit findings regarding the need for Internet dissemination, or consider that issue in his analysis”). After considering the underlying offense, the examiner “consider[ed] that if [Doe] were to reoffend, it would most likely be against a teenaged girl that he contacted on the Internet.” In this context, the examiner found “that in the interest of public safety, any female who the Petitioner becomes acquainted with has the right to know that he is a registered sex offender for their safety and/or the safety of their child(ren).” Accordingly, the examiner's finding that Internet publication served a public safety interest was supported by substantial evidence.

Judgment affirmed.

FOOTNOTES

1.   A pseudonym.

2.   The examiner also considered several mitigating factors, including factor 30 (advanced age), factor 33 (home situation and support systems), and factor 34 (stability in the community), and one additional factor, factor 37 (other information related to the nature of the sexual behavior).