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SJC-11604

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 3839 vs. SEX 

OFFENDER REGISTRY BOARD.

Plymouth. September 3, 2014. - August 21, 2015.

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

JJ.

Sex Offender. Sex Offender Registration and Community 

Notification Act. Delinquent Child. Constitutional Law, 

Sex offender. Due Process of Law, Sex offender, 

Retroactive application of statute. Statute, Retroactive 

application. Practice, Civil, Sex offender.

Administrative Law, Findings.

Civil action commenced in the Superior Court Department on 

February 18, 2011.

The case was heard by Christopher J. Muse, J., on a motion 

for judgment on the pleadings, and a motion for relief from 

judgment and for reconsideration was also heard by him.

The Supreme Judicial Court granted an application for 

direct appellate review.

Matthew J. Koes for the plaintiff.

William H. Burke for the defendant.

DUFFLY, J. In 1990 and 1991, the plaintiff, John Doe, Sex 
2

Offender Registry Board No. 3839 (Doe), was adjudicated a 

delinquent juvenile by reason of sex offenses he committed in 

1989 and 1990, when he was fourteen and fifteen years old. 

Following his adjudications, Doe was committed to the Department 

of Youth Services (DYS), where he remained for over nine years, 

pursuant to orders extending his commitment beyond his 

eighteenth birthday. In April, 2000, Doe was committed 

temporarily to the Massachusetts Treatment Center (treatment 

center) for evaluation on the Commonwealth's petition that Doe 

be civilly committed as a sexually dangerous person (SDP); 

thereafter, he was found to be sexually dangerous and was 

civilly committed to the treatment center for a period of from 

one day to life. In January, 2011, twenty years after Doe 

committed the offenses, the defendant Sex Offender Registry 

Board (SORB) classified him as a level three sex offender. In 

September, 2013, Doe was determined to be no longer sexually 

dangerous, and was discharged from the treatment center.

Doe contends that the sex offender registration statute, 

G. L. c. 6, §§ 178C-178Q (registration statute), as applied to 

him, constitutes an ex post facto punishment, and violates his 

rights to due process and protection against double jeopardy, 

because the requirement that he register as a sex offender was 

triggered by juvenile adjudications that preceded the statute's 

enactment. See St. 1996, c. 239, § 1. He maintains also that, 
3

even if the registration statute does not operate impermissibly 

as applied to him, the hearing examiner's determination that he 

is a level three sex offender was unsupported by substantial 

evidence. Doe argues that the hearing examiner did not properly 

consider his youth at the time of his offenses, and that the 

decision was based on factual errors and unreliable evidence. 

Doe argues further that the evidence underlying the 

classification was stale, because the hearing resulting in the 

final classification took place more than three years before his 

discharge from the treatment center.

We conclude that the registration statute was not applied 

retroactively as to Doe; the hearing examiner considered Doe's 

youth in accordance with the regulatory factors in effect; and 

the factual errors complained of either were de minimis or were 

determinations adequately supported by evidence in the record, 

and were not erroneous. Doe's contention regarding staleness, 

however, is valid. A final classification by SORB must be based 

on current evidence of a sex offender's risk of reoffense and 

dangerousness to the community, see G. L. c. 6, §§ 178C-178Q, 

and a final classification made over three years prior to an 

offender's release from confinement is presumptively stale. See 

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

Bd., 472 Mass. (2015) (Doe No. 7083). Because Doe's 

classification determination was not based on current evidence 
4

of the relevant risk factors, he is entitled to new evidentiary 

hearing at which SORB will bear the burden of establishing his 

risk of reoffense and his level of danger to the community. See 

id. at .

Background and prior proceedings. In 1990, Doe admitted to 

sufficient facts to support a finding of delinquency on a charge 

that in 1989, when he was fourteen years old, he raped a six 

year old girl. He was placed on probation for that offense. 

While on probation, Doe sexually assaulted two nine year old 

girls, and in 1991, he was adjudicated delinquent on two counts 

of indecent assault and battery of a child under the age of 

fourteen. He was committed to DYS, where he was confined until 

he reached the age of twenty-five.

In April, 2000, in anticipation of Doe's discharge from 

confinement, the Commonwealth filed a petition in the Superior 

Court pursuant to G. L. c. 123A, § 12 (e), seeking to have Doe 

temporarily committed to the treatment center pending a probable 

cause hearing on its petition that Doe be civilly committed as 

an SDP. In September, 2002, a Superior Court judge determined 

that there was probable cause to believe that Doe was an SDP, 

and ordered that Doe undergo examination and diagnosis at the 

treatment center. See G. L. c. 123A, § 13. In January, 2003, a 

Superior Court jury found that Doe was an SDP, see G. L. 

c. 123A, § 14, and Doe was committed to the treatment center for 
5

an indeterminate period of one day to life.

In May, 2007, Doe filed a petition under G. L. c. 123A, 

§ 9, seeking discharge from the treatment center. After a trial 

in July, 2010, a jury found that Doe remained an SDP. Doe filed 

a second petition for discharge in August, 2010, and in 

September, 2013, after two qualified examiners1 submitted reports 

opining that Doe was no longer sexually dangerous, a Superior 

Court judge issued an order discharging Doe from the treatment 

center. See Johnstone, petitioner, 453 Mass. 544, 553 (2009) 

(if two qualified examiners opine that petitioner is not 

currently sexually dangerous, Commonwealth cannot meet its 

burden in proceeding under G. L. c. 123A, § 9, to establish that 

petitioner remains sexually dangerous).

While these proceedings were taking place, SORB separately 

considered whether Doe should be required to register as a sex 

offender pursuant to G. L. c. 6, §§ 178C-178Q, and, if so, at 

what level. In May, 2010, two months before the trial on Doe's 

first petition for discharge, SORB notified Doe of its 

recommendation that he be classified as a level three sex 

offender. See G. L. c. 6, § 178L. Doe sought administrative 

review of SORB's recommended classification and, in July, 2010, 

1 A qualified examiner is a licensed psychiatrist or 

psychologist who "has had two years of experience with diagnosis 

or treatment of sexually aggressive offenders and is designated 

by the commissioner of correction." G. L. c. 123A, § 1.

 
6

two weeks before trial on his petition for discharge, but more 

than three years prior to his eventual discharge, an evidentiary 

hearing was conducted by a SORB hearing examiner. See G. L. 

c. 6, § 178L (2). In January, 2011, the hearing examiner issued 

a decision finally classifying Doe and ordering that he register 

as a level three sex offender. Doe sought review of the final 

classification order in the Superior Court, pursuant to G. L.

c. 30A, § 14 (7), and G. L. c. 6, § 178M. A Superior Court 

judge affirmed, and Doe appealed. We granted Doe's application 

for direct appellate review.

Discussion. 1. Retroactive application. Unless relieved 

of the obligation to do so,2 every sex offender in the 

Commonwealth must register with SORB. See G. L. c. 6, § 178E

(a)-(c), (g)-(h), (l); Roe v. Attorney Gen., 434 Mass. 418, 424 

(2001). Doe falls within the statutory definition of "sex 

offender," which includes a person "who has been adjudicated as 

a youthful offender or as a delinquent juvenile by reason of a 

sex offense . . . on or after August 1, 1981." See G. L. c. 6, 

§ 178C. General Laws c. 6, § 178K (2) (d), prohibits SORB from 

exercising its power to relieve an offender from registration in 

specified circumstances, including "if a sex offender has been 

2 As discussed infra, in limited circumstances, certain sex 

offenders may be relieved of the obligation to register, either 

by the sentencing judge or by the Sex Offender Registry Board 

(SORB). See G. L. c. 6, §§ 178E (e), (f), 178K (2) (d).

 
7

determined to be a sexually violent predator," or "has been 

convicted of a sex offense involving a child or a sexually 

violent offense, and such offender has not already registered 

pursuant to this chapter for at least ten years."

Doe contends that the order to register as a level three 

sex offender, pursuant to G. L. c. 6, §§ 178C-178Q, was based 

solely on his juvenile adjudications in 1990 and 1991, which 

predated the enactment of the registration statute in 1996.3 As 

such, Doe maintains, the sex offender registration statute 

operates retroactively in effect, and is unconstitutional as 

applied to him.4

 In considering Doe's retroactivity claim, we 

apply the "new legal consequences" test. See Moe v. Sex 

Offender Registry Bd., 467 Mass. 598, 607 (2014). A "statute is 

3 The sex offender registration statute, G. L. c. 6, 

§§ 178C-178Q, inserted by St. 1996, c. 239, § 1, was rewritten 

in 1999, see St. 1999, c. 74, § 2, and amended several times 

thereafter. The version of the statute applicable here appears 

in St. 1999, c. 74, § 2, as amended through St. 2010, c. 267.

4 Doe also argues, relying in part on Doe, Sex Offender 

Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass. 

780, 786 (2008), that the requirement that he register as a 

level three offender for offenses committed while he was a 

juvenile, despite its stated regulatory purpose, is punitive as 

to him, and therefore in violation of constitutional 

prohibitions against ex post facto punishments and double 

jeopardy. This argument is unavailing. Even if the 

registration statute did have a retroactive effect as to Doe, 

that statute "is generally regulatory rather than punitive." 

See id. at 787-788, citing Commonwealth v. Bruno, 432 Mass. 489, 

499-502 (2000); Opinion of the Justices, 423 Mass. 1201, 1224-

1227 (1996). Accordingly, the prohibitions against ex post 

facto punishments and double jeopardy do not apply.

 
8

retroactive in effect where 'the new provision attaches new 

legal consequences to events completed before its enactment.'" 

Id., quoting Landgraf v. USI Film Prods., 511 U.S. 244, 269 

(1994). Under this test, we examine "the degree of connection 

between the operation of the new rule" (Doe's obligation to 

register) "and a relevant past event" (Doe's juvenile 

adjudications). See Landgraf v. USI Film Prods., supra at 268-

270.

We have concluded previously that new legal consequences 

had attached, and therefore that the registration statute 

applied retroactively in effect, in a case where SORB 

"determin[ed] that [a sex offender] had a mandatory obligation 

to register annually, solely by virtue of his prior conviction." 

See Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender 

Registry Bd., 450 Mass. 780, 784-785 (2008) (Doe No. 8725). In 

that case, the version of the statute then in effect, see 

St. 1999, c. 74, § 2, mandated that the offender register 

because he had been convicted of a sexually violent offense, and 

provided that, due to the nature of his conviction, the offender 

could "never be excused from registration." Id. at 785, citing 

G. L. c. 6, § 178K (2) (d). Because the sole basis for 

requiring that the offender register was his conviction of rape 

in 1979, we concluded that "the registration law attached new

legal consequences to events that occurred before its 
9

enactment," and "must be considered retroactive." Id. at 787. 

We noted, however, that the registration statute would operate 

prospectively if "a conviction for sexual offenses . . . 

subject[s] a person only to potential registration and 

classification, or even a presumption of registration, with the 

ultimate registration requirement tied to an assessment (by 

[SORB]) of the person's current level of dangerousness and risk 

of reoffense." Id.

Here, SORB asserts that Doe's obligation to register is not 

automatic, because he is eligible for relief from registration 

under G. L. c. 6, § 178K (2) (d).5 Doe's juvenile adjudications, 

therefore, only made him eligible for potential classification 

and registration. Moreover, the obligation to register requires 

evaluation of an offender's current risk of reoffense and danger 

to the community. See Doe No. 7083, 472 Mass. at . The 

5 SORB states in its brief that "the [h]earing [e]xaminer 

could have relieved [Doe] of his duty to register," under G. L. 

c. 6, § 178K (2) (d), and Doe does not suggest that such is not 

the case. We note that no provision in the registration statute 

explicitly states that an offender who has been "adjudicated" of 

the offenses listed in G. L. c. 6, § 178K (2) (d), is ineligible 

for relief from registration. See Commonwealth v. Connor C., 

432 Mass. 635, 646 (2000) (under our long-standing jurisprudence 

"an 'adjudication' that a child has violated a law generally is 

not a 'conviction' of a crime"). Doe's juvenile 

"adjudications," therefore, would not appear to qualify as 

"convictions" precluding relief under G. L. c. 6, § 178K (2) 

(d). Doe also has not been determined to be a sexually violent 

predator pursuant to G. L. c. 6, § 178K (2) (c), and 803 Code 

Mass. Regs. § 1.31 (2013).

 
10

basis for the requirement that Doe register was not only his 

1990 and 1991 juvenile adjudications; Doe's obligation to 

register was based also on an evaluation of his risk to reoffend 

and his danger to the community as of the date of the 

evidentiary hearing in 2010. See Doe No. 8725, supra at 793 

(offender entitled to hearing to determine whether he "is a 

current danger to vulnerable members of our communities"). Cf. 

Commonwealth v. Bruno, 432 Mass. 489, 491-492, 497-499 (2000) 

(concluding that SDP act, G. L. c. 123A, did not apply 

retroactively to offenders convicted of sex offenses predating 

1999 amendments to act, where convictions determined only 

eligibility for potential civil commitment and basis for 

commitment was "current mental condition"). Accordingly, no new 

legal consequences attached to Doe's juvenile adjudications, and 

the registration statute applied prospectively as to him.

2. Whether the classification determination was 

unsupported by substantial evidence. Review of a hearing 

examiner's decision, pursuant to G. L. c. 30A, § 14, is 

"confined to the record." G. L. c. 30A, § 14 (5). A reviewing 

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

any one of the reasons listed in G. L. c. 30A, § 14 (7), 

including that the decision was unsupported by substantial 

evidence. "Substantial evidence" is "such evidence as a 

reasonable mind might accept as adequate to support a 
11

conclusion." G. L. c. 30A, § 1 (6).

a. Effect of youth. Doe claims that his classification as 

a level three sex offender is unsupported by substantial 

evidence because the hearing examiner did not consider properly 

the recidivism rates of juvenile offenders.6 He asserts that 

SORB's regulations reflect outdated science. In particular, Doe 

points to 803 Code Mass. Regs. § 1.40(4) (2013), known as factor 

4, which, when applied to a juvenile sex offender who is an 

adult at the time of classification, treats a sex offense 

committed by a juvenile as an aggravating factor.7

 Doe contends 

6 Doe contends that, as to sex offenders who committed their 

offenses while they were juveniles, the registration requirement 

takes on a retributive nature where, according to Doe, 

scientific studies indicate that juvenile sex offenders have 

lower rates of recidivism. Doe argues that, in light of the 

lower recidivism rates of juvenile sex offenders, a level three 

classification undermines the rehabilitative purpose of the 

juvenile justice system. Doe claims also that there is no need 

to protect the public from what he asserts is his minimal risk 

of reoffense. To the extent that Doe is arguing that SORB 

failed to make an individualized assessment of his risk of 

reoffense based on the fact that he was a juvenile when he 

committed the offenses, we conclude that he did have an 

individualized assessment.

7 Factor 4, "Offender's Age at First Sex Offense," a factor 

indicative of an increased risk of reoffense and degree of 

dangerousness, applies to Doe because he was under twenty-one 

years old at the time he committed his offenses. See 803 Code 

Mass. Regs. § 1.40(4) (2013). A related risk factor, however, 

Factor 14, "Sex Offender was a Juvenile when He Committed the 

Offense, His Response to Treatment and Subsequent Criminal 

History," is not applicable as indicative of a decreased risk of 

reoffense and degree of dangerousness, because Doe was more than 

seventeen years old at the time of the classification hearing. 

See 803 Code Mass. Regs. § 1.40(14) (2013).

 
12

that viewing a juvenile offense solely as an aggravating factor 

conflicts with more recent research regarding juvenile 

recidivism rates that indicates that juvenile sex offenders pose 

a decreased risk of reoffending.

In specific circumstances, we have concluded that a hearing 

examiner erred in not considering proffered recent scientific 

evidence. Where a sixty-one year old offender "presented 

evidence of numerous scientific and statistical studies, 

published during the last decade, that conclude that age is an 

important factor in determining the risk of recidivism and that 

such risk diminishes significantly as an offender ages," Doe, 

Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry 

Bd., 456 Mass. 612, 621 (2010), we determined that the hearing 

examiner erred by not considering the proffered scientific 

evidence. Id. at 622-623. Similarly, in Doe, Sex Offender 

Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 

594, 595 (2013), we held that "it was arbitrary and capricious 

for the hearing examiner to classify Doe's risk of reoffense and 

degree of dangerousness without considering the substantial 

evidence presented at the hearing [in the form of scientific 

studies] concerning the effect of gender on recidivism." Here, 

however, because Doe did not raise any claim regarding recent 

research on juvenile recidivism rates before the hearing 

 
13

examiner, and proffered no scientific studies or expert 

testimony at the classification hearing, the administrative 

record provides no basis on which we can conclude that the 

hearing examiner's decision was unsupported by substantial 

evidence.8

Doe's argument that SORB's regulations do not reflect 

current scientific knowledge concerning the recidivism rates of 

juvenile offenders may be construed also as a challenge to the 

general validity of SORB's regulations.9

 On this record, Doe 

8 Doe will have the opportunity to present new evidence, 

including scientific studies, at a new evidentiary hearing.

9 We have emphasized repeatedly that, "[w]here, as here, 

scientific knowledge in a field is rapidly evolving, . . . the 

applicable standards may require more frequent modification in 

order to reflect accurately the current state of 

knowledge" (citation omitted). Doe, Sex Offender Registry Bd. 

No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 623 n.6 

(2010). See Doe, Sex Offender Registry Bd. No. 68549 v. Sex 

Offender Registry Bd., 470 Mass. 102, 115-116 (2014); Doe, Sex 

Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 

466 Mass. 594, 608 (2013).

The studies on which SORB relied when promulgating factors 

4 and 14, the two factors most directly addressing juvenile 

offenders, are dated 1987, 1989, 1990, 1992, 1995, and 2001. 

See 803 Code Mass. Regs. §§ 1.40(4), (14) (2013). SORB's 

regulations, therefore, do not exhibit consideration of an 

emerging consensus regarding the "mitigating qualities of 

youth," which is reflected in decisions of both the United 

States Supreme Court and this court. See, e.g., Diatchenko v. 

District Attorney for the Suffolk Dist., 466 Mass. 655, 661 

(2013), S.C., 471 Mass. 12 (2015), quoting Miller v. Alabama, 

132 S. Ct. 2455, 2467 (2012). See generally J.D.B. v. North 

Carolina, 131 S. Ct. 2394 (2011); Graham v. Florida, 560 U.S. 48 

(2010); Roper v. Simmons, 543 U.S. 551 (2005). For a sex 

offender such as Doe, SORB's regulations direct a hearing 

 
14

fares no better under such an analysis. "A challenge to the 

validity 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.'" Doe, Sex Offender 

Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 

102, 114 (2014) (Doe No. 68549), quoting Doe, Sex Offender 

Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 

603, 630 (2011).

b. Hearing examiner's findings. Doe argues that two of 

the hearing examiner's findings are unsupported by substantial 

evidence and therefore erroneous.

Doe points first to the hearing examiner's statement that 

Doe "admitted to sufficient facts to warrant a finding of 

delinquency . . . to two counts of forcible rape of a child." 

As Doe indicates, his admission to sufficient facts was only to 

one count of forcible rape of a child, and the statement thus is 

inaccurate. But the hearing examiner made only a single, 

examiner to treat as an aggravating factor the fact that he 

committed his offenses as a juvenile, and do not prompt the 

hearing examiner to evaluate whether the "distinctive attributes 

of youth" such as "immaturity, impetuosity, and failure to 

appreciate risks and consequences" that contributed to his 

decision to offend might no longer be present because he has 

matured. See Diatchenko v. District Attorney for the Suffolk 

Dist., supra at 675 (Lenk, J., concurring), quoting Miller v. 

Alabama, supra at 2465.

 
15

passing reference to a second count, and, when assessing Doe's 

level of risk, properly considered that Doe had admitted to 

sufficient facts as to only one count of forcible rape. The 

hearing examiner accurately detailed the facts of Doe's prior 

offenses and appropriately applied the regulatory risk factors 

to the facts; the erroneous reference to a second count of rape 

did not affect the hearing examiner's analysis.

Doe claims also that the hearing examiner based his finding 

that Doe had a history of substance or alcohol abuse on 

unreliable evidence. SORB's regulations direct a hearing 

examiner to evaluate whether an offender "has a history of 

substance or alcohol abuse," 803 Code Mass. Regs. § 1.40(16) 

(2013). The hearing examiner considered evidence that from 1988 

until 1990, as an adolescent, Doe drank six to twelve beers per 

week; that from 1997 until 1999, he received substance abuse 

treatment; and that, near the time of the offenses, he had used 

alcohol and marijuana. Our review of a hearing examiner's 

decision "does not turn on whether, faced with the same set of 

facts, we would have drawn the same conclusion, . . . but only 

'whether a contrary conclusion is not merely a possible but a 

necessary inference.'" Doe No. 68549, 470 Mass. at 110, quoting 

Goldberg v. Board of Health of Granby, 444 Mass. 627, 638 

(2005). On this record, we cannot say that the hearing 

examiner's determination that Doe had a history of alcohol or 
16

substance abuse was unsupported by substantial evidence.

c. Premature classification. Doe argues that his 

classification was based on the hearing examiner's evaluation of 

circumstances or conditions at the July, 2010, hearing that were 

subject to change, and that, by the time of his release from the 

treatment center in September, 2013, the classification had 

become stale and materially inaccurate. We agree.

As noted, the registration statute requires that SORB base 

its classification decision on an offender's risk to reoffend 

and danger to the public based on information that is current 

when an incarcerated or civilly committed offender reenters the 

community. See Doe No. 7083, 472 Mass. at . The 

circumstances supporting Doe's level three classification that 

were before the hearing examiner in July, 2010, however, had 

changed substantially by the time Doe was discharged in 

September, 2013. For instance, in July, 2010, the hearing 

examiner considered evidence that Doe had been responding well 

to treatment, but determined that "it is too soon to tell 

whether or not [Doe] has genuinely internalized treatment 

concepts such [as] to sufficiently avoid reoffense." By 2013, 

after three additional years of treatment, two qualified 

examiners opined that Doe was no longer sexually dangerous, and 

he was released into the community. See Doe No. 7083, supra at 

("final classification must be based on an evaluation of the 
17

offender's risk of reoffense at a time reasonably close to the 

actual date of discharge"); Doe, Sex Offender Registry Bd. No. 

6904 v. Sex Offender Registry Bd., 82 Mass. App. Ct. 67, 78 

(2012) (classification stale when based on evidence 

approximately four years old at time of offender's release from 

incarceration). As discussed in Doe No. 7083, supra at , 

Doe's ability to seek reclassification every three years, see 

803 Code Mass. Regs. § 1.37C(1), (2) (2013), does not afford an 

adequate remedy for a final classification that was stale at the 

time he was released and was required to register as a level 

three offender.

Conclusion. Because Doe's final classification was based 

on an evaluation of his risk several years before his release 

into the community, Doe is entitled to a new evidentiary hearing 

at which SORB will bear the burden of establishing Doe's current 

risk of reoffense and degree of dangerousness, consistent with 

the procedures set forth in 803 Code Mass. Regs. §§ 1.07-1.26 

(2013). See Doe No. 7083, 472 Mass. at . That hearing, at 

which SORB may introduce all the evidence introduced at Doe's 

first hearing, must be conducted within a reasonable time. The 

matter is remanded to the Superior Court for entry of an order 

of remand to SORB for further proceedings consistent with this 

opinion.

So ordered.