Opinion
No. 11–P–1169.
2012-10-25
John DOE, Sex Offender Registry Board No. 21931 v. SEX OFFENDER REGISTRY BOARD.
By the Court (MEADE, SIKORA & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, John Doe No. 21931, appeals from a judgment of the Superior Court affirming the Sex Offender Registry Board's (board) final classification of Doe as a level three (high-risk) sex offender. On appeal, Doe raises several claims that question the validity of his classification. Because none merits relief, we affirm.
Doe claims the board's decision to classify him as a level three sex offender when his release into the community is not imminent violated his rights to due process. We disagree. This claim is foreclosed by our recent decision in Doe, Sex Offender Registry Bd. No. 1 v. Sex Offender Registry Bd., 79 Mass.App.Ct. 683, 687–690 (2011). See Doe, Sex Offender Registry Bd. No. 3974 v. Sex Offender Registry Bd., 457 Mass. 53, 60–61 (2010); Doe, Sex Offender Registry Bd. No. 22351 v. Sex Offender Registry Bd., 81 Mass.App.Ct. 904, 904–905 (2012). Doe next claims the hearing examiner's decision was arbitrary, capricious, and punitive in nature because she placed “extraordinary emphasis” on Doe's criminal offenses while giving Doe little credit for progress in treatment during his incarceration. We disagree. The fact that Doe had sex offender treatment, while confined at the Massachusetts Treatment Center as a sexually dangerous person (SDP), did not require the hearing examiner to determine that such treatment outweighed the statutory and regulatory factors that indicated he was at a high risk to reoffend. Doe's violent and multiple sexual assaults against six stranger victims, his commitment as an SDP, and his repetitive and compulsive behavior all provided substantial evidence in support of Doe's classification as a level three sex offender. See Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 632–633 (2011).
Finally, Doe claims the hearing examiner's denial of his motion for expert witness funds was arbitrary and capricious. In essence, Doe claims that because he is now sixty, had been in sex offender therapy for many years, and had been diagnosed with prostate cancer, all conditions “peculiar to him,” expert witness testimony was required to demonstrate that Doe's dangerousness level has been reduced. We disagree.
Here, it was Doe's burden “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.” Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 775 (2008); Doe, Sex Offender Registry Bd. No. 27914 v. Sex Offender Registry Bd., 81 Mass.App.Ct. 610, 617 (2012). Doe argues that his prostate cancer caused a reduction in his sex drive, and thereby implicated factor 13 and a need for expert testimony. However, the evidence submitted by Doe—his progress notes from Department of Correction health services regarding his prostate cancer—failed to meet the requirements set forth in factor 13. See 803 Code Mass. Regs. § 1.40(13) (2002). The side effects of his treatment did not touch on his sexual health. In other words, Doe failed to provide evidence that supported his claim in his motion for expert funds that he had a “diminished sex drive due to his prostate cancer.” The order denying the motion requesting expert funds was not arbitrary and capricious.
The hearing examiner also did not err in denying Doe's motion given that the study offered by Doe on age and rates of sexual assault recidivism did not study offenders like Doe, whose victims were strangers.
Judgment affirmed.