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-1409
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 461415
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court
judgment affirming his classification by the Sex Offender
Registry Board (SORB) as a level two sex offender. The
plaintiff argues that the SORB hearing examiner (examiner)
abused his discretion in denying the plaintiff's motion for
funds for a medical expert and that the denial deprived the
plaintiff of his constitutional right to due process in the
classification hearing. We affirm.
Background. 1. The underlying offense. The parties do
not dispute the facts found by the examiner. In 2010, Brockton
police were dispatched to a rape in progress. When the police
arrived, they observed two men arguing in the middle of a parking lot. One of the men approached the officers and
informed them that the other man, later identified as the
plaintiff, had just raped a fifteen year old girl --
specifically, the niece of the plaintiff's ex-girlfriend. In
2013, the plaintiff pleaded guilty to two counts of rape and
abuse of a child in violation of G. L. c. 265, § 23, and one
count of indecent assault and battery on a person fourteen years
of age or older in violation of G. L. c. 265, § 13H.
2. The classification hearing. In 2021, SORB notified the
plaintiff of his duty to register as a level three sex offender.
The plaintiff requested a hearing to challenge SORB's
recommendation. SORB granted that request and held a de novo
hearing in 2021.
Before the hearing, the plaintiff requested funds for an
expert witness to evaluate the plaintiff, prepare a report, and
testify at the hearing. The plaintiff argued that his
psychological profile, physical condition, and Hispanic
ethnicity created a special condition or circumstance that would
affect his risk of recidivism and dangerousness. The examiner
found this request was a general request to assess sexual
recidivism, which should be denied pursuant to Doe, Sex Offender
Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass.
764, 775 (2008) (Doe No. 89230).
2 As part of his motion for funds for an expert witness, the
plaintiff argued that an expert was necessary to testify on the
application of SORB's classification guidelines to Hispanic and
Latino individuals. The plaintiff argued that the scientific
studies supporting SORB's classification guidelines were
conducted using Caucasian and Black offenders and therefore
could not accurately predict the recidivism risk of Hispanic
offenders. The plaintiff did not propose funds for an expert
with expertise in Hispanic and Latino culture, but rather
submitted two articles addressing how the Static-99 and Static-
99R underpredict the risk of reoffense for Hispanic offenders.
One of the articles suggested the Static-99 test may not be
predictive of the risk of reoffense in Latino individuals born
outside of the United States or Puerto Rico and conducted
comparative research to uncover some cultural factors that may
contribute to sexual offending behaviors among Latino
individuals. The article ultimately concluded that its results
did not "necessarily imply that Latinos are in fact at lower
risk of reoffending." The other article found that the Static-
99 and Static-99R performed the least well in determining Latino
individuals' risk of recidivism but indicated that the results
only suggest that the appropriateness of using the Static-99
test for Latino offenders has not yet been clearly established,
and further research would be necessary.
3 The examiner denied the motion for expert funds. In
denying the motion, the examiner wrote:
"The articles propose different ideas as to why the STATIC- 99R is less predictive, however, these theories have not yet been tested. One such theory, however, is that the STATIC relies heavily on historical records which are often unavailable when assessing foreign born Hispanic offenders. However, the articles do cite to another study that found US born Hispanic offenders were scored more accurately on the STATIC-99R. The articles also do not address the Board's collateral inquiry of dangerousness nor do they asses the effectiveness of the Board's more comprehensive and dynamic risk factors. [The plaintiff] further failed to submit evidence that the Board's Regulatory Factors are based solely on Black and Caucasian offenders."
At the hearing, the plaintiff again made an oral motion for
funds for an expert to testify on the risk of reoffense in
Hispanic and Latino offenders. The plaintiff argued that in the
case of juvenile offenders, older offenders, and female
offenders, SORB did not initially have sufficient studies to
apply to the classification guidelines for these groups, but
upon further research, has since incorporated these differences
into the regulations. In denying the oral motion, the examiner
deferred to his prior reasoning.
The examiner instead considered the two articles submitted
by the plaintiff as other useful information related to the
nature of sexual behavior pursuant to Factor 37. The examiner
issued a detailed decision in which he found, by clear and
convincing evidence, that the plaintiff presents a moderate risk
of reoffense and a moderate degree of dangerousness.
4 Accordingly, the examiner ordered the plaintiff to register as a
level two sex offender.
The plaintiff sought judicial review of the examiner's
decision in the Superior Court pursuant to G. L. c. 30A, § 14;
G. L. c. 6, § 178M; G. L. c. 231A; and G. L. c. 249, § 4. The
plaintiff conducted discovery regarding the empirical basis for
SORB's classification guidelines and represented in his Superior
Court filings that only six of the thirty-two scientific
articles and studies cited by SORB indicated the subjects'
ethnic identity and therefore did not provide sufficient
scientific information for how SORB's factors apply to Latino
and Hispanic offenders. On October 2, 2023, a Superior Court
judge denied the plaintiff's motion for judgment on the
pleadings and entered a judgment affirming the examiner's
decision. The plaintiff filed a timely appeal.
Discussion. The plaintiff argues that the examiner abused
his discretion in denying the motion for expert funds and that
the denial, and subsequent application of the regulatory
factors, resulted in a deprivation of the plaintiff's
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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-1409
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 461415
vs.
SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court
judgment affirming his classification by the Sex Offender
Registry Board (SORB) as a level two sex offender. The
plaintiff argues that the SORB hearing examiner (examiner)
abused his discretion in denying the plaintiff's motion for
funds for a medical expert and that the denial deprived the
plaintiff of his constitutional right to due process in the
classification hearing. We affirm.
Background. 1. The underlying offense. The parties do
not dispute the facts found by the examiner. In 2010, Brockton
police were dispatched to a rape in progress. When the police
arrived, they observed two men arguing in the middle of a parking lot. One of the men approached the officers and
informed them that the other man, later identified as the
plaintiff, had just raped a fifteen year old girl --
specifically, the niece of the plaintiff's ex-girlfriend. In
2013, the plaintiff pleaded guilty to two counts of rape and
abuse of a child in violation of G. L. c. 265, § 23, and one
count of indecent assault and battery on a person fourteen years
of age or older in violation of G. L. c. 265, § 13H.
2. The classification hearing. In 2021, SORB notified the
plaintiff of his duty to register as a level three sex offender.
The plaintiff requested a hearing to challenge SORB's
recommendation. SORB granted that request and held a de novo
hearing in 2021.
Before the hearing, the plaintiff requested funds for an
expert witness to evaluate the plaintiff, prepare a report, and
testify at the hearing. The plaintiff argued that his
psychological profile, physical condition, and Hispanic
ethnicity created a special condition or circumstance that would
affect his risk of recidivism and dangerousness. The examiner
found this request was a general request to assess sexual
recidivism, which should be denied pursuant to Doe, Sex Offender
Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass.
764, 775 (2008) (Doe No. 89230).
2 As part of his motion for funds for an expert witness, the
plaintiff argued that an expert was necessary to testify on the
application of SORB's classification guidelines to Hispanic and
Latino individuals. The plaintiff argued that the scientific
studies supporting SORB's classification guidelines were
conducted using Caucasian and Black offenders and therefore
could not accurately predict the recidivism risk of Hispanic
offenders. The plaintiff did not propose funds for an expert
with expertise in Hispanic and Latino culture, but rather
submitted two articles addressing how the Static-99 and Static-
99R underpredict the risk of reoffense for Hispanic offenders.
One of the articles suggested the Static-99 test may not be
predictive of the risk of reoffense in Latino individuals born
outside of the United States or Puerto Rico and conducted
comparative research to uncover some cultural factors that may
contribute to sexual offending behaviors among Latino
individuals. The article ultimately concluded that its results
did not "necessarily imply that Latinos are in fact at lower
risk of reoffending." The other article found that the Static-
99 and Static-99R performed the least well in determining Latino
individuals' risk of recidivism but indicated that the results
only suggest that the appropriateness of using the Static-99
test for Latino offenders has not yet been clearly established,
and further research would be necessary.
3 The examiner denied the motion for expert funds. In
denying the motion, the examiner wrote:
"The articles propose different ideas as to why the STATIC- 99R is less predictive, however, these theories have not yet been tested. One such theory, however, is that the STATIC relies heavily on historical records which are often unavailable when assessing foreign born Hispanic offenders. However, the articles do cite to another study that found US born Hispanic offenders were scored more accurately on the STATIC-99R. The articles also do not address the Board's collateral inquiry of dangerousness nor do they asses the effectiveness of the Board's more comprehensive and dynamic risk factors. [The plaintiff] further failed to submit evidence that the Board's Regulatory Factors are based solely on Black and Caucasian offenders."
At the hearing, the plaintiff again made an oral motion for
funds for an expert to testify on the risk of reoffense in
Hispanic and Latino offenders. The plaintiff argued that in the
case of juvenile offenders, older offenders, and female
offenders, SORB did not initially have sufficient studies to
apply to the classification guidelines for these groups, but
upon further research, has since incorporated these differences
into the regulations. In denying the oral motion, the examiner
deferred to his prior reasoning.
The examiner instead considered the two articles submitted
by the plaintiff as other useful information related to the
nature of sexual behavior pursuant to Factor 37. The examiner
issued a detailed decision in which he found, by clear and
convincing evidence, that the plaintiff presents a moderate risk
of reoffense and a moderate degree of dangerousness.
4 Accordingly, the examiner ordered the plaintiff to register as a
level two sex offender.
The plaintiff sought judicial review of the examiner's
decision in the Superior Court pursuant to G. L. c. 30A, § 14;
G. L. c. 6, § 178M; G. L. c. 231A; and G. L. c. 249, § 4. The
plaintiff conducted discovery regarding the empirical basis for
SORB's classification guidelines and represented in his Superior
Court filings that only six of the thirty-two scientific
articles and studies cited by SORB indicated the subjects'
ethnic identity and therefore did not provide sufficient
scientific information for how SORB's factors apply to Latino
and Hispanic offenders. On October 2, 2023, a Superior Court
judge denied the plaintiff's motion for judgment on the
pleadings and entered a judgment affirming the examiner's
decision. The plaintiff filed a timely appeal.
Discussion. The plaintiff argues that the examiner abused
his discretion in denying the motion for expert funds and that
the denial, and subsequent application of the regulatory
factors, resulted in a deprivation of the plaintiff's
constitutional right to due process in the hearing.
1. The denial of expert funds. "[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." Doe No. 89230, 452 Mass. at 775.
5 "[I]n moving for expert witness funds, the burden [is] on the sex offender to identify and articulate the reason or reasons, connected to a condition or circumstance special to him, that he needs to retain a particular type of expert. A general motion for funds to retain an expert to provide an opinion on the sex offender's risk of reoffense, without more, would appear to be insufficient."
Id.
It was the plaintiff's burden to explain how the identified
condition or circumstance -- in this case being Latino or
Hispanic -- was relevant to his risk of reoffense or level of
dangerousness, and to provide evidence to support such
relevance. See Doe, Sex Offender Registry Bd. No. 339940 v. Sex
Offender Registry Bd., 488 Mass. 15, 28-30 (2021). See also 803
Code Mass. Regs. § 1.16(4)(a) (2016).
Here, the plaintiff did not identify any specific expert he
sought to retain, nor did he identify an expert who has
expertise in Hispanic or Latino culture. The plaintiff
submitted articles that suggested some reasons why Static-99
testing may be less accurate for some Hispanic offenders, but
those articles did not definitively conclude that Hispanic or
Latino individuals have a lower recidivism risk than other
offenders. Indeed, the articles stated that more research would
be necessary to make that conclusion.
The plaintiff did not provide any research suggesting that
Hispanic or Latino ethnicity is correlated with a lower risk of
recidivism, a lower risk of dangerousness, or the
6 inapplicability of one of the SORB factors. The examiner
correctly determined that the articles did not present "current,
validated evidence" demonstrating the relevance of a factor not
accounted for in SORB's regulatory factors. See Doe, Sex
Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd.,
466 Mass. 594, 607-608 (2013) (Doe. No. 205614). Accordingly,
the examiner did not abuse his discretion in denying plaintiff's
motion for expert funds where the plaintiff failed to meet his
burden of establishing a sufficient nexus between his Latino or
Hispanic ethnicity and his current risk of reoffense or level of
dangerousness. See Doe No. 89230, 452 Mass. at 775.
2. Validity of the regulations. The plaintiff argues that
SORB's regulatory factors are invalid as applied to him due to
his Hispanic ethnicity. The plaintiff also argues that this
invalid application of the regulatory factors deprived him of
his due process rights.
"A plaintiff challenging the validity of regulations
promulgated by an agency pursuant to its statutory authority
faces a heavy burden to establish that those regulations are
invalid." Doe, Sex Offender Registry Bd. No. 151564 v. Sex
Offender Registry Bd., 456 Mass. 612, 620 (2010) (Doe 151564).
"An agency has a wide range of discretion in establishing the
parameters of its authority pursuant to the enabling
legislation" (quotation omitted). Id. "Regulations promulgated
7 by an agency are valid unless they 'conflict with the statutes
. . . under which the agency operates'" (quotation omitted).
Id., quoting Duarte v. Commissioner of Revenue, 451 Mass. 399,
411 (2008). The statute under which SORB operates requires SORB
to "promulgate guidelines for determining the level of risk of
reoffense and the degree of dangerousness posed to the public"
by sex offenders and sets forth the factors SORB must consider.
G. L. c. 6, § 178K (1). To promulgate these regulations, SORB
relies on the available literature and scientific studies
conducted by leading researchers in the field of sex offender
recidivism. See Doe No. 151564, supra at 620 (SORB's
regulations are generally considered valid so long as they do
not conflict with enabling statute and are based on reliable
research). To satisfy his heavy burden to show the regulations
were invalid, the plaintiff must show that research demonstrates
one or more regulatory factors are now considered unreliable
within the scientific community or that substantial evidence
suggests an important factor, not currently considered by SORB,
impacts risk of recidivism or level of dangerousness. See Id.
at 620-623 (plaintiff sustained his burden by showing that
substantial evidence suggested age was important factor in risk
of recidivism and it was arbitrary and capricious for SORB to
disregard such research).
8 The plaintiff did not satisfy his burden to show that any
regulatory factor is now considered invalid by the scientific
community, or that SORB should have considered a new, relevant
factor. As discussed, the proffered articles offer some
theories as to why the Static-99 assessment may be less accurate
in predicting the risk of recidivism among Hispanic or Latino
offenders than Caucasian and Black offenders; however, the
articles do not present any evidence that any specific SORB
regulatory factor does not accurately predict that risk. The
SORB regulatory factors do not rely on the results of Static-99
testing, and therefore an alleged lack of accuracy in Static-99
testing does not call into question the validity of SORB's
regulatory factors. See G. L. c. 6, § 178K (1) (a)-(l).
Further, the articles do not present any evidence, let alone
substantial evidence, that Latino and Hispanic ethnicity is
relevant in predicting the risk of recidivism or level of
dangerousness. Rather, the articles state that more research is
necessary.
In addition, the enabling statute does not list race or
ethnicity as a relevant factor that SORB must consider in
promulgating the regulations for the classification of sex
offenders. See G. L. c. 6, § 178K. SORB bases its regulations
on reliable research reflecting a general scientific consensus
about the factors relevant to predicting the risk of recidivism
9 and level of dangerousness. That research does not suggest race
or ethnicity is a relevant factor. Therefore, SORB's decision
not to include race or ethnicity among its factors is
reasonable. Doe No. 151564, 456 Mass. at 620. See 803 Code
Mass. Regs. § 1.33. As such, the current regulations do not
conflict with the statute and are valid. See Doe No. 151564,
supra.
To be sure, the plaintiff has a due process right to an
individualized hearing based on regulatory factors supported by
general scientific consensus. Doe No. 205614, 466 Mass. at 608.
The examiner provided the plaintiff with an individualized
review of his conditions and circumstances in which the examiner
considered all applicable regulatory factors. The examiner also
considered the plaintiff's articles under Factor 37 as other
useful information. See Doe, Sex Offender Registry Bd. No. 1211
v. Sex Offender Registry Bd., 447 Mass. 750, 761 (2006) (sex
offenders are protected from risk of erroneous deprivation of
liberty by, inter alia, ability to submit any useful information
to hearing examiners). And, as we have already explained, the
applicable regulatory factors were based on general scientific
10 consensus. Accordingly, the plaintiff received adequate process
to protect his interest in a proper classification.
Judgment affirmed.
By the Court (Massing, Neyman & Wood, JJ.1),
Clerk
Entered: May 28, 2025.
1 The panelists are listed in order of seniority.