JOHN DOE, SEX OFFENDER REGISTRY BOARD No. 23656
SEX OFFENDER REGISTRY BOARD.
Heard: May 7, 2019.
action commenced in the Superior Court Department on October
26, 2016. The case was heard by Paul D. Wilson, J., on a
motion for judgment on the pleadings. The Supreme Judicial
Court on its own initiative transferred the case from the
Tennen for the plaintiff.
P. Bosse for the defendant.
Elizabeth Caddick, for Committee for Public Counsel Services,
amicus curiae, submitted a brief.
Guidry & Ryan Panaro, pro se, amici curiae, submitted a
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
plaintiff, John Doe No. 23656 (Doe), appeals from his
classification as a level two sex offender. For the reasons
that follow, we affirm the classification.
1980, when he was thirty years old, Doe pleaded guilty to two
counts of rape, G. L. c. 265, § 22, and one count of
assault with intent to rape, G. L. c. 265, § 24,
stemming from three separate incidents involving three
different women. Each of the women was a stranger to Doe. He
was sentenced to three concurrent terms of from sixteen to
eighteen years in State prison, which he served until his
release in 1996.
thereafter, when Doe was forty-seven years old, he was
convicted of one count of indecent assault and battery on a
person over the age of fourteen, G. L. c. 265, § 13H,
and one count of open and gross lewdness and lascivious
behavior, G. L. c. 272, § 16. He was sentenced to from
two and one-half to three years in State prison on the second
charge, and from four and one-half to five years from and
after on the first charge. He completed serving this sentence
2007, Doe was adjudicated a sexually dangerous person (SDP)
and civilly committed to the Massachusetts Treatment Center.
In 2012, he was found no longer sexually dangerous and was
2010, prior to his release from civil commitment, the Sex
Offender Registry Board (SORB) notified Doe of its intent to
classify him as a level three (high risk) sex offender. Doe
requested an evidentiary hearing. Following that hearing, in
March 2011, Doe was classified as a level three sex offender.
He sought judicial review, and prevailed in his appeal; the
matter was remanded for a new hearing. A second hearing was
conducted in June 2015, with the same result. Doe again
sought judicial review. While review was pending, we decided
Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender
Registry Bd., 473 Mass. 297, 298 (2015) (Doe No.
380316), a case in which we heightened the relevant
standard of proof to "clear and convincing
evidence." Accordingly, Doe was granted a third de novo
written decision following the June 2016 hearing, Doe was
classified as a level two (moderate risk) sex offender. Doe
sought judicial review under G. L. c. 30A, § 14, and a
judge of the Superior Court affirmed SORB's
classification. Doe appealed to the Appeals Court, and we
transferred the case to this court on our own motion.
Sex offender registration law.
1999, the Legislature enacted a set of statutes establishing
a State-wide sex offender registry. See G. L. c. 6,
§§ 178C-178Q, inserted by St. 1999, c. 74, as
amended by St. 2003, c. 26, § 12. The registry is
"an extensive statutory registration scheme for sex
offenders designed to protect the public from the danger of
recidivism posed by sex offenders and to aid law enforcement
officials in protecting their communities" (quotations
and citation omitted). See Noe, Sex Offender Registry Bd.
No. 5340 v. Sex Offender Registry Bd., 480 Mass. 195,
196 (2018) (Noe). Individuals who have been
convicted of sex offenses, as defined by G. L. c. 6, §
178C, are required to register upon release from custody,
where applicable, or on notification of an obligation to
register. See Noe, supra, citing G. L. c.
6, § 178E (a), (c).
initial registration, individuals are classified into one of
three "levels of notification." Moe v. Sex
Offender Registry Bd., 467 Mass. 598, 601 (2014).
Classifications are made "on an individualized basis
according to [each individual's] risk of reoffense and
degree of dangerousness." St. 1999, c. 74, § 1.
Under SORB's regulations, three determinations must be
made: "(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 ... is
in the interest of public safety." Doe, Sex Offender
Registry Bd. No. 496501 v. Sex Offender Registry Board,
482 Mass. 643, 650 (2019) (Doe No. 496501), quoting
803 Code Mass. Regs. § 1.20(2) (2016).
SORB 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 [of registration information]," it assigns
a sex offender a level one designation. See G. L. c. 6,
§ 178K (2) (a.). Where the risk of reoffense is
"moderate" and the degree of dangerousness is
"such that a public safety interest is served by public
availability of registration information," SORB assigns
a level two designation. G. L. c. 6, § 178K (2) (b).
Where the risk of reoffense is "high" and the
public safety interest merits "active
dissemination" of registration information, SORB assigns
an offender a level three designation. G. L. c. 6, §
178K (2) (c). Although neither the statute nor SORB's
regulations specify the "degree of dangerousness"
required for each classification, we have determined that a
"moderate" degree of dangerousness is required for
a level two classification. See Doe No. 496501, 482
Mass. at 651.
making a classification determination, SORB is guided by a
nonexhaustive list of twelve statutory risk factors. See G.
L. c. 6, § 178K (1) (a)-(1). SORB has promulgated
specific guidelines for the application of each statutory
factor, consisting of thirty-eight relevant aggravating and
mitigating considerations. See 803 Code Mass. Regs. §
1.33 (2016) (guidelines). SORB prepares a recommended
classification for every sex offender. See G. L. c. 6, §
178L (1). Before a classification is made final, an
individual has the opportunity to request an evidentiary
hearing before a hearing examiner. G. L. c. 6, § 178L.
Thereafter, an individual is entitled seek judicial review in
the Superior Court of a final classification. See G. L. c. 6,
§ 178M; G. L. c. 30A, § 14.
reviewing court may set aside or modify a classification
decision if it 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." See Doe No. 496501,
482 Mass. at 649, citing G. L. c. 30A, § 14 (7). The
individual bears the burden of proving the error in the
board's decision. See Doe No. 380316, 473 Mass.
appeal, Doe raises three issues with respect to his final
classification. Doe argues that the hearing examiner
improperly disregarded the testimony of his expert witness in
evaluating the evidence; that there was insufficient evidence
to classify him as a level two sex offender; and that, even
if he could be classified as a level two sex offender, his
registration information should not be made available on the
maintains that the hearing examiner improperly discredited
the testimony of Doe's expert witness because the expert
did not consider each of the risk factors relevant to
2015, Dr. Leonard Bard, a psychologist, evaluated Doe to
assess his risk of reoffense. Bard testified at Doe's
2015 hearing, where he was qualified as an expert witness.
During the 2016 hearing, before the same hearing examiner,
Doe submitted Bard's earlier "Forensic Psychological
Evaluation" and the transcript of his 2015 testimony.
Bard opined that Doe posed a low risk of reoffending,
primarily due to Doe's advanced age.
recognized that, as some of the SORB risk factors relate to
an offender's mental or physical condition, "the
accuracy of the classification decision may well be enhanced
by the addition to the evidentiary record of additional
expert evidence in the form of testimony or reports."
See Doe, Sex Offender Registry Bd. No. 89230 v. Sex
Offender Registry Bd., 452 Mass. 764, 773
(2008). Where offered by the individual, a
hearing examiner must consider testimony "from a
licensed mental health professional that discuss
psychological and psychiatric issues, including major mental
illness, as they relate to the offender's risk of
reoffense." See 803 Code Mass. Regs. § 1.33(35).
See also 803 Code Mass. Regs. § 1.04(4).
analysis deviated from a full application of all the risk
factors delineated in SORB's guidelines. Whereas the
guidelines assist SORB in determining both an offender's
"risk of reoffense" as well as his or her
"degree of dangerousness posed to the public," 803
Code Mass. Regs. § 1.33, Bard testified that his
"focus tends to be more on the likelihood or the risk of
somebody offending rather than the particular level of
dangerousness." Accordingly, he did not examine certain
factors that focused solely on the degree of
Bard did not focus on "degree of dangerousness"
factors is not disqualifying. An expert need not examine
every factor relevant to a fact finder's determination in
order to provide helpful testimony. Indeed, parties regularly
employ expert witnesses to testify about some, but not all,
elements of a claim, charge, or defense. See, e.g.,
Commonwealth v. Zeininger, 459 Mass. 775, 791, cert,
denied, 565 U.S. 967 (2011) (expert testified only as to
breathalyzer evidence); Renzi v. Paredes, 452 Mass.
38, 42-43 (2008) (experts called to testify variously
regarding standard of care, causation, or amount of damages);
Bernier v. Boston Edison Co., 380 Mass. 372, 384
(1980) (expert in negligence case testified ...