Doe, Sex Offender Registry Board No. 68549 v. Sex Offender Registry Board

NOTICE: All slip opinions and orders are subject to formal

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SJC-11562

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 68549 vs. SEX

OFFENDER REGISTRY BOARD.

Suffolk. September 3, 2014. - November 5, 2014.

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

Hines, JJ.

Sex Offender. Sex Offender Registration and Community

Notification Act. Administrative Law, Substantial

evidence, Regulations. Evidence, Sex offender, Expert

opinion. Practice, Civil, Sex offender. Witness, Expert.

Regulation. Minor.

Civil action commenced in the Superior Court Department on

June 15, 2010.

The case was heard by Robert C. Cosgrove, J., on a motion

for judgment on the pleadings.

The Supreme Judicial Court granted an application for

direct appellate review.

Francis J. DiMento (Dana Alan Curhan with him) for the

plaintiff.

Jennifer K. Zalnasky for the defendant.

Eric Tennen, for Youth Advocacy Division of the Committee

for Public Counsel Services & others, amici curiae, submitted a

brief.

2

Robert E. McDonnell, Jeff Goldman, Nathaniel P. Bruhn, &

Saia M. Smith, for American Civil Liberties Union Foundation of

Massachusetts & another, amici curiae, submitted a brief.

LENK, J. Over a three-year period ending in 1988, when he

was sixteen years old, John Doe No. 68549 repeatedly subjected

two of his cousins to sexual assaults, including rape. His

victims came forward many years after the fact and, in October,

2003, when Doe was thirty-one years old, he pleaded guilty to a

number of sex offenses committed when he was a juvenile.

In March, 2006, a hearing examiner of the Sex Offender

Registry Board (SORB) determined that Doe posed a moderate risk

of reoffense and a moderate degree of dangerousness, and

classified Doe as a level two sex offender. A Superior Court

judge, determining that this classification was not supported by

substantial evidence, remanded for further proceedings. In May,

2010, a successor hearing examiner (successor examiner)

concluded that Doe poses a low risk of reoffense and a low

degree of dangerousness. Doe was therefore classified as a

level one sex offender, a classification that was upheld by a

different judge of the Superior Court. Doe appealed, and we

granted his application for direct appellate review.

Doe contends that he should not be required to register as

a sex offender. See G. L. c. 6, § 178K (2) (a)-(d). He argues

that, in light of scientific research showing that adolescent

3

brains are different from adult brains, and in light of the long

period of time that has elapsed since his last offense, the

successor examiner's decision was not supported by substantial

evidence. Doe contends also that the regulations enacted and

applied by SORB are outmoded, in that they predate recent

studies concerning adolescent brains and adolescent behavior.

We conclude that, although Doe presented considerable

information suggesting that he is no longer dangerous, the

successor examiner took this information into account and

reached a decision that was supported by substantial evidence in

determining that Doe should be classified as a level one sex

offender. We therefore conclude that there was no error in the

successor examiner's classification of Doe as a level one sex

offender, and affirm the Superior Court judge's decision

upholding the successor examiner's classification determination.

We emphasize, however, as we have done previously, that it is

incumbent upon SORB to update its guidelines at reasonable

intervals in order to take proper account of current scientific

knowledge.1

1

We acknowledge the amicus briefs submitted by the Youth

Advocacy Division of Committee for Public Counsel Services, the

Children's Law Center of Massachusetts, and Citizens for

Juvenile Justice; and by the American Civil Liberties Union

Foundation of Massachusetts and Citizens for Juvenile Justice in

support of John Doe.

4

1. Statutory framework. In prior cases, we described in

detail the tapestry of statutes and regulations that governs the

registration requirement imposed on sex offenders. See, e.g.,

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

Registry Bd., 466 Mass. 594, 595-597 (2013) (Doe No. 205614);

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

Registry Bd., 456 Mass. 612, 614-615 (2010) (Doe No. 151564);

Doe, Sex Offender Registry Bd. No. 3844 v. Sex Offender Registry

Bd., 447 Mass. 768, 768-772 (2006) (Doe No. 3844). Here we

reprise the essential elements of that scheme.

An individual is a "sex offender" if he or she has been

convicted of one or more statutorily enumerated offenses. G. L.

c. 6, § 178C. Sex offenders are classified into levels of

dangerousness, increasing in severity from level one to level

three. Each level is attended by different implications.

Although SORB transmits information about all sex offenders to

specific authorities, information about level one offenders is

not available to the general public. G. L. c. 6,

§ 178K (2) (a). Information about level two and level three

offenders is entered into a publicly accessible Internet

database. G. L. c. 6, § 178D. See Moe v. Sex Offender Registry

Bd., 467 Mass. 598, 600-606, 616 (2014) (declaring

unconstitutional the retroactive application of this provision

to individuals classified as level two sex offenders on or

5

before July 12, 2013). In addition, SORB and local police

departments "actively disseminate" information about level three

offenders to individuals and organizations who are likely to

encounter those offenders. G. L. c. 6, § 178K (2) (c).

SORB is required to consider a list of statutory factors in

making its classification determinations. See G. L. c. 6,

§ 178K (1) (a)-(l). This list is not exhaustive, however, and

SORB also must take into account any other information that is

"useful in assessing the risk of reoffense and the degree of

dangerousness posed to the public by the sex offender,"

including information of this kind introduced by the offender.

G. L. c. 6, § 178L (1). See Doe, Sex Offender Registry Bd. No.

10216 v. Sex Offender Registry Bd., 447 Mass. 779, 787 (2006)

(Doe No. 10216), citing Doe, Sex Offender Registry Bd. No. 1211

v. Sex Offender Registry Bd., 447 Mass. 750, 762 n.9 (2006) (Doe

No. 1211); 803 Code Mass. Regs. § 1.38(2) (2013).

As mandated by statute, SORB has promulgated "guidelines

for determining the level of risk of reoffense and the degree of

dangerousness posed to the public or for relief from the

obligation to register." See G. L. c. 6, § 178K (1). These

guidelines describe the manner in which SORB is to apply twenty-

four factors increasing or decreasing risk, which are derived

from the factors enumerated in the statute. See 803 Code Mass.

Regs. § 1.40 (2013) (guidelines). The guidelines require SORB

6

to be guided by the "definitions, explanations, principles, and

authorities" contained in the guidelines. See id. We have read

the term "authorities" to encompass studies conducted by

researchers whose work is cited in the guidelines. See Doe No.

205614, 466 Mass. at 604; Doe No. 151564, 456 Mass. at 622.

"The registration and classification process is,

essentially, a two stage process." 803 Code Mass. Regs.

§ 1.38(3) (2013). First, SORB makes an initial "recommendation"

concerning an offender's classification level. Id. See G. L.

c. 6, § 178L (1) (a). The offender may then object to SORB's

recommendation, in which case he or she "is provided an

individualized hearing . . . at which all relevant evidence is

evaluated anew by a disinterested Hearing Examiner." 803 Code

Mass. Regs. § 1.38(4) (2013). See Doe No. 3844, 447 Mass. at

772; G. L. c. 6, § 178L (1), (2). At this hearing, SORB bears

the burden of demonstrating by a preponderance of the evidence

that the offender has a duty to register, and what the

offender's classification should be. 803 Code Mass. Regs.

§ 1.10(1) (2013).

SORB "may . . . relieve [a] sex offender of any further

obligation to register" if the offender establishes that "the

circumstances of the offense in conjunction with the offender's

criminal history do not indicate a risk of reoffense or a danger

to the public." G. L. c. § 178K (2) (d). The decision as to

7

whether this provision should be applied must take into account

"factors, including but not limited to, the presence or absence

of any physical harm caused by the offense and whether the

offense involved consensual conduct between adults." Id.

We have emphasized that the sex offender registration

requirement "implicates constitutionally protected liberty and

privacy interests." See Doe No. 205614, 466 Mass. at 596,

citing Doe v. Attorney Gen., 426 Mass. 136, 144 (1997).

Accordingly, "careful and individualized due process is

necessary to sort sexual predators likely to repeat their crimes

from large numbers of offenders who pose no danger to the

public." Doe No. 205614, supra, citing Doe, Sex Offender

Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90,

105 (1998) (Marshall, J., concurring in part and dissenting in

part).

2. Facts. We recite the facts found by the successor

examiner. These facts were relied upon by the Superior Court

judge, and Doe does not dispute them.

Doe's cousins, a boy and a girl, emigrated from Ireland to

the United States with their family. The cousins' family was,

at first, dependent on Doe's family. During the years from 1986

through 1988, Doe, then a teenager, engaged in repeated sexual

assaults against his male cousin and in one sexual assault

against his female cousin. At the end of this period, Doe and

8

the female cousin were sixteen years old. The male cousin was

two years younger.

Doe's assaults against the male cousin, which began when

the cousin was eleven years old, escalated in violence over

time, from masturbation to digital and then penile rape. Doe's

assault against his female cousin occurred when they were both

sixteen years old. On that occasion, the female cousin was

swimming in Doe's family's swimming pool, when Doe swam over and

raped her digitally.2

Doe's cousins first disclosed the sexual assaults in 2000,

twelve years after the assaults had ceased. The cousins

explained that they had been afraid to complain earlier because

of their parents' dependency on Doe's family, and because Doe

had threatened that he would cause their family to be deported

if they complained. Doe initially told police that he had

engaged only in consensual acts with his male cousin. In

October, 2003, however, he pleaded guilty to five counts of rape

of a child, G. L. c. 265, § 22A; five counts of rape and abuse

of a child, G. L. c. 265, § 23; and two counts of rape, G. L.

c. 265, § 22 (b).

2

As discussed infra, evidence of a sexual assault by Doe on

another female victim was excluded by the successor hearing

examiner in the more recent Sex Offender Registry Board (SORB)

proceedings. In addition, the successor examiner made no

findings concerning other sexual assaults reported to police by

Doe's female cousin.

9

3. Classification proceedings. On March 1, 2005, SORB

notified Doe that it was recommending that he be classified as a

level two sex offender. Doe objected to this classification,

and his matter was considered de novo by a SORB hearing examiner

(original examiner). The original examiner held a hearing and

heard testimony from two experts proffered by Doe, Dr. Bernard

Katz and Dr. Barbara K. Schwartz. He also received from Doe an

expert report of Dr. Joseph J. Plaud. On March 17, 2006, the

original examiner ordered, as SORB had recommended, that Doe

register as a level two offender.

Doe sought judicial review in the Superior Court. A

Superior Court judge determined that the original examiner's

classification decision was not supported by substantial

evidence. He therefore entered judgment on the pleadings in

Doe's favor, and remanded the matter to SORB.

On remand, two additional hearings were conducted by the

successor examiner. The successor examiner took additional

evidence, including an updated report and oral testimony from

Schwartz, one of Doe's expert witnesses. The successor examiner

made new, independent rulings and factual findings. Among other

things, he excluded from the record a police report, which the

original examiner had considered, describing a complaint against

Doe by another woman, unrelated to Doe.

10

The successor examiner noted that Doe had been "a juvenile"

and "an adolescent" when he committed his offenses. The

examiner accepted the opinion of another of Doe's experts, Katz,

that at the time of the offenses, Doe was "an unhappy,

overweight and maladjusted teenager." In his decision, the

successor examiner also considered as risk reducing the facts

that Doe had not committed his offenses against strangers; had

not reoffended since 1988; had enjoyed success in high school,

in college, and in his work at a car dealership; was in a

romantic relationship with an age-appropriate woman; had not

abused alcohol in recent years; and had participated

successfully in sex offender treatment. The successor examiner

noted also that the experts proffered by Doe opined that the

risk he presented was "extremely low" or none. In view of these

facts, the successor examiner determined that Doe "has made

substantial progress towards 'no risk' status."

On the other hand, the successor examiner found that Doe's

sex offenses, which included "high contact" acts that had

escalated "over a three-year period," had been "repetitive and

compulsive." The successor examiner determined that there had

been "a disparity between [Doe] and his [v]ictims as regards

age, size, strength, economic status, and citizenship"; that Doe

had been "controlling" and "hostile"; and that Doe had

"victimized his male cousin in an escalating, repetitive and

11

predatory pattern." In addition, the successor examiner noted

that when, as a twenty-eight year old, Doe was confronted by his

aunt about his actions, he "wondered . . . how many times he

needed to apologize" and then "told his aunt, 'I never liked you

or your family. You're weak and you're stupid. As a matter of

fact, that made it all the more enjoyable.'" The successor

examiner concluded that Doe presents "cognizable low risk of

reoffense and a low degree of dangerousness," and ordered Doe to

register as a level one sex offender.

Doe again sought judicial review. This time, a different

Superior Court judge affirmed the classification determination,

stating that "[a]lthough . . . if considering the matter de

novo, [the judge] might place more weight on the factors

emphasized by Doe," the successor examiner's decision

nevertheless was supported by substantial evidence.

4. Standard of review. SORB's final classification of a

sex offender is subject to judicial review under G. L. c. 30A,

§ 14. See G. L. c. 6, § 178M.3 This review is "confined to the

record, except that in cases of alleged irregularities in

3

Our inquiry on appeal is similar to the inquiry conducted

by a Superior Court judge in an action for judicial review of

SORB's decision. See Doe, Sex Offender Registry Bd. No. 205614

v. Sex Offender Registry Bd., 466 Mass. 594, 601-602 (2013);

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

Registry Bd., 456 Mass. 612, 614-615 (2010).

12

procedure before the agency, not shown in the record, testimony

thereon may be taken in the court." G. L. c. 30A, § 14 (5).

A reviewing court will not disturb SORB's decision unless

that decision was (a) in violation of constitutional provisions;

(b) in excess of SORB's authority; (c) based upon an error of

law; (d) made upon unlawful procedure; (e) unsupported by

substantial evidence; (f) unwarranted by facts found by the

court, where the court is constitutionally required to make

independent findings of fact; or (g) arbitrary or capricious, an

abuse of discretion, or otherwise not in accordance with law.

G. L. c. 30A, § 14 (7). See Doe No. 151564, 456 Mass. at 614-

615. The court must "give due weight to [SORB's] experience,

technical competence, and specialized knowledge . . . as well as

to the discretionary authority conferred upon it." G. L.

c. 30A, § 14 (7). In addition, SORB's guidelines "must be

accorded all the deference due to a statute." Doe No. 205614,

466 Mass. at 602, quoting Massachusetts Fed'n of Teachers, AFT,

AFL-CIO v. Board of Educ., 436 Mass. 763, 771 (2002).

5. Analysis. a. Substantial evidence of Doe's

dangerousness. Doe's primary argument is that the successor

examiner's decision to classify him as a level one sex offender

was not supported by substantial evidence, particularly since

"the offenses he committed occurred while he was a juvenile more

13

than twenty years ago." In the circumstances, this argument is

unavailing.

A decision of a SORB hearing examiner will not be upheld if

it is "[u]nsupported by substantial evidence." G. L. c. 30A,

§ 14 (7) (e). See Doe No. 10216, 447 Mass. at 787, citing Flint

v. Commissioner of Pub. Welfare, 412 Mass. 416, 420 (1992).

"Substantial evidence" is "such evidence as a reasonable mind

might accept as adequate to support a conclusion." G. L.

c. 30A, § 1 (6). A decision does not satisfy the "substantial

evidence" requirement if "the evidence points to no felt or

appreciable probability of the conclusion or points to an

overwhelming probability of the contrary." Cobble v.

Commissioner of Dep't of Social Servs., 430 Mass. 385, 390-391,

(1999), quoting New Boston Garden Corp. v. Assessors of Boston,

383 Mass. 456, 466 (1981). Any evidence may be considered and

relied upon by the examiner "if it is the kind of evidence on

which reasonable persons are accustomed to rely in the conduct

of serious affairs." G. L. c. 30A, § 11 (2).

A classification decision should not be based solely on the

fact that an offender's underlying crime was sexual in nature.

See Doe, Sex Offender Registry Bd. No. 24341 v. Sex Offender

Registry Bd., 74 Mass. App. Ct. 383, 387 (2009), citing Doe, Sex

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

Mass. 780, 787, 790 (2008) (Doe No. 8725). A hearing examiner

14

has discretion, however, to consider which statutory and

regulatory factors are applicable and how much weight to ascribe

to each factor, and, as stated, a reviewing court is required to

"give due weight to [the examiner's] experience, technical

competence, and specialized knowledge." G. L. c. 30A, § 14 (7).

See Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender

Registry Bd., 459 Mass. 603, 633 (2011) (Doe No. 10800), citing

Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803, 812-

813 (2006). Accordingly, "[o]ur review does not turn on

whether, faced with the same set of facts, we would have drawn

the same conclusion as an agency or local board, but only

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

necessary inference.'" Goldberg v. Board of Health of Granby,

444 Mass. 627, 638 (2005), quoting Commissioner of Revenue v.

Houghton Mifflin Co., 423 Mass. 42, 43 (1996).

As noted, the successor examiner took account of various

factors that tended to alleviate the concern that Doe will

reoffend. He considered, among other things, Doe's age at the

time of the offenses; the fact that Doe knew his victims; Doe's

subsequent educational, professional, and personal successes;

and his completion of sex offender treatment. The successor

examiner also considered, as required by the guidelines, "the

length of time [that Doe] has had access to the community

without committing any new offenses," see 803 Code Mass.

15

Regs. § 1.40(9)(a), finding that, "since 1988, [Doe] has not

reoffended." Cf. Doe No. 8725, 450 Mass. at 790.

Nonetheless, the successor examiner's ruling was supported

by evidence concerning multiple factors that did tend to

indicate Doe's dangerousness. Much of this evidence is set

forth above, including the repetitive, protracted, escalating,

and "high contact" nature of Doe's offenses. These are factors

that, according to the guidelines, the successor examiner was

required to consider. The guidelines state that offenders who

"manifest their compulsive behavior by engaging in a continuing

course of sexual misconduct involving separate incidents . . .

present[] a greater risk to reoffend and . . . pos[e] an

increased degree of dangerousness." 803 Code Mass. Regs.

§ 1.40(2). See G. L. c. 6, § 178K (1) (a) (ii). "[T]he level

of physical contact between the offender and the victim during

the sex offense is another important element to be considered in

understanding the nature of the offense and in determining a

level of dangerousness." 803 Code Mass. Regs. § 1.40(9)(c)(7).

Finally, "SORB also considers the length or duration of the sex

offending behavior as important and useful information in

determining dangerousness." 803 Code Mass. Regs.

§ 1.40(9)(c)(8). See G. L. c. 6, § 178K (1) (b) (iii)

(mandating consideration of "the number, date and nature of

prior offenses").

16

The successor examiner also noted the following facts as

indications, under the guidelines, of an increased risk of

reoffense and degree of dangerousness: that Doe offended

against both a male victim and a female victim, see 803 Code

Mass. Regs. § 1.40(9)(c)(2), (9)(c)(11); that his victims were

children, see 803 Code Mass. Regs. § 1.40(9)(c)(12); that he

engaged in a variety of different offending behaviors, see 803

Code Mass. Regs. § 1.40(9)(c)(10); that he has, in the past, had

difficulties with substance abuse, see 803 Code Mass. Regs.

§ 1.40(16) and G. L. c. 6, § 178K (1) (g); and that, as

evidenced by his remarks to his aunt twelve years after the

offenses, Doe's acceptance of responsibility has been less than

complete. See 803 Code Mass. Regs. § 1.40(9)(c)(13).

In sum, in the context of the record as a whole, the

successor examiner's ruling was based on evidence that "a

reasonable mind might accept as adequate to support a

conclusion" that Doe poses a low risk of reoffense and a low

degree of dangerousness. G. L. c. 30A, § 1 (6). Cf. Doe No.

10800, 459 Mass. at 637.

b. Other issues concerning Doe's classification. We have

noted previously that, in some cases, a SORB hearing examiner

"might greatly benefit from testimony or a report by an

appropriately trained and qualified mental health professional."

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

17

Registry Bd., 452 Mass. 764, 776 (2008). See Doe No. 151564,

456 Mass. at 623-624. Expert testimony is likely to be

particularly valuable where a substantial period of time "has

elapsed since the guidelines were last revised," and where

significant, relevant research has been conducted in the

intervening period. See Doe No. 205614, 466 Mass. at 609.

In this case, the hearing examiner heard evidence

concerning Doe's degree of dangerousness from three experts.

One of these experts, Schwartz, presented an updated report and

updated testimony on remand. The successor examiner considered

this evidence and, in large part, found it cogent. For

instance, he was persuaded by Katz's opinion that "the sex

offenses were causally related to the fact that during the

offending era, [Doe] was an overweight, teased and maladjusted

adolescent."4

Ultimately, the successor examiner did not adopt the

position advocated by Doe's experts, namely that Doe's risk of

4

The successor examiner concluded, however, that Doe's

difficulties as an adolescent were not "the exclusive cause of

the offending behavior." In support of this conclusion, the

successor examiner noted that Doe "not only sexually offended

while a younger adolescent at [thirteen] but continued to do so

when he was just four months shy of [seventeen]; did so in an

escalating rather than diminishing fashion as regards level of

contact; graduated from [a Catholic high school] as reflects

some measure of positive adjustment, self control and social

adaptation in that environment; and [had a] relationship with

his parents [that] appears by the record to not have been

unusual or extreme."

18

reoffense and his degree of dangerousness were less than "low."

The successor examiner's decision on this score was not

erroneous. SORB is "not statutorily required to present expert

testimony in support of its position before the examiner," Doe

No. 10216, 447 Mass. at 786, and "[t]he opinion of a witness

testifying on behalf of a sex offender need not be accepted by

the hearing examiner even where the board does not present any

contrary expert testimony." Doe No. 10800, 459 Mass. at 637,

citing Doe No. 1211, 447 Mass. at 764. The successor examiner's

reasons for reaching a conclusion not shared by Doe's experts

were, as described above, supported by the evidence before him.

We have held also that a SORB classification decision will

be deemed "[a]rbitrary or capricious," G. L. c. 30A,

§ 14 (7) (g), if it fails to take into account reliable evidence

that a factor relevant to a given offender affects the

likelihood that the offender will recidivate. For instance, Doe

No. 151564 involved an offender who was sixty-one years old at

the time of the hearing and where "[t]here was substantial

evidence presented at the hearing concerning the effect of age

on recidivism." 456 Mass. at 622. The SORB hearing examiner

declined to take this evidence into account, reasoning that "age

is not considered as a factor in [the guidelines]." Id. We

concluded that the examiner's decision was arbitrary and

capricious, noting that the studies submitted by the offender in

19

that case were "written by many of the same authorities on whom

the board relies in its [guidelines]." Id. Similarly, in Doe

No. 205614, the offender, a woman, presented "current, validated

evidence demonstrating the relevance of gender in assessing the

risk of reoffense." 466 Mass. at 607. Two hearing examiners

disregarded this evidence, and we held their decisions, too, to

be arbitrary and capricious. Id. at 608.

Doe argues that the successor examiner in his case also

ignored, in essence, a scientifically relevant factor, namely,

that Doe was an adolescent when he committed his offenses. Doe

cites recent scientific studies that, he asserts, establish that

teenagers are more limited than adults in the soundness of their

judgment in complex situations, in their capacity to control

impulses, and in their ability to plan effectively. These

limitations are due, in part, to organic differences between

adult brains and adolescent brains.

Although the studies now cited by Doe were referred to

briefly, and in general terms, in Schwartz's April, 2009,

report, these studies were not relied upon or offered into

evidence before SORB. Because our review is "confined to the

record," the successor examiner's failure to address evidence

that was not presented to him would not be grounds for

disturbing his decision. G. L. c. 30A, § 14 (5). See Doe No.

20

205614, 466 Mass. at 608 n.11, citing Commonwealth v. Vega, 449

Mass. 227, 234 (2007).

Nonetheless, it would not have been proper for the

successor examiner to disregard the fact that Doe was a youth

when he offended, because the applicable statute and the

guidelines require that this fact be considered. General Laws

c. 6, § 178K (1) (e), provides that one of the "[f]actors

relevant to the risk of reoffense" is "whether the sex offender

was a juvenile when he committed the offense." The guidelines,

in turn, cite research pointing to "numerous differences between

[juvenile offenders] and their adult counterparts." 803 Code

Mass. Regs. § 1.40(14). Accordingly, the guidelines specify

whether each of the factors enumerated in them applies in whole,

in part, or not at all to a "[j]uvenile [o]ffender," namely "any

sex offender who was younger than [seventeen] years old at the

time he [or she] committed all of his or her sex offenses." 803

Code Mass. Regs. § 1.39(4) (2013). See, e.g., 803 Code Mass.

Regs. § 1.40(1) ("[m]ental [a]bnormality" factor does not apply

to juvenile offenders); 1.40(6) (same for maximum term of

incarceration); 1.40(9)(c)(6) (same for convictions of nonsexual

violent offenses); 1.40(3) ("[c]hild [v]ictim" factor applies

differently to adults and to juveniles); 1.40(7) (same for

relationship between offender and victim).

21

As noted, the successor examiner took into consideration

Doe's young age at the time of his offenses. Implicitly, he did

so by applying only those factors that, according to the

guidelines, appropriately are considered with regard to juvenile

offenders. The successor examiner also specifically applied the

factor concerning an offender's relationship with his victim(s)

in the manner that the guidelines deem appropriate for juvenile

offenders. See 803 Code Mass. Regs. § 1.40(7). More

explicitly, the successor examiner made repeated references to

the fact that Doe was an "adolescent" and a "juvenile" at the

time of his offenses, and rested one of his evidentiary rulings

on his "appreciation of the fact that [Doe] was a juvenile at

the time he committed the sex offenses." We do not conclude,

therefore, that the successor examiner failed to take into

account the mandatory consideration that Doe committed his

offenses at a young age.5

c. Validity of the guidelines. Doe asserts that the

factors and presumptions incorporated in the guidelines are "out

of date," in that they were developed prior to recent studies

concerning the differences between adolescents and adults.6 In

5

As explained, the successor examiner also did not ignore

the fact that many years had passed since Doe last offended.

6

The amici curiae present additional information concerning

current research into the development of the adolescent brain.

They also provide information about the deleterious effects that

22

none of the proceedings below did Doe argue that these

scientific developments render the guidelines invalid. Nor

would such a request have been proper at the current juncture.

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 No. 10800, 459

Mass. at 630, citing G. L. c. 30A, § 14 (5). See Doe No.

205614, 466 Mass. at 608 n.11. We nevertheless make the

following observations concerning the effect of the passage of

time on the guidelines' validity.

As noted, the guidelines "must be accorded all the

deference due to a statute" (citation omitted). Doe No. 205614,

466 Mass. at 602. "A party challenging the validity of a

regulation must prove in a judicial proceeding 'that the

regulation is illegal, arbitrary, or capricious.'" Doe No.

10800, 459 Mass. at 629, quoting Borden, Inc. v. Commissioner of

Pub. Health, 388 Mass. 707, 722, cert. denied sub nom.

Formaldehyde Inst., Inc. v. Frechette, 464 U.S. 936 (1983). We

have cautioned that "guidelines that fail to heed growing

scientific consensus in an area may undercut the individualized

nature of the hearing to which a sex offender is entitled, an

the registration requirement can have on the lives of adolescent

offenders.

23

important due process right." Doe No. 205614, supra at 608,

citing Doe No. 10800, supra at 626. See Doe No. 151564, 456

Mass. at 623 n.6.

The United States Supreme Court has described "three

significant gaps between juveniles and adults," namely:

"First, children have a '"lack of maturity and an

underdeveloped sense of responsibility,"' leading to

recklessness, impulsivity, and heedless risk-taking. . . .

Second, children 'are more vulnerable . . . to negative

influences and outside pressures,' including from their

family and peers; they have limited 'contro[l] over their

own environment' and lack the ability to extricate

themselves from horrific, crime-producing settings. . . .

And third, a child's character is not as 'well formed' as

an adult's; his traits are 'less fixed' and his actions

less likely to be 'evidence of irretrievabl[e]

deprav[ity].'"

Miller v. Alabama, 132 S. Ct. 2455, 2464 (2012), quoting Roper

v. Simmons, 543 U.S. 551, 569, 570 (2005). The Court explained

that its view of juvenile behavior rests

"not only on common sense -- on what 'any parent

knows' -- but on science and social science as well. . . .

In Roper, we cited studies showing that '"[o]nly a

relatively small proportion of adolescents"' who engage in

illegal activity '"develop entrenched patterns of problem

behavior."' . . . And in Graham [v. Florida, 560 U.S. 48,

68 (2010)], we noted that 'developments in psychology and

brain science continue to show fundamental differences

between juvenile and adult minds' -- for example, in 'parts

of the brain involved in behavior control.'"

Miller, supra, quoting Roper, supra at 569, 570.

The guidelines do not ignore the importance of the

distinctions, discussed in Miller, between adult and juvenile

offenders. Rather, as explained, the guidelines delineate in

24

some detail the different ways in which they are to be applied

to adults and to juveniles. See, e.g., G. L. c. 6,

§ 178K (1) (e); 803 Code Mass. Regs. § 1.40(1), (3), (6), (7),

(9)(c)(6), (14).

A question nevertheless remains, which cannot be answered

on the record before us, whether the manner in which the

guidelines differentiate between adults and juveniles is sound

in view of current scientific research. "SORB need not update

its guidelines every time a new study is published," Doe No.

205614, 466 Mass. at 605, but "[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 No. 151564, 456 Mass. at 623 n.6, citing

Commonwealth v. Lanigan, 419 Mass. 15, 27 (1994). Given that

the most recent studies cited in the guidelines were published

in 2001, there is reason for some concern as to whether the

guidelines continue to reflect accurately the current state of

scientific knowledge.

Judgment affirmed.