Civil practice – Sex offender classification – Dangerousness

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Where a Superior Court judge affirmed a plaintiff’s classification by the Sex Offender Registry Board as a Level 2 offender, there is not substantial evidence in the record to support the hearing examiner’s finding that the plaintiff poses a moderate degree of dangerousness.

Vacated and remanded.

“John Doe, Sex Offender Registry Board No. 527557 (Doe), appeals from a Superior Court judgment affirming his final classification by the Sex Offender Registry Board as a level two sex offender. G.L.c. 6, §178K(2)(b). Doe argues that the Sex Offender Registry Board hearing examiner (SORB or examiner) (1) lacked substantial evidence to support his decision classifying Doe as a level two sex offender; (2) misapplied regulatory factors three (adult offender with child victim) and thirty-two (sex offender treatment); (3) failed to properly consider a research article; and (4) abused his discretion by denying Doe’s motion for expert funds. We conclude that there was not substantial evidence to support the examiner’s decision to classify Doe as a level two sex offender. We therefore vacate the judgment affirming SORB’s decision, and remand for further proceedings consistent with this memorandum and order. …

“Doe contends that the examiner’s decision to classify him as a level two sex offender was not supported by substantial evidence and that the examiner failed to make his findings by clear and convincing evidence. …

“Here, Doe concedes there is ‘compelling’ evidence that he poses a high risk of reoffense based on his history of exposing himself to multiple stranger victims in public places. Doe instead challenges the examiner’s finding that he poses a moderate degree of dangerousness, arguing that the examiner took the ‘checklist’ approach, which we have rejected. …

“Here, the examiner’s findings fail to specify the type of sexual crime Doe would likely commit if he were to reoffend. As the examiner acknowledged, Doe’s history of sexual offending, spanning almost twenty years, has involved only noncontact offenses. However, the examiner cited no evidence suggesting that Doe placed any of his victims in fear of bodily harm of a contact sex offense. …

“The examiner may have believed Doe poses a risk of reoffending by committing a contact offense with a child or teenager and thus presents a moderate degree of dangerousness, but his decision fails to make explicit findings by clear and convincing evidence to support that finding. … Instead, the examiner stated only that Doe exposed himself to seven strangers, masturbating in front of some, including a fifteen year old girl, and that Doe was on probation for earlier sexual crimes when he sexually offended in 2020. The examiner failed to explain how these offenses are predictive of future contact offenses, and there is no evidence that any of Doe’s victims expressed a fear of Doe committing a contact sex offense. Accordingly, we conclude that there is not substantial evidence in the record to support the examiner’s finding that Doe poses a moderate degree of dangerousness.

“Because we conclude that Doe’s classification as a level two sex offender is not supported by substantial evidence on this record, we vacate the Superior Court’s judgment affirming SORB’s level two classification. The case is remanded to the Superior Court for entry of a new judgment declaring that there is substantial evidence only to support a level one classification.”

Doe, Sex Offender Registry Board No. 527557 v. Sex Offender Registry Board (Lawyers Weekly No. 81-112-25) (11 pages) (Docket No. 24-P-307) (July 23, 2025).

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