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Doe v. Sex offender Registry Board

Appeals Court of Massachusetts, Suffolk

March 27, 2015

John Doe, Sex Offender Registry Board No . 291554
v.
Sex Offender Registry Board

Argued November 13, 2014.

Civil action commenced in the Superior Court Department on April 13, 2011.

The case was heard by Frances A. McIntyre, J., on a motion for judgment on the pleadings.

Xiomara M. Hernández for the plaintiff.

Thomas M. Doyle for the defendant.

Present: Green, Wolohojian, & Blake, JJ.

OPINION

[27 N.E.3d 419] Blake, J.

The plaintiff, John Doe, challenges his final classification by the Sex Offender Registry Board (board) as a level three sex offender. He claims that the board's decision was not supported by substantial evidence, primarily because the governing offense involved no physical contact or sexual component and, apart from that offense, Doe had no prior criminal record. We affirm.

Background.

We summarize the facts found by the hearing examiner,[1] supplemented by additional undisputed facts from the record. In October of 2009, Doe responded to a post on a social networking Web site from the twelve year old female victim seeking assistance running away from home. He initiated a series

Page 211

of online communications with her over a period of thirty or so days. In his electronic mail messages (e-mails) to the victim, Doe misrepresented his age as being twenty-five, rather than his actual age of thirty-two. Eventually, Doe arranged to travel from his home State of Virginia to Massachusetts, on a date certain, to pick up the victim, intending to return to Virginia with her by train, subway, and bus. To that end, he purchased one bus ticket in his name and one in that of the victim. He also instructed the victim to bring some money and her Social Security card.

On the morning of the planned meeting, the victim's mother noticed that the victim was acting suspiciously. The mother's boyfriend then searched the victim's computer and discovered her communications with Doe. The police were notified, and after interviewing the victim, they arrested [27 N.E.3d 420] Doe at the train station, shortly before the prearranged meeting. Upon questioning, Doe told the police that he knew the victim was twelve years old; that he planned " to kiss her, lick her, and suck on" her when they returned to Virginia; that he would take photographs of her and post them on a Web site; that he intended to get her to love him; and that he would marry her and have babies with her.

Doe was charged and found guilty of enticement of a child under the age of sixteen (enticement) and attempted kidnapping of a child. He was sentenced to two and one-half years in the house of correction, and five years of probation on and after his committed sentence. Conditions of his probation include sex offender treatment, no access to the Internet or to social networking Web sites, and no unsupervised contact or employment with children under the age of sixteen. Doe has no other criminal record; however, he told the police that " this is the first time" he has " actually followed through with something."

In October of 2010, while still serving his sentence, Doe was notified of the board's preliminary decision to classify him as a level three sex offender. See G. L. c. 6, § 178K. Doe challenged the board's decision, and a de novo hearing was held before a hearing examiner. See G. L. c. 6, § 178L(1)( a ). Represented by counsel, Doe requested that he be classified as no higher than a level two sex offender. Unpersuaded, the hearing examiner found that the board had met its burden of proof and ordered Doe to register as a level three sex offender. Doe filed in ...


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