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SJC-13847
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 526105 vs. SEX
OFFENDER REGISTRY BOARD.
Suffolk. May 6, 2026. - August 18, 2026.
Present: Budd, C.J., Gaziano, Kafker, Wendlandt, Georges,
Dewar, & Wolohojian, JJ.
Sex Offender. Sex Offender Registration and Community
Notification Act. Evidence, Sex offender, Expert opinion.
Administrative Law, Agency's interpretation of regulation,
Decision. Practice, Civil, Sex offender, Judgment on the
pleadings.
Civil action commenced in the Superior Court Department on May 12, 2023.
The case was heard by Robert B. Gordon, J., on motions for judgment on the pleadings.
The Supreme Judicial Court granted an application for direct appellate review.
Ilse Nehring for the plaintiff.
Roxann B.C. Greenaway for the defendant.
Elizabeth Caddick, for Committee for Public Counsel Services, amicus curiae, submitted a brief.
2
KAFKER, J. In this case, as in Doe, Sex Offender Registry
Bd. No. 527962 v. Sex Offender Registry Bd., 496 Mass. 543
(2025) (Doe No. 527962), we are asked to decide whether, based
on the state of relevant empirical evidence, due process permits
the fact that there were multiple sex offenses committed prior
to arrest or conviction to be considered in assessing a sex
offender's future dangerousness pursuant to factor thirty-seven
of the Sex Offender Registry Board's (SORB's) regulations. In
Doe No. 527962, we declined to reach the question, citing "the
limited and late-filed record on this issue, and the
Legislature's express requirement that the number of offenses be
considered in determining dangerousness." Id. at 544. In this
case, unlike in Doe No. 527962, the issue was raised below, but
nevertheless the record remains insufficient for us to decide
the constitutional question. However, this deficiency is
attributable, at least in part, to the SORB hearing officer's
denial of a request for funds for an expert to testify regarding
the "up-to-date research" about repetitive sexual behavior and
an offender's degree of dangerousness in the event of reoffense,
and the application of factor thirty-seven to the plaintiff
based on such offenses.
Given the novel unanswered question presented regarding the
application of factor thirty-seven to multiple offenses in these
circumstances, and the potential relevance of expert testimony
3
to resolve these questions, the denial of funds for an expert
constituted an abuse of discretion. Accordingly, we order that
the matter be remanded to SORB for further proceedings
consistent with this opinion.1
Background. We summarize the facts drawn from the hearing
examiner's findings.
In 2016, police responded to a middle school following a
report that an eleven year old student had reported being
sexually abused by her stepfather, John Doe, Sex Offender
Registry Board No. 526105 (Doe), then thirty years of age. She
disclosed that on one occasion he had awoken her and made her
touch his penis, on a second occasion he had touched her private
area, and on a third occasion he had attempted to pull her pants
down while she slept. Doe denied the allegations.
In 2017, a jury convicted Doe of two counts of indecent
assault and battery on a child under the age of fourteen, see
G. L. c. 265, § 13B, and he was sentenced to serve two and onehalf years in a house of correction, to be followed by two years
of probation. These convictions triggered Doe's obligation to
register as a sex offender. See G. L. c. 6, § 178K (2) (b).
1 We acknowledge the amicus brief submitted by the Committee for Public Counsel Services.
4
Over the following years, SORB classified Doe no fewer than
six times, each resulting in Doe's being classified as a level
two sex offender.2 The initial classification was objected to by
Doe, requiring a de novo hearing. The second classification was
vacated during the pendency of Doe's appeal because a recording
malfunction had made a transcript of the hearing unavailable.
The third was required to be amended by the Superior Court
following our decision in Doe, Sex Offender Registry Bd. No.
496501 v. Sex Offender Registry Bd., 482 Mass. 643, 662-663
(2019) (requiring distinct finding regarding need for Internet
dissemination). The fourth was vacated after SORB conceded on
appeal before the Appeals Court that the hearing examiner had
misapplied regulatory factor two, which requires findings of
both repetitive and compulsive behavior when applied to risk of
reoffense; Doe had been shown to have engaged in repetitive, but
not compulsive behavior. See Doe, Sex Offender Registry Bd. No.
526105 v. Sex Offender Registry Bd., 100 Mass. App. Ct. 1122
(2022) (unpublished memorandum and order). See also Doe, Sex
Offender Registry Bd. No. 6729 v. Sex Offender Registry Bd., 490
Mass. 759, 765-766 (2022) (Doe No. 6729) ("a person [who]
offends, gets caught[,] and then goes on to reoffend again,
2 For an overview of the SORB classification process, see Doe No. 527962, 496 Mass. at 544-545 ("The board uses a numbered list of nonexhaustive factors to place offenders according to a three-tiered system . . .").
5
. . . may be found not only to be repetitive but also
compulsive" [quotation omitted]). The fifth was vacated because
it had issued without a new hearing, in contravention of the
Appeals Court's order on remand.
The sixth classification, which is the subject of this
appeal, took place after a de novo hearing that occurred on
January 26, 2023. In the lead-up to that hearing and again at
the hearing, Doe moved for funds for an expert, specifically
requesting
"funds for the expert to:
"(1) Testify at the hearing to the application of factor
[thirty-seven] to the [plaintiff's] facts. See [803 Code
Mass. Regs. § 1.33(37)(a) (2016)] (Other Information
Related to the Nature of Sexual Behavior) ('[T]he Board
shall consider any information that it deems useful in
determining risk of reoffense and degree of dangerousness
posed by any offender.').
"(2) Testify at the hearing to 'information' . . . about,
and move into evidence, if any,
". . .
"(b) The up-to-date research regarding repetitive sexual
behavior, where there is no evidence of prior sex offenses
or compulsive behavior, and an offender's degree of
dangerousness in the event of reoffense."
The hearing examiner denied the request on the ground that
the expert's testimony would not be unique to Doe. Following
the hearing, the hearing examiner issued a decision stating that
he had found by clear and convincing evidence that Doe "pose[d]
a moderate risk to re-offend and a moderate degree of
6
dangerousness such that a public safety interest is served by
public and Internet access to his sex offender registry
information." See G. L. c. 6, § 178K (2) (b). The hearing
examiner found that the fact that Doe had committed multiple
sexual assaults bore on his degree of dangerousness -- one of
the topics for which Doe had requested, and been denied, funds
for an expert. The decision ordered Doe to register as a level
two sex offender.
Doe sought judicial review in the Superior Court. See
G. L. c. 30A, § 14. After a hearing, a Superior Court judge
denied Doe's motion for judgment on the pleadings and affirmed
the hearing examiner's decision, including the hearing
examiner's denial of funds for an expert. Doe timely appealed,
and we granted Doe's application for direct appellate review.
Discussion. We "may set aside or modify the board's
classification decision where it determines that the decision is
in excess of the board's statutory authority . . . , is based on
an error of law, is not supported by substantial evidence, or is
an arbitrary and capricious abuse of discretion" (citation
omitted). Doe No. 527962, 496 Mass. at 547. The decision of a
SORB hearing examiner to deny expert funds is reviewed for abuse
of discretion. See Doe, Sex Offender Registry Bd. No. 205614 v.
Sex Offender Registry Bd., 466 Mass. 594, 610 (2013) (Doe No.
205614).
7
In analyzing this question, we begin with Doe No. 527962,
where we were asked to conclude "that the lack of empirical data
establishing a connection between multiple offenses and degree
of dangerousness is sufficient to invalidate the board's use of
such on constitutional grounds." Doe No. 527962, 496 Mass. at
549. We answered as follows:
"We decline to take that analytical leap when the issue of
empirical support for a link between multiple offenses and
degree of dangerousness has not been adequately raised or
litigated in the instant case, and the number of offenses
is an express required consideration to determine
dangerousness according to the act."
Id. We further contrasted the circumstances in that case to
those present in a prior case known as
"the factor two litigation, [where] the parties had the
opportunity to consider and contest the evidence submitted,
after which the Superior Court judge made factual findings
regarding the relevant science and rendered a wellsupported decision on the basis of the board's application
of factor two [concluding that factor two could not be
applied absent evidence of compulsive as well as repetitive
behavior]. None of that occurred [in Doe No. 527962]."
(Citation omitted.)
Id. at 549-550. Although Doe's counsel did not have the benefit
of our decision in Doe No. 527962, when she requested expert
funds here, she presciently anticipated the issues we left
unresolved in that case, and the necessity of expert evidence to
assist in the inquiry. We analyze the request for expert funds
with this background in mind.
8
"[B]ased on the facts presented in an individual case,"
SORB "has discretion to grant funds to an indigent sex offender
for an expert witness or report." Doe, Sex Offender Registry
Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 773-775 (2008) (Doe No. 89230) (noting that "the accuracy of the
classification decision may well be enhanced by the addition to
the evidentiary record of additional expert evidence"). The
exercise of that discretion is informed in the first instance by
the regulations that SORB has promulgated on the topic, which
require that an offender's motion for expert funds
"1. identify a condition or circumstance special to the sex
offender and explain how that condition is connected to his
or her risk of reoffense or level of dangerousness;
"2. identify the particular type of Expert Witness who
would provide testimony to assist the Hearing Examiner in
his or her understanding and analysis; and
"3. include supporting documentation or affidavits
verifying the specific condition or circumstance that the
offender suffers from."
803 Code Mass. Regs. § 1.16(4)(a) (2016). According to the
regulations, SORB may deny motions that do not meet those three
requirements and will deny motions seeking an expert to offer
only "a general opinion on the sex offender's risk to reoffend
and degree of dangerousness." 803 Code Mass. Regs.
§ 1.16(4)(b).
There is no doubt that Doe's motion met the second and
third regulatory requirements. It specified that Doe sought a
9
psychiatrist or psychologist with expertise in assessing sex
offender dangerousness, and included a detailed affidavit from
Doe's counsel, which appended two relevant scientific articles,
as well as supporting materials addressing the history of the
case and evolution of the regulatory factors in question.
The hearing examiner, however, faulted Doe on the first
requirement, denying his motion because "[h]aving an expert to
testify at the hearing regarding the application of [f]actor
[thirty-seven] to [Doe's] facts is not unique to [Doe] and does
not meet the burden for expert evaluation and testimony."3 In
upholding the hearing officer's decision, the Superior Court
judge relied on this reasoning as well as the statutory language
that states that among the criminal history factors to be
considered in determining risk and degree of dangerousness are
"the number, date and nature of prior offenses." G. L. c. 6,
§ 178K (l) (b) (iii).
After reviewing Doe's motion and supporting documents, we
conclude that the denial of funds constituted an abuse of
discretion. "Doe's request did not demonstrate simply a generic
need for an expert witness," or constitute a "general motion" to
3 SORB's factor thirty-seven states that "the Board shall consider any information that it deems useful in determining risk of reoffense and degree of dangerousness posed by any offender." 803 Code Mass. Regs. § 1.33(37)(a).
10
opine on dangerousness (quotation omitted). Doe No. 205614, 466
Mass. at 610. Rather, Doe requested expert funds for two
particular purposes: (1) to challenge a specific, indeed novel,
application of a single factor, thirty-seven, to his particular
circumstances; and (2) to provide "[t]he up-to-date research
regarding . . . [degree of dangerousness], where there is no
evidence of prior sex offenses or compulsive behavior." See
Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender
Registry Bd., 470 Mass. 102, 111 (2014) (Doe No. 68549)
(identifying when expert testimony properly allowed). Contrast
Doe, Sex Offender Registry Bd. No. 339940 v. Sex Offender
Registry Bd., 488 Mass. 15, 29-30 (2021) (Doe No. 339940)
(request for funds properly denied where it failed to explain
connection to risk of reoffense or dangerousness and supplied no
research or evidence of connection).
Denying such a request constitutes an abuse of discretion
for a number of reasons. Prior to 2019, commission of multiple
sex offenses had often been applied under factor two, toward a
greater risk of reoffense, and not factor thirty-seven, toward a
greater degree of dangerousness. See Doe No. 6729, 490 Mass. at
765-766. In fact, Doe had experience with this firsthand, as
SORB had applied factor two in that manner (but not factor
thirty-seven) in multiple decisions classifying him as a level
two offender.
11
The Superior Court subsequently declared that application
of factor two to multiple offenses without compulsive behavior
was not supported by empirical evidence and therefore violated
due process. See Doe No. 6729, 490 Mass. at 765-766. SORB did
not contest that conclusion, see id. at 765 n.6, and accordingly
conceded before the Appeals Court that the hearing examiner
erred in his application of factor two to Doe's fourth
classification.
On remand from the Appeals Court, SORB issued Doe's fifth
classification decision -- erroneously, as it was done without a
new hearing -- and in that decision SORB stated that it would
now consider Doe's multiple offenses in determining
dangerousness through application of factor thirty-seven. It
would do so even though there were no empirical studies included
in the guidelines supporting the application of repetitive
behavior to support dangerousness. See Doe No. 68549, 470 Mass.
at 111 ("particularly valuable" to have expert testimony explain
"significant, relevant research" not captured by regulatory
factors). All of this procedural and legal history was
explained in full in Doe's request for funds.
Before us, SORB states that it "did not present any
research studies in support of the application of [f]actor
[thirty-seven] as it relates to Doe's dangerousness based upon
his repetitive sexual offending, because such research does not
12
exist." That SORB says there is no relevant research is not
sufficient grounds to deny Doe the opportunity to prove or
disprove that assertion, or to prove whether existing research
can be subject to further expert analysis to provide insight
into the question whether repetitive behavior can or cannot be
correlated to future dangerousness. See Doe No. 205614, 466
Mass. at 606 ("There is a circularity, and an irony, in SORB's
argument that the guidelines apply with equal force to males and
females simply because SORB has declared that to be the case in
promulgating its regulations, which are themselves based on
research conducted almost exclusively on male subjects"). It is
SORB, not Doe, that bears the burden to justify its application
of the regulatory factors, and "to ensure that its guidelines
are, in fact, based on the available literature" (quotation and
citation omitted). Id. at 605, 608. See Doe, Sex Offender
Registry Bd. No. 234076 v. Sex Offender Registry Bd., 484 Mass.
666, 672 (2020) ("the development of evolving research is among
the reasons that a hearing examiner is empowered [by statute] to
consider 'any information useful'" to classification
determination [citation omitted]). Given the recent partial
invalidation of the application of factor two in circumstances
showing repetitive but not compulsive behavior due to lack of
empirical evidence, and the apparent switch to consideration of
the same behavior via factor thirty-seven, Doe's request
13
sufficiently identified "circumstance[s] special to [him]" as to
justify granting him expert funds. 803 Code Mass. Regs.
§ 1.16(4)(a)(1). It was an abuse of discretion for the hearing
examiner to conclude otherwise. See Doe No. 205614, supra at
610.
We also emphasize that the expert testimony need not be
"unique" to the plaintiff in the sense that the testimony would
bear only on a characteristic distinct to the plaintiff and no
others. In Doe No. 205614, for example, the expert testimony
requested and allowed applied to women offenders in general as
well as the specific plaintiff. See Doe No. 205614, 466 Mass.
at 606-608. Likewise, the expert testimony that explained the
difference between compulsive and merely repetitive behavior in
terms of proving risk of reoffense was not specific to a
particular plaintiff but rather expert evidence of value more
generally. See Doe No. 6729, 490 Mass. at 765-766. "Special"
to the plaintiff in the regulation permitting funds for an
expert does not mean unique to the plaintiff. It means the
request for expert assistance cannot be just generic or general
as discussed in the case law. See, e.g., Doe No. 205614, supra
at 610; Doe No. 89230, 452 Mass. at 775.
Finally, the statutory language directing SORB to consider
"the number, date and nature of prior offenses" "in determining
. . . degree of dangerousness" as well as risk of reoffense,
14
G. L. c. 6, § 178K (l) (b) (iii), is not dispositive of the
question whether expert funds should have been allowed to permit
Doe to challenge whether consideration of multiple offenses
under factor thirty-seven in these circumstances is supported by
the research. Such expert testimony could be used to challenge
the constitutionality of the statutory directive as applied.
See Doe No. 6729, 490 Mass. at 765-766. As the constitutional
issue was properly raised here, and expert assistance was sought
to develop a factual record to demonstrate that consideration of
the number of offenses alone in determining dangerousness
pursuant to factor thirty-seven was not supported by the
empirical research, funds for an expert should have been
allowed. See Doe No. 339940, 488 Mass. at 20 (although agency
cannot declare own regulations unconstitutional, "it can and
should make the factual findings necessary to address the
constitutional question" and create "appropriate record" for
reviewing court). The denial of such funds was an abuse of
discretion.
Conclusion. For the foregoing reasons, SORB's decision to
classify Doe as a level two sex offender must be vacated and the
decision to deny Doe's request for expert funds reversed.
Therefore, the Superior Court judgment is vacated, and a new
judgment shall enter remanding the matter to SORB for entry of
15
an order granting Doe's request for expert funds, and for
further proceedings consistent with this opinion.
So ordered.