In Doe, Sex Offender Registry Board No. 203108 v. Sex Offender Registry Board(2016, the Court of Appeals Court vacated the Superior Court’s judgment affirming SORB’s designation of Doe as a level three sex offender and remanded the matter to SORB for a new hearing under the clear and convincing evidence standard. The Court had previsously his contention that SORB’s determination of his registration level was invalid because it occurred too long before his release from incarceration. Doe sought further appellate review of that ruling and the SJC remanded the case to the Appeals Court for reconsideration, in light of two recent SJC decisions on the subject of the temporal staleness of SORB determinations .  In the present case, the Court of Appeals stated that after reconsidering the staleness issue, it found no reason to chanbe its original decision affirming SORB’s determination of Doe’s sex offender level. It also noted the existence of important factors in previous decisions  that were not present in this case.

he Court then stated, “Although we conclude that neither of those decisions requires us to alter our decision in this case, Doe is nonetheless entitled to a new classification hearing in light of recent Supreme Judicial Court decisions.”   There, “the Supreme Judicial Court held that [SORB] is required to make its classification decisions based on clear and convincing evidence as opposed to a preponderance of the evidence. ‘Because our decision is a new constitutional rule,’ the SJC noted, ‘the higher standard should be applied retroactively only to classification proceedings pending before [the board], the Superior Court, or the appellate courts on the date of the issuance of the rescript in this case.’…. In the case before us, Doe’s FAR application was pending on December 11, 2015, when that case was decided. Therefore, Doe is entitled to a new classification hearing. Moreover, his reclassification must be based on his current circumstances at the time of the new hearing…. Both Doe and [SORB] may present new evidence relevant to his then-current risk of reoffense.”



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