JOHN DOE SEX OFFENDER REGISTRY BOARD NO 21732 v. SEX OFFENDER REGISTRY BOARD (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe, appeals from a Superior Court judgment affirming his classification as a level two sex offender by a hearing examiner (examiner) of the Sex Offender Registry Board (board). Doe argues that the examiner abused his discretion by (1) failing to consider two scholarly articles concerning offense-free time in the community, and (2) “mechanically” applying the regulatory factors without adequate explanation. We affirm.

Background. We summarize the facts as set forth in the examiner's decision, “supplemented by undisputed facts from the record.” Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 606 (2011).

1. Governing offenses. In 1983, when Doe was twenty-two years old, he forced his ten year old niece (victim 1) to undress and “put his penis ‘inside her.’ ” He pleaded guilty to one count of rape and abuse of a child and was sentenced to eighteen years in prison.

While on parole in 1989, Doe sexually assaulted his thirteen year old stepdaughter (victim 2). Doe was found guilty of one count of indecent assault and battery on a child under fourteen years old and sentenced to two and one-half years in the house of correction, to be served from and after his release on the 1983 offense.

2. Prior proceedings. In October 2002, the board notified Doe of his duty to register as a level three sex offender. Doe challenged the recommendation, and in April 2007, following a de novo hearing, the board finally classified Doe as a level three sex offender.

In September 2021, Doe filed a motion asking the board to terminate his registration obligation or lower his classification. After the board notified Doe that it was recommending a level two classification, Doe requested administrative review. The board held a de novo hearing in November 2023. The examiner concluded by clear and convincing evidence that Doe presents a moderate risk of reoffense and dangerousness such that a public safety interest is served by active dissemination and Internet publication of his registry information. In reaching that conclusion, the examiner applied and weighed risk aggravating and elevating factors and risk mitigating factors. The examiner also “fully consider[ed]” twenty articles Doe submitted but “[gave] them little weight,” noting that the articles “concerning general recidivism, incest offenders, sex offender treatment, offense-free time and age” contained similar research to that referenced in the board's regulatory factors. The examiner deemed other articles concerning community reentry and the collateral consequences of registration irrelevant. Doe was subsequently ordered to register as a level two sex offender, pursuant to G. L. c. 6, § 178K (2) (b).

Doe then filed a complaint for judicial review in Superior Court under G. L. c. 6, § 178M, and G. L. c. 30A, § 14. In December 2024, a judge affirmed the classification as a level two sex offender.

Standard of review. “We review a judge's consideration of an agency decision de novo.” Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89 (2019). We may only set aside the board's decision on a finding that the decision “is unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with the law.” Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 787 (2006). “ ‘Substantial evidence’ is ‘such evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 109 (2014) (Doe No. 68549), quoting G. L. c. 30A, § 1 (6).

In reviewing the board's decision, “we ‘give due weight to the experience, technical competence, and specialized knowledge of the [board].’ ” Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594, 602 (2013) (Doe No. 205614), quoting G. L. c. 30A, § 14 (7). “[O]ur review of a hearing examiner's decision does not turn on whether, faced with the same set of facts, we would have drawn the same conclusion, but only whether a contrary conclusion is not merely a possible but a necessary inference” (citation omitted). Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 143-144 (2019).

Discussion. 1. Application of factors. Doe argues that the examiner committed an abuse of discretion by failing to adequately explain how the applicable regulatory factors compelled the conclusion that he presents a moderate risk of reoffense and dangerousness. He further contends that the examiner “mechanically” applied the regulatory factors, and that the examiner's decision “reflects a preconceived conclusion that Doe's sex offenses were so disturbing that a moderate risk of reoffense is warranted, rather than a reasoned analysis.” We are not persuaded.

“A hearing examiner has discretion ․ to consider which statutory and regulatory factors are applicable and how much weight to ascribe to each factor.” Doe No. 68549, 470 Mass. at 109-110. A hearing examiner's decision, however, “must show that the classification is based on a sound exercise of informed discretion rather than the mechanical application of a checklist or some other reflex.” Doe, Sex Offender Registry Bd. No. 136652 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 639, 651 (2012).

Here, the examiner's findings and conclusions reflect an informed weighing of the applicable statutory and regulatory factors. See 803 Code Mass. Regs. § 1.33 (2016).¹ Based on the facts summarized above, the examiner found that two high-risk factors ² and eight risk-elevating factors ³ applied. The examiner also considered three risk-mitigating factors,⁴ including Doe's age and offense-free time in the community. Taken as a whole, the examiner's decision reflects more than “a perfunctory effort” at analysis. Doe, Sex Offender Registry Bd. No. 11204 v. Sex Offender Registry Bd., 97 Mass. App. Ct. 564, 575 (2020) (Doe No. 11204). Contrast id. at 574 (judgment affirming classification decision vacated where hearing examiner failed to address or even mention “detailed, fact-specific evaluations” and other reports generated about plaintiff during his commitment as sexually dangerous person); Doe No. 205614, 466 Mass. at 607-608 (finding error where board examiner disregarded study demonstrating relevance of gender to assessing risk of reoffense without citing studies to contrary).

For example, the examiner acknowledged that although Doe committed his first governing sex offense back in 1983, while he was on parole for that offense, he committed a new sex offense; both offenses involved minors. The examiner balanced his findings that Doe, at the time of the hearing, was sixty-four years old and had been offense free for eighteen years with the findings that Doe committed a new sex offense while on parole, refused to participate in sex offender therapy while incarcerated, and “has previously denied and continues to deny his sex offenses.”⁵ The examiner's decision demonstrates the kind of “informed discretion” (citation omitted) and “reasoned analysis” of the plaintiff's individual history and personal circumstances that the law requires. Doe No. 11204, 97 Mass. App. Ct. at 574-575. The decision was based on substantial evidence and was neither arbitrary nor capricious.

2. Consideration of articles. Doe argues, for the first time on appeal, that the examiner abused his discretion and committed an error of law by failing to consider two scholarly articles concerning offense-free time in the community that are not incorporated into the board's risk mitigating factor 29 (offense-free time in the community).⁶ Because Doe did not raise any issue with the examiner's consideration of factor 29 before the board or in Superior Court, it has been waived. See Doe, Sex Offender Registry Bd. No. 203108 v. Sex Offender Registry Bd., 87 Mass. App. Ct. 313, 320 (2015). See also Springfield v. Civil Serv. Comm'n, 469 Mass. 370, 382 (2014), citing Albert v. Municipal Court of Boston, 388 Mass. 491, 493-494 (1983) (“Failure to raise an issue before an appointing authority, an administrative agency, and a reviewing court precludes a party from raising it on appeal”). Nevertheless, we review and conclude that the examiner's decision was not arbitrary or capricious or an abuse of discretion.

“Where an offender presents evidence relevant to an offender's risk of recidivism, the hearing examiner must at least consider the evidence.” Doe, Sex Offender Registry Bd. No. 356315 v. Sex Offender Registry Bd., 99 Mass. App. Ct. 292, 298 (2021), citing Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 622-623 (2010). That duty includes consideration of scientific research that speaks to the concerns underlying the statutory and regulatory considerations underpinning the board's classification system. See Doe No. 68549, 470 Mass. at 105.

Here, the record shows that the examiner duly considered the two articles Doe submitted addressing the relationship between offense-free time in the community and recidivism.⁷ As the examiner noted, those articles reflect similar research to what is already considered in the board's statutory and regulatory framework. Consequently, the examiner gave the articles “little weight.” What is more, the examiner had already given Doe's offense-free time in the community full mitigating weight. See Doe No. 68549, 470 Mass. at 109-110. Thus, no additional weight was required for the articles. We discern no error in the examiner's assessment. Contrast Doe No. 205614, 466 Mass. at 608 (hearing examiner “arbitrarily and capriciously failed to evaluate evidence” submitted by petitioner describing rates of female sexual recidivism not specifically addressed in board's regulations).

Judgment affirmed.

FOOTNOTES

1.   “Title 803 Code Mass. Regs. §§ 1.00 was recently amended, effective April 25, 2025. We refer to the version of the regulations in effect at the time of the hearing examiner's decision.” Doe, Sex Offender Registry Bd. No. 528042 v. Sex Offender Registry Bd., 496 Mass. 437, 440 n.3 (2025).

2.   See 803 Code Mass. Regs. § 1.33(2) (repetitive and compulsive behavior, factor applied with increased weight); § 1.33(3) (adult offender with child victim, factor applied with increased weight).

3.   See 803 Code Mass. Regs. § 1.33(7) (relationship between sex offender and victim, factor applied); § 1.33(9) (alcohol and substance abuse, factor applied with minimal weight); § 1.33(10) (contact with criminal justice system, factor applied with minimal weight); § 1.33(11) (violence unrelated to sexual assaults, factor applied with minimal weight); § 1.33(12) (behavior while incarcerated or civilly committed, factor applied with minimal weight); § 1.33(13) (noncompliance with community supervision, factor applied with increased weight); § 1.33(19) (level of physical contact, factor applied with increased weight); § 1.33(22) (number of victims, factor applied).

4.   See 803 Code Mass. Regs. § 1.33(29) (offense-free time in the community, factor applied with full weight); § 1.33(30) (advanced age, factor applied with full weight); § 1.33(32) (sex offender treatment, factor applied with minimal weight).

5.   As discussed infra, the examiner gave “little weight” under 803 Code Mass. Regs. § 1.33(37) (other useful information related to the nature of sexual behavior) to articles Doe submitted.

6.   The board regulations relied on at the time of the November 2023 hearing were the 2016 regulations. Those regulations were revised in 2025 and now include a citation to Hanson et al., Reductions in Risk Based on Time Offense Free in the Community: Once a Sexual Offender, Not Always a Sexual Offender, 24 Psych., Pub. Pol'y & L. 48 (2018), under factor 29. See 803 Code Mass. Regs. § 1.33(29) (2025).

7.   Hanson et al., Reductions in Risk Based on Time Offense Free in the Community: Once a Sexual Offender, Not Always a Sexual Offender, 24 Psych., Pub. Pol'y & L. 48, 57 (2018) states that “[t]he observed decline in risk based on time offense free is ․ consistent with previous studies of sexual offenders” (citing Harris & Hanson, Public Safety and Emergency Preparedness Canada, Sex Offender Recidivism: A Simple Question (2004) [Harris & Hanson 2004], and other authorities). Harris & Hanson 2004 is cited in the 2016 board regulations. Hanson, Long-Term Recidivism Studies Show that Desistance is the Norm, 45 Crim. Just. & Behav. 1340 (2018) also cites Harris & Hanson 2004. Harris & Hanson 2004 largely summarizes both older and more recent studies on desistance from sexual offending after some period of offense-free time in the community.