SORB Frequently Asked Questions

You have to register as a sex offender in Massachusetts if two things are true: you have a connection to Massachusetts, and you have a conviction for a sex offense that requires registration.

Massachusetts connection: This means living here, staying at a second address here, working here, or going to a college or university here.

Sex offense requiring registration: Not every crime that sounds like a sex offense requires registration, but most do. The list below is long, but it is the complete list. A conviction (or delinquency or youthful offender adjudication for juveniles) of any of the following crimes requires registration in Massachusetts:

• Rape, G.L. c. 265, § 22
• Aggravated rape, G.L. c. 272, § 39
• Rape of a child, G.L. c. 265, § 23
• Rape of a child with force, G.L. c. 265, § 22A
• Aggravated rape of a child with force, G.L. c. 265, § 22B
• Aggravated rape of a child (age difference), G.L. c. 265, § 23A
• Rape of a child through use of force by certain previously convicted offenders, G.L. c. 265, § 22C
• Rape and abuse of a child by certain previously convicted offenders, G.L. c. 265, § 23B
• Assault with intent to rape, G.L. c. 265, § 24
• Assault with intent to rape a child, G.L. c. 265, § 24B
• Indecent assault and battery on a person age 14 or older, G.L. c. 265, § 13H
• Indecent assault and battery on a child under 14, G.L. c. 265, § 13B
• Aggravated indecent assault and battery on a child under 14, G.L. c. 265, § 13B½
• Indecent assault and battery on a child under 14 by certain previously convicted offenders, G.L. c. 265, § 13B¾
• Indecent assault and battery on a person with an intellectual disability, G.L. c. 265, § 13F
• Kidnapping of a child, G.L. c. 265, § 26
• Enticing a child under 16 for the purpose of committing a crime, G.L. c. 265, § 26C
• Enticing a child under 18 by electronic communication to engage in prostitution, human trafficking, or commercial sexual activity, G.L. c. 265, § 26D
• Trafficking of persons for sexual servitude, G.L. c. 265, § 50
• Human trafficking for sexual servitude, second and subsequent offense, G.L. c. 265, § 52
• Enticing away a person for prostitution or sexual intercourse, G.L. c. 272, § 2
• Drugging a person for sexual intercourse, G.L. c. 272, § 3
• Inducing a minor into prostitution, G.L. c. 272, § 4A
• Living off or sharing the earnings of a minor prostitute, G.L. c. 272, § 4B
• Open and gross lewdness, second and subsequent offense, G.L. c. 272, § 16, excluding a first or single adjudication as a delinquent juvenile before August 1, 1992
• Incestuous marriage or intercourse, G.L. c. 272, § 17
• Disseminating harmful matter to a minor, G.L. c. 272, § 28
• Posing or exhibiting a child in a state of nudity, G.L. c. 272, § 29A
• Dissemination of visual material of a child in a state of nudity or sexual conduct, G.L. c. 272, § 29B
• Possession of child pornography, G.L. c. 272, § 29C
• Unnatural and lascivious acts with a child under 16, G.L. c. 272, § 35A
• Engaging in sexual contact with an animal, G.L. c. 272, § 77C

An attempt to commit any of these offenses also requires registration. G.L. c. 274, § 6.

A conviction under the law of another state, the United States, or a military, territorial, or tribal authority also requires registration, where the offense is a like violation of one of the offenses listed above.

 

There are three classification Levels in Massachusetts. They are based on SORB’s assessment of a person’s risk of reoffense and the degree of danger they would pose if they did reoffend.

Level 1: SORB determined a person poses a low risk of reoffense, a low degree of danger, or both.

Level 2: SORB determined a person poses a moderate risk of reoffense, a moderate degree of danger, and that a public safety interest is served by publishing their registration information on SORB’s public website.

Level 3: SORB determined a person poses a high risk of reoffense, a high degree of danger, and that a public safety interest is served by publishing their registration information on SORB’s public website.

The practical effect of the different Massachusetts SORB classification Levels is mainly connected to the availability of your registration information to the public. The lower your Level, the less of your information is made public.

Level 1: You will not be publicly identified as a registered sex offender. SORB won’t put your photo or address on its public website, and the police cannot tell anyone you are a registered sex offender, even if they are asked.

Level 2: SORB will post your photo, home address, work address, and the date and type of your sex offense conviction on its public website. Anyone can go on SORB’s website and either search for a person by name, or search for sex offenders in a specific city. A person can also obtain that information by walking into a police station and asking.

Level 3: In addition to being on SORB’s public website, your registration information is subject to “active dissemination.” That means that your information can be posted in public places around your town, on Facebook, and in newspapers, to name a few examples. Police can also go door-to-door in your neighborhood to tell your neighbors there is a sex offender nearby.

A Level 2 or Level 3 classification also means that you can never seal your sex offense from your criminal record. This is true even if SORB later concludes that you no longer pose a risk of reoffense and terminates your duty to register as a sex offender. The mere fact that you were a Level 2 or Level 3 at one point serves as a permanent barrier to sealing your sex offense conviction.

Not necessarily. A Level 1 classification only means that SORB and the police can’t tell anyone that you are a registered sex offender. But anyone can walk into a courthouse at any time and ask to see your criminal case file if they know your name.

Also, if someone runs your criminal record – for example if you apply for a job – your sex offense conviction will show up. Having a criminal record and being a registered sex offender are two different things.

No. In Massachusetts, your SORB classification Level is not determined by the statute or crime you were convicted of. It is based on an individualized assessment of the risk of reoffense and the degree of danger you currently pose. That decision is made by a member of the Sex Offender Registry Board or by a Hearing Examiner.

This is different from the way most other states handle registration, and sometimes it produces unexpected results. A person convicted of a very serious sex offense against a child can be classified at a lower Level than a person convicted of a less serious crime against an adult.

That’s because the name of the crime that was committed matters less to SORB than the underlying details of the case and the rest of the record, including your age, offense-free time in the community, probation compliance, and stability and support. See “What does SORB look at when deciding a classification Level?”

SORB classifications are based on its application of 38 “risk factors” that are considered to have either an aggravating (increased) or mitigating (decreased) effect on a person’s risk of committing another sex offense. Some of the factors are based on the offense itself, for example the victim’s age and relationship, the degree of contact, and whether force or violence was used.

Other aggravating factors are based on a person’s other criminal history, such as their criminal record, compliance with probation, and alcohol or substance use.

SORB also looks at mitigating factors that reduce the risk of committing a future sex offense. These include advanced age, time in the community without committing an offense, medical conditions, sex offender treatment, and support and stability.

These factors are not supposed to be a checklist, and they do not all carry equal weight. Two people convicted of the same type of crime can end up at different Levels because of everything else in the record. Much of the work in a SORB case is determining which facts actually matter and applying them to the 38 factors the Hearing Examiner will apply, so the Hearing Examiner is not left to draw those connections alone. See “What are SORB’s 38 risk factors?”

SORB applies 38 “risk factors” when it decides a classification Level. There are four categories of risk factors: High Risk, Risk Elevating, Risk Mitigating, and Additional Factors. The summaries below describe how each one applies in an adult man’s case. Juvenile cases are assessed under different versions of several of these factors, and a few factors apply only to women.

High Risk Factors

• Factor 1: Mental Abnormality – Applies when there is a diagnosis of a paraphilia, such as pedophilia or exhibitionism.
• Factor 2: Repetitive and Compulsive Behavior – Applies when a second sex offense was committed after already being discovered and confronted about earlier sexual misconduct, whether or not that earlier conduct was ever charged.
• Factor 3: Child Victim – Applies when the victim was under 16, with increased weight when the victim was under 13.
• Factor 4: Age at First Offense – Applies when there was sexual misconduct before age 18 and again after age 21.
• Factor 5: Sexually Dangerous Person (SDP) – Applies when there has been an adjudication as a sexually dangerous person, or a release from civil commitment.
• Factor 6: Maximum Term of Incarceration – Applies when an offer of parole was declined in order to avoid community supervision.

Risk Elevating Factors

• Factor 7: Relationship to Victim – Applies when the victim was outside the family, with the most weight given when the victim was a stranger.
• Factor 8: Weapon, Violence, or Injury – Applies when a weapon, force, or bodily injury was involved in the sex offense.
• Factor 9: Alcohol and Substance Abuse – Applies when there is a history of substance use or current substance use.
• Factor 10: Criminal History – Applies when there is non-sexual criminal history, measured by the number and type of charges and dispositions, any abuse or harassment prevention orders, and when the conduct occurred.
• Factor 11: Non-Sexual Violence – Applies when there is a history of violence unrelated to sexual assault, weighed by how severe and how frequent it was.
• Factor 12: Behavior While Incarcerated – Applies when there are disciplinary reports from a period of incarceration or civil commitment, weighed by how many there were, how serious they were, and how close to release they occurred.
• Factor 13: Noncompliance with Supervision – Applies when there have been violations of probation, parole, or pretrial release conditions, weighed by how many there were, how serious they were, and how recent they were.
• Factor 14: Recent Threats – Applies when there have been recent threats of a sexual or violent nature.
• Factor 15: Hostility Toward Women – Applies when there is evidence of hostility toward women, such as a history of domestic violence or restraining orders.
• Factor 16: Public Place – Applies when the offense was committed somewhere detection was likely, and carries less weight where there was a clear and concerted effort to conceal it.
• Factor 17: Male Victim – Applies when the offense was committed by someone male against a male victim.
• Factor 18: Extravulnerable Victim – Applies when the victim was especially vulnerable, for example under the age of 8, over age 60, or incapacitated.
• Factor 19: Level of Physical Contact – Applies based on the type and degree of sexual contact.
• Factor 20: Diverse Sexual Behavior – Applies when there was at least one instance of a different type of sexual misconduct beyond the governing offense, such as voyeurism, exhibitionism, possession of pornography, stalking, frottage, or sexual harassment.
• Factor 21: Diverse Victim Type – Applies when there were at least two victims who differed from each other in gender, age, or relationship.
• Factor 22: Number of Victims – Applies when there were two or more victims.
• Factor 23: Victim Access – Applies when there is easy access to victims.
• Factor 24: Unsatisfactory Treatment Participation – Applies when sex offender treatment was refused, abandoned, or ended in a discharge for noncompliance.

Risk Mitigating Factors

• Factor 28: Community Supervision – Applies while currently on probation or parole, or is still incarcerated or civilly committed but will be supervised after release. Less weight is given where there is a history of probation violations.
• Factor 29: Offense-Free Time – Applies based on time spent living in the community without a new offense, measured from the most recent release from custody, or from the date of conviction where there was no incarceration. SORB’s own regulations recognize that risk decreases after five to ten years offense free, and decreases substantially after ten or more. Less weight is given where there was sexual misconduct during that period that was never charged, where time was spent out of the community (reduced in proportion to the time away), or where there was ongoing criminal activity, especially non-sexual violence.
• Factor 30: Advanced Age – Applies starting at age 40, with risk declining gradually through the forties and age becoming significantly mitigating at 50, or at 60 where there was a child victim. Age is measured as of the classification. Reduced weight is given where there is continuing general criminality or inappropriate sexual behavior.
• Factor 31: Physical Condition – Applies when a physical condition or debilitating illness reduces risk. The medical documentation has to identify the condition, the date of onset or diagnosis, the resulting limitations, and the treatment and prognosis.
• Factor 32: Sex Offender Treatment – Applies when sex offender treatment has been completed or is ongoing, and the weight varies by degree. Completing a program generally carries more weight than participating without completing. Increased weight can be given for voluntary treatment in the community, or for continuing in treatment after the provider says the program is complete. Less weight is given where treatment was started but not completed, and the weight can be reduced by ongoing denial or minimizing.
• Factor 33: Support Systems – Applies when there is a positive social support network. Greater weight is given where there is credible evidence that the support network knows about the sex offense history and provides active support.
• Factor 34: Stability – Applies when there is stability in the home and in the community, including mental health or substance abuse treatment, recent behavior and lifestyle, housing, sustained sobriety, continuing education, employment, and activities outside of work.

Additional Factors

• Factor 35: Psychological Profile – Allows SORB to consider a psychological or psychiatric evaluation that addresses risk of reoffense.
• Factor 36: Online Offending Behavior – Applies when the offense involved online conduct, which the regulations break down into child sexual abuse material, online communication, and solicitation.
• Factor 37: Other Useful Information – Allows SORB to consider any other information bearing on risk of reoffense or degree of dangerousness that no other factor covers.
• Factor 38: Victim Impact Statement – Allows SORB to consider a statement from the victim describing the effect of the offense.

Evidence means something different at a SORB hearing than it does in a criminal case. In a criminal trial, witnesses testify under oath and can be cross-examined. But at SORB hearings hearsay is admissible, so SORB does not have to call witnesses. This means that unsworn statements in police reports and other criminal case documents will typically be credited.

Many people are surprised to learn that SORB will consider everything in a police report it finds credible, even if you were not convicted of all of the original charges. This comes up often where charges were reduced or dismissed as part of a plea, including charges dismissed as legally unsustainable, and where a trial ended in conviction on some charges and acquittal on others.

The rule that allows hearsay works both ways. It also gives you the opportunity to submit a wide range of documentation to make your case for a lower classification Level without having to produce witnesses to testify. See “What happens at a SORB classification hearing?”

A SORB classification hearing is an evidentiary proceeding before a member of the Sex Offender Registry Board or a Hearing Examiner. These hearings do not happen in court. They are held remotely over Zoom.

Hearing Examiners are not judges, but they play a similar role by presiding over the hearing, ruling on motions, and deciding the case after reviewing the evidence and hearing arguments. The Board is represented by its own attorney, whose role is somewhat like a prosecutor’s. That attorney asks the Hearing Examiner to adopt the recommended classification Level.

Both sides can submit documents and both have the right to call witnesses. In practice, SORB does not call witnesses and relies on documents. You may choose to testify, or have others testify on your behalf, such as a supportive family member or an expert. Both attorneys then have the opportunity to make a closing argument, typically running through the 38 SORB factors that are used to evaluate a person’s risk and degree of danger, and arguing why the evidence supports the Level they are requesting.

Cases that proceed largely on documentary evidence can take less than an hour, and hearings with multiple witnesses can last many hours. At the end of the hearing, the Hearing Examiner will take the matter under advisement, and will typically issue a written decision 30 to 90 days later, though it can take less or more time.

A final classification decision is only final in the sense that it is the decision SORB reached after a hearing. SORB is an administrative agency, so a classification can still be challenged by filing a complaint for judicial review in the Superior Court within 30 days of the decision.

You can also ask SORB for a lower Level later by filing a petition for reclassification, which is a different process with a different timeline. A petition for reclassification can be filed three years after the date of the decision.

See “Is it better to appeal a SORB classification right away, or to wait and petition for reclassification later?”

Your goal will be the same either way – getting a lower Level – but appealing to the Superior Court and filing a petition for reclassification with SORB are two very different things.

Appeal to Superior Court: An appeal argues that SORB got your classification Level wrong. It is not a new hearing, and it is generally limited to the record that was before the Hearing Examiner. A judge will not reverse a decision simply because they disagree with the Hearing Examiner’s conclusion. They will only reverse a classification if the decision was arbitrary and capricious, an abuse of discretion, not based on substantial evidence, or otherwise not in accordance with the law.

Keeping your information off the internet: If you have just been classified as a Level 2 or Level 3, an appeal is the only option that might keep your information off the internet while the case makes its way through the court. SORB will only wait 5 business days from the date of the decision before putting your information on the internet. An attorney who can get into court within those 5 days can ask a judge for an emergency court order (a temporary restraining order and preliminary injunction) preventing SORB from publishing while the case is pending in Superior Court.

These motions are not easy to win, and they are challenging to file on short notice. But winning one can make a large difference if you have strong appellate issues and are likely to win in the end. Otherwise, your information would be on the internet for many months or even a year before you win in Superior Court. That’s a real problem because even if a person’s registration information is later removed from SORB’s website, there is no way to prevent third party websites from republishing it.

Reclassification petition: Because the standard for appealing a classification decision is so strict, it sometimes makes more sense to wait and file a petition for reclassification later. A reclassification petition gives you an opportunity to present new and updated information that was not available at the time of the original decision. As long as you meet the other threshold eligibility requirements, you can file three years after the date of the decision.

There are also practical considerations such as cost and future plans, and an experienced attorney should be able to help you figure out the option that makes the most sense for you.

Yes. SORB can reopen a final classification if it receives information suggesting that your risk of reoffense and degree of danger have increased. This is not limited to new sex offense convictions. SORB can reopen a classification if any of the following has happened:

• You were investigated or charged with a new sex offense but not convicted
• You violated a condition of probation or parole
• You failed to comply with registration requirements
• You were incarcerated for more than 60 consecutive days
• You demonstrated a lack of stability in the community

From there the process is much like the original classification. You are notified that your Level is being reevaluated and invited to submit documents within 30 days. When that period closes, SORB sends a second letter with its recommendation, which is sometimes to keep the Level where it is, but often it recommends raising it.

You then get the same opportunity to challenge that recommendation and request a hearing. SORB has to prove by clear and convincing evidence that your risk and dangerousness have increased since you were first classified.