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SJC-11823

     JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 380316   vs.
                  SEX OFFENDER REGISTRY BOARD.



     Middlesex.     September 9, 2015. - December 11, 2015.

  Present:   Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
                           & Hines, JJ.


Sex Offender. Sex Offender Registration and Community
     Notification Act. Constitutional Law, Sex offender, Burden
     of proof. Due Process of Law, Sex offender, Hearing,
     Standard of proof. Practice, Civil, Sex offender, Standard
     of proof. Internet.



     Civil action commenced in the Superior Court Department on
November 21, 2013.

     The case was heard by Dennis J. Curran, J., on a motion for
judgment on the pleadings.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Brandon L. Campbell for the plaintiff.
     David L. Chenail (Elisha W. Willis with him) for the
defendant.
     Beth L. Eisenberg & Larni S. Levy, Committee for Public
Counsel Services, & Eric B. Tennen, for Committee for Public
Counsel Services & another, amici curiae, submitted a brief.
     Andrew S. Crouch, for Youth Advocacy Division of the
Committee for Public Counsel Services & another, amici curiae,
                                                                      2


submitted a brief.


     LENK, J.   We are asked in this case to consider anew the

standard of proof that the Sex Offender Registry Board (SORB)

must satisfy in order to classify a convicted sex offender under

the provisions of the sex offender registry law, G. L. c. 6,

§§ 178C-178Q.   The plaintiff, John Doe No. 380316 (Doe), is a

convicted sex offender who was classified by a preponderance of

the evidence as having a moderate risk of reoffense.      In Doe,

Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd.,

428 Mass. 90, 91 (1998) (Doe No. 972), we held that SORB need

only prove the appropriateness of a sex offender's risk

classification by a preponderance of the evidence.      In light of

amendments to the sex offender registry law and other

developments since our decision in that case, however, Doe

contends that the preponderance standard no longer adequately

protects his due process rights.     We agree.   For the reasons

stated below, we hold that SORB is constitutionally required to

prove the appropriateness of an offender's risk classification

by clear and convincing evidence.1

     1.   Background.   When Doe was thirty-five years old, he


     1
      We acknowledge the amicus briefs submitted by the
Committee for Public Counsel Services and the Massachusetts
Association for the Treatment of Sexual Abusers, and by the
Youth Advocacy Division of the Committee for Public Counsel
Services and the Children's Law Center of Massachusetts.
                                                                    3


reportedly "twisted" the penis of his six year old nephew

through the child's underwear while both were in the bathroom.

Doe apologized to the boy immediately after the incident, and

they hugged each other.   After several incidents of incontinence

over the following weeks, however, the boy told his mother what

had happened, and she thereafter reported the incident to the

police.   Following a jury trial, Doe was found guilty of

indecent assault and battery on a child under fourteen, G. L.

c. 6, § 13B, a sex offense requiring SORB registration under

G. L. c. 6, §§ 178C-178CD.2   Doe had not previously been

convicted of a sex offense.   On or about June 14, 2013, while

Doe was still incarcerated, SORB preliminarily recommended that

Doe be classified as a level three sex offender, the level

assigned to convicted sex offenders posing the highest risk of

reoffense.   After Doe challenged that recommendation, however, a

SORB hearing examiner determined by a preponderance of the

evidence that he was more appropriately classified as a

level two sex offender, the level assigned to convicted sex

offenders posing only a moderate risk of reoffense.   That

determination was made on October 23, 2013.

     The hearing examiner relied on the regulatory factors

promulgated by SORB, 803 Code Mass. Regs. § 1.40(1)-(24) (2013),

     2
      Doe was also convicted of other offenses arising out of
the same incident that are not relevant to our decision in this
case.
                                                                     4


to determine Doe's degree of dangerousness and risk of

reoffense.   The examiner particularly noted that Doe had

sexually abused his "extravulnerable" nephew,3 that he appeared

to be unwilling to admit to the offense despite his conviction,

and that the victim suffered continuing emotional trauma as a

result of the incident.    The examiner recognized that some

"favorable facts" diminished Doe's risk of reoffense, including

that Doe had not been reported for disciplinary violations and

had attended Alcoholics Anonymous meetings during his

incarceration, and that he would likely have a stable home

environment living with his sister upon his release.4

Nevertheless, the examiner found that these mitigating factors

only somewhat offset the aggravating factors present in Doe's

case, and determined that Doe was appropriately classified as a

level two offender.

     Doe sought judicial review in the Superior Court, pursuant

to G. L. c. 30A, § 14, and G. L. c. 6, § 178M.    His level two

classification was affirmed and we granted Doe's application for

direct appellate review.    On appeal, Doe argues that due process

     3
      As defined by 803 Code Mass. Regs. § 1.40(9)(c)(4) (2013),
"'extra-vulnerable' means any condition or circumstance,
including, but not limited to a physical or mental condition
that tends to render a victim more susceptible to sexual
assault. An extra-vulnerable victim shall also include a victim
under the age of ten and over the age of [sixty]."
     4
       The sister is not the same person as the mother of Doe's
nephew.
                                                                     5


under both the Fourteenth Amendment to the United States

Constitution and art. 12 of the Massachusetts Declaration of

Rights requires SORB to prove its classification determinations

by clear and convincing evidence.   Additionally, he argues that

this court should reverse his classification because SORB failed

to prove that he poses a level two degree of risk and

dangerousness to the public even under a preponderance of the

evidence standard.   Finally, Doe asks this court to order SORB

to stop disseminating his registry data on the Internet, on the

grounds that the 2013 amendment to the sex offender registry law

that required the Internet publication of level two offenders'

registry information, St. 2013, c. 38, §§ 7, 9, was not

retroactive as applied to him.

    We conclude that due process requires that a sex offender's

risk level be proved by clear and convincing evidence.    The risk

classifications that SORB must make now have consequences for

those who are classified that are far greater than was the case

when we decided Doe No. 972.   The preponderance standard no

longer adequately protects against the possibility that those

consequences might be visited upon individuals who do not pose

the requisite degree of risk and dangerousness.   Accordingly, we

vacate the decision of the Superior Court affirming SORB's

classification of Doe as a level two sex offender.   We remand

the matter to the Superior Court for entry of an order to SORB
                                                                       6


to conduct an evidentiary hearing de novo under the heightened

standard, and to cease disseminating Doe's registry information

on the Internet while that hearing is pending.       At the hearing,

both Doe and SORB may introduce new evidence relevant to a final

classification determination.    The hearing examiner may also

consider evidence, but not findings of fact, from Doe's original

hearing.     Contrast Doe, Sex Offender Registry Bd. No. 7083 v.

Sex Offender Registry Bd., 472 Mass. 475, 489-490 (2015) (Doe

No. 7083).

    2.     Standard of review and stare decisis.     A reviewing

court may set aside or modify a hearing examiner's decision if

it was:

             "(a) In violation of constitutional provisions; or

         "(b) In excess of statutory authority or jurisdiction
    of the agency; or

             "(c) Based upon an error of law; or

             "(d) Made upon unlawful procedure; or

             "(e) Unsupported by substantial evidence; or

         "(f) Unwarranted by facts found by the court on the
    record . . . ; or

         "(g) arbitrary or capricious, an abuse of discretion,
    or otherwise not in accordance with law."

G. L. c. 30A, § 14 (7).     The appellant bears the burden of

showing that one of these conditions has been met.      See Coe v.

Sex Offender Registry Bd., 442 Mass. 250, 258 (2004).
                                                                    7


     Doe argues that SORB committed a constitutional error by

proving his risk of reoffense by only a preponderance of the

evidence.5   Because we held explicitly in Doe No. 972, 428 Mass.

at 91, that "the appropriateness of an offender's risk

classification must be proved by a preponderance of the

evidence," to rule in Doe's favor we must overrule our decision

in that case.6   The principle of stare decisis would normally


     5
      Doe also argues that it was error for SORB to classify him
as a level two sex offender even under the preponderance
standard, because the evidence considered by the hearing
examiner did not support the conclusion that he posed the
requisite degree of risk and dangerousness. If this claim were
correct, we would not need to reach the question whether due
process requires a higher standard of proof than a preponderance
of the evidence. In reviewing the hearing examiner's decision,
however, we "give due weight to the experience, technical
competence, and specialized knowledge of the agency, as well as
to the discretionary authority conferred upon it." G. L.
c. 30A, § 14 (7) (g). "A court may not displace an [agency's]
choice between two fairly conflicting views, even though the
court would justifiably have made a different choice had the
matter been before it de novo." Ten Local Citizen Group v. New
England Wind, LLC, 457 Mass. 222, 231 (2010), quoting Southern
Worcester County Reg'l Vocational Sch. Dist. v. Labor Relations
Comm'n, 386 Mass. 414, 420 (1982). Doe's level two
classification was supported by substantial evidence and was not
otherwise arbitrary or capricious: the hearing examiner
determined that mitigating factors present in Doe's case did not
sufficiently counterbalance other factors indicating that Doe
posed a risk of reoffense. Given this, we conclude that Doe was
appropriately classified as a level two risk and danger based
upon a preponderance of the evidence.
     6
       The Legislature codified the preponderance standard in
1999, following our decision in Doe, Sex Offender Registry Bd.
No. 972 v. Sex Offender Registry Bd., 428 Mass. 90 (1998) (Doe
No. 972). See G. L. c. 6, § 178L (2), inserted by St. 1999,
c. 74, § 2. This is not dispositive of the question before us,
however, since due process "is not a technical conception with a
                                                                     8


prevent us from reconsidering settled law.    See Stonehill

College v. Massachusetts Comm'n Against Discrimination, 441

Mass. 549, 562, cert. denied sub nom. Wilfert Bros. Realty Co.

v. Massachusetts Comm'n Against Discrimination, 543 U.S. 979

(2004).    However, "[t]he force of stare decisis is at its nadir

in cases concerning procedural rules that implicate fundamental

constitutional provisions."    Alleyne v. United States, 133 S.

Ct. 2151, 2163 n.5 (2013).    Furthermore, "[t]he requirements of

procedural due process are pragmatic and flexible, not rigid or

hypertechnical."    Roe v. Attorney Gen., 434 Mass. 418, 427

(2001).    Given the flexible nature of the procedural due process

right at issue in this case, and given the substantial changes

to the sex offender registry law and other developments since

our decision in Doe No. 972, we think it appropriate to revisit

that decision.

       In order to determine whether reliance on the preponderance

standard violated Doe's due process rights, we first consider

our reasoning in Doe No. 972 in light of the 1996 sex offender

law in effect at the time it was decided.    See St. 1996, c. 239,

§ 1.    We then examine subsequent amendments to the sex offender

registry law and other developments that draw into question



fixed content unrelated to time, place and circumstances."
Mathews v. Eldridge, 424 U.S. 319, 334 (1976), quoting Cafeteria
& Restaurant Workers Union, Local 473, AFL-CIO v. McElroy, 367
U.S. 886, 895 (1961).
                                                                     9


whether the preponderance standard continues adequately to

protect Doe's due process rights.    Finally, we consider the

standard of proof that due process requires in light of these

changes.

    3.     The 1996 sex offender registry law.   In 1996, the

Legislature passed the State's first sex offender registry law,

St. 1996, c. 239, § 1.     An early version of the bill that was

eventually enacted described its purpose as "to protect the

public from the 'danger of recidivism posed by sex offenders'

and to aid law enforcement officials in the apprehension of sex

offenders by providing them with 'additional information

critical to preventing sexual victimization and to resolving

incidents involving sexual abuse and exploitation.'"       Doe No.

972, 428 Mass. at 91-92, quoting Opinion of the Justices, 423

Mass. 1201, 1204 (1996).    To achieve these aims, the enacted

statute required individuals convicted of any offenses from a

list of enumerated "sex offenses" to register with the State

their names, addresses, and identifying information.       G. L.

c. 6, §§ 178C-178F, inserted by St. 1996, c. 239, § 1.       The

State disseminated that information publicly to a lesser or

greater extent depending on the level of risk of reoffense that

a registered offender was deemed to pose.    G. L. c. 6,

§ 178K (2), inserted by St. 1996, c. 239, § 1.

    The 1996 law enumerated a set of factors that the
                                                                   10


Legislature considered relevant to convicted sex offenders' risk

of reoffense.   G. L. c. 6, § 178K (1), inserted by St. 1996,

c. 239, § 1.    In addition, the law created SORB to "promulgate

guidelines for determining the level of risk of reoffense" of

convicted sex offenders, and to apply those guidelines "to

assess the risk level of particular offenders."    Id.    An

offender assessed by SORB as posing a low risk of reoffense was

classified as a level one offender, and his or her registry

information was only disclosed to police departments where he or

she lived or worked, to the Federal Bureau of Investigation, and

upon request to adults for their own protection or for the

protection of individuals in their care.    G. L. c. 6, §§ 178I-

178K, inserted by St. 1996, c. 239, § 1.    An offender assessed

by SORB as posing a moderate risk of reoffense was classified as

a level two offender, and his or her registry information was

additionally disclosed to organizations such as schools, day

care centers, religious and youth organizations, and sports

leagues in the offender's communities.    G. L. c. 6,

§ 178K (2) (b), inserted by St. 1996, c. 239, § 1.      A sex

offender assessed by SORB as posing a high risk of reoffense was

classified as a level three offender, and, in addition to the

dissemination provided for level two offenders, his or her

information was actively disseminated by the police to

individual members of the public likely to encounter the
                                                                      11


offender.    G. L. c. 6, § 178K (2) (c), inserted by St. 1996,

c. 239, § 1.    Sex offenders were not entitled to an evidentiary

hearing to contest SORB's risk assessment.       See G. L. c. 6,

§§ 178K-178M, inserted by St. 1996, c. 239, § 1.

    4.      Doe No. 972.   In Doe No. 972, 428 Mass. at 98, we held

that convicted sex offenders had a constitutional right under

the Fourteenth Amendment and art. 12 to an evidentiary hearing

before SORB regarding the appropriateness of their risk level

classifications.     We further held that SORB was required to

prove the appropriateness of those classifications by a

preponderance of the evidence.     Id. at 103.

    To determine whether the preponderance standard satisfied

due process, we applied the test set forth by the United States

Supreme Court in Mathews v. Eldridge, 424 U.S. 319 (1976)

(Mathews).     That test balances the private interests affected by

an agency decision; the risk of an erroneous deprivation of

those interests; the probable value, if any, of additional or

substitute procedural safeguards; and the governmental interests

involved.    See Doe No. 972, 428 Mass. at 100, citing Mathews,

supra at 335.

    With respect to the private interests affected, we

explained that a convicted sex offender did not face a potential

loss of liberty as a result of his or her classification level,

and that "the stigma of being required to register as a sex
                                                                       12


offender and of having information regarding sex offenses

disseminated to the public" was not substantial enough to

require a heightened standard of proof.       Doe No. 972, 428 Mass.

at 102.    The risk of an erroneous classification was thought to

be minimal because both the offender and SORB had the

opportunity to present evidence and examine and cross-examine

witnesses at a classification hearing, because SORB was required

to make "particularized, specific, and detailed findings" based

on a set of statutory factors, and because the offender could

appeal SORB's decision in court.      Id.   We noted also that

applying a higher standard might lead to erroneous

underclassifications.    Id. at 102-103.

    Weighing the State's interest in "protect[ing] children and

other vulnerable people from recidivistic sex offenders" against

these factors, we decided that due process under the State and

Federal Constitutions required proof of the appropriateness of

an offender's risk classification only by a preponderance of the

evidence.   Id. at 103-104.   In our view at the time, the

"possible injury to sex offenders from being erroneously

overclassified" was "nearly equal" to "any harm to the State

from an erroneous underclassification."       Id. at 104 n.14.

    5.     Subsequent developments.    The sex offender registry law

has undergone significant revisions since our decision in Doe

No. 972.    Amendments to the statute in 1999 provided for risk
                                                                  13


classification hearings and codified the preponderance standard

as constitutional safeguards.    See G. L. c. 6, § 178L (2),

inserted by St. 1999, c. 74, § 2.    On balance, however,

legislative changes have more often imposed extra burdens on

registered offenders than provided them with additional

protections.   More offenses are now subject to a registration

requirement.   Sex offenders face increasingly stringent

affirmative reporting requirements, and the penalties for

failing to meet those requirements are harsher.   They are also

confronted with other limitations based on their registered sex

offender status.    Information about registered offenders is

being disseminated more broadly, including on the Internet.

Furthermore, there is reason to question whether SORB's risk

classification guidelines continue to reflect accurately current

scholarship regarding statutory factors that concern risk

assessment.    These developments are described in turn below.

    Additional offenses requiring registration have been added

to the sex offender registry law at least four times since we

decided Doe No. 972.    See St. 2011, c. 178, §§ 1-3; St. 2010,

c. 267, §§ 1-3; St. 2003, c. 77, § 3; St. 1999, c. 74, § 2.

While the sex offenses enumerated in 1996 were mostly crimes of

physical violence against children and the developmentally

disabled, see G. L. c. 6, § 178C, inserted by St. 1996, c. 239,

§ 1, many of the offenses added later have not been similarly
                                                                  14


targeted.   See, e.g., St. 2011, c. 178, §§ 1-3 (enticing child

under eighteen via electronic communication); St. 1999, c. 74,

§ 2 (enticing person for prostitution; incestuous marriage or

intercourse; and disseminating child pornography).   The addition

of these offenses may make more challenging the task of

accurately classifying the risk of reoffense that specific

offenders pose.   Cf. Doe No. 972, 428 Mass. at 105 (Marshall,

J., concurring in part and dissenting in part) ("careful and

individualized due process is necessary to sort sexual predators

likely to repeat their crimes from large numbers of offenders

who pose no danger to the public").

    Registration requirements have also steadily become more

burdensome.   Already at the time we decided Doe No. 972, members

of this court had recognized that registration represented a

"continuing, intrusive, and humiliating regulation of the person

himself," Doe v. Attorney Gen., 426 Mass. 136, 149 (1997)

(Fried, J., concurring), and that it cast "a continuing shadow

of further criminal sanctions and possible reincarceration" on

offenders, Doe No. 972, 428 Mass. at 106 (Marshall, J.,

concurring in part and dissenting in part).   These concerns

resonate today:   in addition to the requirements imposed in

1996, all offenders must now register any secondary addresses
                                                                    15


they have,7 register the names and addresses of the institutions

of higher learning they attend,8 and re-register ten days prior

to establishing a new address.9    Homeless offenders are

additionally required to re-register every thirty days, and to

wear a global positioning system device at all times.10

Furthermore, on release from prison, offenders are subject to

intensive parole conditions.11    Taken together, compliance with


     7
       Secondary addresses include "all places where a sex
offender lives, abides, lodges, or resides for a period of
[fourteen] or more days in the aggregate during any calendar
year and which is not a sex offender's primary address; or a
place where a sex offender routinely lives, abides, lodges, or
resides for a period of [four] or more consecutive or
nonconsecutive days in any month and which is not a sex
offender's permanent address, including any out-of-state
address." G. L. c. 6, § 178C.
     8
       See G. L. c. 6, §§ 178C-178E, as appearing in St. 2003,
c. 77, §§ 1-4.
     9
       See G. L. c. 6, § 178E (h), as appearing in St. 1999,
c. 74, § 2. At the time Doe No. 972 was decided, registration
was only required within five days of moving. G. L. c. 6,
§ 178E (e), inserted by St. 1996, c. 239, § 1.
     10
       See G. L. c. 6, § 178F, as amended by St. 2010, c. 256,
§ 41 ("[a] homeless sex offender shall verify registration data
every [thirty] days with the board"); G. L. c. 6, § 178F1/2
("[a] homeless sex offender shall appear in person at [the
offender's] local police department every [thirty] days"); G. L.
c. 6, § 178F3/4, inserted by St. 2010, c. 256, § 42 ("[a]
homeless sex offender shall wear a global positioning system
[GPS] device, or any comparable device, administered by the
commissioner of probation").
     11
       For example, a level one offender is required to take a
polygraph examination at least every six months, cannot use the
Internet without permission of his or her supervising parole
officer, cannot own or use computer programs without permission
                                                                 16


all of these requirements can be exceptionally burdensome for

registered offenders.12

     In addition to more extensive registration requirements,

failure to register now may result in more significant

penalties.13    If a judge determines that incarceration is a more

appropriate penalty for a noncompliant offender than a fine, the

judge now must impose a mandatory minimum sentence of at least

six months.14   A second failure to register results in a

mandatory minimum sentence of five years in State prison.15    When

Doe No. 972 was decided, these penalties were uniformly less



of the parole officer, cannot use personal advertisements or the
Internet to contact or meet people, cannot possess a camera
without permission of the parole officer, and may be fitted with
a GPS monitoring device and required to remain outside of
"Exclusion Zones" designated by the Parole Board. See
Massachusetts Parole Board, Sex Offender Conditions, Executive
Office of Public Safety (Nov. 2006). The parole conditions for
level two and three offenders are more burdensome. See id.
     12
       See Levenson & Cotter, The Effect of Megan's Law on Sex
Offender Reintegration, 21 J. Contemp. Crim. Just. 49, 62 (2005)
(Levenson & Cotter) ("Feeling alone, isolated, ashamed,
embarrassed, hopeless, or fearful may threaten a sex offender’s
reintegration and recovery and may even trigger some sex
offenders to relapse").
     13
       An offender may be arrested without a warrant "[w]henever
a police officer has probable cause to believe that [he or she]
has failed to comply with the registration requirements." G. L.
c. 6, § 178P, as appearing in St. 1999, c. 74, § 2.
     14
       G. L. c. 6, § 178H (a), as amended through St. 2010,
c. 267, §§ 4-6.
     15
          Id.
                                                                    17


severe.16

     Furthermore, offenders face difficulty finding work and

housing.    Stigma accounts for some of this difficulty --

employers and landlords often prefer to avoid the perceived

risks of having a convicted sex offender on site.    See, e.g.,

Commonwealth v. Canadyan, 458 Mass. 574, 577 n.8 (2010) (noting

" extraordinary obstacles facing sex offenders attempting to

secure employment"); Platt, Gangsters to Greyhounds:    The Past,

Present, and Future of Offender Registration, 37 N.Y.U. Rev. L.

& Soc. Change 727, 762 (2013) (describing how housing

discrimination against sex offenders "forc[es] many to live in

shelters or be rendered homeless").   Many restrictions also have

been codified.   For example, sex offenders are subject to

criminal penalties for engaging in ice cream truck vending,

regardless of whether their offense involved harm to a child.

See G. L. c. 265, § 48, inserted by St. 2010, c. 256, § 119.

Moreover, households that include a person subject "to a

lifetime registration requirement under a State sex offender

registration program" are no longer eligible for certain Federal

housing programs.    42 U.S.C. § 13663 (2012).   Level three sex

offenders also face criminal penalties for living in a nursing

     16
       Under the 1996 sex offender registry law, there was no
mandatory minimum sentence for a first conviction of failure to
register. G. L. c. 6, § 178H, inserted by St. 1996, c. 239,
§ 1. A second conviction resulted in a mandatory minimum
sentence of ninety days in a house of correction. Id.
                                                                     18


home.17   G. L. c. 6, § 178K (2) (e), inserted by St. 2006,

c. 303, § 6.   Such restrictions likely intensify the stigma

associated with being a registered offender.

     The sex offender registry law in its current form also

calls for extensive dissemination of offenders' registry

information.   Both level two and level three sex offenders'

information is now posted on the Internet.     See St. 2013, c. 38,

§§ 7, 9 (requiring Internet posting of level two offenders'

information); St. 2003, c. 140, §§ 5, 11-14 (requiring Internet

posting of level three offenders' information).     No limits are

placed on the secondary dissemination of this information.     See

Moe v. Sex Offender Registry Bd., 467 Mass. 598, 605 (2014)

(Moe).    Furthermore, records of level two and level three

classifications are no longer permitted to be sealed.    See

St. 2010, c. 256, § 129.    The permanence of level two and level

three classification attaches special importance to the accuracy

of the classification in the first instance.

     The recent Internet dissemination requirements in

particular have increased the extent of the private interests

affected by classification.    Although in Coe v. Sex Offender

     17
       But see Doe v. Police Comm'r of Boston, 460 Mass. 342,
342-343 (2011). Until this year, a warren of city and town
ordinances also prohibited offenders from living near parks,
schools, playgrounds, and other areas commonly used by children.
See Doe v. Lynn, 472 Mass. 521, 533-534 (2015) (determining that
municipal restrictions on offender residency are preempted by
sex offender registry law).
                                                                   19


Registry Bd., 442 Mass. 250, 257 n.6 (2004), we determined that

Internet publication did not amplify the consequences of

classification as a level three sex offender, we have since

acknowledged that that conclusion "may no longer be

accurate . . . in light of all that we have learned about the

operation of the Internet."    Moe, supra at 605 n.10.     Where

previously the time and resource constraints of local police

departments set functional limits on the dissemination of

registry information, the Internet allows for around-the-clock,

instantaneous, and worldwide access to that information -- a

virtual sword of Damocles.    See id. at 605.   Internet

dissemination "exposes [offenders], through aggressive public

notification of their crimes, to profound humiliation and

community-wide ostracism."    Doe No. 7083, 472 Mass. at 485,

quoting Smith v. Doe, 538 U.S. 84, 115 (2003) (Ginsburg, J.,

dissenting).   Consequences of such public dissemination may

include housing and employment discrimination, harassment, and

assault.18   See Moe, supra at 604.   Further, should a sex

offender later be reclassified to level one such that Internet

dissemination is no longer required, "information posted on the

Internet is never truly forgotten."    Note, The Right to Be


     18
       These consequences persist despite the sex offender
registry law's prohibition on the use of information published
about sex offenders to discriminate against or harass them. See
G. L. c. 6, §§ 178D, 178N.
                                                                   20


Forgotten, 64 Hastings L.J. 257, 259-260 (2012) (describing

secondary dissemination of information posted on Internet).

    Even level one offenders' registry information is being

disclosed more broadly.   Although level one sex offenders'

information is not disseminated publicly, it still may be

released to the local police departments where they attend

institutions of higher learning, see St. 2003, c. 77, §§ 19-20,

as well as to a variety of State agencies and the Federal Bureau

of Investigation.   See G. L. c. 6, § 178K (2) (a); 803 Code

Mass. Regs. § 1.28(3) (2013).   In addition, a level one sex

offender's classification level and the city or town in which

the offender lives, works, or attends an institution of higher

learning may be released to a victim who submitted a written

victim impact statement as part of the offender's classification

hearing.   See 803 Code Mass. Regs. § 1.28(3).

    Although the consequences of classification are now

extensive, concerns have been raised as to the accuracy of the

risk classifications that SORB must make.   Under the guidelines

currently in place, SORB applies twenty-four separate risk

factors in order to determine an offender's risk level.

803 Code Mass. Regs. § 1.40(1)-(24).   However, "there is reason

for some concern as to whether [SORB's] guidelines continue to

reflect accurately the current state of scientific knowledge."

Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender
                                                                     21


Registry Bd., 470 Mass. 102, 116 (2014) (Doe No. 68549) (noting

that most recent studies cited in guidelines were published in

2001).   In addition, the Legislature has recently required SORB

to update its regulations to "reflect recent [S]upreme

[J]udicial [C]ourt or [A]ppeals [C]ourt decisions that have

resulted in remands or reversals of [SORB's] final

classification decisions."     St. 2015, c. 10, § 63.

    6.    Standard of proof.   In light of the new implications of

classification at a given risk level, we consider what standard

of proof is currently necessary to provide Doe with due process.

As we have noted in the past, deprivation of more extensive

private interests requires greater procedural protections.     See

Doe v. Attorney Gen., 426 Mass. at 140, citing Mathews, 424 U.S.

at 334-335.

    Adopting a "standard of proof is more than an empty

semantic exercise" (quotation omitted).     Addington v. Texas, 441

U.S. 418, 425 (1979) (Addington).    Recognizing that a fact

finder will sometimes err despite his or her best efforts, "a

standard of proof represents an attempt to instruct the fact

finder concerning the degree of confidence our society thinks he

[or she] should have in the correctness of [his or her] factual

conclusions."   In re Winship, 397 U.S. 358, 370 (1970) (Harlan,

J., concurring).   Although a preponderance standard is generally

applied in civil cases, see, e.g., Frizado v. Frizado, 420 Mass.
                                                                   22


592, 597 (1995), the clear and convincing standard is applied

when "particularly important individual interests or rights are

at stake."    Craven v. State Ethics Comm'n, 390 Mass. 191, 200

(1983), quoting Herman & MacLean v. Huddleston, 459 U.S. 375,

389 (1983).

     Proof by clear and convincing evidence is "not without

teeth."   Matter of G.P., 473 Mass. 112, 120 (2015).   It is a

greater burden than proof by a preponderance of the evidence,

but less than the proof beyond a reasonable doubt required in

criminal cases.   Commonwealth v. Russell, 470 Mass. 464, 471

(2015).   The evidence must be sufficient to convey a "high

degree of probability" that the contested proposition is true

(quotation omitted).    Callahan v. Westinghouse Broadcasting Co.,

372 Mass. 582, 588 n.3 (1977).    Otherwise put, requiring proof

by clear and convincing evidence reflects a judicial

determination that "[t]he individual should not be asked to

share equally with society the risk of error."    Addington, supra

at 427.

     The United States Supreme Court and this court have applied

the clear and convincing standard in a variety of civil

contexts.19   Both New Jersey and New York, the only two States


     19
       See, e.g., Santosky v. Kramer, 455 U.S. 745, 758, 769
(1982) (termination of parental rights); Addington v. Texas, 441
U.S. 418, 427, 433 (1979) (civil commitment); Woodby v.
Immigration & Naturalization Serv., 385 U.S. 276, 285-286 (1966)
                                                                 23


that provide for adversarial risk classification hearings that

appear to have considered the standard of proof that such

classifications require,20 require that the appropriateness of



(deportation); Chaunt v. United States, 364 U.S. 350, 353 (1960)
(denaturalization); MacDonald v. Caruso, 467 Mass. 382, 389
(2014) (termination of abuse prevention order); Birchall,
petitioner, 454 Mass. 837, 851-853 (2009) (civil contempt);
Adoption of Helen, 429 Mass. 856, 859 (1999) (parental
unfitness); Stone v. Essex County Newspapers, Inc., 367 Mass.
849, 870 (1975) (libel against public official or public
figure).
     20
       The Federal sex offender registry law assigns risk
classifications based on the underlying sex offense; it does not
allow for individualized assessment of risk of reoffense or
current dangerousness. 42 U.S.C. § 16911 (2012). Thirty-five
States and the District of Columbia either provide the same
public notice about all convicted sex offenders registered
within their jurisdictions, or classify an adult sex offender's
risk of reoffense solely based on the sex offender's crime of
conviction or original sentence. See Ala. Code §§ 15-20a-19,
15-20a-27 (2015); Alaska Stat. §§ 12.63.010, 12.63.020,
12.63.100 (2015); Ariz. Rev. Stat. Ann. §§ 13-3821, 13-3825, 13-
3827 (2015); Colo. Rev. Stat. §§ 16-22-102, 16-22-103, 16-22-112
(2015); Conn. Gen. Stat. §§ 54-250, 54-254, 54-256, 54-258
(Supp. VI 2015); Del. Code Ann. tit. 11, §§ 4120-4121 (2014);
D.C. Code §§ 22-4001, 22-4002 (2012); Fla. Stat. § 775.21(4)-(5)
(Supp. V 2015); Haw. Rev. Stat. § 846E-10 (2015); 730 Ill. Comp.
Stat. 150/2, 150/3, 150/3-5 (Supp. VIII 2014) (risk assessment
for juveniles only); Ind. Code §§ 11-8-8-4.5, 11-8-8-5, 11-8-8-8
(2015) (risk assessment for juveniles only); Iowa Code
§ 692A.102 (2015); Kan. Stat. Ann. §§ 22-4902, 22-4904 (2015);
Ky. Rev. Stat. Ann. §§ 17.520, 17.554 (2015); La. Rev. Stat.
Ann. §§ 15:541, 15:542.1.1, 15:544 (2015); Me. Rev. Stat. tit.
34-A, §§ 11273, 11281-11285 (Supp. IV 2014); Md. Code Ann.,
Crim. Proc. §§ 11-701, 11-704, 11-707 (Supp. VII 2015); Mich.
Comp. Laws § 28.722 (Supp. III 2015); Miss. Code Ann. §§ 45-33-
23, 45-33-47 (2015); Mo. Rev. Stat. §§ 589.400.1-589.400.2
(2015); Mont. Code Ann. §§ 46-23-502, 46-23-509 (2015); Neb.
Rev. Stat. §§ 29-4003, 29-4005, 29-4007 (2015); Nev. Rev. Stat.
§§ 179D.113, 179D.115, 179D.117 (2015); N.H. Rev. Stat. Ann.
§ 651-B:1 (Supp. VII 2014); N.M. Stat. Ann. §§ 29-11A-3, 29-11A-
5.1 (2015); N.C. Gen. Stat. §§ 14-208.6, 14-208.6A (2013); Ohio
                                                               24



Rev. Code Ann. §§ 2950.01(E)-(G) (2014); 42 Pa. Cons. Stat.
§ 9799.14 (2014); S.C. Code Ann. §§ 23-3-430, 23-3-460 (2014);
S.D. Codified Laws §§ 22-24B-2.1, 22-24B-19, 22-24B-19.1, 22-
24B-19.2 (2015); Tenn. Code Ann. §§ 40-39-202, 40-39-204, 40-39-
212 (2015); Utah Code Ann. §§ 77-41-102(17), 77-41-110 (2015);
Va. Code Ann. §§ 9.1-902, 9.1-904, 9.1-911 (2015); W. Va. Code
§§ 15-12-2, 15-12-2a, 15-12-5 (2015); Wis. Stat. § 301.45 (Supp.
IV 2014); Wyo. Stat. Ann. §§ 7-19-301 to 7-19-304 (2015).

     Nine States classify a sex offender's risk of reoffense on
a more individualized basis after sentencing, but do not provide
for adversarial risk classification hearings. See Ark. Code
Ann. §§ 12-12-913, 12-12-917, 12-12-922 (2015); Cal. Penal Code
§§ 290.04, 290.06, 290.46 (Supp. I 2015); Ga. Code Ann. § 42-1-
14 (2015); Idaho Code Ann. §§ 18-8303, 18-8314, 18-8316 (2015);
N.D. Cent. Code § 12.1-32-15 (12) (2015); Okla. Stat. tit. 57,
§§ 582.1, 582.5 (2015); R.I. Gen. Laws § 11-37.1-12 (2015); Tex.
Crim. Proc. Code Ann. arts. 62.001, 62.007, 62.403 (Supp. VIII
2014); Wash. Rev. Code §§ 4.24.550, 4.24.5501, 9A.44.128,
72.09.345 (2015).

     The remaining three States other than New Jersey, New York,
and Massachusetts provide for adversarial risk classification
hearings, but we are not aware of court decisions in those
States addressing whether due process requires a higher standard
of proof than a preponderance. See Minn. Stat. §§ 243.166,
244.052 (2015); Or. Rev. Stat. §§ 181.800, 181.801, 181.821
(2015); Vt. Stat. Ann. tit. 13, §§ 5401, 5405a, 5411b (Supp. VI
2015). In Minnesota, a convicted sex "offender has a right to
be present and be heard" at an administrative risk
classification proceeding, but the standard of proof required
for risk classifications is not explicit in the statute. Minn.
Stat. § 244.052(3)(d). In Oregon, in order to be relieved of
the obligation to register, a convicted sex offender must prove
by clear and convincing evidence that he or she is statistically
unlikely to reoffend and does not pose a threat to public
safety. Or. Rev. Stat. § 181.821(4)(a) (2015). The Oregon
statute does not, however, lay out what standard of proof is
required to reclassify a sex offender at a lower risk level
while preserving his or her registration obligation. See Or.
Rev. Stat. § 181.821(4)(b). In Vermont, a convicted sex
offender is guaranteed notice and an opportunity to be heard
regarding whether he or she poses a "high risk" of reoffense.
Vt. Stat. Ann. tit. 13, § 5411b. That determination is
currently made by a preponderance of the evidence. Vt. Code R.
§ 12-8-4:4 (2015).
                                                                    25


offenders' risk classifications be proved by clear and

convincing evidence.   See E.B. v. Verniero, 119 F.3d 1077, 1110-

1111 (3d Cir. 1997), cert. denied, 522 U.S. 1109 (1998); Doe v.

Pataki, 3 F. Supp. 2d 456, 471 (S.D.N.Y. 1998).   We consider now

whether risk classifications in Massachusetts similarly should

be held to the higher standard.

    7.   Procedural due process.   To determine whether the

preponderance standard continues to satisfy due process, "we

balance the private interests affected, the risk of erroneous

deprivation, the probable value of additional or substitute

safeguards, and the governmental interests involved."     Doe No.

972, 428 Mass. at 100, citing Mathews, 424 U.S. at 335.

Consideration of these factors in light of changed circumstances

leads us to conclude that due process now requires application

of the clear and convincing standard.

    a.   Private interests.   As described above, Doe's risk

classification level now has dramatic consequences for his

liberty and privacy interests that were not present when we

decided Doe No. 972.   He faces increasingly stringent

affirmative reporting requirements, as well as the possibility

of extended incarceration for failing to meet those

requirements.   He is also likely to confront stigma and legal

restrictions that will make it harder for him to find stable

housing or employment, and may even face threats of physical
                                                                    26


harm.     The dissemination of his registry information on the

Internet only exacerbates these difficulties.

     b.    Erroneous deprivation.   The extensive private interests

now affected by classification counsel in favor of requiring a

higher standard of proof.    Admittedly, neither the risk of

erroneous deprivation under the current preponderance standard

nor the probable value of imposing a higher standard is

altogether clear.     Even if Massachusetts-specific sex offender

recidivism research were available, it would be difficult to

establish the actual risk of an erroneous deprivation of a

registered sex offender's privacy or liberty.21    Nevertheless, we

are concerned that the current procedural safeguards do not

adequately protect against this risk.     Doe's opportunity to

present evidence and to examine and cross-examine witnesses at

his classification hearing, and the requirement that SORB make

particularized, detailed findings concerning his classification

     21
       At oral argument, counsel for SORB stated that he had "no
idea" what percentage of registered sex offenders in
Massachusetts actually recidivate. We recognize that SORB has
discretion as to how it fulfils its statutory mandate to
"promulgate guidelines for determining the level of risk of
reoffense and the degree of dangerousness posed to the public"
by convicted sex offenders. G. L. c. 6, § 178K (1).
Nonetheless, it is troubling that little emphasis has apparently
been placed by SORB on assessing the accuracy of its
classifications. This is especially true given the enormity of
the consequences of such classification decisions. Contrast
Massachusetts Parole Board, Massachusetts Parole Board Three-
Year Recidivism Analysis: 2009 (Dec. 2013); Massachusetts
Parole Bd., Trends in Revocation Among Massachusetts Parolees
(Oct. 2013).
                                                                    27


were and continue to be important features of the process that

offenders are due.   See Doe No. 972, 428 Mass. at 102.      The harm

to the State from an erroneous underclassification, however, is

no longer "nearly equal" to the possible harm to Doe from

erroneous overclassification.22    See id. at 104 n.14.

     Other developments since our decision in Doe No. 972 also

support raising the standard of proof.    The 1996 statute

envisioned that SORB's guidelines would augment a set of

statutory factors that the Legislature considered relevant to

convicted sex offenders' risk of reoffense.    See G. L. c. 6,

§ 178K (1), inserted by St. 1996, c. 239, § 1.    Yet these

guidelines have not been updated in over fourteen years.      See

Doe No. 68549, 470 Mass. at 116.    Ideally, the factors would

     22
       Some statistical evidence also appears to support the
view that applying a higher standard of proof is appropriate.
As of March 9, 2015, SORB classified over three quarters of all
sex offenders in Massachusetts as having a moderate or high risk
of reoffense. Yet studies have indicated that relatively few
sex offenders reoffend. See, e.g., Hanson, Harris, Helmus, &
Thornton, High-Risk Offenders May Not Be High Risk Forever, 29
J. Interpersonal Violence 2792, 2796 (2014) (finding 11.9 per
cent over-all rate of sexual recidivism, although high-risk
offenders reoffend more frequently than low-risk offenders).
Other reports have shown that, contrary to popular belief, the
rates of recidivism for sex offenders are actually lower than
the rates of recidivism for those convicted of other crimes.
See, e.g., Council of State Governments, Sex Offender Management
Policy in the States, Strengthening Policy & Practice: Final
Report 2 (2010). Of course, SORB may accurately determine that
specific offenders pose a moderate or high risk of reoffense
without those people ever actually reoffending. Even so, the
sharp contrast between SORB's classification practices and the
studies' conclusions suggests that SORB may be overclassifying
offenders.
                                                                   28


always reflect current research.    Requiring that whatever

factors are currently in place be proved with increased rigor,

however, will ensure at least that they are applied more

accurately on their own terms.23    Furthermore, little evidence

appears to support our concern in Doe No. 972, 428 Mass. at 103,

that a heightened standard might lead to erroneous

underclassifications.24   Accordingly, Doe "should not be asked to

share equally with society the risk of error."    Addington, supra

at 427.

     c.   Governmental interests.   The State has a strong

interest in "protect[ing] children and other vulnerable people

     23
       In Doe No. 972, supra at 102, we acknowledged the
possibility that SORB might "apply general factors to the
offenders that may not correctly predict their propensity to
reoffend," but concluded that other procedural protections than
a heightened standard of proof were sufficient to protect
against that possibility. The changes to the statutory
landscape since our decision in Doe No. 972 persuade us that a
heightened standard is additionally necessary.
     24
       Recent studies of sex offender recidivism in New York and
New Jersey, the two States that already apply the clear and
convincing standard to their risk classification proceedings,
have noted that sex offenders' rates of committing an additional
sex offense are low overall. See R. Tewksbury, W.G. Jennings, &
K. Zgoba, Final Report on Sex Offenders: Recidivism and
Collateral Consequences 6, 10 (2011); Sandler, Freeman, & Socia,
Does a Watched Pot Boil? A Time-Series Analysis of New York
State's Sex Offender Registration and Notification Law, 14
Psychol. Pub. Pol'y & L. 284, 297 (2008). Although SORB argues
that a cross-State comparison blurs important distinctions in
the manner and means by which each State's registry board
reaches its classification decisions, these studies provide at
least mild support for the proposition that requiring a higher
standard of proof does not lead to erroneous
underclassifications of the risk posed by registered offenders.
                                                                     29


from recidivistic sex offenders."     Doe No. 972, 428 Mass. at

103.    As the Legislature recognized when it amended the sex

offender registry law in 1999, classification "provide[s] law

enforcement with additional information critical to preventing

sexual victimization."25     St. 1999, c. 74, § 1.   Yet the State

also has an interest in avoiding overclassification, which both

distracts the public's attention from those offenders who pose a

real risk of reoffense, and strains law enforcement resources.

And the State has no interest "in making erroneous

classifications and implementing overbroad registration and

notifications."    Doe No. 972, 428 Mass. at 107 (Marshall, J.,

dissenting).    Cf. E.B. v. Verniero, supra at 1107-1108; Doe v.

Pataki, supra at 470.     Given these interests, a clear and

convincing standard would better "enable police and the

community to focus on those offenders who may pose an actual

threat to young children and others that the statute seeks to

protect."    Doe No. 972, 428 Mass. at 104 (Marshall, J.,

dissenting).

       d.   Balancing.   Balancing the Mathews factors, we conclude

that sex offender risk classifications must be established by



       25
       Some studies, however, have questioned whether
registration and notification requirements have had any effect
on convicted sex offenders' rates of reoffense. See, e.g.,
Agan, Sex Offender Registries: Fear Without Function?, 54
J. L. & Econ. 207, 208 (2011); Levenson & Cotter, supra at 52.
                                                                 30


clear and convincing evidence in order to satisfy due process.26

Applying the higher standard to Doe's risk classification will

provide greater certainty that the burdens placed on him by that

classification are warranted.   Replacing the current

preponderance standard will better help to advance the goal of

ensuring that the Commonwealth's "classification and

notification system is both fair and accurate."27   E.B. v.


     26
       Because our decision is a new constitutional rule, the
higher standard should be applied retroactively only to
classification proceedings pending before SORB, the Superior
Court, or the appellate courts on the date of the issuance of
the rescript in this case. See MacCormack v. Boston Edison Co.,
423 Mass. 652, 657 (1996).
     27
       Although the consequences of Internet dissemination
provide a convicted sex offender with a particularly strong
interest in avoiding classification as a level two or level
three offender, the clear and convincing standard should be
applied to all sex offender risk classification levels,
including level one. A level one offender's information may not
be disseminated publicly, but it still may be released to a
variety of State agencies and the Federal Bureau of
Investigation, as well as to a victim who has submitted a
written victim impact statement as part of the offender's
classification hearing. See 803 Code Mass. Regs. 1.28(3)
(2013). Level one offenders also are subject to extensive
parole conditions. See Massachusetts Parole Board, Sex Offender
Conditions (Nov. 2006). Furthermore, as noted above, many of
the additional burdens placed on registered offenders apply to
all levels of offenders. See G. L. c. 6, §§ 178C-178D
(requiring registration of secondary addresses and of names and
addresses of institution of higher learning attended by
offender); G. L. c. 6, § 178E (h) (requiring re-registration ten
days prior to establishing new address); G. L. c. 6, §§ 178F,
178F1/2, 178F3/4 (requiring homeless offenders to re-register
every thirty days and to wear GPS device at all times); G. L.
c. 6, § 178H (a) (1)-(2) (imposing penalties for failure to
register); G. L. c. 265, § 48 (prohibiting ice cream truck
vending). See also Doe, Sex Offender Registry Bd. No. 8725 v.
                                                                   31


Verniero, supra at 1107.

    A convicted sex offender's risk classification now has far

greater consequences than were present when we decided Doe No.

972 over seventeen years ago.   "Classification and registration

entail possible harm to a sex offender's earning capacity,

damage to his reputation, and, 'most important, . . . the

statutory branding of him as a public danger.'"   Poe v. Sex

Offender Registry Bd., 456 Mass. 801, 813 (2010), quoting Doe v.

Attorney Gen., 426 Mass. at 144.   Internet dissemination of

level two and level three sex offenders' registry information

magnifies these consequences.   Although the State has a strong

interest in protecting the public from recidivistic sex

offenders, allowing SORB to make classification determinations

with a lesser degree of confidence does not advance that

interest.   In short, greater circumspection is needed before

offenders' risk classifications are made final.

    8.   Internet dissemination.   Doe's argument that the 2013

amendment to the sex offender registry law requiring the

Internet publication of level two offenders' registry

information, St. 2013, c. 38, §§ 7, 9, was not retroactive as


Sex Offender Registry Bd., 450 Mass. 780, 793 (2008)
(recognizing that rights affected by level one classification
are "substantial"). Cf. E.B. v. Verniero, 119 F.3d 1077, 1110-
1111 (3d Cir. 1997), cert. denied, 522 U.S. 1109 (1998)
(applying clear and convincing standard to classification at
every risk level); Doe v. Pataki, 3 F. Supp. 2d 456, 471
(S.D.N.Y. 1998) (same).
                                                                  32


applied to him is without merit.    Although we determined in Moe

that that amendment was not retroactive as applied to

individuals finally classified as level two sex offenders on or

before July 12, 2013, the effective date of the amendment, we

stated explicitly that "[n]othing in this order affects the

ability of SORB to publish on the Internet the registry

information of any individual who was given a final

classification as a level two sex offender after July 12, 2013."

Moe, supra at 616.   Doe's final classification as a level two

offender did not occur until October 23, 2013, so Internet

dissemination of his information is permissible.

    Nevertheless, because Doe's classification as a level two

offender is vacated, we remand to the Superior Court for entry

of an order to SORB to cease disseminating Doe's registry

information on the Internet; unless and until he is finally

classified under the clear and convincing standard at a risk

level that requires such dissemination, to do otherwise would

violate Doe's due process rights.    Compare Doe No. 7083, 472

Mass. at 489-490 (vacating final risk classification that

violated procedural due process, and treating as preliminary

SORB's attempted classification).

    9.   Conclusion.   The decision of the Superior Court judge

affirming SORB's classification of Doe as a level two sex

offender is vacated and set aside.    We remand the matter to the
                                                                 33


Superior Court for entry of an order requiring SORB to conduct

an evidentiary hearing consistent with this decision, and to

cease disseminating Doe's registry information on the Internet

during the pendency of such proceedings.

                                   So ordered.
