JOHN DOE SEX OFFENDER REGISTRY BOARD NO 16521 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 a Sex Offender Registry Board (board) decision classifying Doe as a level two sex offender. On appeal, Doe claims that the hearing examiner (1) abused his discretion in applying and balancing various regulatory factors, resulting in a decision not supported by substantial evidence, and (2) misapplied regulatory factor 37 (other information related to the nature of the sexual behavior) in a way that double counted factors considered elsewhere in his analysis. We affirm.

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

In 1999, a police investigation into illegal sexual and drug activity by Doe uncovered a pattern of sexual misconduct by Doe against minor girls. Four victims credibly described having been digitally, orally, and vaginally raped by Doe; Doe showed a fifth victim pornography on several occasions in Doe's home when she was a child. One victim performed oral sex on Doe for money when she was twelve years old. Another victim, also twelve years old at the time, was sexually assaulted by Doe after he plied her with alcohol. Doe exposed his victims to pornographic photographs, videotapes, and computer images, including images of young children performing sex acts.

In 2003, Doe was convicted of three counts of rape and abuse of a child under the age of 16. He was sentenced to serve sixteen to twenty-four years in prison. Several other charges relating to sexual offenses were nolle prossed.

Prior to his release from incarceration, Doe initially was classified by the board as a level three offender. He sought a de novo hearing by a hearing examiner. The hearing examiner reclassified him as a level two offender.

In reaching his decision, the hearing examiner applied high-risk factor 3 (adult offender with child victim) with increased weight, based on Doe having offended against five children. The hearing examiner applied risk-elevating factor 7 (extrafamilial victims); gave moderate weight to factor 10 (contact with criminal justice system); gave minimal weight to factor 11 (violence unrelated to sexual assaults), factor 12 (behavior while incarcerated), and factor 13 (noncompliance with community supervision); applied factor 18 (extravulnerable victim) because Doe provided alcohol to a victim when he sexually assaulted her; applied factor 19 (level of physical contact) with increased weight because Doe engaged in penile-vaginal, penile-oral, and digital-vaginal penetrations of three victims; and applied risk-elevating factors 20 (diverse sexual behavior), 21 (diverse victim type), and 22 (number of victims).

The hearing examiner applied risk-mitigating factor 30 (advanced age) with full weight, because Doe was seventy-five years old at the time of the hearing. The hearing examiner applied risk-mitigating factor 32 (sex offender treatment) with moderate weight, because although Doe was due to graduate from treatment at the time of the hearing, he had reportedly “stalled in his treatment progress” and continued to minimize and deny aspects of his sex offense history. The hearing examiner applied factor 33 (home situation and support systems) with minimal weight.

Under factor 35 (psychological or psychiatric profiles regarding risk to reoffend), the hearing examiner found that Doe received a score on the STATIC-99R test ¹ that placed him in the low-risk category for reoffense, and a score on the STABLE-2007, another risk assessment instrument, see Doe, Sex Offender Registry Bd. No. 524174 v. Sex Offender Registry Bd., 106 Mass. App. Ct. 331, 334 (2025), that placed him in the high-risk category. The hearing examiner found that the combined results placed Doe in the moderate-low category of risk to reoffend. Under factor 37 (other useful information), the hearing examiner considered several articles submitted by Doe but found them mostly irrelevant and gave them little weight. Under this factor the hearing examiner also considered that Doe's repeated sexual offenses against his victims were evidence of his dangerousness and informed the nature and scope of the harm to a future victim. The hearing examiner considered a victim impact statement under factor 38.

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

Discussion. “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). 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), quoting G. L. c. 30A, § 14 (7). We may only set aside the board's decision on a finding that the decision is unsupported by substantial evidence, arbitrary and capricious, an abuse of discretion, or not in accordance with the law. See Doe, Sex Offender Registry Bd. No. 6729 v. Sex Offender Registry Bd., 490 Mass. 759, 762 (2022).

1. Qualitative assessment of regulatory factors. Doe makes several arguments as to why the hearing examiner abused his discretion when applying and balancing the regulatory factors, resulting in a decision unsupported by substantial evidence. For the reasons that follow, we disagree.

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 element, 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).

Here, Doe contends that the hearing examiner ignored uncontroverted evidence when evaluating risk-mitigating factor thirty (advanced age) because Doe was seventy-five years old at the time of the hearing. Although the hearing examiner applied full weight to this factor, Doe argues that the hearing examiner's analysis failed to account for the findings in a 2002 research article by Dr. Karl Hanson. Setting aside that it does not appear that Doe submitted this research article at the hearing, the article is cited in regulatory factor thirty itself. See 803 Code Mass. Regs. § 1.33(30). The hearing examiner did not abuse his discretion by not considering the article separately from the regulatory factor that reflects its findings.

The hearing examiner assigned moderate weight to risk-mitigating factor 32 (sex offender treatment) because, at the time of the hearing, Doe had stalled in his treatment and continued to deny and minimize his offenses. Doe maintains that the hearing examiner placed too much weight on findings that Doe had resisted “discussing critical aspects of his relevant history” and “demonstrated evidence of ongoing distortions related to the consensual nature of the sexual relationships he maintained at the time of the governing offense.” We discern no error in the hearing examiner's decision to moderate the mitigating weight of Doe's time in treatment, particularly where records showed that the treatment was not having its intended effect.

Because Doe did not challenge the hearing examiner's assignment of minimal weight to factor 33 (home situation and support) in his motion for judgment on the pleadings in the Superior Court, his argument as to that factor is waived. Doe, Sex Offender Registry Bd. No. 3974 v. Sex Offender Registry Board, 457 Mass. 53, 56-58 (2010); Doe, Sex Offender Registry Bd. No. 203108 v. Sex Offender Registry Bd., 87 Mass. App. Ct. 313, 321 (2015). Even if we were to consider the argument, we would find no error. The hearing examiner considered that Doe's support network consisted of mainly “sex offenders he met while incarcerated,” expressed doubt as to their ability to assist Doe in remaining offense-free without the assistance of a trained clinician, and acknowledged that “the claimed support of [Doe's] sister-in-law is wholly self-reported.”

The hearing examiner did not err in not addressing risk-mitigating factor 34. Under that factor, the board “shall give mitigating consideration to materials submitted by the offender that demonstrate stability in the community,” including evidence that addresses his “recent behavior and lifestyle.” 803 Code Mass. Regs. § 1.33(34)(a). Although Doe asserted in an affidavit where he intended to live upon release and provided expressions of support by other prior sex offenders, his incarceration at the time of the hearing effectively precluded him from demonstrating his “stability in the community” for purposes of this factor.

In applying factor 35 (psychological or psychiatric profiles regarding risk to reoffend), the hearing examiner found that Doe received a score on the STATIC-99R test that placed him in the low-risk category for reoffense, and a 2015 score on the STABLE-2007 that placed him in the high-risk category. The hearing examiner found that the combined results placed Doe in the moderate-low category of risk to reoffend. Doe contends that the hearing examiner abused his discretion by not mentioning that his STABLE-2007 score dropped from eighteen in 2015 to twelve in 2018, and that the combined results using that latter score would have placed Doe in the average risk range. Doe, however, also received a score of eighteen on the STABLE-2007 in 2016 and a score of fourteen in 2017. Even his lowest score in 2018 placed him in the high-risk category relative to other adult male sex offenders. Although hearing examiners should consider the full range of testing information available to them when applying factor 35, we are confident that the hearing examiner's use of the term “moderate low” instead of “average” to describe Doe's risk of reoffense as shown by his combined STATIC-99R and STABLE-2007 did not materially influence the hearing examiner's level two classification.

Lastly, we disagree with Doe's broader contention that the hearing examiner applied a mechanical, “checklist” approach that rendered his analysis and decision arbitrary and capricious. Doe, Sex Offender Registry Bd. No. 11204 v. Sex Offender Registry Bd., 97 Mass. App. Ct. 564, 574 (2020). The hearing examiner wrote a detailed and thoughtful decision that explicitly tied the facts of Doe's case to variables that the board's regulations identify as “the strongest predictors of sexual recidivism for all sex offenders.” See 803 Code Mass. Regs. § 1.33. 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, supra at 574-576.

2. Application of factor 37. Doe also argues that this case should be remanded because the hearing examiner impermissibly relied on factor 37 (other information related to the nature of the sexual behavior) in a way that may have duplicated risk-elevating factors. Because this argument was not raised in Doe's motion for judgment on the pleadings, it is waived. Doe No. 3974, 457 Mass. at 56. Even if we were to consider it, we would decline to remand the case. Factor 37 provides that “[p]ursuant to [G. L. c. 6, § 178L (1),] the [b]oard shall consider any information that it deems useful in determining risk of re-offense and degree of dangerousness posed by any offender.” 803 Code Mass. Regs. § 1.33. In Doe Sex Offender Registry Bd. No. 527962 v. Sex Offender Registry Bd., 496 Mass. 543, 548-549 (2025), the Supreme Judicial Court held that the hearing examiner in that case complied with the board's statutory mandate by considering, under factor 37, the impact of a defendant's multiple offenses on his future dangerousness. See G. L. c. 6, § 178K (1) (b) (iii) (requiring that board's classification guidelines include consideration of “the number, date and nature of prior offenses” “in determining ․ degree of dangerousness”). The impact considered by the hearing examiner included the fact that the defendant “raped one victim multiple times.” Doe No. 527962, supra at 549. Here, in applying factor 37, the hearing examiner noted that Doe “sexually offended against the Victims multiple times over a period of years.” The hearing examiner considered this repeated sexual behavior in relation to Doe's dangerousness and the scope of the harm should he reoffend, not to his risk of offense. See Doe No. 527962, supra. On this record, we do not discern any risk that the hearing examiner double counted factors in his decision.

Judgment affirmed.

FOOTNOTES

1.   “The Static-99R is an actuarial tool, designed to predict the recidivism risk of sexual offenses in adult male sex offenders who have been convicted of at least one sexual offense.” See Commonwealth v. George, 477 Mass. 331, 335 n.2 (2016).