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March 12, 2026 Get Citation Alerts Download PDF Add Note

John Doe, Sex Offender Registry Board No. 524375 v. Sex Offender Registry Board.

Massachusetts Appeals Court

• Citations: None known
• Docket Number: 25-P-0031

• Precedential Status: Non-Precedential

• Opinion

• Authorities (6)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

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Combined Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

25-P-31

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 524375

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The petitioner, Doe, appeals from a Superior Court judgment

upholding his classification by the Sex Offender Registry Board

(SORB) as a level three sex offender. Doe argues that the

decision of the hearing examiner (examiner) did not reflect the

informed reasoning that our case law requires and that the

examiner abused her discretion by not giving proper weight to

the applicable mitigating factors in Doe's case. We affirm.

Background. Doe, starting at the age of nineteen,

frequently and repeatedly sexually abused and raped his sister

for three years. Doe further threatened to break her neck and

kill her if she ever disclosed the abuse. Doe pleaded guilty to

three counts of rape and abuse of a child and was sentenced to
prison for eight to ten years followed by a seven-year probation

term.

Discussion. A level three classification is warranted

where the examiner "make[s] explicit" findings, supported by

clear and convincing evidence, that the offender presents "a

high risk of reoffense, a high degree of dangerousness, and

[that] a public safety interest is served by active

dissemination of the offender's registry information." Doe, Sex

Offender Registry Bd. No. 6729 v. Sex Offender Registry Bd., 490

Mass. 759, 768 (2022). See G. L. c. 6, § 178K (2) (c). "A

reviewing court may set aside or modify SORB's classification

decision where it determines that the decision is in excess of

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).

"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).

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"A hearing examiner has discretion . . . to consider which

statutory and regulatory factors are applicable and how much

weight to ascribe to each factor, and . . . a reviewing court is

required to give due weight to the [examiner's] experience,

technical competence, and specialized knowledge" (quotation and

citation omitted). Doe No. 68549, 470 Mass. at 109-110. When

an examiner does not sufficiently address an offender's evidence

concerning the application of a regulatory factor, we "ask

whether the error may have affected the classification and, if

so, . . . remand to SORB," thus "comport[ing] with our statutory

mandate to determine whether the substantial rights of any party

may have been prejudiced" (quotation and citation omitted).

Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender

Registry Bd., 101 Mass. App. Ct. 797, 804 (2022) (Doe No.

22188).

Here, the examiner concluded by clear and convincing

evidence that Doe posed "a high risk to reoffend and a high

degree of dangerousness such that a substantial public safety

interest is served by active dissemination . . . of his sex

offender registry information." The examiner applied high-risk

factor 3 (adult offender with child victim), and risk-elevating

factors 8 (weapon, violence, or infliction of bodily injury), 9

(alcohol and substance abuse), 16 (public place), 18

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(extravulnerable victim), and 19 (level of physical contact)

because she found that Doe had repeatedly raped his six year old

prepubescent sister, an age considered extravulnerable, with a

high level of physical contact, and that during the offending

behaviors Doe threatened to kill both the victim and her care

givers. The examiner additionally applied risk elevating

factors 10 (contact with criminal justice system), 11 (violence

unrelated to sexual assaults), 12 (behavior while incarcerated

or civilly committed), and 13 (non-compliance with community

supervision) because Doe had extensive contact with the criminal

justice system beginning at a young age, which included episodes

of violence unrelated to the sexual assaults of his sister, [RA

VI:15-19], and had accrued a "voluminous number of disciplinary

reports while incarcerated which includes drug related charges

and violence."

1. Factor 7. Factor 7 recognizes three categories of

relationships between an offender and a victim: intrafamilial,

extrafamilial, and strangers. 803 Code Mass. Regs. § 1.33(7)

(2016).

"The relationship between an offender and the victim is an
important variable in determining risk of reoffense and
degree of dangerousness. . . . Offenders who only target
intrafamilial victims may be at a lower risk to reoffend as
compared to offenders who target unrelated victims.
However, having an intrafamilial victim is not a risk
mitigating, nor a risk elevating, factor. It is included
for definitional purposes only." Id.

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A hearing examiner is required to rely on the factors set

forth in the SORB regulations in determining an offender's risk

and danger. 803 Code Mass. Regs. § 1.33 (2016). Doe suggests

that, based on an article he submitted, the examiner should have

ignored the language of the factor 7 regulation and considered

the relationship between Doe and the victim as a risk-mitigating

factor. It is clear, based on the language of the regulation,

that SORB considered scientific research about intrafamilial

relationships between offenders and victims in adopting

factor 7. Plainly, the examiner considered the relationship

between Doe and the victim; "how much weight to ascribe to each

factor" is a matter within the examiner's discretion. Doe No.

68549, 470 Mass. at 109-110. Doe has given us no sound basis on

which to conclude that this discretion was abused.

1. Factors 9 and 19. Factor 9 applies where an offender

"has a history of substance abuse." 803 Code Mass. Regs.

§ 1.33(9)(a) (2016). It was within the examiner's discretion to

apply it here, given Doe's continuance without a finding for

possession of marijuana in 2007, and multiple drug-related

infractions during his present incarceration, including the

"introduction of [S]uboxone through the mail system" in 2017, a

positive drug test in 2018, tampering with a urine sample in

2020, and stealing drugs from other inmates. The examiner did

5
acknowledge that Doe completed a recovery program in 2023. The

examiner, nevertheless, acted within her discretion in applying

factor 9 based on Doe's history of substance abuse. See Doe No.

22188, 96 Mass. App. Ct. at 742 ("[A] hearing examiner has

discretion . . . to consider which statutory and regulatory

factors are applicable and how much weight to ascribe to each

factor" [quotation and citation omitted]).

Doe also unsuccessfully claims that the examiner misapplied

factor 19 by failing to include a more detailed discussion of a

scientific article Doe submitted. At the time of the hearing,

factor 19 stated, "Sexual assault[s] involving penetration

[have] been shown to cause increased psychological harm to the

victim. The offender who engages in penetration, especially

penile penetration, as part of the sexual assault poses an

increased degree of dangerousness." 803 Code Mass. Regs.

§ 1.33(19) (2016). Doe purports this his article shows "that

the use of force, injury or the degree of sexual contact has

little predictive value for making a determination for future

sexual recidivism."

By claiming that the premise of Factor 19 is at odds with

the scientific research, Doe's argument effectively aims at the

scientific validity -- and, implicitly, the constitutionality --

of factor 19 generally, and for that reason must fail here. "A

6
challenge to the constitutionality of a regulation of general

application is appropriately presented as an action for

declaratory judgment." Doe, Sex Offender Registry Bd. No. 10800

v. Sex Offender Registry Bd., 459 Mass. 603, 629 (2011). As

discussed supra, a hearing examiner is required to rely on

SORB's factors in determining the risk posed by an offender. A

hearing examiner has no "authority to determine the

constitutionality of [SORB's] regulations" and "is obligated to

apply the risk factors . . . irrespective of the examiner's

opinion as to their constitutionality." See id. at 630.

Consequently, in this appeal stemming from an agency

determination, and in the absence of an original action for

declaratory relief in Superior Court, this claim is not properly

before us. Id.

1. Factors 8, 10, 11, 12, and 37. Issues not raised in

the Superior Court cannot be raised on appeal. Doe, Sex

Offender Registry Bd. No. 3974, v. Sex Offender Registry Board,

457 Mass. 53, 57-58 (2010). Although Doe did challenge the

examiner's findings as to factors 10 and 11 in the Superior

Court, those challenges were limited to how the examiner

interpreted those factors in light of a scientific article Doe

submitted; Doe did not challenge, as he does here, whether the

examiner's decision was "based on [Doe's] current

7
circumstances." And Doe did not challenge the examiner's

findings related to factors 8, 12, or 37, whatsoever. These

claims are thus waived.

1. Internet publication. We are unpersuaded by Doe's

argument that the examiner abused her discretion in concluding

that Internet publication is warranted. "Where a sexually

violent offender presents a moderate risk to reoffend and a

moderate degree of dangerousness, Internet publication will

almost invariably serve a public safety interest by notifying

potential victims of the risks presented by the offender in

their geographic area." Doe No. 496501, 482 Mass. at 655. This

conclusion is even more compelling where, as here, the offender

presents "a high risk to reoffend and a high degree of

dangerousness."

We discern no error in the examiner's conclusion. She

noted that much of Doe's conduct, which included threats of

violence, spoke "to [Doe]'s dangerousness and impulsiveness,"

and that even while incarcerated "he has continued to defy rules

and regulations." The examiner also considered that the young

age of the victim indicates a risk that future victims may also

be of a similarly vulnerable age, further recommending

publication to protect against that risk. Doe's argument that

he poses no risk to anyone except for his family (and that he

8
will never have access to his family again) flies in the face of

his high risk for recidivism. The examiner's conclusion that

Internet publication is warranted was not an abuse of

discretion.

Judgment affirmed.

By the Court (Vuono,
Ditkoff & D'Angelo, JJ.1),

Clerk

Entered: March 12, 2026.

1 The panelists are listed in order of seniority.

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