SJC hears challenge to board’s Level 2 classification after online sting arrest

May it please the court. At oral argument before the Supreme Judicial Court, attorneys debated whether a state registration board and its hearing examiner misapplied the board’s classification regulations when they labeled the appellant, identified in court as John Doe, a Level 2 offender following an undercover online sting.

The appellant’s counsel, Kate Frame, told the justices the hearing examiner applied the Board’s risk‑factor regulations inconsistently with their plain language and the research cited to support them. “It would be improper for the hearing examiner to select only those factors that support a level 2 classification and to ignore those factors that would undercut the level 2 classification,” Frame said, arguing the examiner failed to fairly consider mitigating facts including enticement by police and the absence of key evidentiary materials in the record.

Frame pressed the court to view the incident as principally an online solicitation incident governed by the regulation labeled “factor 36,” which she said is directed at online offenders and reflects research showing a very low rate of reoffense for that group. She told the court the Board conceded the police enticed the appellant and that photographs whose appearance could bear on the appellant’s state of mind were not before the hearing examiner. Frame also pointed to the appellant’s conviction in Rhode Island and argued that the hearing examiner improperly treated factor 36 as a source of general risk elevation rather than as the regulation’s language allows — a focus on dangerousness among online offenders distinct from the risk‑elevating factors enumerated elsewhere.

Board counsel, identified in the record as Attorney Chenille, told the court the Board must be permitted to assess “risk of reoffense” under the statutory framework and to consider risk‑elevating factors in addition to factor 36. Chenille said enticement by police is not a legal defense to classification in this context and highlighted facts the hearing examiner relied on, including the appellant’s repeated texting, a drive across state lines toward a hotel, and negotiations about payment and services. “If you tell us we can’t look at any of those type of factors because it was a fictitious victim, then anytime someone falls for a police sting … we can never classify them as a moderate or high risk,” Chenille argued.

Both sides debated the scope and meaning of specific regulatory factors. Frame argued Factor 3 — the “child victim” or “targeting” factor — requires proof of targeting an actual child and thus should not apply where an undercover decoy is used; she said the regulations and supporting research do not treat the two contexts interchangeably. Chenille countered that the regulatory scheme and statutory definitions encompass attempts and enticements and that the hearing examiner appropriately considered other factors (including the presence of what the examiner found to be multiple victims) in reaching a Level 2 classification.

The attorneys also cited precedent and regulatory citations during argument. Frame invoked decisions she described as requiring courts, on review, to consider both supporting and detracting evidence bearing on an administrative decision; Chenille cited statutory definitions at the chapter and section level to support the Board’s authority to classify attempts and solicitations as registerable offenses. Justices asked clarifying questions about how to treat online solicitation research cited in the rulemaking, the meaning of “danger” versus “risk of reoffense” under the regulations, and whether errors in applying specific factors would require remand.

No decision was announced at argument. The court’s eventual opinion will determine whether the examiner’s application of the Board’s factors and the reliance on particular research and evidentiary materials provided substantial evidence to support a Level 2 classification.