JOHN DOE SEX OFFENDER REGISTRY BOARD NO 21527 v. SEX OFFENDER REGISTRY BOARD (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe No. 21527, challenges a decision of the Sex Offender Registry Board (board) denying his motion to terminate his duty to register and ordering him to continue registering as a level two sex offender. He argues that the hearing examiner (examiner) erroneously credited hearsay statements contained in a police report and failed to provide a reasoned analysis to support the level two classification decision. We affirm.

Background. In 1982, when Doe was seventeen years old, he led a sixteen year old girl -- his girlfriend of three or four weeks -- to a room where two other boys were waiting for them, locked the door, and prevented her from leaving while all three boys raped her. Doe was convicted of rape and received a “Concord” sentence of incarceration not to exceed twenty years. See Commonwealth v. Rodriguez, 482 Mass. 366, 372 & n.9 (2019) (explaining “Concord” sentences and their elimination by 1993 “truth-in-sentencing” legislation). In 2004, Doe was notified for the first time of his obligation to register as a level two sex offender; he did not challenge the classification at that time.

In 2023, Doe submitted a motion to terminate his registration obligation under 803 Code Mass. Regs. § 1.30 (2016). Following a hearing, the examiner found by clear and convincing evidence that Doe posed a moderate risk of reoffense and a moderate risk of dangerousness and ordered him to continue registering as a level two sex offender.¹

In making this decision, the examiner considered, among other evidence, a police department incident report detailing officers’ response to a domestic disturbance involving Doe in 2012. In the report, the officer stated that the victim, who for the past few years “had an on and off sexual dating relationship” with Doe, alleged that Doe went to her apartment and asked, then “begged for sex.” When the victim refused, Doe “punched her in the left side of her face with a closed fist ․ then attempted to pull her pants off and grabbed her breasts.” The victim told the officer, “I think he was trying to rape me.” The report quoted a written statement by the victim, which attested to these events. Doe, who was still at the victim's home when the police arrived, was arrested and charged with assault with intent to rape, indecent assault and battery, and domestic assault and battery. The first charge was nol prossed, and the others were dismissed when the victim failed to appear at trial. The examiner credited the victim's statements and considered “the 2012 allegations as reliable evidence” in making his classification decision.

Doe filed a complaint for judicial review. A Superior Court judge upheld the examiner's decision and affirmed his classification as a level two sex offender. Doe appeals.

Discussion. A decision of the board “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.” Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 787 (2006). We review the Superior Court judge's decision de novo. See Doe, Sex Offender Registry Bd. No. 22164 v. Sex Offender Registry Bd., 103 Mass. App. Ct. 431, 433 (2023).

1. Hearsay evidence. In the context of a sex offender classification hearing, “[a] hearing examiner ‘need not observe the rules of evidence observed by courts.’ ” Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 76 (2015) (Doe No. 356011), quoting G. L. c. 30A, § 11 (2). Hearsay may be admissible if it is “substantially reliable,” meaning that “ ‘it was reasonable for the examiner to admit and credit’ the facts described in the hearsay evidence.” Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89 (2019), quoting Doe No. 356011, supra at 77. Ordinarily, “a non-eyewitness police report, standing alone, cannot constitute substantial evidence within the meaning of G. L. c. 30A.” Doe, Sex Offender Registry Bd. No. 10304 v. Sex Offender Registry Bd., 70 Mass. App. Ct. 309, 312 (2007) (Doe No. 10304). However, this does not mean that a hearing examiner can never rely on the evidence contained in such reports -- in fact, “particular narratives related therein may be admissible in board hearings depending on the general plausibility and consistency of the victim's or witness's story, the circumstances under which it is related, the degree of detail, the motives of the narrator, the presence or absence of corroboration and the like.” Id. at 312-313.

Doe argues that the incident report concerning the 2012 domestic violence incident lacked the features required to justify the examiner's reliance. We disagree. The report contains the victim's written statement describing Doe's abuse of her, which was consistent with the narrative she verbally communicated to the officer. See Doe No. 10304, 70 Mass. App. Ct. at 312-313 (police report containing victim's consistent, detailed statement of abuse admissible as reliable evidence). Furthermore, the officer's own observations of the victim's demeanor corroborated the victim's statements. See Commonwealth v. Henderson, 82 Mass. App. Ct. 674, 679 (2012) (victim's report corroborated by police officer's personal observation of victim's condition). Doe's primary complaint about the plausibility of the victim's statement centers on her timeline of events, according to which “many hours would have passed between [Doe's] advances ․ and the arrival of the police.” In this regard, the victim's account also is corroborated by the officer's observation that she “seemed scared” that Doe would retaliate against her if she sought an abuse prevention order. With the aggressor still in the house, a frightened victim would understandably seek to avoid escalating the situation by waiting until the storm had passed to call for help. Furthermore, the victim stated that, because Doe “kept following [her] around the house,” she had to speak to her mother “in code” and get a friend to call the police for her; this process could realistically have taken hours. The police report, combining the victim's statement with the critical context provided by the officer's personal observations, bore sufficient indicia of reliability to justify the examiner's decision to credit the information it contained. Cf. Commonwealth v. Wilson, 47 Mass. App. Ct. 924, 925 (1999) (hearsay in police report not reliable where report “was nothing more than an account of [victim's] statement ․ no observations of the police, no corroboration, no investigation”).²

2. Qualitative assessment of regulatory factors. Doe also argues that the examiner failed to explain how he balanced the relevant regulatory factors to conclude that Doe should be classified as a level two offender. Generally, “to 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, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 656 (2019). With respect to each of these elements, the examiner must make an explicit determination, supported by “particularized, detailed findings” (citation omitted). Id. at 657. An offender's classification “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). A “ ‘checklist’ approach” is insufficient -- the examiner must make more than “a perfunctory effort based on a tally sheet of aggravating and mitigating factors, concluding in the end simply that the former outweighed the latter.” Doe, Sex Offender Registry Bd. No. 11204 v. Sex Offender Registry Bd., 97 Mass. App. Ct. 564, 575-576 (2020) (Doe No. 11204), quoting Doe, Sex Offender Registry Bd. No. 136652 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 639, 651 (2012). In short, “[r]easoned analysis is required.” Doe No. 11204, supra at 576.

Doe does not argue that the examiner misapplied any of the regulatory factors, and he acknowledges that, when addressing the rape that Doe committed at the age of seventeen, the examiner correctly applied the factors that differentiate between juvenile and adult offenders.³ Doe argues that the examiner's findings were inadequate, however, because he failed to discuss the “peer aged sexual relationship” between Doe and the first victim. While Doe made several arguments regarding his juvenile status at the board hearing and in the Superior Court, this particular argument is raised for the first time on appeal and is therefore waived. See Doe, Sex Offender Registry Bd. No. 203108 v. Sex Offender Registry Bd., 87 Mass. App. Ct. 313, 320 (2015), S.C., 89 Mass. App. Ct. 901 (2016). In any event, we fail to see how the fact that Doe, at age seventeen, had a brief relationship with the rape victim, who was one year younger than him, in any way excuses or mitigates the fact that he orchestrated and participated in a violent gang rape of the victim. See G. L. c. 265, § 22 (a) (aggravated rape -resulting in serious bodily injury, committed by joint enterprise, or committed during commission of certain designated offenses -- punishable by imprisonment for life or any term of years).

Doe also argues that the examiner failed to make “detailed individualized findings” to explain why Doe was considered a “moderate offender” as opposed to a “low risk offender,” given his age, fifty-eight, and his nine years in the community without an offense at the time of his classification. We are not persuaded.

In his decision, the examiner analyzed the applicability of sixteen high-risk, risk-elevating, and risk-mitigating factors, discussing the aspects of Doe's record that justified each factor's application and weight. In doing so, the examiner considered the factors that Doe contends are most salient here, including his age and offense-free time in the community, his relationships to his victims, and his efforts to seek treatment for substance use and mental health issues. Then, with regard to Doe's risk of reoffense and his degree of dangerousness, the examiner specified which of the factors applied and which elements of Doe's personal history contributed to each analysis. As to Doe's risk of reoffense, the examiner found that Doe had committed contact sexual offenses against two victims, both of whom were his girlfriends at the times of the offenses, and noted the violent nature of the 2012 assault. He also considered that Doe's criminal history included numerous probation violations and crimes unrelated to sexual assault, including violent crimes. The examiner mentioned Doe's history of alcohol and substance use, but also acknowledged Doe's recent efforts to address these issues; he also recognized Doe's current probation supervision, offense-free time in the community, age, and mental health treatment, as well as some of the scientific articles Doe submitted to the board. The examiner analyzed Doe's degree of dangerousness with similar thought and meticulousness. He paid special attention to the violence Doe inflicted on his victims in 1982 and 2012 and reiterated that Doe had “extensive contact with the criminal justice system, including episodes of violence unrelated to sexual assaults” and probation violations, and had exhibited hostile behavior toward women. Again, the examiner gave due consideration to the mitigating factors put forth by Doe, including that Doe was under probation supervision at the time of the classification decision.

In addition, in addressing the public safety interest served by publication of Doe's registry information, despite Doe not being subject to public dissemination, see note 1, supra, the hearing examiner noted Doe's lack of impulse control, demonstrated by his engaging in sexual misconduct at the age of forty-seven, when his risk of reoffense should have declined, and after having been convicted of rape. The examiner also was concerned by Doe's lack of a stable residence or support system. The examiner identified girls and women known to Doe as potential victims. The hearing examiner's findings, taken as a whole, reflect the exercise of informed discretion and individualized analysis of Doe's history and personal circumstances that the law requires. See Doe No. 11204, 97 Mass. App. Ct. at 574-576.

The examiner's conclusions follow logically from these findings. Offenders, like Doe, who have engaged in multiple sex offenses, especially offenses involving a high level of physical contact, generally pose a higher risk of reoffense and a higher degree of dangerousness. See Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 110 (2014) (Doe No. 68549). Other factors, such as an extensive criminal history, past substance abuse, a history of nonsexual violence, documented noncompliance with community supervision, and having been subject to multiple restraining orders -- all present here -- compound these risks. See Doe, Sex Offender Registry Bd. No. 3177 v. Sex Offender Registry Bd., 486 Mass. 749, 759 (2021). “Doe does not dispute the facts underlying these considerations. Rather, he contends that the hearing examiner did not properly balance the aggravating factors against the mitigating factors.” Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 143 (2019). However, the question “how much weight to ascribe to each factor” is one left to the examiner. Doe No. 68549, supra at 109-110. The examiner's decision, supported by substantial evidence, adequately explained the determination that Doe posed a moderate risk of reoffense and a moderate degree of dangerousness. We discern no basis to set aside Doe's classification as a level two sex offender.

Judgment affirmed.

FOOTNOTES

1.   The examiner also concluded that Internet publication of Doe's registry information was warranted in the interest of public safety. However, as the examiner noted, because Doe was first classified as a level two sex offender before July 12, 2013, he was not subject to Internet publication. See Moe v. Sex Offender Registry Bd., 467 Mass. 598, 616 (2014).

2.   Because the examiner did not err in considering of the police report as reliable hearsay evidence, there is no merit to Doe's related argument that the examiner “compounded the error” by considering this evidence in his application of three of the regulatory factors.

3.   Although Doe was not considered a juvenile in 1984, and was indicted and tried as an adult, the board's regulations define “juvenile” as a person “younger than 18 years old at the time of committing a sex offense.” 803 Code Mass. Regs. § 1.03 (2016). Doe argued in the Superior Court that, because he was a juvenile at the time of the index offense, his registration obligation should have terminated twenty years after his release from confinement under G. L. c. 6, § 178G. The judge held that because Doe was convicted of rape, a “sexually violent offense,” he was ineligible for automatic termination of his registration obligation. See Doe, Sex Offender Registry Bd. No. 1211 v. Sex Offender Registry Bd., 447 Mass. 750, 757-758 (2006); G. L. c. 6, §§ 178C, 178G. Doe does not renew this argument on appeal.