JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 496501
SEX OFFENDER REGISTRY BOARD & others.
Heard: February 5, 2019.
case was heard by Jeffrey T. Karp, J., on a motion
for partial judgment on the pleadings, and entry of final
judgment was ordered by Timothy Q. Feeley, J.
Supreme Judicial Court granted an application for direct
A. Frame for the plaintiff.
P. Bosse for the defendant.
Rebecca Rose, for Committee for Public Counsel Services,
amicus curiae, submitted a brief.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
plaintiff (Doe) appeals from a Superior Court judgment
affirming a Sex Offender Registry Board (SORB or board)
decision to classify him as a level two sex offender after he
was convicted in 2015 of two counts of open and gross
lewdness for displaying his genitals to a neighbor through
the window of his home. Doe presents three challenges to the
level two classification. First, he contends that SORB does
not have jurisdiction to classify him as a "sex
offender," as defined in G. L. c. 6, § 178C,
because he has not previously been convicted of open and
gross lewdness and only a "second and subsequent . . .
conviction for open and gross lewdness" permits
classification as a sex offender. Second, he contends that a
hearing examiner cannot classify an individual as a level two
sex offender based on a determination that the offender poses
a moderate risk of reoffending, without also making an
express determination that the degree of dangerousness posed
by this individual is such that a public safety interest is
served by having his or her registration information made
publicly available on the Internet. See G. L. c. 6,
§§ 178D, 178K (2) (b). Third, he contends that
there was not substantial evidence to support his level two
conclude, first, that SORB has jurisdiction to classify Doe
as a sex offender because a previous charge of open and gross
lewdness against Doe was resolved through a conviction and
not a continuance without a finding.
we conclude that in order to classify an individual as a
level two sex offender, the hearing examiner is required to
make three explicit determinations by clear and convincing
evidence: (1) that the risk of reoffense is moderate; (2)
that the offender's dangerousness, as measured by the
severity and extent of harm the offender would present to the
public in the event of reoffense, is moderate; and (3) that a
public safety interest is served by Internet publication of
the offender's registry information. This holding is
consistent with the relevant statutes and regulations, and
avoids due process concerns that could arise if an
individual's information were published online in the
absence of these determinations.
having examined the evidence and the hearing examiner's
findings in light of this three-prong test, we conclude that
there was not substantial evidence to support her decision to
classify Doe as a level two sex offender by clear and
convincing evidence. Doe's dangerousness could not
reasonably be characterized as moderate, and it was not
reasonable to conclude, based on the hearing examiner's
findings, that Internet publication of Doe's registry
information would serve a public safety interest. We
therefore vacate and set aside the decision of the Superior
Court judge affirming SORB's classification of Doe as a
level two sex offender, and remand this matter to the
Superior Court for further proceedings consistent with this
Sex offender classification process.
offender registry law, as amended in 1999, established a sex
offender registration system for those in the Commonwealth
convicted of a "sex offense," as defined in G. L.
c. 6, § 178C. See G. L. c. 6, §§ 178C-178Q;
St. 1999, c. 74. The purpose of the law was "to protect
. . . the vulnerable members of our communities from sexual
offenders," and particularly from "sexually violent
offenders who commit predatory acts characterized by
repetitive and compulsive behavior." St. 1999, c. 74,
emergency preamble & § 1.
to the sex offender registry law, the board prepares a
recommended classification for every sex offender. See G. L.
c. 6, § 178L (1). Where a sex offender challenges
SORB's recommended classification, he or she is entitled
to request an evidentiary hearing. See G. L. c. 6, §
178L (1) (a.) . After this hearing, a SORB-designated hearing
examiner "shall consider the relevant and credible
evidence and reasonable inferences derived therefrom to
determine: (a) the offender's risk of reoffense; (b) the
offender's dangerousness as a function of the severity
and extent of harm the offender would present to the public
in the event of reoffense; and (c) in consideration of the
foregoing, whether and to what degree public access to the
offender's personal and sex offender information,
pursuant to G. L. c. 6, § 178K, is in the interest of
public safety." 803 Code Mass. Regs. § 1.20(2)
(2016). Based on these determinations, the hearing examiner
must issue a final decision classifying the sex offender into
one of three "levels of notification." Moe v.
Sex Offender Registry Bd,, 467 Mass. 598, 601 (2014),
quoting G. L. c. 6, § 178K (2). All sex offender risk
classifications must be established by clear and convincing
evidence. Doe, Sex Offender Registry Bd. No. 380316 v.
Sex Offender Registry Bd., 473 Mass. 297, 314 & n.27
(2015) (Doe No. 380316) .
the board determines that the risk of reoffense is low and
the degree of dangerousness posed to the public is not such
that a public safety interest is served by public
availability, it shall give a level [one] designation to the
sex offender." G. L. c. 6, § 178K (2) (a.) . Level
one offenders' registry information is not disseminated
to the general public or published on the Internet. See G. L.
c. 6, §§ 178D, 178K (2) (a.) . "Where the
board determines that the risk of reoffense is moderate and
the degree of dangerousness posed to the public is such that
a public safety interest is served by public availability of
registration information, it shall give a level [two]
designation to the sex offender." G. L. c. 6, §
178K (2) (b). Level two offenders' registry information
is "available for inspection by the general public in
the form of a comprehensive database published on the
[I]nternet." G. L. c. 6, § 178D. And "[w]here
the board determines that the risk of reoffense is high and
the degree of dangerousness posed to the public is such that
a substantial public safety interest is served by active
dissemination, it shall give a level [three] designation to
the sex offender." G. L. c. 6, § 178K (2)
(c) . Level three offenders' registry
information is available for public inspection on the
Internet and also subject to "active
dissemination" by the police or the board. See G. L. c.
6, §§ 178D, 178K (2) (c). See also 803 Code Mass.
Regs. § 1.28(1) (2016) .
individual who disagrees with the board's final
classification is entitled to file a complaint for judicial
review in the Superior Court. See G. L. c. 6, § 178M; G.
L. c. 30A, § 14.
to his 2015 guilty plea, Doe had been charged with open and
gross lewdness on three occasions: once in 1990, once in
1991, and once in 1996. At the hearing, the police report
regarding the 1990 charge was not in the record; the criminal
complaint alleged only that Doe committed the crime of open
and gross lewdness in the presence of two women. But Doe
testified before the hearing examiner that the charge arose
out of an incident during which he exposed his genitals to
two strangers who were walking by while he sat inside his
motor vehicle. As described infra, the parties
disagree as to whether Doe was found guilty of this charge or
whether the charge was continued without a finding. The 1991
charge was dismissed for lack of prosecution and was not
considered by the hearing examiner. The 1996 charge arose out
of a report by the victim that Doe, who was on the opposite
side of a train platform from her, had his pants and
underwear pulled down and was playing with his genitals as he
walked across the tracks toward her. Doe testified before the
hearing examiner that he was taking the train home after
drinking with friends, and was seen by a woman after having
pulled his pants and underwear down on the platform. This
case was continued without a finding in 1997 and subsequently
his classification hearing, Doe admitted that he had exposed
himself on six or seven other occasions between 1991 and
1996, none of which resulted in an arrest or a court
proceeding. There is no evidence that Doe continued to expose
himself in the time between his 1996 offense and his 2011
2014, Doe's nineteen year old female neighbor reported to
the police that, while she was inside her home, Doe had
exposed himself to her from inside his home on multiple
occasions, three of which she described in further detail.
The first reported incident took place in 2011, when
Doe's neighbor was approximately fifteen years old. At
this time, she observed Doe standing nude beside a window.
She reported that she was able to see Doe's genitals
because the window shade "was only [three-quarters] of
the way down." Doe denied any recollection of this
incident. He was initially charged with open and gross
lewdness, but pleaded guilty to the lesser included offense
of indecent exposure, in violation of G. L. c. 272, §
53. Indecent exposure is not a sex offense under the sex
offender registry law. See G. L. c. 6, § 178C (listing
all offenses that qualify as "[s]ex offense" under
sex offender registry law).
second incident occurred in May 2014. Again, the neighbor
observed Doe standing nude beside a partially-covered window
and exposing his penis. The third incident took place the
following month, when the neighbor saw Doe standing nude in
his kitchen and touching his penis in a manner consistent
with masturbation. Doe's neighbor stated that each of
these events occurred at night, and that she could see the
defendant because his lights were on.
response to his neighbor's allegations, Doe voluntarily
spoke with a Haverhill police detective on June 18, 2014.
According to the incident report relied upon by the hearing
examiner, the officer informed Doe that his neighbor had seen
him naked inside his home; Doe responded that this was
"probably true." When the officer advised Doe that
his neighbor believed the exposure to be purposeful, Doe
responded that he "would agree with that." He
likewise agreed that his neighbor had seen him masturbating
in his kitchen. Doe stated that the victim -- whom he had
seen changing her clothing and engaging in sexual acts on her
living room couch -- was a "trigger" for him, and
that he was having increasing difficulty controlling his
urges. He agreed with the officer that the victim's
exposure was likely accidental, but his exposure had been
intentional. Doe further stated that he "had a
problem" for which he had sought treatment in the past,
that he had "been good for a long time," and that
he now only exposed himself when he was indoors. He said that
he was "just an exhibitionist," and that he had
never touched or hurt anybody. He further stated that he was
building a house on several acres of land in New Hampshire to
get away from any potential "triggers."
March 2015, Doe pleaded guilty to two counts of open and
gross lewdness arising out of the two incidents that took
place in May and June 2014. He was sentenced to two years of
supervised probation with conditions that he abstain from
using drugs and alcohol and that he participate in a sex