John Doe, Sex Offender Registry Board No. 523735 v. Sex Offender Registry Board. ( 2024 )

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
23-P-218
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 523735
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court
judgment affirming his classification by the Sex Offender
Registry Board (board) as a level three sex offender. On
appeal, Doe claims that the hearing examiner erred by relying on
hearsay evidence that lacked indicia of reliability, misapplying
certain high-risk factors, and in requiring Internet
dissemination of Doe's personal information. We affirm.
Underlying offenses. We summarize the factual background
of Doe's underlying offenses as set forth in the hearing
examiner's decision. Doe, Sex Offender Registry Bd. No. 10800
v. Sex Offender Registry Bd., 459 Mass. 603, 606 (2011) (Doe No.
10800).
In 2014, Doe's twenty-five year old daughter (victim 1) and
fourteen year old former stepdaughter (victim 2) reported to the
police department that over the span of several years Doe had
sexually assaulted them multiple times.
In her statement to police, victim 1 explained that in
2004, when she was sixteen years old, she moved from Portugal to
the United States to live with Doe, her stepmother, and her two
stepsisters (victim 2 and her sister). Victim 1 lived with Doe
from August to November 2004. During this time, Doe touched
victim 1's breasts and buttocks, kissed her on the mouth, and
repeatedly came into her room when she was undressed and got
into bed with her. Doe rubbed his penis over her clothing while
leaning against her buttocks. Victim 1 told Doe to stop and she
also reported the sexual abuse to her stepmother. The
stepmother confronted Doe and the sexual abuse stopped for a
period of time. Victim 1 reported to her stepmother that Doe
had resumed his sexual abuse and the stepmother once again
confronted Doe. Shortly after the second confrontation, Doe took
victim 1 by the arm, threw her on a couch, and told her that if
she told anyone else about the sexual assaults, he would kill
her.
Three weeks after he threatened her, Doe told victim 1 that
his religion required that she undergo a ritual of protection
2
which required him to bathe her in a tub. While bathing victim
1, Doe touched her breasts and digitally penetrated her vagina.
In November 2004, victim 1 returned to Portugal.
In 2007, victim 1 returned to the United States and Doe
apologized to her for his past sexual abuse and told her that it
would never happen again. Victim 1 moved back into Doe's home.
Doe, however, did not keep his promise. Soon thereafter, Doe
told victim 1 to refer to him by his first name and not "Dad"
and to think of him as her boyfriend. Then, Doe began entering
victim 1's bedroom, laying his head on her chest, and touching
her breasts and buttocks. In January of 2008, Doe told victim 1
that he needed to conduct another religious ritual. Doe removed
her clothing and then licked her face, neck, and chest. In a
later conversation with victim 1, Doe said that he did not have
"fatherly feelings" for her and saw her as a woman and could not
control himself around her.
Doe's former stepdaughter victim 2 also reported to police
that Doe sexually assaulted her between 2008 and 2011, when she
was between the ages of eight and eleven, and threatened to hurt
her family if she reported the abuse. Doe would remove victim
2's clothing, get on top of her, touch her legs and thighs, and
often massaged the outside of her vagina with two or three
fingers and his penis. Doe also attempted to kiss her neck and
3
lips. Doe also made victim 2 touch his penis on multiple
occasions.
In 2015, a jury convicted Doe of one count of rape and one
count of incest based on his actions against victim 1.1 As to
the sexual assaults of victim 2, Doe was indicted in Superior
Court on eight counts of indecent assault and battery on a child
under the age of fourteen, but the Commonwealth later entered a
nolle prosequi on all charges.
Procedural history. On or around January 31, 2018, the
board notified Doe that it had preliminarily designated him as a
level three sex offender, which he challenged by requesting a de
novo hearing. On February 11, 2019, a de novo hearing was held,
and the board issued a decision finding that Doe posed a high
risk to reoffend and a high degree of dangerousness and was
required to register as a level three sex offender. After Doe's
motion to vacate the final decision and have a new
classification hearing was allowed, another de novo hearing was
held on June 8, 2021. The board issued a decision classifying
Doe as a level three sex offender. The hearing examiner found
Doe's behavior was repetitive and compulsive (factor 2) because
1 Doe was sentenced to five to seven years in State prison
for the rape of victim 1, and on the incest conviction, Doe
received a ten-year probation sentence to be served from and
after his release from incarceration.
4
he was confronted twice about his sexual abuse of victim 1 but
continued to reoffend against her, and he sexually assaulted
victim 2 several times. The hearing examiner gave factor 2
increased weight because Doe continued to sexually offend
despite being confronted by his wife on two occasions. The
hearing examiner also found that factor 3 applied because victim
2 was under the age of thirteen and prepubescent when Doe
sexually assaulted her. Doe sought judicial review of the
board's classification determination in Superior Court. The
Superior judge upheld the level three classification and this
appeal followed.
Discussion. 1. Standard of review. When a hearing
examiner classifies an offender as a level three sex offender,
the decision must be supported by clear and convincing evidence
that the offender presents "a high risk of reoffense, a high
degree of dangerousness, and a public safety interest is served
by active dissemination of the offender's registry information -
- in a manner that is particularized and detailed to the
offender." Doe, Sex Offender Registry Bd. No. 6729 v. Sex
Offender Registry Bd., 490 Mass. 759, 768 (2022) (Doe No. 6729).
See Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender
Registry Bd., 473 Mass. 297, 314 (2015) (Doe No. 380316). A
reviewing court may set aside or modify a decision of the board
5
if it determines, among other things, "that the decision is in
excess of [the board'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). When evaluating the decision by the board, the
court will "give due weight to the experience, technical
competence, and specialized knowledge of the agency, as well as
to the discretionary authority conferred upon it." Doe, Sex
Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd.,
447 Mass. 779, 787 (2006), quoting G. L. c. 30A, § 14 (7). Doe
therefore bears the "heavy burden of establishing that the
[board's] decision was incorrect" (citation omitted). Doe, Sex
Offender Registry Bd. No. 3177 v. Sex Offender Registry Bd., 486
Mass. 749, 757 (2021) (Doe No. 3177). We review a judge's
consideration of an agency decision de novo. See Doe, Sex
Offender Registry Bd. No. 22188 v. Sex Offender Registry Bd.,
101 Mass. App. Ct. 797, 801 (2022).
2. Classification determination. Doe requests that we
vacate the board's decision classifying him as a level three sex
offender and remand for a new hearing. He argues that the
hearing examiner erroneously relied on inadmissible hearsay
evidence consisting of victim 2's statements to the police
6
contained within a police report to support the application of
factor 2 (repetitive and compulsive behavior) and factor 3
(prepubescent victim). Without victim 2's hearsay statements to
officers describing the sexual assaults by Doe, Doe claims that
the level three designation was not supported by substantial
evidence.
One of the high-risk factors that the board may consider
when classifying a sex offender is behavior that is described as
"repetitive and compulsive," otherwise referred to as factor 2.
See 803 Code Mass. Regs. § 1.33(2) (2016). The board applies
factor 2
"at its threshold weight any time an offender 'engages in
two or more separate episodes of sexual misconduct' where
there is 'time or opportunity, between the episodes, for
the offender to reflect on the wrongfulness of his
conduct.' [The board] may 'give increased weight to
offenders who have been discovered and confronted (by
someone other than the victim) or investigated by an
authority for sexual misconduct and, nonetheless, commit a
subsequent act of sexual misconduct.'"
Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender
Registry Bd., 96 Mass. App. Ct. 738, 742 (2019), S.C., 101 Mass.
App. Ct. 797 (2022), quoting 803 Code Mass. Regs. § 1.33(2).2
2 Although Doe argues in his brief that the application of
factor 2 when an offender is confronted by a family member is
unconstitutional, he explicitly waived this claim during oral
argument and acknowledged that such a challenge must be brought
in a separate declaratory judgment action. See Doe No. 10800,
459 Mass. at 630 ("A challenge to the constitutionality of a
general regulation cannot be resolved by requesting declaratory
7
The board's regulations allow the hearing examiner to apply
"increased weight" to factor 2 if a sex offender has been
discovered and confronted by someone other than the victim, and
then continues to commit a subsequent act of sexual misconduct.3
Doe argues that the hearing examiner incorrectly gave factor 2
increased weight because he improperly considered unreliable
hearsay evidence. Specifically, Doe points to evidence that, in
the course of disclosing Doe's sexual abuse, victim 2 told
victim 1 that she had lied about Doe in the past and said that
Doe did not sexually abuse her. Doe claims that the hearing
examiner abused his discretion in finding that victim 2's
statements were reliable because she had admitted to lying in
the past about Doe. We are not persuaded.
A hearing examiner "is not bound by the rules of evidence
applicable to court proceedings," and when conducting a sex
offender classification hearing, "hearsay evidence may be
admissible if it bears sufficient indicia of reliability"
(citation omitted). Doe, Sex Offender Registry Bd. No. 523391
relief in an appeal from an administrative agency decision
because judicial review is confined to the administrative
record, . . . which has been made based on the presumption that
the classification scheme is constitutional").
3 In Doe No. 6729, 490 Mass. at 766, the Supreme Judicial
Court recently upheld the constitutionality of the portion of
factor 2 regarding compulsive behavior that was applied in this
case.
8
v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89 (2019).
Factors to consider when determining if hearsay should be deemed
reliable include "the general plausibility and consistency of
the victim's or witness's story, the circumstances under which
it is related, the degree of detail, the motives of the
narrator, the presence or absence corroboration and the like"
(citation omitted). Id. On the other hand, factors that should
be considered when determining that a hearsay statement is
unreliable include "failure to identify the source of
information, a lack of detail, and a lack of information about
the circumstances in which the statements were made." Id. at
89-90. When there is an allegation of sexual misconduct that
did not result in a conviction, the hearing examiner may
consider the underlying facts if those facts are proven by a
preponderance of the evidence. See Doe No. 3177, 486 Mass. at
754-755.
Here, the hearing examiner did not abuse his discretion
when he found victim 2's hearsay statements contained in the
police report to be reliable and sufficiently detailed to prove
by a preponderance of the evidence that Doe sexually assaulted
her. Victim 2 provided the police with a thorough account of
the sexual assaults committed by Doe, including the specific
addresses where they occurred and how old she was at the time of
9
each offense. In addition, victim 2's descriptions of the
specific manners in which Doe sexually offended were similar to,
and thus were corroborated by, the sexual assaults Doe committed
on victim 1 and of which Doe was convicted.
The fact that there may have been slight inconsistencies in
statements made by victim 2 does not alter our conclusion that
there was no abuse of discretion in determining that the hearsay
was reliable. The hearing examiner was in the best position to
resolve factual disputes. See Doe No. 10800, 459 Mass. at 633("It is the province of the board, not this court, to weight the
credibility of the witnesses and to resolve any factual
disputes"). Moreover, the hearing examiner was not required to
disregard victim 2's statements to the police solely because the
victim had stated in the past that she lied when she denied
having been sexually abused by Doe. This is especially true
where Doe threatened to harm victim 2's family if she disclosed
that he was sexually abusing her. The hearing examiner
acknowledged the evidence of victim 2's "lie" and considered it
in the context of Doe threatening to harm the prepubescent
victim's family if she disclosed his sexual abuse. The hearing
examiner then weighed that evidence against the detailed nature
of the allegations and the fact that victim 1's account of Doe's
sexual abuse was similar to victim 2's. There was no abuse of
10
discretion in the admittance of victim 2's hearsay statements as
they bore sufficient indicia of reliability to constitute
admissible evidence.
Doe also claims that factor 2 should not have been applied
because the record did not support the hearing examiner's
conclusion that Doe's behavior was compulsive. We disagree.
The evidence about compulsive behavior came from Doe himself,
when he told victim 1 that he "couldn't help himself around
her," and from Doe's repeated sexual assaults despite promising
victim 1 that it would never happen again. Doe next claims that
the hearing examiner should not have given increased weight to
factor 2 because the record contained inconsistencies whether
victim 1's stepmother confronted Doe about his sexual offending.
Here, the hearing examiner properly found that Doe had been
confronted on two occasions about his sexual abuse of victim 1
and later reoffended against both victim 1 and victim 2. There
was no error in the hearing examiner giving appropriate weight
to victim 1's detailed description to the police of Doe's
repeated sexual abuse as well as her efforts to stop the abuse
by reporting Doe's behavior to her stepmother (Doe's wife, and
the mother of victim 2).
We are also unpersuaded by Doe's other arguments that the
application of factor 2 in this context was error. Doe argues
11
that the hearing examiner erred in applying factor 2 because
there was no empirical evidence to support a correlation of an
increased risk to reoffend when a perpetrator is confronted by a
family member (as opposed to a member of law enforcement), and
subsequently commits another act of sexual misconduct. Doe
relies heavily on a letter submitted as an exhibit written by
Dr. Karl Hanson, a leading researcher in the field of sex
offender recidivism, which in relevant part stated "[t]he
available research has not examined forms of discovery and
confrontation other than that of the police and criminal justice
system. It is unknown whether reoffending after confrontation
by family members, for example, would be a valid indicator of
increased risk."
As described in note 2, supra, Doe agrees that any
constitutional challenge based on Hanson's letter or opinion
must be brought in a separate declaratory judgment action. We
therefore address this claim only as part of our determination
whether "substantial evidence" supported the application of
factor 2.
Despite Doe's argument to the contrary, our review is not
to determine if the record contained empirical evidence of a
correlation between the application of a factor and the risk to
reoffend. Simply stated, a letter, even by a recognized expert
12
in the field, stating that "[i]t is unknown" if confrontation by
a family member is a valid indicator of an increased risk, is
insufficient to mount a challenge that the application of factor
2 was incorrect. Instead, our focus is to determine whether
"substantial evidence" supported the decision by the hearing
examiner. See Doe, Sex Offender Registry Bd. No. 1211 v. Sex
Offender Registry Bd., 447 Mass. 750, 762 (2006). Here, as
discussed above, factor 2 was supported by the specific facts
introduced at the hearing, and the classification of Doe was
supported by substantial evidence. Doe has failed to persuade
us that the application of factor 2 was otherwise incorrect.4
3. Specificity in the board's decision and requirement of
Internet publication. Doe also contends that the hearing
examiner's decision was arbitrary and capricious because it
failed to make specific and individualized findings both
generally and regarding the necessity for Internet dissemination
of his personal information. See G. L. c. 30, § 14 (7). We
4 Finally, Doe also argues that, were we to find that factor
2 should not have applied, the rest of the factors cannot
support a level three classification. Because we hold that the
application of factor 2 was supported by substantial evidence,
we need not address whether the rest of the factors found to be
applicable by the board could alone support a level three
classification. We offer no opinion whether Doe might be
successful in a separate declaratory action raising a
constitutional challenge to factor 2, which involves an entirely
different framework than we apply here.
13
first address Doe's argument regarding the level of detail in
the hearing examiner's decision generally. We agree with Doe
that the hearing examiner was required to make particularized
and detailed findings concerning Doe's classification. See Doe
No. 380316, 473 Mass. at 312. Doe argues that the hearing
examiner's decision was essentially the mechanical application
of a checklist and failed to provide a reasoned analysis
justifying a level three classification.
The hearing examiner's decision, however, shows a specific
and thoughtful consideration of the relevant factors, including
a number of mitigating and aggravating risk factors that applied
to Doe. The hearing examiner properly weighed the impact of
Doe's sex offenses and his current circumstances in determining
his risk of sexual reoffense and degree of dangerousness. Each
risk-elevating and risk-mitigating factor was discussed both
generally and as applied to Doe. The hearing examiner then
discussed Doe's risk of reoffense and his degree of
dangerousness.
As to the public interest served by Internet publication of
Doe's sex offender registration information, the hearing
examiner considered, as he must, whether Internet publication
serves a legitimate public safety interest. See Doe, Sex
Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd.,
14
483 Mass. 131, 133 (2019). The hearing examiner properly
considered the severity and extent of harm done by Doe, and, in
part based on his past victim pool, the level of danger Doe
would present to the public if he reoffended. The hearing
examiner also appropriately considered Doe's past offenses and
the victim pool before concluding that Internet dissemination
was appropriate. The record amply supported the hearing
examiner's finding that Internet dissemination was warranted
where Doe repeatedly sexually assaulted his daughter and
stepdaughter over a span of several years in the manners
described above, despite twice being confronted about his sex
offending behaviors. The hearing examiner concluded that Doe's
likely future victim would be "a female family member or live-in
relative," but noted that, with Doe having a new wife who also
denied Doe's prior sexual misconduct, publication was warranted.
The hearing examiner's calculation of risk and the need for
Internet dissemination was tailored to the particular risks
posed by Doe, and the realistic conclusion -- that Internet
publication very well may prevent diverse intrafamilial girls
such as the victims here from becoming victims of sex offenses -
- was plainly "based on a sound exercise of informed discretion
15
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).
Judgment affirmed.
By the Court (Vuono, Rubin &
Walsh, JJ.5),
Clerk
Entered: August 23, 2024.
5 The panelists are listed in order of seniority.
16