JOHN DOE SEX OFFENDER REGISTRY BOARD NO 528700 v. SEX OFFENDER REGISTRY BOARD (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe (Doe), appeals from a judgment of the Superior Court affirming his reclassification by the Sex Offender Registry Board (SORB) as a level three sex offender.¹ On appeal, Doe claims that SORB's decision was arbitrary and capricious and not supported by substantial evidence.² We affirm.

“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). “To determine the validity of an agency's decision, the reviewing court must determine whether the decision is supported by substantial evidence.” 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.” G. L. c. 30A, § 1 (6). We give “due weight to the experience, technical competence, and specialized knowledge” of SORB. Doe, Sex Offender Registry Bd. No. 528042 v. Sex Offender Registry Bd., 496 Mass. 437, 441 (2025). “[O]ur review does not turn on whether, faced with the same facts, we would have drawn the same conclusion as an agency or local board, but only whether a contrary conclusion is not merely a possible but a necessary inference” (quotation and citation omitted). Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 110 (2014).

Doe claims that there was not substantial evidence supporting the hearing examiner's reclassification determination based on an increase of Doe's degree of dangerousness. Doe argues that the additional information presented for his reclassification -- his 2023 convictions of possession of child pornography, and his probation violation -- do not show an escalation of offending nor do they warrant a finding of a high degree of dangerousness. We disagree.

Dangerousness is “a function of the severity and extent of harm the offender would present to the public in the event of reoffense.” 803 Code Mass. Regs § 1.20(2)(b) (2016). A hearing examiner makes “this determination based on the sexual crime or crimes that the offender committed in the past ․ consider[ing] an offender's older sexual offenses where they are relevant to a holistic assessment of the offender's current degree of dangerousness.” Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 651 (2019) (Doe No. 496501). Put simply, Doe's current degree of dangerousness must be determined considering both his past and current behavior.

A “holistic assessment” of Doe's degree of dangerousness shows an escalation of offending. Doe No. 496501, 482 Mass. at 651. Here, Doe had a criminal history of nonsexual violence. He also collected and viewed thousands of images and videos of child pornography and took photographs of neighborhood children. Furthermore, he sexually assaulted an extra vulnerable, prepubescent neighbor. Finally, Doe violated the terms of his probation by not attending sex offender counseling. Combined, the hearing examiner considered these events and determined that the severity and extent of harm Doe would present to the public if he reoffended was high. This determination considered Doe's pattern of escalating offenses, which made it more likely that he would commit another severe, harmful sexual assault on a prepubescent child.³ Given all the circumstances underlying Doe's reclassification, the hearing examiner's finding that Doe is highly dangerous was based on substantial evidence.

Doe also claims that the hearing examiner's non-application of the risk-mitigating factor, online offending behavior (factor 36), undermines his reclassification. However, this factor applies to offenders whose offenses solely involved online or electronic communication and interaction. See 803 Code Mass. Regs. § 1.33(36) (2016).⁴ Thus, the hearing examiner appropriately did not apply this factor.

Finally, Doe claims that his reclassification was arbitrary and capricious because the hearing examiner used a cursory checklist approach. While employing a “checklist” approach is improper, Doe, Sex Offender Registry Bd. No. 11204 v. Sex Offender Registry Bd., 97 Mass. App. Ct. 564, 576 (2020), the hearing examiner here did not do so. Rather, the hearing examiner's decision tied specific facts to each of the factors and properly explained the weight he gave to each factor. The decision was individualized and specific, not an impermissible “tally sheet of mitigating and aggravating factors.” Id. at 575-576.

Judgment affirmed.

FOOTNOTES

1.   Doe initially accepted his level two classification after pleading guilty to one count of indecent assault and battery on a child, in violation of G. L. c. 265, § 13B.

2.   At oral argument, Doe conceded that: (1) SORB had a basis for reclassification based on new information, and (2) Doe had “an increased risk of reoffense” due to his 2023 convictions of possession of child pornography.

3.   The hearing examiner stated, “should the Petitioner re-offend it likely would be against a pre-pubescent child known to him.” This implicates two factors increasing Doe's dangerousness: (1) adult sex offender with a prepubescent victim (factor 3[a]), and (2) relationship between sex offender and victim being extrafamilial (factor 7[a][2]).

4.   The current version of factor 36 makes this explicit in stating that this factor “applies to sex offenders whose sex offense(s) and sexual misconduct solely involved online or remote electronic communication and interaction” (emphasis added). 803 Mass. Regs. § 1.33(36) (2025).