John Doe v. Sex Offender Registry Bd.

• Decision Date: 14 February 2022
• Docket Number: 21-P-3
• Citation: 182 N.E.3d 341 (Table),100 Mass.App.Ct. 1124
• Parties: John DOE, Sex Offender Registry Board No. 526050 v. SEX OFFENDER REGISTRY BOARD.
• Court: Appeals Court of Massachusetts

100 Mass.App.Ct. 1124

182 N.E.3d 341 (Table)

John DOE, Sex Offender Registry Board No. 526050

v.SEX OFFENDER REGISTRY BOARD.

21-P-3

Appeals Court of Massachusetts.

Entered: February 14, 2022.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe, appeals from a Superior Court judgment affirming his final classification by the Sex Offender Registry Board (SORB) as a level three sex offender. See G. L. c. 6, § 178K (2) (c ). Concluding that the application of factor 2, see G. L. c. 6, § 178K (1) (a ) (ii) (repetitive and compulsive behavior), may have improperly affected the classification decision, we vacate the judgement and remand for further proceedings.

1. Standard of review. "In 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), quoting G. L. c. 30A, § 14 (7). "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) (Doe No. 496501 ).

2. Factor 2, repetitive and compulsive behavior. Following Doe's classification, but prior to the Superior Court judgment, a Middlesex Superior Court judge invalidated the second and third sentences of 803 Code Mass. Regs. § 1.33(2) (2016), finding that there was insufficient scientific support that an offender poses a higher risk of reoffense when he has not been discovered, confronted, or investigated between episodes. Doe, Sex Offender Registry Bd. No. 22188 vs. Sex Offender Registry Bd., Mass. Sup. Ct., No. 20-1130-B, slip op. at 1, 9-22 (Middlesex County Apr. 16, 2021) (Wilkins, J.). SORB elected not to appeal the Superior Court judge's decision and has acknowledged that it is bound by the ruling in that case.

Here, the hearing examiner credited testimony that Doe was confronted by his cousin about an uncharged sex crime -- the alleged 2010 oral rape of the cousin's fifteen year old son -- that occurred prior to the index crime. However, the record does not clearly establish whether Doe was confronted before he committed the index crime (also an oral rape of a teenage boy). We are accordingly unable to determine whether application of factor 2 was permissible in the circumstances. If application of factor 2 was impermissible, on the present record we consider it better for the hearing examiner, in the first instance, to determine whether the classification would vary without application of factor 2. We accordingly remand the matter for findings on the question whether Doe was confronted about the uncharged sex crime before he committed the index crime and whether the classification would remain the same without consideration of factor 2.²

3. Remaining issues. We are unpersuaded by Doe's argument that the hearing examiner impermissibly relied on hearsay evidence in determining that he had orally raped his cousin's fifteen year old son prior to committing the index crime.

"A hearing examiner is not bound by the rules of evidence applicable to court proceedings." Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89 (2019) ( Doe No. 523391 ), citing Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 638 (2011). A hearing examiner may consider "substantial evidence," which is "such evidence as a reasonable mind might accept as adequate to support a conclusion." Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 787 (2006), quoting G. L. c. 30A, § 1 (6). In a sex offender classification hearing, the examiner may credit hearsay evidence where it "bears sufficient indicia of reliability." Doe No. 523391, supra at 89, citing Covell v. Department of Social Servs., 439 Mass. 766, 785-786 (2003) (detailed and consistent reports of abuse considered substantial evidence despite being presented only through hearsay sources). Common indicia of reliability include: a detailed account; the consistency of the hearsay incident with other, known behavior; admissions by the offender; and independent...