John DOE, Sex Offender Registry Board No. 22188
SEX OFFENDER REGISTRY BOARD.
October 2, 2019.
N.E.3d 461] CIVIL ACTION commenced in the Superior
Court Department on January 3, 2017, The case was heard by
Richard T. Tucker, J., on a motion for judgment on the
Brandon L. Campbell for the plaintiff.
P. Bosse for Sex Offender Registry Board.
Milkey, Sullivan, & Ditkoff, JJ.
plaintiff, John Doe, appeals from a Superior Court judgment
affirming the Sex Offender Registry Board’s (SORB)
classification of Doe as a level three sex offender. See G.
L. c. 6, � 178K(2)(c). Doe contends, among other things, that
the SORB hearing examiner incorrectly applied the agency’s
risk factor regulations, which define repetitive and
compulsive behavior, and improperly excluded expert evidence
that challenged the regulation. See G. L. c. 6, �
803 Code Mass. Regs. � 1.33(2) (2016). We conclude that the
hearing examiner erred by applying full aggravating weight to
factor 2, repetitive and compulsive behavior, in a situation
where the repetitive behavior occurred without an intervening
indictment or conviction, because granting full aggravating
weight in these circumstances was inconsistent with SORB
regulations. We also conclude that it was error to exclude
expert testimony regarding the research on which the
regulations describing repetitive and compulsive behavior are
based. Accordingly, we vacate the judgment and remand the
case for further proceedings.
an evidentiary hearing, the SORB hearing examiner found the
following: On July 30, 1989, around 4:30 A.M., Doe, then age
twenty-five, broke into and entered the apartment of a
thirty-two year old woman. He held her at knifepoint, robbed
her of $900, and raped her. Doe then fled from the apartment.
days later on August 7, 1989, Doe entered a second building
at around 2:15 A.M. Doe found his second victim, a
thirty-seven year old woman, asleep on the second floor of
her in-law’s house. Doe placed a knife at her throat and told
her not to speak. He then robbed her of $400, led her
downstairs to the kitchen, raped her, and fled. Doe was under
the influence of crack cocaine during both attacks.
subsequently indicted. On June 7, 1990, a Superior Court jury
found Doe guilty of aggravated rape, G. L. c. 265, � 22(a),
in connection with the second incident on August 7,
1989. He was sentenced to a term of from
twelve to thirty years in State prison. On March 12, 1991,
Doe pleaded guilty to aggravated rape for his actions in the
first incident on July 30, 1989. He was sentenced to a
term of from [138 N.E.3d 462] fifteen to thirty years in
State prison, to be served concurrently with the sentences
imposed for the second incident. As his release date neared,
SORB classified him as a level three offender, and Doe
challenged the classification.
hearing was held on July 19, 2016, at which time Doe was
fifty-two years old. Only one ...