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18-P-423                                              Appeals Court

   JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 22188       vs.    SEX
                    OFFENDER REGISTRY BOARD.


                              No. 18-P-423.

           Essex.       October 2, 2019. - December 20, 2019.

             Present:    Milkey, Sullivan, & Ditkoff, JJ.


Practice, Civil, Sex offender. Sex Offender. Sex Offender
     Registration and Community Notification Act. Evidence,
     Expert opinion. Regulation. Administrative Law, Agency's
     interpretation of regulation, Remand to agency.



     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 pleadings.


    Brandon L. Campbell for the plaintiff.
    John P. Bosse for Sex Offender Registry Board.


    SULLIVAN, J.     The 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
                                                                    2


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).1    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.

     Background.   After 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.




     1 All citations to 803 Code Mass. Regs. § 1.33 and its
subsections are to the 2016 version of the regulations.
                                                                      3


     Eight 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.

     Doe was 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,

1989.2   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, 1989.3   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 classification.




     2 The jury also found Doe guilty of armed assault in a
dwelling, G. L. c. 265, § 18A; armed robbery, G. L. c. 265,
§ 17; and assault and battery by means of a dangerous weapon, a
knife, G. L. c. 265, § 15A.

     3 Doe also pleaded guilty to armed robbery, G. L. c. 265,
§ 17; assaultive burglary, G. L. c. 266, § 14; and assault and
battery by means of a dangerous weapon, a knife, G. L. c. 265,
§ 15A.
                                                                     4


     A 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).

     In 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.4    In addition, the hearing




     4 These factors included factor 7, relationship between the
offender and victim; factor 8, weapons, violence, or infliction
of bodily injury; factor 9, alcohol and substance abuse; factor
10, contact with criminal justice system; factor 16, public
place; factor 19, level of physical contact; factor 22, number
of victims; factor 24, less than satisfactory participation in
sex offender treatment; and factor 11, violence unrelated to
sexual assaults. He gave "somewhat temper[ed] . . . aggravating
weight" to factor 12, behavior while incarcerated or civilly
                                                                  5


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.

     The 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,5

but ultimately concluded that the mitigating factors were "far

outweighed" by the aggravating factors, thus resulting in the

level three classification.6




committed; and moderate weight to factor 13, noncompliance with
community supervision. See 803 Code Mass. Regs. § 1.33(7)-(27).

     5 See factor 33, home situation and support systems; and
factor 34, materials submitted by the sex offender regarding
stability in the community.

     6 The hearing examiner considered additional factors
pursuant to 803 Code Mass. Regs. § 1.33(35)-(38), including a
victim impact statement under factor 38, and "several articles
regarding sex offender recidivism" provided by Doe, under factor
37, other information related to the nature of the sexual
behavior. The hearing examiner did not weigh the victim impact
                                                                      6


    Discussion.      "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)

(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).

    1.      Repetitive and compulsive behavior.   Doe 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).7   See G. L.



statement, and "[did] not give . . . much weight" to the
articles because SORB's regulations contain similar research.

    7  Title 803 Code Mass. Regs. § 1.33(2), "Factor 2:
Repetitive and Compulsive Behavior," states, in pertinent part:

    "(a) Adult Male. Repetitive and compulsive behavior is
    associated with a high risk of reoffense. Factor 2 is
                                                                  7


c. 6, § 178K (1) (a) (ii).    Because Doe committed his second

offense before being charged with or convicted of his first

offense, he maintains that the hearing examiner's decision to

give full aggravating weight to this factor was error.     We

agree.

    It is true that "[a] hearing examiner has discretion . . .

to consider which statutory and regulatory factors are

applicable and how much weight to ascribe to each factor

. . . ."   Doe, Sex Offender Registry Bd. No. 68549 v. Sex

Offender Registry Bd., 470 Mass. 102, 109-110 (2014) (Doe No.

68549).    The exercise of that discretion must, nevertheless,

conform to applicable law.    "We 'accord an agency's




    applied when a sex offender engages in two or more separate
    episodes of sexual misconduct. To be considered separate
    episodes there must be time or opportunity, between the
    episodes, for the offender to reflect on the wrongfulness
    of his conduct.

         "The Board may give increased weight to offenders who
    have been discovered and confronted (by someone other than
    the victim) or investigated by an authority for sexual
    misconduct and, nonetheless, commit a subsequent act of
    sexual misconduct. The most weight shall be given to an
    offender who engages in sexual misconduct after having been
    charged with or convicted of a sex offense. (Harris et
    al., 2003; Harris and Hanson, 2004).

    . . .

         "An offender who engages in sexual misconduct after
    having been charged with or convicted of a prior sex
    offense presents an even higher risk to reoffend."
                                                                    8


interpretation of its own regulations considerable deference

unless [it is] arbitrary, unreasonable, or inconsistent with the

plain terms of the regulations themselves.'"    Doe, Sex Offender

Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass.

612, 623 (2010), quoting Rasheed v. Commissioner of Correction,

446 Mass. 463, 476 (2006).

    Here, giving factor 2, repetitive and compulsive behavior,

full aggravating weight was inconsistent with the plain terms of

the SORB regulation, which sets forth the weight to be given in

each of the three distinct factual scenarios.   See 803 Code

Mass. Regs. § 1.33(2).   Factor 2 applies at its threshold weight

any time an offender "engages in two or more separate episodes

of sexual misconduct" where there is "time or opportunity,

between the episodes, for the offender to reflect on the

wrongfulness of his conduct."   SORB may "give increased weight

to offenders who have been discovered and confronted (by someone

other than the victim) or investigated by an authority for

sexual misconduct and, nonetheless, commit a subsequent act of

sexual misconduct."   The third and highest weight is given where

"an offender . . . engages in sexual misconduct after having

been charged with or convicted of a sex offense."   803 Code

Mass. Regs. § 1.33(2).

    The hearing examiner found that Doe committed two sexual

offenses, and that Doe had ample opportunity to reflect on the
                                                                     9


wrongfulness of his conduct in the eight days between those two

offenses.   These facts bring Doe within the scope of the first,

threshold level of weight.     However, there are no findings to

support giving increased weight, let alone full aggravating

weight, to factor 2.   Doe was not "discovered and confronted" or

"investigated . . . for sexual misconduct" before his second

offense, much less "charged with or convicted of a sex offense"

prior to his second offense.    803 Code Mass. Regs. § 1.33(2).

Consequently, the hearing examiner erred by giving factor 2,

repetitive and compulsive behavior, full aggravating weight.

    2.   Excluded testimony.    Doe sought to admit a transcript

of the testimony of Dr. R. Karl Hanson from a previous SORB

hearing held in January 2014.    In that hearing, Hanson testified

that SORB misunderstood and misapplied his research, and that of

other researchers, in formulating its regulations regarding

repetitive and compulsive behavior.     The hearing examiner ruled

(without elaboration) that a transcript of the testimony was

inadmissible on "confidentiality grounds."

    "[A] SORB classification decision will be deemed

'[a]rbitrary or capricious,' G. L. c. 30A, § 14 (7) (g), if it

fails to take into account reliable evidence that a factor

relevant to a given offender affects the likelihood that the

offender will recidivate."     Doe No. 68549, 470 Mass. at 112.

Here, the evidence offered was reliable, and was relevant to
                                                                     10


Doe's likelihood of recidivism.     The evidence was reliable

because Hanson is an authority on whose research SORB relies for

its regulations in general, and this regulation in particular.

See 803 Code Mass. Regs. § 1.33(2) (citing a 2004 study co-

authored by Hanson).    See also Doe No. 205614, 466 Mass. at 604

(noting Hanson's authoritative contribution to the SORB

guidelines as in effect in 2008).       The transcript of Hanson's

prior testimony was directly relevant to the hearing examiner's

assessment of the weight to be given factor 2, because Hanson's

testimony addressed whether there is predictive value in

considering multiple offenses when the sexual offender has not

been confronted, apprehended, or charged before the subsequent

offense occurs.8


     8 The excluded testimony addressed SORB's risk factor
regulations as in effect in January 2014, see 803 Code Mass.
Regs. § 1.40 (2013), rather than the current risk factor
regulations, 803 Code Mass. Regs. § 1.33. However, Hanson's
analysis remains germane to the current regulations. The
excluded testimony was as follows:

     Attorney: "I'm showing you . . . Factor 2, and I'm going
     to ask you to take a look at this. It's entitled
     Repetitive and Compulsive Behavior."

     Dr. Hanson:     "Right."

     Attorney: "Now, your research is cited in that, your 1996
     and 1998 research is cited in there."

     Dr. Hanson:     "1999 and 1998."

     Attorney:     "And can you comment on that?"
                                                                  11


    The hearing examiner's exclusion of the transcript on

confidentiality grounds lacked a basis in the record.   All

identifying information in the transcript had been redacted.

The portion of the testimony offered, as redacted, was general

in nature and did not address facts specific to any case, or

permit the identification of a victim.   Counsel for the offender

in the case in which the testimony was given signed an affidavit

stating that her client had authorized sharing a redacted copy

of Hanson's testimony.

    While we express no opinion as to the weight, if any, to be

given to this testimony, the evidence should have been admitted



    Dr. Hanson: "Yeah. It's -- it does not, these studies of
    mine, actually none of the studies here, actually none of
    those, not only mine but none of the studies here actually
    support the interpretation provided for this do it twice
    and you're compulsive or that increases your risk."

    Attorney: "So that fact that someone offended more than
    once, does that have any predictive value?"

    Dr. Hanson: "No, it does not. . . . We have studied that
    very carefully and it does not, and we even knew it at the
    time in 2000. If a person offends, gets caught and then
    goes on to reoffend again, that's trouble. It means that
    the criminal justice system or whatever thing doesn't
    inhibit them, but you know, it's like speeding or
    something. It's rarely that you'11 get caught the first
    time you break the speed limit. People are doing something
    for a period of time and then they get caught and then they
    stop. So . . . rarely will it be a single incident in
    fact. You may identify a single incident but rarely is
    that actually the case."
                                                                       12


and considered by the hearing examiner.       See Doe No. 68549, 470

Mass. at 112.

       3.    Prejudice.   We are persuaded that the errors here

prejudiced Doe.      Factor 2 was the only applicable high risk

factor, and was therefore material to the final weight to be

given aggravating and mitigating factors.       Because Hanson's

testimony bore directly on the hearing examiner's decision to

give full aggravating weight to the risk factor of repetitive

and compulsive behavior, Doe's "substantial rights . . . may

have been prejudiced" on that basis as well.          G. L. c. 30A, § 14

(7).       See Doe, Sex Offender Registry Bd. No. 15606 v. Sex

Offender Registry Bd., 452 Mass. 784, 788 (2008).         In

combination, the errors require a new hearing.9

       Accordingly, the judgment is vacated and a new judgment

shall enter vacating the decision of SORB and remanding the

matter to SORB for further proceedings consistent with this

opinion.

                                        So ordered.




       We reject Doe's argument that the level three
       9

classification lacked substantial evidence on this record, but
express no opinion as to any future classification. Doe further
contends that the hearing examiner erred by denying his motion
for expert funds. We also leave any future ruling on this issue
to the agency on remand.
     MILKEY, J. (concurring).     I agree with the majority

opinion, including its holding that the hearing examiner erred

in assigning full aggravating weight to the statutory high risk

factor known as "factor 2" (repetitive and compulsive behavior).

See G. L. c. 6, § 178K (1) (a) (ii).     I write separately to

state my view that there is at least serious doubt whether, on

remand, the hearing examiner could assign any weight to factor 2

on this administrative record.

     Under the express terms of the statute, factor 2 applies

only where the offending behavior is both repetitive and

compulsive.    See G. L. c. 6, § 178K (1) (a) (ii) (factor 2

applies where "the sex offender's conduct is characterized by

repetitive and compulsive behavior").     Because the plaintiff had

committed two sex offenses, his offending was -- by definition

-- repetitive.    However, the Sex Offender Registry Board (board)

did not marshal evidence to demonstrate that the plaintiff's

conduct also was compulsive, that is, driven by psychological

compulsions.     See Webster's Third New International Dictionary

468 (2002) (defining "compulsive" in pertinent part as "of,

having to do with, caused by, or suggestive of psychological

compulsion or obsession").1    The hearing examiner nevertheless


     1 See also Webster's Third New International Dictionary 468
(defining "compulsion" as "1a: an act of compelling: a driving
by force, power, pressure, or necessity . . . b: a force or
agency that compels . . . c: a condition marked by compelling,
                                                                      2


concluded that factor 2 applied simply because eight days had

separated the plaintiff's two sex offenses.    According to the

hearing examiner, this length of time provided the plaintiff

"ample opportunity to reflect on the wrongfulness of his

conduct," and yet he reoffended anyway.

     The hearing examiner's conclusion that factor 2 applied is

consistent with a regulation promulgated by the board.     See 803

Code Mass. Regs. § 1.33(2)(a) (2016) (stating that "Factor 2 is

applied when a sex offender engages in two or more separate

episodes of sexual misconduct" and further providing that "[t]o

be considered separate episodes there must be time or

opportunity, between the episodes, for the offender to reflect

on the wrongfulness of his conduct").     Through promulgating that

regulation, the board has decreed that factor 2 applies whenever

the passage of time between sex offenses allows time for moral

reflection.2   In other words, the board has substituted the



by forced action or assent . . . 2: an irresistible impulse to
perform an irrational act the performance of which tends to
disturb a neurotic doer but not a psychotic").

     2 It bears noting that under the board's theory, just about
any appreciable break in time between offenses presumably would
be sufficient to allow for such reflection. As a result, the
board's approach allows it to rely on factor 2 virtually any
time there has been more than one sex offense. One
counterintuitive exception appears: the board may not apply
factor 2 where the sex offender left no time for reflection
between multiple sex offenses (even though such extreme conduct
might be the epitome of compulsive behavior).
                                                                    3


opportunity for moral reflection for the statutory prerequisite

of compulsive behavior.   For the reasons that follow, I question

the board's freedom to do so.

    The ability of criminal offenders to reflect on the

wrongfulness of their conduct is not unique to sex offenses.

Presumably, most people who commit other criminal offenses, such

as ordinary assaults, know that what they are doing is wrong.

However, the fact that someone may have committed two assaults

eight days apart reveals nothing about whether the offender was

driven by choice, compulsion, or something else.    Whatever else

can be said about the thorny issues regarding what causes a

particular criminal offender to reoffend, the mere passage of

time between offenses hardly demonstrates that such recidivism

is compulsive.

    Of course, as the Legislature has recognized in another

context, the behavior of some sex offenders is driven by

psychological compulsions.   See G. L. c. 123A, § 12 (recognizing

that some sex offenders are so driven by such compulsions that

they preemptively can be detained as "sexually dangerous

persons").   However, in my view, the presence of such

compulsions would need to be demonstrated by competent evidence,

not -- as the board effectively maintains -- irrebuttably

presumed by a temporal break between offenses.     In short, I

believe the Legislature made proof of compulsive behavior an
                                                                4


express prerequisite for factor 2 to apply, and I therefore

doubt the board's freedom to excise that requirement from the

statute.3




     3 I state no position on whether a plaintiff challenging his
level of classification in part based on a claim that 803 Code
Mass. Regs. § 1.33(2)(a) was ultra vires, would need to bring a
separate declaratory judgment action, or count, to press such a
claim. Compare Doe, Sex Offender Registry Bd. No. 10800 v. Sex
Offender Registry Bd., 459 Mass. 603, 630 (2011) ("A challenge
to the constitutionality of a general regulation cannot be
resolved by requesting declaratory relief in an appeal from an
administrative agency decision because judicial review is
confined to the administrative record, . . . which has been made
based on the presumption that the classification scheme is
constitutional"), with Doe, Sex Offender Registry Bd. No. 16748
v. Sex Offender Registry Bd., 82 Mass. App. Ct. 152, 157 (2012)
(challenge to validity of regulation considered on appeal from
classification decision where "the issue [was] purely one of
statutory interpretation, a quintessential judicial
responsibility").
