MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Doe appeals from a Superior Court judgment affirming his classification by the Sex Offender Registry Board (SORB) as a level two sex offender. Because we conclude that the hearing examiner erred in denying Does motion for expert funds, we vacate the judgment and remand the matter for further proceedings consistent with this memorandum and order.
Background.
2
In 1995, Doe (then eighteen years old) kidnapped and raped a six year old girl. Earlier that year, he groped a thirty-two year old woman on the street. Based on these incidents, Doe pleaded guilty to two counts of rape of a child, one count of kidnapping of a child, and one count of indecent assault and battery. He was sentenced to from ten to twelve years in prison, followed by five years of probation.
3
It is undisputed that Doe suffers from severe mental illness, including paranoid schizophrenia and schizoaffective disorder. In fact, while serving his prison term, he was civilly committed for mental health concerns nine separate times. He has received various treatments for his mental illnesses, including the administration of antipsychotic medicines.
In 2010, SORB classified Doe as a level three sex offender. He unsuccessfully petitioned for reclassification in 2016, and then reapplied in 2021, seeking to be classified as a level one offender or to be excused from having to register altogether. As part of the 2021 proceeding, Doe filed a motion for funds to hire a mental health expert. The basis for this request was to evaluate the effect of mental health treatment on the risks he presented.
4
Doe supported his motion with citations to scholarly articles. For example, Doe cited a scientific study for the proposition “that the diagnosis of schizophrenia, mania or depression is negatively, if at all, related to further violent recidivism among individuals who receive psychiatry services.” Rice, Harris & Quinsey, The Appraisal of Violent Risk, 15 Current Opinion In Psychiatry 589-593 (2002). The hearing examiner nevertheless denied Does request for funds. Weighing various statutory and regulatory factors, however, the hearing examiner ultimately reduced Does classification from level three to level two.
Discussion. “We review a judges consideration of an agency decision de novo,” Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89 (2019), “giv[ing] due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it.” Id. at 88, quoting Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 76 (2015).
As now codified in SORBs regulations, a motion for expert funds must “identify a condition or circumstance special to the sex offender and explain how that condition is connected to his or her risk of reoffence or level of dangerousness.” 803 Code Mass. Regs. § 1.16(4)(a)(1) (2016). See Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 775 (2008). The hearing examiner denied the requested funds on the ground that Doe failed adequately to explain the connection between his mental condition and his risk of reoffense or level of dangerousness. Although the application no doubt could have contained a more comprehensive explanation of this nexus, we conclude that Does showing was sufficient. Indeed, at oral argument before us, SORBs counsel acknowledged that it appeared self-evident that Does mental illness likely contributed to his offending. It follows that, to the extent that Does mental illness can be, and is, treated, then Does risk of reoffense might well be reduced.
5
In our view, Doe established that treatment for his undisputed mental illness could bear on his risk of reoffending, and the hearing examiner abused his discretion in ruling otherwise.
Having concluded that the hearing examiner erred in denying Does motion for funds to retain an expert, we vacate the judgment affirming SORBs decision classifying Doe as a level two sex offender. A new judgment shall enter vacating SORBs decision and remanding the matter to SORB for further proceedings consistent with this memorandum and order.
6
So ordered.
Vacated and remanded.
FOOTNOTES
2
. Given the limited scope of our ruling, we focus on those facts relevant to Does request for expert fees.
3
. He received concurrent sentences of from ten to twelve years on the rape convictions, and a concurrent sentence of from eight to ten years on the kidnapping conviction. The probationary term was imposed on the indecent assault and battery conviction.
4
. As Doe put it, “Only an expert who examines the Petitioner would be able to assess the risk that the Petitioner poses, if any, once he has been treated for his mental illness.”
5
. As noted, Doe was receiving antipsychotic medications to treat his schizophrenia. SORB points to evidence in the record that suggests that such medicine may have done little to restore his competency to make informed medical decisions. Nothing in the record suggests that such treatment therefore necessarily also would be ineffective in reducing his risk of reoffending. Indeed, assessing such a question itself could benefit from an expert.
6
. We need not reach the other issues Doe has raised. We express no view on Does proper classification level.