John Doe, Sex Offender Registry Board No. 461415 v. Sex Offender Registry Board.

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).

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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.

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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.

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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.

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"[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

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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).

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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.

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