TERRY DOE SEX OFFENDER REGISTRY BOARD NO 232377 v. SEX OFFENDER REGISTRY BOARD (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Terry Doe, appeals from a Superior Court judgment affirming his final classification by the Sex Offender Registry Board (SORB) as a level three sex offender. See G. L. c. 6, § 178K (2) (c). On appeal, Doe argues that the hearing examiner improperly applied risk-mitigating factors 33 (home situation and social support systems) and 34 (materials submitted by the sex offender regarding stability in the community), and that SORB failed to prove by clear and convincing evidence that he poses a high risk of reoffending and degree of dangerousness. We affirm.

Background. We summarize the facts found by the hearing examiner, supplemented by additional undisputed facts from the record. See Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 606 (2011).

In December 2005, a father reported to police that Doe, a close family friend, sexually assaulted the father's sixteen year old daughter (victim 1) and his thirteen year old son (victim 2). Victim 1 told police that Doe sexually assaulted her on diverse dates between July 2005 and December 2005, and that he rubbed her vagina, grabbed her hand and placed it on his erect penis, “instructed her on how to masturbate him” until he ejaculated, and had “forced penile/vaginal intercourse with her.” Doe also showed her a pornographic video recording on his cellphone.

Victim 2 told the police that Doe began sexually assaulting him at the end of August 2005 when he was twelve years old. Victim 2 disclosed to police numerous incidents of Doe's forcing him to perform oral sex on Doe, touching victim 2's penis, performing oral sex on victim 2, and attempting to put his penis into victim 2's rectum. Doe took sexually explicit photographs of them together and showed victim 2 pornographic video recordings of children having sex.

Following a trial in the Superior Court in January 2009, a jury convicted Doe of one count of rape and abuse of a child under age sixteen, two counts of indecent assault and battery on a child under age fourteen, one count of indecent assault and battery on a person over age fourteen, and one count of dissemination of matter harmful to minors.¹ Doe was sentenced to State prison and released in February 2020.

On or about November 25, 2019, SORB notified Doe that he had been preliminarily classified as a level three sex offender, pursuant to G. L. c. 6, § 178K (2) (c). Doe challenged the classification recommendation; after a de novo hearing on October 15, 2020, Doe was classified as a level three sex offender on March 22, 2021. Doe appealed from that decision to the Superior Court. On its own initiative, SORB pulled Doe's classification decision back for reconsideration without consideration of factor 2 at threshold weight, see Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender Registry Bd., 96 Mass. App. Ct. 738, 741-744 (2019), and the case was stayed. On November 4, 2022, the hearing examiner classified Doe as a level three sex offender. On July 23, 2024, a Superior Court judge entered a judgment affirming the examiner's decision, from which Doe now appeals.

Discussion. We review de novo a judge's consideration of an agency decision. See Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89 (2019). We “may set aside or modify SORB's classification decision” if we determine that it exceeds “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.” Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594, 602 (2013), quoting G. L. c. 30A, § 14 (7).

Doe contends that the examiner erroneously gave minimal weight to risk-mitigating factor 33 and should have given it greater mitigating consideration. We are not persuaded. In considering factor 33, SORB “shall give greater mitigating consideration to evidence of a support network that is aware of the offender's sex offense history and provides guidance, supervision, and support of rehabilitation.” 803 Code Mass. Regs. § 1.33(33)(a) (2016).² Doe submitted five letters of support from family, friends, and acquaintances: a letter written by Doe's sister, which appeared to be addressed to the parole board, stating that she found it hard to believe Doe was found guilty of the charges against him and that Doe would be staying with her and her family upon his release ³ ; a letter written by an acquaintance who had known Doe for twenty-five years expressing his and his family's shock and surprise when Doe was found guilty; a letter written by a former employer stating that the coworker “look[ed] forward to working with [Doe] again”; a letter written by a former employer; and a letter written by a friend who “grew up next door to [Doe].” Because the evidence supported the examiner's finding that the letters of support from Doe's family, friends, and acquaintances, despite “illustrat[ing] a supportive environment,” failed to identify how Doe's community would “provide [Doe] with guidance, supervision, or support of rehabilitation,” we discern no abuse of discretion in the examiner's weighing of factor 33. See Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 138-139 (2019) (Doe No. 23656) (“The hearing examiner has discretion to determine how much weight to ascribe to each factor under consideration”).

Similarly, we find unpersuasive Doe's argument that the examiner erred in giving minimal weight to factor 34. Under factor 34, SORB “shall give mitigating consideration to materials submitted by the offender that demonstrate stability in the community.” 803 Code Mass. Regs. § 1.33(34)(a). In his findings under factor 34, the examiner referred to an “undated, handwritten letter” from Doe's sister to the parole board that stated that a plan was in place for Doe to live with her and her family members. Doe's sister wrote that she planned to “transport” Doe when he “needs to meet with his probation or parole officers” and that their family “will offer [Doe] all the support that he will need.” She stated in her letter that she would provide Doe with space in her garage as “office space” but failed to mention whether Doe had a job. The examiner also found that Doe “indicated at the beginning of the [h]earing that he ha[d] a job lined up,” but failed to provide any supporting documentary evidence or testimony. Although one of Doe's former employers wrote in a letter of support that he “look[ed] forward to working with [Doe] again,” nothing in that letter suggested that the coworker had the power to hire Doe or that Doe had an offer of employment. Based on our review of the record, we conclude that the examiner properly found that the evidence did not “address [Doe's] employment stability, type of employment, or non-work-related activities.” See 803 Code Mass. Regs. § 1.33(34)(a) (in applying factor 34, SORB shall consider evidence of 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”). There was no error in his application of factor 34.

We find unavailing Doe's contention that SORB failed to demonstrate by clear and convincing evidence that Doe poses a high risk of reoffending and degree of dangerousness. Doe's argument essentially expresses disagreement with the examiner's weighing of the evidence. When making a classification decision, a hearing examiner “has discretion ․ to consider which statutory and regulatory factors are applicable and how much weight to ascribe to each factor” (citation omitted). Doe, Sex Offender Registry Bd. No. 22188, 96 Mass. App. Ct. at 742. Classification decisions must be established by clear and convincing evidence, and “a hearing examiner may consider subsidiary facts that have been proved by a preponderance of the evidence.” Doe No. 496501, 482 Mass. at 656.

Here, the evidence in the record supported the examiner's consideration of both the sex offenses of which Doe was convicted and the five sex offenses of which he was acquitted. The examiner found that the evidence supported the sexual misconduct against victim 1 and victim 2 that Doe was acquitted of. The examiner properly found that victim 2 gave “an incredibly high degree of detail” in his disclosures and had no motive to lie about being sexually assaulted. Likewise, the examiner properly found that victim 1 gave “a high degree of detail” and did not have an apparent motive to lie.

The evidence supported the examiner's consideration of the applicable factors and determination of the appropriate weight given to each factor based on Doe's individual circumstances. See Doe No. 23656, 483 Mass. at 138-139. The examiner based Doe's classification on the presence of a high-risk factor, the age of the victims, and several aggravating factors, such as Doe's extrafamilial relationship with the victims, the number of victims, and the level of physical contact; Doe does not challenge the application of those factors.⁴ Accordingly, we conclude that the examiner's decision classifying Doe as a level three sex offender was amply supported by clear and convincing evidence.

Judgment affirmed.

FOOTNOTES

1.   The jury acquitted the defendant of five other sex offenses.

2.   The SORB regulations were updated in 2025. We refer here to the version of the regulations in effect at the time of the hearing examiner's decision, which govern this appeal.

3.   In his claim of error, Doe points to a second letter written by Doe's sister, which the hearing examiner did not consider in weighing factor 33, but instead considered under factor 34, infra. That undated letter was attached as an exhibit to a “memorandum in support of granting parole” addressed to the parole board and dated July 6, 2020. It was not included in the exhibit Doe submitted to SORB specifically labeled “letters of support,” which instead included a more recent letter from the sister dated September 20, 2020. The hearing examiner properly limited his consideration for purposes of factor 33 to the September letter.

4.   The examiner applied high-risk factor 3 (adult offender with a child victim). He also applied the following risk-elevating factors: factor 7 (relationship between offender and victim), factor 17 (male offender against male victim), factor 19 (level of physical contact), factor 20 (diverse sexual behavior), factor 21 (diverse victim type), and factor 22 (number of victims). In addition to factors 33 and 34, discussed supra, he applied the following risk-mitigating factors: factor 28 (supervision by probation or parole), factor 30 (advanced age) with minimal consideration, and factor 32 (sex offender treatment) with moderate consideration.