JOHN DOE SEX OFFENDER REGISTRY BOARD NO 285142 v. SEX OFFENDER REGISTRY BOARD (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2020, Doe was classified by the Sex Offender Registry Board (board) as a level two sex offender pursuant to G. L. c. 6, § 178K (2) (b). In 2022, he filed a motion to terminate registration and the board recommended that he continue to register as a level two sex offender. He requested and received a de novo hearing pursuant to G. L. c. 6, § 178L, at which the hearing examiner concluded that Doe posed a moderate risk to reoffend and a moderate degree of dangerousness and classified him as a level two sex offender. The hearing examiner also concluded that Internet dissemination of Doe's personal information would realistically serve a public interest and ordered such publication. Doe appealed to the Superior Court, which affirmed the level two classification decision. Doe now appeals.

At a de novo classification hearing, the hearing examiner must determine the offender's obligation to register and classification level. See 803 Code Mass. Regs. § 1.04(3) (2016). The board must prove the appropriateness of an offender's risk classification by clear and convincing evidence. Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 298 (2015). Under this standard, “[t]he evidence must be sufficient to convey a ‘high degree of probability’ that the contested proposition is true” (citation omitted). Id. at 309. “The requisite proof must be strong and positive; it must be ‘full, clear and decisive.’ ” Adoption of Iris, 43 Mass. App. Ct. 95, 105 (1997), S.C., 427 Mass. 582 (1998), quoting Callahan v. Westinghouse Broadcasting Co., 372 Mass. 582, 584 (1977). The findings must be “specific and detailed ․ [,] demonstrating that close attention has been given to the evidence.” Adoption of Quentin, 424 Mass. 882, 886 (1997).

Doe claims that the hearing examiner's decision was arbitrary and capricious and an abuse of discretion because of errors in applying the regulatory factors applicable to his classification decision, and that there was not substantial evidence supporting the conclusion by clear and convincing evidence that Doe poses a moderate risk of reoffending. The facts are well known to the parties and will be repeated only as necessary to our discussion.

Discussion. Between the time he was twenty and twenty-two, Doe raped his half-sister, then aged between twelve and fourteen, at their home, including in the living room of the house, while her mother was also in the house sleeping. This led to her becoming pregnant.

Doe's first argument relates to factor 16. Factor 16 provides,

“The commission of a sex offense or engaging in sexual misconduct in a place where detection is likely reflects the offender's lack of impulse control. The Board may apply less weight to factor 16 if there is evidence that the offender made a clear and concerted effort to conceal his offending behavior from others. For purposes of factor 16, a ‘public place’ includes any area maintained for or used by the public and any place that is open to the scrutiny of others or where there is no expectation of privacy.”

803 Code Mass. Regs. § 1.33(16)(a) (2016).

The examiner applied risk-elevating factor 16, with full weight to Doe. Doe argues that this risk-elevating factor should have been given decreased weight because there was evidence that Doe “attempted to ‘conceal his offending behavior from others’ as it occurred while the mother was sleeping.” He also notes that there are many circumstances that are not known or described in the record that may bear on this, for example, how far away the mother was sleeping, and whether the living room has a door that was closed.

We are not persuaded. In a house where more than one person lives, a living room is generally a common area, a room to which others have access. At least in this case, it was a public place, even if entry to it required opening a door or arriving from some other part of the house. As to concealment, the question is not whether an effort was made to conceal the offending behavior, but whether there is evidence that the offender made a “clear and concerted” effort to do so. 803 Code Mass. Regs. § 1.33(16)(a). In this case, engaging in sexual misconduct in the living room while the victim's mother was asleep in the house does not amount to a clear and concerted effort to conceal this conduct. We thus see no error in the examiner's giving this risk-elevating factor full weight.

Doe also argues that the examiner erroneously used factor 37, entitled “Other Information Related to the Nature of the Sexual Behavior,” which allows the Board to “consider any information that it deems useful in determining risk of reoffense and degree of dangerousness posed by any offender,” to conclude that Doe's victim pool was not limited to intrafamilial victims. 803 Code Mass. Regs. § 1.33(37)(a). The basis of the hearing examiner's use of this factor was a report to the police by the victim's then thirteen year old friend claiming that during the same time period he was raping his half-sister, the defendant had stated more than once to the friend that he “wanted to be with her,” which she said she understood to mean that he wanted to have sex with her. Doe argues that using his statement to conclude that his victim pool contained extrafamilial potential victims was error because the girl's signed statement to the police indicated that Doe “has never touched me or tried to touch me.”

On the facts and circumstances of this case, this argument is not availing. The offenses to which Doe pleaded guilty were not forcible rape but statutory rape of a child. Any sex with the thirteen year old friend would have been statutory rape. See G. L. c. 265, § 23. Doe's sexual interest in the friend therefore suggests that, for the sex offense of conviction, his pool of victims was broader than his own family.

Given that these factors were properly applied, we see no abuse of discretion or other error of law in the hearing examiner's balancing of the risk-elevating and risk-mitigating factors.

The hearing examiner must also determine whether and to what degree public access to the offender's personal and sex offender information is in the interest of public safety. See G. L. c. 6, § 178K (2); 803 Code Mass. Regs. § 1.20(2)(c) (2016). The Supreme Judicial Court has explained that what must be shown by clear and convincing evidence is that the safety interest is “realistically” served by Internet publication. See Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 655 (2019). Because this determination is not based on any particular expertise of the hearing examiner, our review may be more searching.

Doe argues that the public interest will not be served because Doe has one index crime, one victim, and the crime occurred many years ago when he was in his twenties. At the time of the hearing, he was thirty-six. Doe argues that “[t]his is especially so when taking into consideration that the victim of the index crime was intrafamilial and they lived together, therefore, his possible victim pool is extremely low.”

Of course, we have concluded that there was no error or abuse of discretion in the conclusion that Doe's victim pool was not so limited, and the possibility of extrafamilial victims gives support to a need for Internet dissemination. Doe raped his twelve year old victim multiple times. He had interest in another minor, and he was unable to comply with the terms of his probation. There were some contrary facts, as well: At the time of the board hearing, Doe had been in a relationship with his girlfriend for nine years and was living with her, and the examiner identified no evidence that Doe had expressed sexual interest in underage persons at any time since his 2014 release from incarceration.

Nonetheless, there is substantial evidence supporting the examiner's finding by clear and convincing evidence that Internet dissemination will realistically serve a public safety purpose.

Judgment affirmed.