John Doe, Sex Offender Registry Board No. 1712 v. Sex Offender Registry Board.

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
21-P-1093
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 17121
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a judgment of the
Superior Court affirming the Sex Offender Registry Board's
(SORB's) final decision reclassifying him from a level three sex
offender to a level two sex offender. He argues that the
hearing examiner failed to ascribe a specific weight to eight
risk factors, lacked sufficient evidence to support his
reclassification decision, and, because of that insufficiency of
evidence, violated his constitutional rights by ordering the
public dissemination of his sex offender registration
information. We affirm.
1 As is our custom, in appeals from classification decisions
under G. L. c. 6, § 178M, we refer to the plaintiff using the
pseudonym "John Doe" notwithstanding that, throughout these
proceedings, the plaintiff has referred to himself using the
pseudonym "H.T."
Background. We recite the portions of the hearing
examiner's findings that are relevant to our discussion.
1. First victim. On October 26, 1991, a fifteen year old
girl reported to Chicopee Police that during the previous month
she and the plaintiff, then twenty-six years old, had sexual
intercourse on two occasions in a parking lot. On October 21,
1992, the plaintiff pleaded guilty in Hampden Superior Court to
two counts of rape and abuse of a child. See G. L. c. 265,
§ 23.
2. Second victim. On June 5, 1998, a thirteen year old
girl (Victim #2) reported to Springfield Police that the
plaintiff had sexually assaulted her on three separate
occasions. First, in July or August of 1997, Victim #2 and her
brother were sleeping over in a spare bedroom in the plaintiff's
home. Victim #2 woke up to the plaintiff touching her breasts
and her vagina. She told him to stop, but he said that if she
screamed, he would get the Latin Kings, a gang, to hurt her. He
then covered her mouth and put his fingers in her vagina. Upon
hearing his wife moving around, the plaintiff left but told
Victim #2 that he would be back. Victim #2 reported that, a
"little while later," the plaintiff came back and put his finger
back inside of her for about twenty minutes. Before leaving, he
told Victim #2 to remember what he had said about the Latin
Kings.
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Next, in October of 1997, Victim #2 went out with the
plaintiff for ice cream. But instead of taking Victim #2 for
ice cream, the plaintiff drove her to a field she did not
recognize and proceeded to touch her breasts and put his finger
inside of her for forty-five minutes.
Finally, in March or April of 1998, Victim #2 returned to
the plaintiff's home for a sleepover with his daughter and
another friend. She awoke to the plaintiff with his hands on
her breast and his finger inside of her vagina.
The plaintiff was indicted on three counts of forcible rape
of a child and two counts of indecent assault and battery of a
child under fourteen. On June 28, 1999, the plaintiff pleaded
guilty in Superior Court to one count of indecent assault and
battery on a child under fourteen. See G. L. c. 265, § 13B.
The hearing examiner concluded that, despite the plaintiff's
"pleading to a lesser charge," Victim #2's statements were
"sufficiently detailed and that [the plaintiff] did in fact
digitally penetrate her vagina."
3. Third victim. On May 18, 1998, a fourteen year old
girl (Victim #3) reported to Springfield Police that the
plaintiff had sexually assaulted her on three separate
occasions. She reported that sometime in March, she had spent
the night at the plaintiff's home, with a friend, because her
parents were out of town. The first night, the plaintiff gave
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her beer and marijuana. Victim #3 and her friend spent the
night eating food, watching TV, and talking on the phone. They
went to bed in a bedroom together, and slept without blankets
because it was hot. Later that night, the plaintiff came into
the room, touched Victim #3's thighs, and put his fingers in her
vagina for several seconds. Victim #3 repeatedly told the
plaintiff to stop. Eventually, he left the room and Victim #3
hid beneath the bed for the rest of the night.
Two or three nights later, Victim #3 smoked some more
marijuana with the plaintiff and his girlfriend before going to
bed. That night, the plaintiff entered Victim #3's room, pulled
down her underwear, got on top of her, and put the head of his
penis into her vagina. He eventually got off Victim #3 and
ejaculated onto her inner thigh.
Around that same time, the plaintiff again tried to place
his finger in the vagina of Victim #3 while he was driving her
home in the morning to get ready for school.
The plaintiff was indicted on three counts of forcible rape
of a child. The plaintiff pleaded guilty on June 28, 1999, to
two counts of a lesser charge of indecent assault and battery on
a person over fourteen. See G. L. c. 265, § 13H. Despite the
plaintiff's pleading to a lesser charge, the hearing examiner
found that Victim #3's statements were sufficiently detailed to
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conclude that the plaintiff did in fact penetrate her vagina
with his penis and finger.
4. Fourth victim. Sometime in April of 1998, while a
fifteen year old girl was sleeping over at a friend's house, the
plaintiff attempted, several times, to place his hands on her
vaginal area. The plaintiff pleaded guilty to one count of
indecent assault and battery on a person over fourteen. See
G. L. c. 265, § 13H.
5. Fifth victim. On May 3, 1998, while at a sleepover at
plaintiff's home, a sixteen year old girl (Victim #5) woke up to
the plaintiff touching her body, rubbing her breasts and putting
his hand on her buttocks beneath her underwear. He then moved
his hand and digitally penetrated her vagina.
The plaintiff was indicted on two counts of indecent
assault and battery on a person over fourteen and one count of
rape of a child with force. He pleaded guilty to three counts
of indecent assault and battery on a person over fourteen and
was sentenced to two years of incarceration on each count. The
hearing examiner found the victim's statements to be
sufficiently detailed to conclude that, despite the plaintiff's
pleading to a lesser charge, the plaintiff had in fact digitally
penetrated Victim #5.
6. Contact with criminal justice system. In addition to
his sexual offenses, the plaintiff has a criminal history of
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nonsexual offenses beginning in 1987. He has been arraigned for
assault, disorderly conduct, shoplifting, assault and battery by
means of a dangerous weapon, motor vehicle-related offenses,
substance-related offenses, malicious destruction of property,
abuse prevention violations, and threat-related offenses. Most
recently, in 2015, the plaintiff was charged with larceny and
breaking and entering in the daytime with intent to commit a
felony. The hearing examiner found that each of these offenses
had been disposed of via either "dismissals, fines, nolle
prossed, probation, commitments, guilty filed, not guilty, and
continued without a finding." He also found that the plaintiff
had no contact with the criminal justice system for more than
five years. Despite that, the hearing examiner concluded that
the plaintiff persistently had disregarded rules, laws, and the
rights of others.
7. Restraining orders. The plaintiff was also subject to
restraining orders pursuant to G. L. c. 209A from three
different women between 1993 and 2008. One of the women
reported, on August 9, 1992, to Springfield police that the
plaintiff had called her and told her that when he made bail the
next day he would come over to her apartment to kill her. On
September 10, 1992, she reported that the plaintiff had violated
the restraining order by calling her several times and
approaching her car in a parking lot and opening the door. In
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an affidavit signed November 12, 2003, she reported that the
plaintiff came to her house, yelled at her, and hit her on the
back. She reported in an affidavit signed May 17, 2006, that
the plaintiff had called her, threatening to hit her and take
her children.
8. Reclassification decision. On December 23, 2002, the
Board classified the plaintiff as a level three sex offender.
The plaintiff later sought reclassification and a de novo
hearing took place on January 26, 2021. At that point, the
plaintiff was fifty-three years old and had not sexually
reoffended for twenty-two years. The hearing examiner's
reclassification decision relied on the application of two high
risk factors, nine risk elevating factors, and five mitigating
factors, all as set forth in 803 Code Mass. Regs. § 1.33 (2016).
Finding that the plaintiff continued to sexually reoffend
after having been convicted of a sexual offense in 1992, the
hearing examiner applied factor 2 (repetitive and compulsive
behavior), giving it increased weight. The hearing examiner
also applied factor 3 (adult offender with child victim),
finding that the plaintiff had sexually assaulted at least five
teenage girls, all of whom were between the ages of twelve and
fifteen.
The examiner also applied nine risk elevating factors
because the plaintiff sexually assaulted five (factor
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22 -- number of victims), sleeping (factor 18 -- extravulnerable
victim), extrafamilial victims (factor 7 -- relationship between
the offender and victim), with at least some of the assaults
taking place where the plaintiff had no expectation of privacy
(factor 16 -- public place), and while using his fingers and,
for two victims, his penis (factor 19 -- level of physical
contact). The plaintiff also exhibited a disregard for the law
(factor 10 -- contact with criminal justice system), had a
history of violence unrelated to sexual assault (factor 11), did
not comply with a restraining order while under supervision
(factor 13 -- noncompliance with community supervision), and
displayed hostility towards women (factor 15).
The hearing examiner balanced these aggravating factors
against several mitigating factors, applying factors 29
(offense-free time in the community) on account of the
plaintiff's twenty-plus years of sex offense-free time in the
community; factor 30 (advanced age) on account of the plaintiff
being fifty-three years old; factor 32 (sex offender treatment)
on account of the plaintiff's somewhat satisfactory
participation in sex offender treatment; factor 33 (home
situation and support systems) on account of the plaintiff's
living situation being a positive and supportive environment;
and factor 34 (materials submitted by the sex offender regarding
stability in the community) on account of the plaintiff having
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been married for over twenty years with four adult children and
having found a job as a machinist.
As a result of this balancing, the examiner concluded that
the plaintiff should be reclassified as a level two sex
offender.
Discussion. "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). "In reviewing SORB's decisions, we
'give due weight to the experience, technical competence, and
specialized knowledge of the agency.'" Doe No. 496501, supra at
649, quoting Doe, Sex Offender Registry Bd. No. 205614 v. Sex
Offender Registry Bd., 466 Mass. 594, 602 (2013).
The plaintiff's first argument is that the hearing
examiner's decision is not susceptible to review by this court
due to the examiner's failure to ascribe a specific weight to
eight factors. This level of specificity would certainly aid
the court's review of classification decisions and further
ensure the integrity of the present sex offender classification
system, one that implicates a sex offender's significant
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"liberty and privacy interests." Doe, Sex Offender Registry Bd.
No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 311
(2015). However, the plaintiff does not cite to any authority
that requires the board to ascribe to each factor a specific
weight. The hearing examiner was required to consider a number
of discrete, objective factors and did so in a fashion that was
not "general and conclusory," as the plaintiff suggests. The
examiner's written discussion of each factor included an
application of the relevant regulation to the plaintiff's
specific, factual background. For example, the plaintiff
complains that the examiner's discussion of factor 32 (sex
offender treatment) was deficient. But, there, the hearing
examiner studiously listed out the criteria relevant to the
determination of weight and compared that with the report
provided by a licensed independent clinical social worker, who
stated that though the plaintiff had attended nine of eleven sex
offender treatment group sessions and related well to his peers,
he could not fully describe all four phases of the deviant
cycle, identify triggers for sexually deviant thoughts, control
deviant arousal via behavioral techniques, and did not have a
specific and realistic written relapse prevention plan. The
examiner noted that, in a treatment status report, the social
worker indicated "that for most of the treatment criteria, [the
plaintiff's] participation was 'somewhat.'" The discussion of
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the hearing examiner is not so "general and conclusory" as to
evade proper appellate review.
The plaintiff's second argument is that there is
insufficient evidence to support the hearing examiner's
conclusion that the plaintiff presents a moderate risk to
reoffend sexually or that a public safety interest is served by
Internet publication of the plaintiff's registry information.
Regarding reoffense, the plaintiff's primary argument is
that, according to a certain study (Hanson)2 cited by SORB as
supporting its promulgation of factor 29, see 803 Code Mass.
Regs. § 1.33(29)(a) (2016), the plaintiff's risk of reoffense
most likely statistically was nonexistent at the time of
reclassification. The Hanson study calculated sexual recidivism
over twenty years, using a sample of 7,740 sexual offenders
aggregated from twenty-one samples collected in previous
studies. Based on five, ten, and fifteen-year follow-ups, the
researchers found that the five-year recidivism rate of high
risk offenders dropped from 22% at release, to 8.6% after five
years offense-free, to 4.2% after ten years offense-free, which
was still higher than the expected rate for nonsexual offenders.
The researchers noted that the recidivism rate dropped by "half
2 See Hanson, Harris, Helmus, & Thornton, High-Risk Sex Offenders
May Not be High Risk Forever, J. Interps. Violence, 29(15):2792-
2813 (2013).
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for each [five] years that the offender was sexual offense-free
in the community," and speculated that high risk sex offenders
who remain offense-free could eventually cross a threshold such
that their risk of sexual reoffense becomes indistinguishable
from the risk presented by nonsexual offenders. Hanson, supra
at 2800, 2805.
The plaintiff argues that, extrapolating from the data
trend presented in the Hanson study, his particularized risk of
reoffense at the time of the 2021 reclassification hearing was
"nearly zero." Even assuming that the plaintiff's projection is
accurate, acceptance of this argument would require us to treat
this one article, and offense-free time in the community, as
dispositive of every offender's risk of sexual recidivism. But
the article itself cautions that it offers little guidance as to
a causal link between "years crime-free and desistance."
Hanson, supra at 2805. Indeed, the researchers noted that
access to information regarding an offender's "involvement in
non-sexual crime" and other background information would provide
an evaluator "increased capacity to discriminate recidivists
from non-recidivists." Id. at 2806.
The case-by-case approach of the reclassification process,
with its consideration of multiple factors, affords a hearing
examiner exactly this sort of information. In his analysis, the
examiner gave full weight to the plaintiff's offense-free time
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in the community, but noted that he also needed to consider
"risk elevating factors not directly related to the sexual
offending," including the plaintiff's involvement in "non-sexual
crim[e] . . . some of which may have been violent," his
"problems with community supervision," and "demonstrated
hostility towards women." We conclude that the hearing
examiner, having given full weight to the plaintiff's offense-
free time in the community, did not err in choosing to treat
this mitigating risk factor as one part of a larger, holistic
analysis rather than as the single, dispositive factor.
Regarding Internet dissemination, the plaintiff argues that
the examiner's conclusion was unsupported where (1) the
plaintiff's risk of reoffense purportedly was zero and (2) the
underlying convictions involved known victims within the
plaintiff's home or familiar settings. Both arguments are
without merit. We have already discussed the first, and need
not accept the premise that, contrary to the hearing examiner's
conclusion, which is supported by substantial evidence, the
plaintiff posed no risk of reoffense. The plaintiff's argument
that Internet dissemination would not serve a public safety
interest because several of the plaintiff's underlying
convictions occurred within his home is untenable. The
plaintiff's victims, teenage girls, were extrafamilial. They
came for sleepovers with their friends. They came when their
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own parents were out of town. Their guardians did not have
notice of the plaintiff's dangerousness. The determination that
public dissemination might aid others who might otherwise be
harmed by any reoffense the plaintiff might commit was
adequately supported. As the hearing examiner rightfully
observed, based on the plaintiff's past sexual offending
behavior, if he "were to reoffend, he would most likely offend
against an extrafamilial girl, similar to the five Victims on
record. . . . [G]irls and anyone who is the caretaker of young
girls and who may become acquainted with the [plaintiff], ha[ve]
a right to know . . . about the [plaintiff's] past sexual
offenses." The examiner properly concluded that Internet
dissemination was warranted.
Finally, the plaintiff argues that because the hearing
examiner's decision lacked sufficient evidence, his
reclassification as a level two sex offender violates his
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constitutional rights. Because we reject his insufficiency
argument, this argument fails as well.
Judgment affirmed.
By the Court (Meade, Rubin &
Blake, JJ.3),
Clerk
Entered: March 24, 2023.
3 The panelists are listed in order of seniority.
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