JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 22188
SEX OFFENDER REGISTRY BOARD.
Heard: October 2, 2019.
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 pleadings.
Brandon L. Campbell for the plaintiff.
P. Bosse for Sex Offender Registry Board.
Present: 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) (c0 . 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, § 178K (1) (a.) (ii); 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 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
hearing was held on July 19, 2016, at which time Doe was
fifty-two years old. Only one statutory high risk factor was
present in the case, that is, factor 2, repetitive and
compulsive behavior. See G. L. c. 6, § 178K (1) (a.)
(i)-(vi) . See also 803 Code Mass. Regs. § 1.33(1)-(6) .
The hearing examiner found that because the two offenses were
committed eight days apart, Doe "had ample opportunity
to reflect on the wrongfulness of his conduct." The
hearing examiner gave this factor full aggravating weight,
the highest weight under the applicable guidelines. See 803
Code Mass. Regs. § 1.33(2) .
rendering his decision, the hearing examiner also considered
a number of risk-elevating factors, as described in the
guidelines, including the fact that there were two stranger
victims, threats, the use of a weapon and violence, the high
level of physical contact (i.e., forcible penile
penetration), and Doe's history of alcohol and drug
abuse. See 803 Code Mass. Regs. § 1.33(7)-(27). The
examiner gave full aggravating weight to these risk-elevating
factors. In addition, the hearing examiner
considered the fact that Doe had dropped out of sex offender
treatment for several years while he pursued a college degree
in prison, but acknowledged that he had actively participated
since his return to treatment in 2014. The examiner gave
Doe's treatment history only "minimal" weight.
In a similar vein, Doe had had disciplinary reports in prison
at one time, but had had none in the previous eight years.
hearing examiner also weighed several risk-mitigating
factors. See 803 Code Mass. Regs. § 1.33(28)-(34). He
gave full weight to Doe's advanced age, to Doe's
educational attainments, religious conversion, and regular
participation in religious services as a Jehovah's
Witness. He gave some mitigating weight to Doe's family
and community support systems, but ultimately concluded that the
mitigating factors were "far outweighed" by the
aggravating factors, thus resulting in the level three
reviewing SORB's decisions, we 'give due weight to
the experience, technical competence, and specialized
knowledge of the agency.'" Doe, Sex Offender
Registry Bd. No. 205614 v. Sex Offender Registry Bd.,
466 Mass. 594, 602 (2013) (Doe No. 205614), quoting
G. L. c. 30A, § 14 (7). However, "[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), citing G. L. c. 30A,
§ 14 (7).
Repetitive and compulsive behavior.
contends that the hearing examiner erred by applying full
aggravating weight to the second statutory risk factor,
repetitive and compulsive behavior. As is more fully
discussed below, the regulation permits SORB to give highest
weight to this factor only when the sex offender reoffends
after being "charged with or convicted of a sex
offense." 803 Code Mass. Regs. § 1.33(2)
See G. L. c. 6, § 178K (1) (a.) (ii) . Because Doe
committed his second offense before being charged with or
convicted of his ...