Sexually Violent Predators

Burden of proof on Commonwealth to prove in annual review hearing that continued involuntary confinement necessary

Gibson v. Com., 287 Va. 311, 756 S.E.2d 460 (2014)

Overruling Commonwealth v. Bell, 282 Va. 308, 714 S.E.2d 562 (2011), the Supreme Court of Virginia held that the Commonwealth is the party who bears the burden of proving that no suitable, less restrictive alternative to involuntary inpatient treatment exists for someone declared to be a sexually violent predator. After a jury found that the defendant, Donald Gibson, was a sexually violent predator within the meaning of Va. Code Ann. § 37.2-900, the circuit court continued the trial in order to hear additional evidence related to Gibson’s suitability for conditional release as an alternative to involuntary commitment.

In moving forward, Gibson argued that the burden was on the Commonwealth to prove “by clear and convincing evidence” that the elements of Va. Code Ann. § 37.2-912 were not satisfied, whereas the Commonwealth, relying on Commonwealth v. Bell, argued that burden was on Gibson to prove “by a preponderance of the evidence that he meets the criteria for conditional release.”

The Virginia Supreme Court noted that statements in Commonwealth v. Bell seemed to conflict with the earlier decision McCloud v. Com., 269 Va. 242, 261, 609 S.E.2d 16, 26 (2005) which held that “the burden of proving that there is no suitable less restrictive alternative to involuntary confinement rests with the Commonwealth, and that burden cannot be shifted to the [respondent].” Finding no reason “to draw a distinction between an initial sexually violent predator trial and an annual review hearing in terms of which party bears the burden of proof on the issue whether there are no suitable less restrictive alternatives to involuntary confinement,” the Supreme Court of Virginia overruled Bell and returned to the rule in McCloud instead of reconciling the two by drawing such a distinction.

Found in DMHL Volume 34 Issue 1