132 N.E.3d 951
Mass.2019Background
- John Doe pleaded guilty in 1980 to two counts of rape and one count of assault with intent to rape; served concurrent prison sentences and was released in 1996.
- In the late 1990s/early 2000s Doe was convicted of indecent assault and open and gross lewdness; completed that sentence in 2005.
- In 2007 Doe was civilly committed as a sexually dangerous person and released in 2012; he was evaluated in 2015 (age mid‑60s).
- SORB initially sought a level 3 classification (2010); after multiple hearings and a remand, a 2016 hearing resulted in a final level 2 classification.
- Doe presented expert testimony (Dr. Leonard Bard) asserting low recidivism risk (largely based on age); the hearing examiner weighed that testimony against numerous aggravating and mitigating SORB factors.
- The Superior Court affirmed SORB’s level 2 classification; Doe appealed to the SJC, which affirmed and held Internet publication applies because the final classification postdated the 2013 statutory change.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Treatment of expert testimony | Bard’s opinion should control or receive dispositive weight despite not addressing every SORB factor | Hearing examiner properly may credit or discount expert testimony and consider other evidence | Court: Examiner did not improperly disregard Bard; must explain reasons for rejecting parts of expert testimony and did so here; no error |
| Use of refusal to accept nonconfidential treatment as aggravating | Refusal was reasonable given waiver of confidentiality and cannot be held against him | SORB treated refusal as risk‑elevating under its guidelines | Court: Extends Hunt—refusal of nonconfidential treatment cannot be used to infer unwillingness to be treated; excises that consideration from the decision |
| Sufficiency of evidence for level two classification (risk and dangerousness) | The mitigating factors (age, stable community supports, therapy history) outweigh aggravators; evidence insufficient for level two | SORB: multiple high‑risk factors and offense characteristics support moderate risk and moderate dangerousness | Court: Substantial evidence supports a finding by clear and convincing evidence of moderate risk and, taken together, moderate dangerousness; affirms level 2 |
| Internet publication/exemption | Internet publication would be unfair if classification should have been final before 2013; Doe relied on appeals | SORB: 2016 final classification postdates statutory amendment; publication requirement applies | Court: Internet publication requirement applies because final classification occurred after July 12, 2013; no exemption granted |
Key Cases Cited
- Doe v. Sex Offender Registry Bd., 473 Mass. 297, 41 N.E.3d 1058 (2015) (heightened clear‑and‑convincing evidentiary standard for SORB hearings)
- Doe v. Sex Offender Registry Bd., 482 Mass. 643, 126 N.E.3d 939 (2019) (requirement that hearing examiners make separate and explicit findings on risk, dangerousness, and Internet publication)
- Moe v. Sex Offender Registry Bd., 467 Mass. 598, 6 N.E.3d 530 (2014) (due process limits on retroactive Internet publication of registry information)
- Commonwealth v. Hunt, 462 Mass. 807, 971 N.E.2d 768 (2012) (refusal to accept nonconfidential treatment cannot be used as evidence of unwillingness to be treated)
- Noe v. Sex Offender Registry Bd., 480 Mass. 195, 102 N.E.3d 409 (2018) (describing purpose and scope of Massachusetts sex offender registry)