NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; [email protected]

SJC-12594

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 496501 vs. SEX OFFENDER REGISTRY BOARD & others.1

Essex. February 5, 2019. - July 17, 2019.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

Sex Offender. Sex Offender Registration and Community Notification Act. Evidence, Sex offender. Practice, Civil, Sex offender, Standard of proof.

Civil action commenced in the Superior Court Department on July 15, 2016.

The case was heard by Jeffrey T. Karp, J., on a motion for partial judgment on the pleadings, and entry of final judgment was ordered by Timothy Q. Feeley, J.

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

Kate A. Frame for the plaintiff. John P. Bossé for the defendant. Rebecca Rose, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

1 The general counsel of the Sex Offender Registry Board (SORB) and the chair of SORB. 2

GANTS, C.J. The plaintiff (Doe) appeals from a Superior

Court judgment affirming a Sex Offender Registry Board (SORB or

board) decision to classify him as a level two sex offender

after he was convicted in 2015 of two counts of open and gross

lewdness for displaying his genitals to a neighbor through the

window of his home. Doe presents three challenges to the level

two classification. First, he contends that SORB does not have

jurisdiction to classify him as a "sex offender," as defined in

G. L. c. 6, § 178C, because he has not previously been convicted

of open and gross lewdness and only a "second and subsequent

. . . conviction for open and gross lewdness" permits

classification as a sex offender. Second, he contends that a

hearing examiner cannot classify an individual as a level two

sex offender based on a determination that the offender poses a

moderate risk of reoffending, without also making an express

determination that the degree of dangerousness posed by this

individual is such that a public safety interest is served by

having his or her registration information made publicly

available on the Internet. See G. L. c. 6, §§ 178D, 178K (2)

(b). Third, he contends that there was not substantial evidence

to support his level two classification.

We conclude, first, that SORB has jurisdiction to classify

Doe as a sex offender because a previous charge of open and 3

gross lewdness against Doe was resolved through a conviction and

not a continuance without a finding.

Second, we conclude that in order to classify an individual

as a level two sex offender, the hearing examiner is required to

make three explicit determinations by clear and convincing

evidence: (1) that the risk of reoffense is moderate; (2) that

the offender's dangerousness, as measured by the severity and

extent of harm the offender would present to the public in the

event of reoffense, is moderate; and (3) that a public safety

interest is served by Internet publication of the offender's

registry information. This holding is consistent with the

relevant statutes and regulations, and avoids due process

concerns that could arise if an individual's information were

published online in the absence of these determinations.

Third, having examined the evidence and the hearing

examiner's findings in light of this three-prong test, we

conclude that there was not substantial evidence to support her

decision to classify Doe as a level two sex offender by clear

and convincing evidence. Doe's dangerousness could not

reasonably be characterized as moderate, and it was not

reasonable to conclude, based on the hearing examiner's

findings, that Internet publication of Doe's registry

information would serve a public safety interest. We therefore

vacate and set aside the decision of the Superior Court judge 4

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

offender, and remand this matter to the Superior Court for

further proceedings consistent with this opinion.2

Background. 1. Sex offender classification process. The

sex offender registry law, as amended in 1999, established a sex

offender registration system for those in the Commonwealth

convicted of a "sex offense," as defined in G. L. c. 6, § 178C.

See G. L. c. 6, §§ 178C-178Q; St. 1999, c. 74. The purpose of

the law was "to protect . . . the vulnerable members of our

communities from sexual offenders," and particularly from

"sexually violent offenders who commit predatory acts

characterized by repetitive and compulsive behavior." St. 1999,

c. 74, emergency preamble & § 1.

Pursuant to the sex offender registry law, the board

prepares a recommended classification for every sex offender.

See G. L. c. 6, § 178L (1). Where a sex offender challenges

SORB's recommended classification, he or she is entitled to

request an evidentiary hearing. See G. L. c. 6, § 178L (1) (a).

After this hearing, a SORB-designated hearing examiner "shall

consider the relevant and credible evidence and reasonable

inferences derived therefrom to determine: (a) the offender's

risk of reoffense; (b) the offender's dangerousness as a

2 We acknowledge the amicus brief submitted by the Committee for Public Counsel Services. 5

function of the severity and extent of harm the offender would

present to the public in the event of reoffense; and (c) in

consideration of the foregoing, whether and to what degree

public access to the offender's personal and sex offender

information, pursuant to G. L. c. 6, § 178K, is in the interest

of public safety." 803 Code Mass. Regs. § 1.20(2) (2016).

Based on these determinations, the hearing examiner must issue a

final decision classifying the sex offender into one of three

"levels of notification." Moe v. Sex Offender Registry Bd.,

(2014), quoting G. L. c. 6, § 178K (2). All sex

offender risk classifications must be established by clear and

convincing evidence. Doe, Sex Offender Registry Bd. No. 380316

v. Sex Offender Registry Bd.,

, 314 & n.27 (2015)

(Doe No. 380316).

"Where the board determines that the risk of reoffense is

low and the degree of dangerousness posed to the public is not

such that a public safety interest is served by public

availability, it shall give a level [one] designation to the sex

offender." G. L. c. 6, § 178K (2) (a). Level one offenders'

registry information is not disseminated to the general public

or published on the Internet. See G. L. c. 6, §§ 178D, 178K (2)

(a). "Where the board determines that the risk of reoffense is

moderate and the degree of dangerousness posed to the public is

such that a public safety interest is served by public 6

availability of registration information, it shall give a level

[two] designation to the sex offender." G. L. c. 6, § 178K (2)

(b). Level two offenders' registry information is "available

for inspection by the general public in the form of a

comprehensive database published on the [I]nternet." G. L.

c. 6, § 178D. And "[w]here the board determines that the risk

of reoffense is high and the degree of dangerousness posed to

the public is such that a substantial public safety interest is

served by active dissemination, it shall give a level [three]

designation to the sex offender." G. L. c. 6, § 178K (2) (c).

Level three offenders' registry information is available for

public inspection on the Internet and also subject to "active[]

dissemination" by the police or the board. See G. L. c. 6,

§§ 178D, 178K (2) (c). See also 803 Code Mass. Regs. § 1.28(1)

(2016).

Any individual who disagrees with the board's final

classification is entitled to file a complaint for judicial

review in the Superior Court. See G. L. c. 6, § 178M; G. L.

c. 30A, § 14.

2. Doe's offenses. Prior to his 2015 guilty plea, Doe had

been charged with open and gross lewdness on three occasions:

once in 1990, once in 1991, and once in 1996. At the hearing,

the police report regarding the 1990 charge was not in the

record; the criminal complaint alleged only that Doe committed 7

the crime of open and gross lewdness in the presence of two

women. But Doe testified before the hearing examiner that the

charge arose out of an incident during which he exposed his

genitals to two strangers who were walking by while he sat

inside his motor vehicle. As described infra, the parties

disagree as to whether Doe was found guilty of this charge or

whether the charge was continued without a finding. The 1991

charge was dismissed for lack of prosecution and was not

considered by the hearing examiner. The 1996 charge arose out

of a report by the victim that Doe, who was on the opposite side

of a train platform from her, had his pants and underwear pulled

down and was playing with his genitals as he walked across the

tracks toward her. Doe testified before the hearing examiner

that he was taking the train home after drinking with friends,

and was seen by a woman after having pulled his pants and

underwear down on the platform. This case was continued without

a finding in 1997 and subsequently dismissed.

During his classification hearing, Doe admitted that he had

exposed himself on six or seven other occasions between 1991 and

1996, none of which resulted in an arrest or a court proceeding.

There is no evidence that Doe continued to expose himself in the

time between his 1996 offense and his 2011 offense.

In June 2014, Doe's nineteen year old female neighbor

reported to the police that, while she was inside her home, Doe 8

had exposed himself to her from inside his home on multiple

occasions, three of which she described in further detail. The

first reported incident took place in 2011, when Doe's neighbor

was approximately fifteen years old. At this time, she observed

Doe standing nude beside a window. She reported that she was

able to see Doe's genitals because the window shade "was only

[three-quarters] of the way down." Doe denied any recollection

of this incident. He was initially charged with open and gross

lewdness, but pleaded guilty to the lesser included offense of

indecent exposure, in violation of G. L. c. 272, § 53. Indecent

exposure is not a sex offense under the sex offender registry

law. See G. L. c. 6, § 178C (listing all offenses that qualify

as "[s]ex offense" under sex offender registry law).

The second incident occurred in May 2014. Again, the

neighbor observed Doe standing nude beside a partially-covered

window and exposing his penis. The third incident took place

the following month, when the neighbor saw Doe standing nude in

his kitchen and touching his penis in a manner consistent with

masturbation. Doe's neighbor stated that each of these events

occurred at night, and that she could see the defendant because

his lights were on.

In response to his neighbor's allegations, Doe voluntarily

spoke with a Haverhill police detective on June 18, 2014.

According to the incident report relied upon by the hearing 9

examiner, the officer informed Doe that his neighbor had seen

him naked inside his home; Doe responded that this was "probably

true." When the officer advised Doe that his neighbor believed

the exposure to be purposeful, Doe responded that he "would

agree with that." He likewise agreed that his neighbor had seen

him masturbating in his kitchen. Doe stated that the victim --

whom he had seen changing her clothing and engaging in sexual

acts on her living room couch -- was a "trigger" for him, and

that he was having increasing difficulty controlling his urges.

He agreed with the officer that the victim's exposure was likely

accidental, but his exposure had been intentional. Doe further

stated that he "had a problem" for which he had sought treatment

in the past, that he had "been good for a long time," and that

he now only exposed himself when he was indoors. He said that

he was "just an exhibitionist," and that he had never touched or

hurt anybody. He further stated that he was building a house on

several acres of land in New Hampshire to get away from any

potential "triggers."

In March 2015, Doe pleaded guilty to two counts of open and

gross lewdness arising out of the two incidents that took place

in May and June 2014. He was sentenced to two years of

supervised probation with conditions that he abstain from using

drugs and alcohol and that he participate in a sex offender 10

therapy program, which, according to his therapist, he

successfully completed.

3. Doe's classification and appeals. In June 2015, SORB

recommended that Doe be classified as a level two sex offender.

Doe challenged the recommended classification, and an

evidentiary hearing took place on May 3, 2016. On July 15, the

hearing examiner concluded that Doe "presents a moderate risk to

reoffend and that a public safety interest is served by public

access to his sex offender registry information." She therefore

ordered that Doe register as a level two sex offender. In

reaching her conclusion, the hearing examiner "acknowledge[d]

that [Doe's] offenses are not gravely dangerous," but found them

to be "quite upsetting to his multiple [v]ictims." She further

found that in this case, "community availability of [Doe's] sex

offender information might have prevented the circumstances

which contributed to his reoffenses," as his neighbors "might

have been more modest in the rooms facing his home" had they

"known of his sex offender history." The hearing examiner

therefore found that Doe's "other neighbors, present and future,

deserve this awareness, and that posting his sex offender

information on the [I]nternet is necessary for public safety."

On the same day that the hearing examiner released her

decision, Doe commenced this action seeking judicial review in

the Superior Court. He also filed a motion for a preliminary 11

injunction to stay the publication of his registry information

on the Internet, which a Superior Court judge allowed. In July

2017, Doe filed a motion for partial judgment on the pleadings,

which SORB opposed. A different Superior Court judge denied

Doe's motion and affirmed SORB's final decision classifying Doe

as a level two sex offender. The judge who granted the

preliminary injunction then ruled that, because Doe's level two

classification had been affirmed, the preliminary injunction

that stayed online publication would expire ten days after

judgment entered.

Doe filed a notice of appeal from the Superior Court

judge's decision denying his motion for judgment on the

pleadings, as well as a motion to extend the preliminary

injunction pending appeal. A single justice of the Appeals

Court stayed Internet publication of his information pending

resolution of this case. We granted Doe's application for

direct appellate review.

Discussion. 1. Standard of review. A reviewing court may

set aside or modify SORB's classification decision where it

determines that the decision is in excess of SORB's statutory

authority or jurisdiction, violates constitutional provisions,

is based on an error of law, or is not supported by substantial

evidence. See G. L. c. 30A, § 14 (7) (listing these and other

reasons for vacating decision of agency). In reviewing SORB's 12

decisions, we "give due weight to the experience, technical

competence, and specialized knowledge of the agency." Doe, Sex

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

(2013), quoting G. L. c. 30A, § 14 (7).

2. SORB jurisdiction over Doe. A single conviction of

open and gross lewdness, in violation of G. L. c. 272, § 16, is

not a "sex offense" that permits classification of an individual

as a sex offender; only a "second and subsequent adjudication or

conviction" of that offense permits such classification. G. L.

c. 6, § 178C. Doe argues, and SORB concedes, that Doe's two

2015 convictions of open and gross lewdness would not themselves

trigger an obligation to register because those convictions

occurred in the same judicial proceeding. See Commonwealth v.

Wimer,

(2018) (where "defendant committed two

separate incidents on two different occasions" but "resulting

two convictions occurred in the same judicial proceeding,"

second conviction does not qualify as "subsequent conviction"

under G. L. c. 6, § 178C). Therefore, SORB has jurisdiction to

classify Doe as a sex offender only if his 1990 open and gross

lewdness charge, which was resolved in 1991, resulted in a

conviction rather than a continuance without a finding.

We conclude that the hearing examiner and the Superior

Court judge correctly determined that Doe qualifies as a sex

offender because he was found guilty of open and gross lewdness 13

in 1991. The docket sheet for this case shows that on October

16, 1991, Doe admitted to sufficient facts and, based on the

letter "G" in the "Finding" column, that a finding of guilt was

entered. The box for a continuance without a finding was not

checked. The docket further shows that Doe was sentenced to two

years of probation on this charge. If his case had been

continued without a finding, one would expect a check mark in

the box indicating that the case against Doe was dismissed at

the request of probation at the conclusion of those two years,

but there is no such check. Doe testified at his hearing that

he was advised that this case had concluded in a continuance

without a finding, and that he need not report a conviction when

he applied for employment. If this advice was given, the docket

contradicts its accuracy. Therefore, we conclude that Doe's

2015 convictions were "second and subsequent" to his 1991

conviction, and that SORB had jurisdiction to classify Doe as a

sex offender.

3. Required determinations for level two classification.

General Laws c. 6, § 178K (2) (b), provides that, to classify an

individual as a level two sex offender, the board must determine

(1) "that the risk of reoffense is moderate" and (2) that "the

degree of dangerousness posed to the public is such that a

public safety interest is served by public availability of

registration information." SORB's regulations recognize that 14

fulfilling this statutory mandate requires the hearing examiner,

based on "the relevant and credible evidence and reasonable

inferences derived therefrom[,] to determine: (a) the

offender's risk of reoffense; (b) the offender's dangerousness

as a function of the severity and extent of harm the offender

would present to the public in the event of reoffense; and (c)

in consideration of the foregoing, whether and to what degree

public access to the offender's personal and sex offender

information . . . is in the interest of public safety." 803

Code Mass. Regs. § 1.20(2). The SORB regulations therefore

require a hearing examiner to make three distinct and explicit

determinations in classifying a sex offender. We now consider

each of the three determinations necessary to support a level

two classification.

a. Risk of reoffense. Section 178K (2) (b) explicitly

provides that a level two offender's risk of reoffense must be

"moderate." Although not explicitly stated either in the

statute or regulations, we understand that this determination of

risk focuses solely on the risk of sexual recidivism, that is,

the risk that the offender will commit a new sexual offense, not

the risk that he or she will commit any criminal offense. See

Doe, Sex Offender Registry Bd. No. 326573 v. Sex Offender

Registry Bd.,

(2017) (SORB reclassification

decisions made based on information relevant to risk of "sexual 15

recidivism"); 803 Code Mass. Regs. § 1.33 (2016) (discussing

"strongest predictors of sexual recidivism").

b. Degree of dangerousness. An offender's dangerousness,

as described in 803 Code Mass. Regs. § 1.20(2), is measured by

"the severity and extent of harm" that would result if the

offender were to commit a new sex offense. Determining an

individual's degree of dangerousness therefore requires a

hearing examiner to consider what type of sexual crime the

offender would likely commit if he or she were to reoffend.

Pragmatically, because past is prologue, a hearing examiner

would make this determination based on the sexual crime or

crimes that the offender committed in the past. Where there is

a history of different sexual offenses, the primary focus would

likely be on the crime or crimes recently committed by the

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

Offender Registry Bd.,

(2015) (Doe No. 7083)

("SORB's regulations provide that a sex offender's current . . .

dangerousness to the community must be considered" [emphasis

added]). A hearing examiner, however, may consider an

offender's older sexual offenses where they are relevant to a

holistic assessment of the offender's current degree of

dangerousness, or where the offender has not had recent

opportunity to commit sexual offenses because he or she has been

in custody. 16

Neither the statute nor the regulations specify the degree

of dangerousness required for a level two classification. We

conclude, based on the statutory and regulatory context, the

adverse consequences of Internet publication for an offender,

and our presumption that the Legislature intends its statutes to

pass constitutional muster, that a moderate degree of

dangerousness is required for the hearing examiner to classify

an individual as a level two sex offender.

From the statute, we know that the board can impose a level

two sex offender classification only where it finds that the

offender poses a "degree of dangerousness" "such that a public

safety interest is served by public availability of registration

information." G. L. c. 6, § 178K (2) (b). For a level two

offender, public availability of registration information means

that the offender's information will be published on SORB's

website, where it is viewable by any adult member of the public

at any time. See G. L. c. 6, § 178D; Moe,

. If

an offender's degree of dangerousness is low, it is difficult to

see how the public interest would be served by Internet

publication, especially considering the "dramatic consequences"

that classification as a level two offender has "for [the

offender's] liberty and privacy interests." See Doe No. 380316,

. 17

As this court has previously recognized, Internet

publication of an individual's sex offender registry information

"poses a risk of serious adverse consequences to that offender,

including the risk that the sex offender will suffer

discrimination in employment and housing, and will otherwise

suffer from the stigma of being identified as a sex offender,

which sometimes means the additional risk of being harassed or

assaulted." Moe,

. See Doe No. 380316,

("Internet dissemination exposes offenders,

through aggressive public notification of their crimes, to

profound humiliation and community-wide ostracism" [quotation,

citation, and alteration omitted]); Poe v. Sex Offender Registry

Bd.,

(2010), quoting Doe v. Attorney Gen.,

(1997) ("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'"). Registry

information posted on the Internet may be obtained anonymously

from the comforts of one's own home, and republished on public

websites not subject to SORB's control or to the warnings and

certifications required by law to be provided on SORB's website.

Moe,

. See G. L. c. 6, § 178D. And even if a

sex offender's information is later removed from SORB's website

because the individual is released from the obligation to 18

register or reduced to a level one classification, his or her

information would likely continue to exist on private websites,

easily discoverable through a generic online search.

. See Note, The Right to Be Forgotten,

, 259 (2012) ("information posted on the Internet is

never truly forgotten").

Due process concerns could be implicated if we were to

interpret the statute to allow Internet publication of registry

information for individuals whose degree of dangerousness is

anything less than moderate. Cf. Doe No. 380316,

, citing Mathews v. Eldridge,

(1976). "An

individual's ongoing duty to register as a sex offender

implicates significant liberty and privacy interests for as long

as the individual is required to register as a sex offender."

Doe, Sex Offender Registry Bd. No. 76819 v. Sex Offender

Registry Bd.,

(2018). And where registration

also means Internet publication, the liberty and privacy

interests take a quantum leap. "Deprivation of greater

individual liberty interests requires greater procedures and

stronger countervailing State interests." Doe,

. By interpreting G. L. c. 6, § 178K (2) (b), to require a

determination of moderate dangerousness, we avoid such concerns

and conform to our presumption that the Legislature intended its

statutes to pass constitutional muster. See Doe, Sex Offender 19

Registry Bd. No. 89230 v. Sex Offender Registry Bd.,

(2008) ("statute must be construed, if fairly possible,

so as to avoid not only the conclusion that it is

unconstitutional but also grave doubts upon that score"

[citation omitted]).

Our conclusion that a moderate degree of dangerousness is

required for classification as a level two sex offender does not

appear to be in tension with SORB's current practices -- hearing

examiners who conclude that an individual is a level two sex

offender often already find that the individual poses a moderate

degree of dangerousness to the public, as well as a moderate

risk to reoffend. See, e.g.,

(hearing examiner found

offender posed moderate danger to public and moderate risk to

re-offend); Doe, Sex Offender Registry Bd. No. 376575 v. Sex

Offender Registry Bd.,

(2016) (same);

Doe, Sex Offender Registry Bd. No. 95318 v. Sex Offender

Registry Bd.,

(2011) (same). See

also Commonwealth v. Feliz,

(2019) ("sex

offenders designated level two . . . are deemed to pose a

moderate . . . risk of reoffending and a concomitant degree of

risk to the public"). Indeed, SORB declares in its appellate

brief that the hearing examiner here found that Doe "presents

. . . a moderate degree of dangerousness to the public," which 20

suggests that the board recognizes the need for such a

determination to support a level two classification.

c. Efficacy of Internet publication. A hearing examiner's

job is not complete upon determining an individual's risk to

reoffend and degree of dangerousness. A third and distinct

determination is required by SORB regulations: "whether and to

what degree public access to the offender's personal and sex

offender information . . . is in the interest of public safety."

803 Code Mass. Regs. § 1.20(2). An offender may not be given a

level two classification unless "the degree of dangerousness

posed to the public" by the offender "is such that a public

safety interest is served by public availability of registration

information," that is, by the availability of registration

information on SORB's website. See G. L. c. 6, §§ 178D,

178K (2) (b). Whether a public safety interest will be "served"

by Internet publication depends not only on the probability of

reoffense and the danger posed by that potential reoffense, but

also on the efficacy of online publication in protecting the

public from being victimized by the offender. "The major

premise underlying the sex offender act," after all, "is that

disclosure of the presence of a sex offender in a particular

community will help protect minors and other persons vulnerable

to becoming victims of sex crimes." Doe v. Attorney Gen.,

. 21

Our conclusion that the efficacy of online publication must

be separately evaluated in light of a particular offender's risk

of reoffense and degree of dangerousness is supported not only

by the governing statute and regulations, but also by the

court's reasoning in Moe,

. In Moe, we held

that it would be unconstitutional to apply amendments requiring

level two offenders' information to be published on the Internet

to offenders who received a level two classification before the

effective date of those amendments. We reached this conclusion

because at the time that those offenders were classified, level

two offenders' information was explicitly protected from online

publication. See

; G. L. c. 6, § 178D, as amended

through St. 2003, c. 140, § 5. We explained that "[i]ncreasing

the scope of public access to include Internet publication of

the registry information of level two offenders may affect"

SORB's determination as to what degree of public access to

registry information is appropriate, "even if it does not affect

SORB's evaluation of an offender's degree of dangerousness,

because SORB may decide that public access with Internet

publication is not warranted by the public safety risk posed by

the specific offender's degree of dangerousness." Moe,

. In other words, before the amendments became

effective, a hearing examiner who made a level two

classification would have known that public availability would 22

not include Internet publication when he or she determined,

pursuant to G. L. c. 6, § 178K (2) (b), "that a public safety

interest is served by public availability of registration

information." We recognized in

, that a

hearing examiner might have reached a different conclusion on

the same facts if he or she knew that public availability would

include Internet publication.

The SORB regulations make clear that the determination of

the degree to which public access to an offender's personal and

sex offender information is in the interest of public safety

must be made "in consideration" of the offender's risk of

reoffense and dangerousness. 803 Code Mass. Regs. § 1.20(2).

Where a sexually violent offender presents a moderate risk to

reoffend and a moderate degree of dangerousness, Internet

publication will almost invariably serve a public safety

interest by notifying potential victims of the risks presented

by the offender in their geographic area. But where a sexually

nonviolent offender poses a moderate risk of committing

moderately dangerous sexual offenses, there may be cases where

Internet publication -- with its attendant consequences -- might

not be justified because, in light of the particular public

safety risk posed by the offender, it would not serve a public

safety interest. Cf. Doe v. Attorney Gen.,

("principle of fundamental fairness" requires fact finder to 23

consider whether "disclosure is not needed when balanced against

the public need to which the sex offender act responded"). The

efficacy of Internet publication in protecting potential victims

must be determined based on the facts of each individual case.

We therefore require hearing examiners to ask whether, in

light of the particular risks posed by the particular offender,

Internet access to that offender's information might

realistically serve to protect the public against the risk of

the offender's sexual reoffense. If the answer to this question

is "no," classification as a level two offender is unjustified

even where the offender poses a moderate risk to reoffend and a

moderate degree of dangerousness.

d. Need for explicit determinations supported by clear and

convincing evidence. In Doe No. 380316,

, we

held that "SORB is constitutionally required to prove the

appropriateness of an offender's risk classification by clear

and convincing evidence." In a criminal case, where guilt must

be established by proof beyond a reasonable doubt, we require

that each element of the offense be established by proof beyond

a reasonable doubt. See Commonwealth v. Ferreira,

(2019). In a sex offender classification case,

where the classification must be established by clear and

convincing evidence, and where SORB's ultimate determination is

comprised of three elements that, pursuant to 803 Code Mass. 24

Regs. § 1.20(2), require separate findings, we similarly require

that each element be established by clear and convincing

evidence. That is, to find that an offender warrants a level

two classification, the board must find by clear and convincing

evidence that (1) the offender's risk of reoffense is moderate;

(2) the offender's dangerousness is moderate; and (3) a public

safety interest is served by Internet publication of the

offender's registry information.

In determining whether these elements have been established

by clear and convincing evidence, a hearing examiner may

consider subsidiary facts that have been proved by a

preponderance of the evidence. See Doe, Sex Offender Registry

Bd. No. 523391 v. Sex Offender Registry Bd.,

(2019). This, too, is consistent with the evidentiary

rule in criminal cases that, although every element needs to be

proved beyond a reasonable doubt, "preliminary questions of fact

and subsidiary facts need only be proved by a preponderance of

the evidence."

, quoting Commonwealth v. Edwards,

(2005).

Even though the SORB regulation requires a hearing examiner

to make three determinations before classifying a sex offender,

see 803 Code Mass. Regs. § 1.20(2), SORB contends that the third

of these determinations ("whether and to what degree public

access to the offender's personal and sex offender information 25

. . . is in the interest of public safety") need not be made

explicitly because it is implicit in the board's ultimate

classification. We agree that, where a hearing examiner

classifies an individual as a level two sex offender, it should

be implicit in that decision that the hearing examiner has found

by clear and convincing evidence that a public safety interest

is served by Internet publication of the offender's registry

information. See G. L. c. 6, § 178K (2) (b); Moe,

. But, where such a finding is merely implicit, a reviewing

court cannot be sure that the appropriate determination in fact

was made, and was supported by clear and convincing evidence.

See Doe No. 380316,

(SORB required to "make

particularized, detailed findings concerning [offender's]

classification"). Separate determinations supported by separate

findings improve the rigor and accuracy of final classifications

and provide for more effective judicial review. Where the SORB

regulation itself calls for three separate determinations and

where classification decisions affect substantial privacy and

liberty interests, we conclude that it is appropriate to require

the hearing examiner to make explicit his or her findings

regarding each of these three elements, and to make clear that

each determination is supported by clear and convincing

evidence. See Doe No.

(particularized, detailed 26

findings important features of "the process that offenders are

due").

This requirement of explicit findings regarding all three

elements applies not only to level two classifications, but also

to level three classifications.3 See 803 Code Mass. Regs.

§ 1.20(2). And the obligation to rest these determinations on

clear and convincing evidence likewise applies to all

classifications. See Doe No. 380316,

n.27

("clear and convincing standard should be applied to all sex

offender risk classification levels, including level one"). The

findings necessary to support the classification, of course,

will differ depending on the level of classification. See G. L.

c. 6, 178K (2) (a)-(c).

We apply this requirement prospectively only; it does not

apply to classifications that have been finally adjudicated.

Where a prior classification decision fails to meet this

3 Although determinations regarding three separate elements are required for all classifications, including level one, see 803 Code Mass. Regs. § 1.20(2) (2016), the determination regarding the third element is a foregone conclusion once a hearing examiner determines that the risk of reoffense or the degree of dangerousness is low. See G. L. c. 6, § 178K (2) (a) ("Where the board determines that the risk of reoffense is low and the degree of dangerousness posed to the public is not such that a public safety interest is served by public availability, it shall give a level [one] designation to the sex offender"). This is because, to be classified as a level two sex offender, an individual must pose a moderate risk to commit new sex offenses and at least a moderate degree of dangerousness. See G. L. c. 6, § 178K (2) (b). 27

requirement, and where an appeal is pending before the Superior

Court or an appellate court, the court, in its discretion, may

order that the classification decision be remanded to the

hearing examiner.4 The hearing examiner will then issue an

amended classification decision containing his or her express

findings as to all three elements. Unless the hearing examiner

determines that a further hearing is required to evaluate an

individual's risk of reoffense, an individual's degree of

dangerousness, or the public safety interest served by Internet

publication, amended decisions may be issued without holding a

de novo hearing.

4. Hearing examiner's findings. The hearing examiner in

this case classified Doe as a level two sex offender by clear

and convincing evidence after concluding (1) that Doe posed a

moderate risk of reoffense and (2) that online publication of

his registry information was "necessary for public safety." We

now consider whether the hearing examiner's conclusion that

clear and convincing evidence supports a level two

4 We grant the court where the appeal is pending the discretion to determine whether to remand the case for explicit findings for two reasons. First, whether SORB's existing findings are sufficiently explicit to enable proper review is a question best left to the reviewing court. Second, even where the findings are not explicit, the underlying facts of the case may so clearly dictate the appropriate classification level that a reviewing court may determine that a remand for explicit findings is not necessary. 28

classification is itself supported by substantial evidence, that

is, "such evidence as a reasonable mind might accept as adequate

to support a conclusion." G. L. c. 30A, § 1 (6).

a. Risk of reoffense. With regard to the first element,

we conclude that the hearing examiner's determination that Doe's

risk of reoffense is moderate was supported by substantial

evidence. The hearing examiner found that Doe had "repetitively

exposed himself to [his neighbor] over the past four years."

Doe himself admitted that he had had participated in multiple

instances of exhibitionistic behavior, that he "had a problem,"

and that he was having increasing difficulty controlling his

urges, which were triggered by seeing his neighbor naked and

engaged in sexual acts. These facts are adequate to support the

hearing examiner's determination that Doe poses a moderate risk

of reoffense. See 803 Code Mass. Regs. § 1.33.

b. Degree of dangerousness. Although

SORB claims in its brief that the hearing examiner found Doe to

present "a moderate degree of dangerousness to the public," we

discern no such determination. Rather, as to the issue of

dangerousness, the hearing examiner found that Doe's offenses

"are not gravely dangerous," but "are quite upsetting to his

multiple [v]ictims." We decline SORB's invitation to

characterize this as a determination of moderate dangerousness.

We note that a required element of the crime of open and gross 29

lewdness is that the defendant has engaged in conduct that

actually alarmed or shocked another person. See Commonwealth v.

Maguire,

(2017). So, in every such case, the

defendant's conduct will be "quite upsetting" to the victim.

Yet the Legislature did not consider the harm arising from a

single offense of open and gross lewdness to be sufficiently

serious to qualify as a sex offense requiring the offender to

register; only the second and subsequent conviction of that

crime is a sex offense under the sex offender registry law. See

G. L. c. 6, § 178C. The hearing examiner's conclusion that

Doe's offenses were "quite upsetting," therefore, is

insufficient to support a determination of moderate

dangerousness.

We need not remand the matter to the hearing examiner to

clarify her finding on this issue because, even if she were to

find Doe's degree of dangerousness to be moderate, as the board

claims she did, we conclude that such a determination is not

supported by substantial evidence on this record.

"[O]ur decisions recognize that the registration statute

requires SORB to base its classification determinations on a sex

offender's 'current' risk to the community, in order to protect

the offender's right to due process." Doe No. 7083,

. See Doe v. Attorney Gen.,

(1999)

(individualized hearing required to determine whether offender 30

poses "present threat"). In determining whether an individual

poses a moderate degree of dangerousness at the time of

evaluation, a hearing examiner must consider "the severity and

extent of the harm the offender would present to the public in

the event of reoffense," 803 Code Mass. Regs. § 1.20(2)(b),

which requires consideration of the nature and type of offense

the offender would be likely to commit if he or she reoffended.

This determination naturally takes place on a continuum --

contact offenders are generally more dangerous than noncontact

offenders, and noncontact offenders whose actions are likely to

create a fear of bodily harm are generally more dangerous than

noncontact offenders whose actions are unlikely to generate such

fear. Cf. Commonwealth v. Suave,

(2011),

quoting G. L. c. 123A, § 1 (under civil commitment statute for

sexually dangerous persons, noncontact offender is not "menace

to the health and safety of other persons" unless offender's

"conduct will objectively put his [or her] victim in fear of

bodily harm by reason of . . . a contact sex crime").

Therefore, while we agree with SORB that under some

circumstances the danger posed by noncontact offenses such as

open and gross lewdness might suffice to support a level two

classification, see G. L. c. 6, § 178C, we conclude that an

individual is generally unlikely to pose a moderate degree of

dangerousness -- and thus to qualify as a level two sex offender 31

-- where his or her risk of reoffense relates only to noncontact

offenses which do not put a victim in fear of bodily harm by

reason of a contact sex offense. See Doe v. Attorney Gen.,

, 221 & n.7 (1997) ("In a ranking of the sex offenses,"

open and gross lewdness "ranks at or near the bottom in

seriousness" because it "involves neither physical harm nor the

threat of physical harm"). Therefore, where a hearing examiner

concludes (1) that an offender poses a risk only of noncontact

offenses and (2) that those noncontact offenses are not likely

to place a victim in reasonable apprehension of a contact

offense, a hearing examiner will have to articulate why, given

these circumstances, any classification above level one is

justified.

Doe has never been accused or convicted of a contact sex

offense. Nor has he been accused of committing any offense that

was sexual in nature between 1996 and 2014, apart from a single

instance of indecent exposure in 2011. During this incident,

Doe's fifteen year old neighbor saw Doe's genitals through his

bedroom window. Based on this offense alone, the hearing

examiner found that Doe was an "Adult Offender with [a] Child

Victim." The presence of this "high-risk" factor "is indicative

of a high risk of reoffense and degree of dangerousness" under

SORB's regulations. See 803 Code Mass. Regs. § 1.33. See id. 32

at § 1.33(3) ("Adult offenders who target children pose a

heightened risk to public safety").

The hearing examiner erred in relying on the "Adult

Offender with a Child Victim" high-risk factor when classifying

Doe as a level two sex offender. The sex offender registry law

identifies six "criminal history factors indicative of a high

risk of reoffense and degree of dangerousness posed to the

public," including "whether the sex offender was an adult who

committed a sex offense on a child." G. L. c. 6, § 178K (1) (a)

(iii). "Sex offense" and "sex offense involving a child" are

both defined terms under the sex offender registry law, and

neither definition includes the offense of indecent exposure.

See G. L. c. 6, § 178C. Where the offense of indecent exposure

is not a "sex offense," and where there is no evidence that Doe

committed a crime involving a child at any other time, there is

no statutory authority to support the hearing examiner's finding

that this high-risk factor was applicable. And although the

SORB regulations refer broadly to "Adult Offender[s] with a

Child Victim," and not specifically to adult offenders who

commit sex offenses against children, there is no reason to

believe that SORB intended its regulatory risk factor to

encompass more crimes than the statutory factor on which it is

based. See Doe, Sex Offender Registry Bd. No. 27914 v. Sex

Offender Registry Bd.,

(2012) 33

("adult offender with child victim" among "factors that the

Legislature has specifically highlighted as indicative of a high

risk to reoffend and a high degree of dangerousness").

Doe's two convictions of open and gross lewdness in 2015,

like his conviction of indecent exposure, arose out of conduct

that occurred when he was alone in his home, viewable to his

neighbor only through a window. At the time of these offenses,

Doe's neighbor was no longer a child; she was eighteen years old

at the time of the first offense of open and gross lewdness, and

nineteen years old at the time of the second offense. See 803

Code Mass. Regs. § 1.33(3) ("the Board shall consider any victim

younger than [sixteen] years old as a 'child victim'"). The

hearing examiner appeared to credit Doe's testimony that his

conduct was triggered by seeing, from the windows of his own

home, his neighbor naked in her home and engaged in sexual acts.

Therefore, if Doe were to reoffend, the evidence supports a

finding that the crime of reoffense would again be open and

gross lewdness, committed in his own home, viewable only by his

neighbors, which is the only type of sex offense that Doe has

committed since 1996.

Where Doe's sex offenses were limited to open and gross

lewdness, where there is no evidence that Doe committed any act

of open and gross lewdness outside of his home in approximately

twenty years, where the recent acts of open and gross lewdness 34

that triggered his classification hearing occurred only within

his own home, and where Doe has never been found to have

committed or attempted a contact sex offense, there is not

substantial evidence to support a finding by clear and

convincing evidence that Doe currently poses a moderate degree

of dangerousness to the public.5

c. Internet publication. The hearing examiner in this

case made an explicit factual finding regarding the likely

efficacy of publishing Doe's information on the Internet. She

stated that, "in this case, it is reasonable to consider that

community availability of [Doe's] sex offender information might

have prevented the circumstances which contributed to his

reoffenses" -- namely, his neighbor's nudity and sexual behavior

observable from Doe's home -- because, "[h]ad his neighbors

known of his sex offender history, they might have been more

5 We are likewise unconvinced that the other aggravating factors considered by the hearing examiner -- namely, the repetitive and compulsive nature of Doe's behavior, the fact that Doe's early offenses took place in public places, the fact that Doe's recent offenses took place in view of his neighbors, who were in "the public sphere," the relationship between Doe and his victims, the diversity of Doe's victims, and the number of victims -- could reasonably be considered adequate to support a determination that Doe is moderately dangerous based on the discussion supra. See 803 Code Mass. Regs. § 1.33 (2016). Because we conclude that a determination of moderate dangerousness was unsupported by the evidence, we need not consider Doe's specific arguments concerning the hearing examiner's "cherry-picking" of the evidence and her failure to afford proper weight to the expert evidence presented and to Doe's support system and stability in his community. 35

modest in the rooms facing his home." The hearing examiner

therefore concluded that Doe's "other neighbors, present and

future, deserve this awareness, and that posting his sex

offender information on the [I]nternet is necessary for public

safety." Having evaluated this determination, we conclude that

it was not supported by substantial evidence.6

The hearing examiner's focus on the "modesty" of the

victims, as opposed to their protection, was misplaced.

Furthermore, there is no reason to believe that Internet

publication of Doe's registry information would have been

effective in warning Doe's neighbors to be "more modest in the

rooms facing [Doe's] home." Pursuant to G. L. c. 6, § 178D,

SORB's website provides the public with only certain

information: the offender's name; the offender's home address

and any secondary addresses; the offender's work address; the

offender's age, sex, race, height, weight, eye color, and hair

color; a photograph of the offender, if available; the offense

for which the offender was convicted or adjudicated; the date of

the conviction or adjudication; whether the offender has been

6 We note that we are able to evaluate whether the hearing examiner's determination regarding the third element is supported by substantial evidence only because she made particularized findings as to how a public safety interest might be served by Internet publication of Doe's registry information. This illustrates the importance of requiring hearing examiners to make explicit findings as to each of the three required elements. 36

designated a sexually violent predator; and whether the offender

is in compliance with his or her registration obligations.

Knowing that Doe had been convicted of open and gross lewdness

says nothing about Doe's potential "triggers," and therefore

would not serve to warn Doe's neighbors to avoid conduct that

potentially may trigger a future act of exhibitionism.

Therefore, we conclude that there is not substantial evidence to

support the hearing examiner's determination that "a public

safety interest is served by public access to [Doe's]

registration information." See G. L. c. 6, § 178K (2) (b).7

6. Conclusion. Because we conclude that classification as

a level two sex offender is not supported by substantial

evidence on this record, we vacate the Superior Court's judgment

affirming SORB's level two classification and remand the matter

to the Superior Court for issuance of a judgment declaring that

there is substantial evidence only to support a level one

classification.8

7 Where the hearing examiner's explicit findings regarding the efficacy of Internet publication are not supported by substantial evidence, we do not consider whether other explicit factual findings reasonably could have been made in these circumstances that would support a determination by clear and convincing evidence that "a public safety interest is served by public availability of registration information." G. L. c. 6, § 178K (2) (b).

8 Although we conclude that a level two classification was not supported by substantial evidence, the hearing examiner's findings, as described supra, do support a level one 37

So ordered.

classification. Because we conclude that there was substantial evidence to support a level one classification by clear and convincing evidence, we need not address Doe's argument that SORB regulations improperly place the burden of proof on the sex offender where the offender seeks relief from the obligation to register. See 803 Code Mass. Regs. § 1.29(1) (2016).