NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-1273
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 22661
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals a judgment of the Superior
Court affirming the decision of the Sex Offender Registry Board
(SORB) to classify him as a level three sex offender.
Concluding that the hearing examiner abused her discretion in
denying Doe's motion for expert funds, we vacate the judgment
affirming SORB's decision, and remand the matter to SORB for
further proceedings consistent with this memorandum and order.
Background. The facts of Doe's underlying sex offenses are
well known to the parties and will be repeated here only as
necessary.
In March 2012, SORB notified Doe of its recommendation that
he be classified as a level three sex offender. Doe requested a hearing to challenge SORB's recommendation. Before the hearing,
Doe moved for funds to retain an expert, averring that he
required an expert to assess his risk of sexual recidivism
because "[o]nly an expert who examines [Doe] would be able to
assess the current risk of re-offense and degree of
dangerousness that [he] poses now that he has been successfully
treated for his mental illness." In May 2021, a hearing
examiner conducted a de novo hearing to review the SORB's
decision. In July 2021, the hearing examiner issued a decision
finding that Doe's level three classification was supported by
clear and convincing evidence. Along with the decision, the
hearing examiner denied Doe's motion for expert funds. The
hearing examiner "note[d] that one therapist did tie [Doe's]
psychological issues directly to his offending." In denying
Doe's motion, however, the hearing examiner reasoned that
"[g]iven the plethora of information regarding [Doe's] mental
health in the record, I find another assessment to be neither
necessary nor likely helpful," and thus, even if an expert were
to conclude Doe has resolved his mental health issues and "is
resultantly at lower or no risk of reoffense, this would not be
dispositive."
2 Doe appealed the decision to the Superior Court, which
affirmed the level three classification and the denial of Doe's
motion for expert funds. This appeal followed.
Discussion. When moving for expert witness funds, the sex
offender has the burden of showing a need for expert testimony
on an issue that (1) "is particular to him," (2) "is not a
matter of common knowledge or experience," and (3) "clearly
[has] a bearing on [his] classification." Doe, Sex Offender
Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass.
764, 775 (2008) (Doe No. 89230). "[T]he decision whether to
grant an individual sex offender funds for an expert is a
discretionary one, to be based on the facts presented in an
individual case." Id. "We review the examiner's decision to
deny a motion for expert funds for an abuse of discretion."
Doe, Sex Offender Registry Bd. No. 58574 v. Sex Offender
Registry Bd., 98 Mass. App. Ct. 307, 310 (2020) (Doe No. 58574).
Here, the hearing examiner's denial of expert funds was an
abuse of discretion. Doe met his burden of showing a need for
expert testimony. First, Doe's motion was "not a generic motion
for funds," but was "tailored to the specifics of [his mental
illnesses]." Doe No. 58574, 98 Mass. App. Ct. at 311. In
support of his motion, Doe submitted a letter from a mental
3 health clinician1 (Hambridge letter), which discussed the impact
of Doe's mental illnesses on his potential for reoffense. The
Hambridge letter stated, "there appears to be a correlation
between [Doe's] own history of trauma as a child and lack of
appropriate treatment during crucial periods of his development,
which likely resulted in a reliance on problematic sexual
behaviors," and concluded that "[Doe's] risk of re-offense has
lowered." Through this letter, which also discussed Doe's past
triggers, offending behavior, and treatment, Doe sufficiently
raised an issue particular to him. See id. at 311-312 (motion
for funds improperly denied where evidence included physician
report detailing Doe's hepatitis C symptoms and treatment).
Contrast Doe, Sex Offender Registry Bd. No. 29481 v. Sex
Offender Registry Bd., 84 Mass. App. Ct. 537, 543 n.5 (2013)
(motion for funds to evaluate Doe's alleged hallucinations
properly denied where examiner did not credit Doe's claims to
have suffered from hallucinations).
Second, the relationship between Doe's mental illnesses,
which includes diagnoses of both borderline personality disorder
1 Kristen Hambridge, LICSW, CST, is the former unit director of a residential treatment unit at the Massachusetts Treatment Center. As of the time of her evaluation, Hambridge owned and operated a private clinical practice in which she provided therapy related to "sexual health issues; in particular, sexual offending behaviors and sexual deviant interests."
4 and posttraumatic stress disorder, and his risk of recidivism is
not a matter of common knowledge or experience. See Doe No.
89230, 452 Mass. at 775-776 (relationship between bipolar
disorder and recidivism risk not matter of common knowledge or
experience). To this point, an expert opinion is necessary
because "[t]he DSM-IV itself cautions against the use of its
diagnostic criteria and descriptions by individuals who are not
clinically trained." Id. at 776.
Third, expert testimony would help the hearing examiner
determine the relationship between Doe's mental illnesses and
his risk of reoffense by examining whether Doe's offenses were a
result of his untreated trauma and mental illnesses or his
pursuit of sexual gratification.2
It is undisputed that Doe has a significant mental health
history. Specifically, the record includes reference to a
2 On this point, the hearing examiner concluded that an expert would be duplicative of the evidence of Doe's mental health history already in the record and thus not helpful in the classification determination. However, the proposed expert testimony would bear on the hearing examiner's consideration of factor 35 (psychological or psychiatric profiles indicating risk to reoffend), which instructs the examiner to "consider evaluative reports, empirically-based risk assessment instruments, or testimony from a licensed mental health professional that discuss psychological and psychiatric issues . . . as they related to the offender's risk of reoffense" (emphasis added).
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-1273
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 22661
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals a judgment of the Superior
Court affirming the decision of the Sex Offender Registry Board
(SORB) to classify him as a level three sex offender.
Concluding that the hearing examiner abused her discretion in
denying Doe's motion for expert funds, we vacate the judgment
affirming SORB's decision, and remand the matter to SORB for
further proceedings consistent with this memorandum and order.
Background. The facts of Doe's underlying sex offenses are
well known to the parties and will be repeated here only as
necessary.
In March 2012, SORB notified Doe of its recommendation that
he be classified as a level three sex offender. Doe requested a hearing to challenge SORB's recommendation. Before the hearing,
Doe moved for funds to retain an expert, averring that he
required an expert to assess his risk of sexual recidivism
because "[o]nly an expert who examines [Doe] would be able to
assess the current risk of re-offense and degree of
dangerousness that [he] poses now that he has been successfully
treated for his mental illness." In May 2021, a hearing
examiner conducted a de novo hearing to review the SORB's
decision. In July 2021, the hearing examiner issued a decision
finding that Doe's level three classification was supported by
clear and convincing evidence. Along with the decision, the
hearing examiner denied Doe's motion for expert funds. The
hearing examiner "note[d] that one therapist did tie [Doe's]
psychological issues directly to his offending." In denying
Doe's motion, however, the hearing examiner reasoned that
"[g]iven the plethora of information regarding [Doe's] mental
health in the record, I find another assessment to be neither
necessary nor likely helpful," and thus, even if an expert were
to conclude Doe has resolved his mental health issues and "is
resultantly at lower or no risk of reoffense, this would not be
dispositive."
2 Doe appealed the decision to the Superior Court, which
affirmed the level three classification and the denial of Doe's
motion for expert funds. This appeal followed.
Discussion. When moving for expert witness funds, the sex
offender has the burden of showing a need for expert testimony
on an issue that (1) "is particular to him," (2) "is not a
matter of common knowledge or experience," and (3) "clearly
[has] a bearing on [his] classification." Doe, Sex Offender
Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass.
764, 775 (2008) (Doe No. 89230). "[T]he decision whether to
grant an individual sex offender funds for an expert is a
discretionary one, to be based on the facts presented in an
individual case." Id. "We review the examiner's decision to
deny a motion for expert funds for an abuse of discretion."
Doe, Sex Offender Registry Bd. No. 58574 v. Sex Offender
Registry Bd., 98 Mass. App. Ct. 307, 310 (2020) (Doe No. 58574).
Here, the hearing examiner's denial of expert funds was an
abuse of discretion. Doe met his burden of showing a need for
expert testimony. First, Doe's motion was "not a generic motion
for funds," but was "tailored to the specifics of [his mental
illnesses]." Doe No. 58574, 98 Mass. App. Ct. at 311. In
support of his motion, Doe submitted a letter from a mental
3 health clinician1 (Hambridge letter), which discussed the impact
of Doe's mental illnesses on his potential for reoffense. The
Hambridge letter stated, "there appears to be a correlation
between [Doe's] own history of trauma as a child and lack of
appropriate treatment during crucial periods of his development,
which likely resulted in a reliance on problematic sexual
behaviors," and concluded that "[Doe's] risk of re-offense has
lowered." Through this letter, which also discussed Doe's past
triggers, offending behavior, and treatment, Doe sufficiently
raised an issue particular to him. See id. at 311-312 (motion
for funds improperly denied where evidence included physician
report detailing Doe's hepatitis C symptoms and treatment).
Contrast Doe, Sex Offender Registry Bd. No. 29481 v. Sex
Offender Registry Bd., 84 Mass. App. Ct. 537, 543 n.5 (2013)
(motion for funds to evaluate Doe's alleged hallucinations
properly denied where examiner did not credit Doe's claims to
have suffered from hallucinations).
Second, the relationship between Doe's mental illnesses,
which includes diagnoses of both borderline personality disorder
1 Kristen Hambridge, LICSW, CST, is the former unit director of a residential treatment unit at the Massachusetts Treatment Center. As of the time of her evaluation, Hambridge owned and operated a private clinical practice in which she provided therapy related to "sexual health issues; in particular, sexual offending behaviors and sexual deviant interests."
4 and posttraumatic stress disorder, and his risk of recidivism is
not a matter of common knowledge or experience. See Doe No.
89230, 452 Mass. at 775-776 (relationship between bipolar
disorder and recidivism risk not matter of common knowledge or
experience). To this point, an expert opinion is necessary
because "[t]he DSM-IV itself cautions against the use of its
diagnostic criteria and descriptions by individuals who are not
clinically trained." Id. at 776.
Third, expert testimony would help the hearing examiner
determine the relationship between Doe's mental illnesses and
his risk of reoffense by examining whether Doe's offenses were a
result of his untreated trauma and mental illnesses or his
pursuit of sexual gratification.2
It is undisputed that Doe has a significant mental health
history. Specifically, the record includes reference to a
2 On this point, the hearing examiner concluded that an expert would be duplicative of the evidence of Doe's mental health history already in the record and thus not helpful in the classification determination. However, the proposed expert testimony would bear on the hearing examiner's consideration of factor 35 (psychological or psychiatric profiles indicating risk to reoffend), which instructs the examiner to "consider evaluative reports, empirically-based risk assessment instruments, or testimony from a licensed mental health professional that discuss psychological and psychiatric issues . . . as they related to the offender's risk of reoffense" (emphasis added). 803 Code Mass. Regs. § 1.33(35) (2016). The Hambridge letter implicates factor 35.
5 competency evaluation dated March 1983, which observed that
"[Doe] did not suffer from a major mental illness," but that "he
had a severe personality disorder . . . characterized by
impulsivity, potentially self-damaging or other destructive
behavior, substance abuse, and lack of control and anger." Doe
was also evaluated in May 1997, when a doctor noted, "[Doe]
suffers from features of Post Traumatic Stress Disorder with
intrusive memories, auditory hallucination, and apparent
disassociated episodes." There is no recent medical evidence in
the record, however, that examines the relationship between
Doe's mental illness and sexual offenses. See Doe, Sex Offender
Registry Bd. No. 3839 v. Sex Offender Registry Bd., 472 Mass.
492, 501 (2015) (final classification must be based on
evaluation of offender's risk of reoffense at time reasonably
close to date of discharge). Expert testimony would be relevant
to Doe's classification decision and is necessary to address not
only the potential existence of a nexus between Doe's mental
illnesses and sex offenses, which the Hambridge letter briefly
addresses, but the specific risk of reoffense and level of
dangerousness Doe currently poses.3
3 Doe further argues that without an expert in this case, SORB cannot demonstrate that its classification decision is supported by clear and convincing evidence. Because we have concluded Doe is entitled to an expert and new hearing, we need not reach this question.
6 Conclusion. Because the hearing examiner abused her
discretion in denying Doe's motion for expert funds, the
Superior Court's judgment affirming SORB's classification
decision is vacated. A new judgment shall enter vacating SORB's
decision and remanding the matter to SORB for further
proceedings consistent with this memorandum and order.
So ordered.
By the Court (Rubin, Hand & Smyth, JJ.4),
Clerk
Entered: July 8, 2025.
4 The panelists are listed in order of seniority.