Pedophilia with a Personality Disorder Sufficient Basis for Involuntary Commitment as a Sexually Violent Predator

Kilgore v. Garris, No. LS-1224-1, 2004 WL 3001162 (Va. Cir. Ct. 2004)

A Virginia Circuit Court judge ruled that an individual fit the definition of a sexually violent predator provided by the Virginia Code and ordered his involuntary confinement.  Under the relevant statute, confinement as a sexually violent predator is limited to an individual who "because of a mental abnormality or personality disorder, finds it difficult to control his predatory behavior which makes him likely to engage in sexually violent acts." VA. CODE § 37.1-70.1...

Found in DMHL Volume 24 Issue 2

Virginia Supreme Court Clarifies Scope and Operation of Sexually Violent Predator Commitment Law

Townes v. Commonwealth, 609 S.E.2d 1 (Va. 2005)

Legislation that permits prison inmates to be involuntarily hospitalized as a sexually violent predator (SVP) upon the completion of their prison term has been widely enacted across the country.  Courts asked to review this legislation have generally upheld it.  On the few occasions in which a court has read this legislation in such a way that its scope and impact is narrowed, legislators have tended to respond by enacting additional legislation that clarifies that they intended it to have a broader reach...

Found in DMHL Volume 24 Issue 2

Missouri Court Rules Individual Need Not Be Competent Before a Sexually Violent Predator Commitment Hearing Can Be Held; Supreme Court Declines Review

Missouri v. Kinder, 129 S.W.3d 5 (Mo. Ct. App. 2003), cert. denied, 125 S. Ct. 480 (2004)

Many states in recent years have enacted laws that permit convicted sexual offenders to be civilly committed as a sexually violent predator upon the completion of their criminal sentence.  It is well established that a criminal defendant must be competent to stand trial before the defendant can be convicted...

Found in DMHL Volume 24 Issue 1

Virginia Supreme Court Rejects Constitutional Challenges to Sexually Violent Predator Commitment Law

Shivaee v. Commonwealth, 613 S.E.2d 570 (Va. 2005)

The U.S. Supreme Court in Kansas v. Hendricks, 521 U.S. 346 (1997), and Kansas v. Crane, 534 U.S. 407 (2002), defused most federal constitutional challenges to the civil commitment of sexual offenders under the sexually violent predator (SVP) statutes enacted by many states in recent years.  State constitutions could, nevertheless, provide an alternative basis for challenging these enactments.

Found in DMHL Volume 25 Issue 1

Texas Supreme Court Upholds SVP Commitments and Concludes That Incompetent Individuals Can Be Committed; Ruling Not Disturbed

In re Commitment of Fisher, 164 S.W.3d 637 (Tex. 2005), cert. denied, 126 S. Ct. 428 (2005)

Like at least sixteen other states, Texas permits a court to commit individuals who suffer from behavioral abnormalities that make them likely to engage in a predatory act of sexual violence.   Unlike other states, persons adjudged to be a sexually violent predator (SVP) in Texas are committed to outpatient treatment and supervision. However, a violation of an associated imposed constraint is categorized as a third-degree felony and can result in jail or prison time...

Found in DMHL Volume 25 Issue 1

Mentally Incompetent Defendant Has No Due Process Right Against Being Tried, Committed and Treated as Sexually Violent Predator

Moore v. Superior Court of Los Angeles County, California, 237 P.3d 530 (2010)

Overturning the decision of the California Court of Appeals, the California Supreme Court in a split decision has ruled that a mentally incompetent defendant has no due process right to avoid being tried and committed as a sexually violent predator. The court held that due process does not require mental competence on the part of someone undergoing a commitment or recommitment trial, which is a civil proceeding under the California Sexually Violent Predators Act. The strong governmental interest in protecting the public through the proper confinement and treatment of SVP's would be substantially thwarted by recognizing an SVP's right to delay or avoid confinement and treatment for a sexually violent mental disorder because his problems render him incompetent to stand trial. Recognition of such a due process right could prevent an SVP determination from being made at all. Such a scenario could often recur and would undermine the purpose and operation of the Act. The court found that public safety could suffer as a result.

Found in DMHL Volume 30 Issue 1

Virginia Supreme Court Permits SVP to Rescind Refusal to Cooperate; General Assembly Establishes Procedure

Hood v. Commonwealth, 280 Va. 526, 701 S.E.2d 421 (2010)
found at http://www.courts.state.va.us/opinions/opnscvwp/1092402.pdf

On November 4, 2010, the Virginia Supreme Court reversed the finding of the Pittsylvania County Circuit Court and remanded for a new trial a case decided under the Sexually Violent Predator Act. The Supreme Court determined that the circuit court’s decision that it had no discretion to permit a prisoner to rescind his refusal to cooperate with the Commonwealth’s mental health expert during the assessment examination violated the respondent’s procedural due process rights. The Court held that Virginia Code § 37.2-901 permitted, but did not require, the trial court to admit evidence of the respondent’s refusal and bar the respondent from introducing his own expert evidence. Virginia Code § 37.2-907(A) relating to the appointment of experts must be read in conjunction with § 37.2-901, even though it states that if the respondent refuses to cooperate with the examination under § 37.1-901, any expert appointed shall not be permitted to testify at trial nor any report be admissible. The Supreme Court held that due process requires the trial court to consider the circumstances surrounding the respondent’s refusal to cooperate and whether the respondent is currently ready to cooperate. The trial court thus has discretion as to what limits to place on admissibility of evidence. In this case, the respondent refused to cooperate before counsel was appointed to represent him and he was currently expressing a desire to cooperate. Virginia appears to be the only state that has such an evidentiary provision in its SVP Act.

In response to this decision, the General Assembly passed House Bill 1698 (Athey) and Senate Bill 1275 (Obenshain) http://leg1.state.va.us/cgibin/legp504.exe?111+ful+HB1698H1+pdf on February 23, 2011, establishing procedures surrounding the respondent’s decision to rescind any refusal to cooperate. The respondent may rescind his refusal to cooperate and elect to cooperate with the mental health examination within 21 days of retention or appointment of counsel. Counsel for the respondent must provide written notice of the respondent’s election to cooperate to the court and the attorney for the Commonwealth within 30 days of the appointment or retention of counsel. The probable cause hearing is then postponed until 30 days after receipt of the mental health examiner’s report. If the respondent thereafter refuses to cooperate with the mental health examination, the court is required to admit evidence of such failure or refusal and to bar the respondent from introducing his own expert evidence. These bills are awaiting signature by the Governor.

Found in DMHL Volume 30 Issue 2

Hospital Not Liable for Counselor’s Sexual Harassment of Patients

Doe v. Fulton-DeKalb Hospital Authority, 628 F.3d 1325 (11th Cir. 2010)

The Eleventh Circuit Court of Appeals has held that Grady Memorial Hospital is not liable for one of its counselor’s sexual misconduct with three patients in its methadone treatment clinic. The plaintiffs alleged that the counselor made inappropriate sexual advances during drug counseling sessions, and that Grady failed to conduct an adequate background investigation prior to hiring the counselor and to adequately supervise the counselor. The Court found that under Georgia law an employer cannot be found liable for the sexual misconduct of an employee under the doctrine of respondeat superior. In addition, the Court upheld the finding of the district court that the hospital exercised ordinary care in the hiring process. While its screening protocols were less than ideal, the hospital had no actual notice of prior misconduct by this employee; he passed criminal background checks and a drug test; and he provided dishonest information during the application and interview process as to why he left his previous jobs. The fact that the hospital failed to comply with Georgia regulation requiring it obtain a five-year employment history on all applicants posed licensing problems only and did not impost tort liability on the hospital.

Found in DMHL Volume 30 Issue 3

SVP Petition Cannot Be Filed in New York When Respondent Not in Custody for Sex Offense

In the Matter of the State of New York v. Rashid, 16 N.Y.3d 1, 2010 NY LEXIS 3339 (November 23, 2010)

The New York Court of Appeals has upheld the decision of the appellate court dismissing the Attorney General’s petition to commit this respondent under its Sex Offender Management and Treatment Act. Although the respondent had pled guilty to sodomy in 1991, he was incarcerated for robbery at the time the interagency notice was sent by the Department of Corrections that Rashid may be a sex offender. At the time the respondent received notice of the petition, he was in jail for petit larceny. Because the respondent was not subject to state custody or supervision, he was not a detained sex offender at the time the petition was filed for purposes of the Act. The Court also held that the proceedings commenced at the time the Attorney General filed the petition, not at the time notice was provided by the Department of Corrections.

Found in DMHL Volume 30 Issue 3

Prior Determination That Defendant Not a Mentally Disordered Sex Offender Not Bar to Later Civil Commitment as Sex Offender

In re Interest of D.H., 281 Neb. 554, 797 N.W.2d 263 (Neb. 2011)

The Nebraska Supreme Court held on May 20, 2011 that a 1991 determination at the time of a defendant’s conviction and sentence that he was not a “mentally disordered sex offender” under Nebraska’s sex offender law then in effect was not res judicata barring commitment proceedings in 2010 under Nebraska’s current Sex Offender Commitment Act. In so deciding, the Court followed a similar California case that found that a 1982 determination that the defendant was not a sex offender did not preclude a civil commitment proceeding 10 years later because the issue was the mental health of the defendant as he approached release, not as it existed at the time of his conviction. People v. Carmony, 99 Cal.App. 4th 317, 120 Cal.Rptr.2d 896 ( 2002). The Nebraska Court held that the Act provides for assessment of the defendant’s mental health, risk of recidivism and threat to public safety as he approaches release. Based upon the changeable nature of mental health and dangerous determinations, the assessment is not res judicata because the issue presented is not the same as that litigated at the time of his 1991 sentencing.

Found in DMHL Volume 30 Issue 6

Fourth Circuit Finds Federal Commitment of Sexually Dangerous Persons Does Not Violate Equal Protection

United States v. Timms, 664 F.3d 436 (4th Cir. 2012)

Reversing the decision of the United States District Court for the Eastern District of North Carolina, the Fourth Circuit Court of Appeals, in a decision written by Judge G. Steven Agee, held on January 9th that the federal scheme found in 18 U.S.C. § 4248 permitting civil commitment of sexually dangerous persons does not violate the Equal Protection Clause of the United States Constitution. Timms’ case was one of the first cases to arise under the Adam Walsh Child Protection and Safety Act of 2006. That section authorizes the civil commitment of individuals in the custody of the Bureau of Prisons who are determined to be a sexually dangerous person, defined as someone “who has engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others.” 18. U.S.C. § 4247(a)(5).

The Federal Correctional Institution in Butner, North Carolina is the federal institution to which prisoners in the custody of the Bureau of Prisons are now transferred for assessments as sexually dangerous persons. Most of these cases are therefore being heard before the North Carolina district court and appealed to the Fourth Circuit. Timms was in custody at Butner, completing a 100 month sentence for soliciting and receiving child pornography by mail, when the government filed a certificate to commit him. At the time the certificate was filed, the Comstock case, the first challenge to the federal sexually dangerous commitment scheme, was pending before the Fourth Circuit. The hearing on the merits of his case was therefore put on hold. The District Court in Comstock had found the statutory scheme unconstitutional on the grounds that Congress lacked authority to enact it, and the Fourth Circuit later upheld that decision. The United States Supreme Court reversed, upholding the authority of Congress to enact the statute under the Necessary and Proper Clause of the Constitution. United States v. Comstock, 130 S.Ct. 1949, 176 L.Ed.2d 878 (2010). Upon remand and then re-appeal, the Fourth Circuit determined in Comstock II that the statute did not violate the due process clause by requiring a court to find by clear and convincing evidence, rather than beyond a reasonable doubt, that the individual is a sexually dangerous person. United States v. Comstock, 627 F.3d 513 (4th Cir. 2010), cert. denied, 131 S.Ct. 3026, 180 L.Ed.2d 865 (June 20, 2011).

When his case finally came forward for hearing before the District Court after the Comstock I and II decisions, Timms argued that the statutory scheme violated the Equal Protection Clause of the Constitution. The District Court agreed, relying on Baxstrom v. Herold, 383 U.S. 107 (1966) that held that the government cannot provide less protection during civil commitment proceedings for prisoners who are completing there sentences than for nonprisoners. The district court reasoned that the federal government has no authority to commit sexually dangerous persons who are not in prison, and therefore individuals in the custody of the Bureau of Prisons are not being treated similarly with sexual predators in the community.

On appeal, the Fourth Circuit first determined that it had to decide whether to apply a strict scrutiny standard of review, as Timms argued, or the generally applicable rational basis standard.. Timms relied on Foucha v. Louisiana, 504 U.S. 71 (1992) and Addington v. Texas, 441 U.S. 418 (1979) that recognized that civil commitment constitutes a significant deprivation of liberty. However, the 4th Circuit found that these cases were decided on due process grounds, not equal protection, and the Supreme Court, despite being provided an opportunity to do so, never expressly established a heightened standard of review. As a general rule, the Court held that legislation is presumed to be valid and will be sustained if the statute is rationally related to a legitimate state interest. Following the First Circuit decision in United States v. Carta, 592 F.3d 34 (1st Cir. 2010), deciding this very same issue, the Court held that the generally-applicable standard is thus rational basis.

The Fourth Circuit next turned to the Equal Protection issue. Under the Equal Protection Clause, all persons similarly situated must be treated alike. The Court held that Congress had a rational basis for subjecting sexually dangerous persons in BOP custody to civil commitment. The Court found that the scope of the federal government’s authority for civil commitment differs so much from a state’s authority that there is a rational basis for the distinction Congress drew. Congress rationally limited its scope to sexually dangerous persons within BOP custody based on Congress’ limited police power and the federal interest in protecting the public from reasonably foreseeable harm from such persons.

Found in DMHL Volume 31 Issue 2

Texas Supreme Court Holds Expert Need Not Be Psychiatrist or Psychologist to Testify in SVP Commitment Proceeding

In re Commitment of Bohannan, 2012 Tex LEXIS 734 (Aug. 31, 2012)

The Texas Supreme Court ruled on August 31, 2012 that a licensed professional counselor and sex offender treatment provider was qualified to testify in a civil commitment proceeding for a sexually violent predator. Because the Texas statute did not limit expert testimony to only physicians or psychologists, the Court held that the general rule merely required an expert to have the knowledge, skill, experience, training or education to assist the trier of fact to understand the evidence or to determine a fact in issue.

On two separate occasions in 1982, the defendant Michael Wayne Bohannan stalked women, broke into their homes and raped them at knife point. He was sentenced to 25 years in prison, but was released on mandatory parole in 1991. In April 1992, he was charged with attempting to kidnap a nine-year-old girl at K-Mart and was returned to prison. The defendant was again released in 1998 on mandatory supervision and in 2000 moved to South Carolina to live with his mother. There he was convicted of indecent exposure to an eight-year-old girl in a toy store. He denied the allegations but was returned to prison in Texas. The defendant was again released on mandatory supervision in 2004, but in 2006 his release was revoked for viewing child pornography in a county law library.

At the defendant’s SVP civil commitment hearing, a board certified forensic psychiatrist and board certified forensic psychologist testified that Bohannan was a sexually violent predator. Bohannan designated a licensed professional counselor as his expert. She testified outside the presence of the jury that she had been in private practice since 2000 providing behavioral therapy treatment for sex offenders, had received more than 1000 hours of training, sees more than 100 clients each week and has completed 18 SVP assessments. She also testified that, like the other experts, she had reviewed Bohannan’s records and interviewed him personally. She scored him a “5” on the Static-99 and an “8” on the MnSOST, somewhat lower than the government’s psychologist. Using the Hare Psychopathy Checklist, she also determined that Bohannan was not psychopathic. She further testified that in her opinion Bohannan did not have a behavioral abnormality at this time. The trial judge refused to permit her to testify, finding that only a physician or psychologist could provide medical testimony as to a behavioral abnormality. The jury then found Bohannan to be a sexually violent predator and the court ordered him committed.

On appeal, the Texas Court of Appeals reversed the trial court and ordered a new trial, finding that the Texas statutory definition of behavioral abnormality has two components, the first being whether a defendant has an acquired or congenital condition, and a predisposition to commit a sexually violent act to which a medical expert must testify. The second component the Court determined was whether a defendant is likely to commit a sexually violent act for which a medical expert is not required.

On further appeal, the Texas Supreme Court rejected the Court of Appeals’ bifurcated definition finding that the definition of behavioral abnormality was one all encompassing definition. It upheld the reversal, however, finding that the Texas statute did not require an expert to be a physician or psychologist. It noted that experts in criminal proceedings were required by statute to be physicians or psychologists, but no such requirement is found in the SVP statute therefore indicating that the legislature did not intend to impose such a requirement in SVP proceedings. The Supreme Court went on to find that the failure to permit Bohannan’s expert from testifying was not harmless error thus requiring a new trial.

Found in DMHL Volume 31 Issue 6

Virginia Supreme Court Finds Use of Video Conferencing to Conduct Annual SVP Review Hearing Provides Due Process

Shellman v. Commonwealth, _Va._, 733 S.E.2d 242 (Nov. 1, 2012, No. 120261)
available at: http://www.courts.state.va.us/opinions/opnscvwp/1120261.pdf

In a sexually violent predator’s (“SVP”) appeal of his recommitment to secure inpatient treatment, the Virginia Supreme Court held on November 1, 2012 that use of a two-way electronic video and audio communication system does not conflict with the respondent’s statutory and due process rights, including his right to counsel.

Reginald Shellman was convicted of aggravated sexual battery in Fairfax County Circuit Court in February 2001. Prior to his scheduled release, the Department of Corrections assessed him as a potential SVP and referred him to the Commitment Review Committee, which subsequently referred him to the Office of the Attorney General for a determination as to whether to seek commitment. Upon petition of the Attorney General and following the requisite hearings, the Fairfax County Circuit Court found Shellman to be a SVP and committed him to the Virginia Center for Behavioral Rehabilitation in Burkeville, Virginia, all in accordance with Chapter 9 of Title 37.2 of the Code of Virginia.

In 2011, the Virginia General Assembly amended Virginia Code § 37.2-910(A) to permit annual assessment reviews to be conducted, “whenever practicable,” by means of two-way electronic video and audio communications. As a result, and over the objection of the respondent, the court held Shellman’s annual review proceeding by video conference. Present in the courtroom in addition to the judge was counsel for the Commonwealth, respondent’s counsel, and respondent’s mother. The respondent and the Commonwealth’s expert, Mario Dennis, Ph.D., a clinical psychologist and Director of Forensic Services at the Center, appeared by video from the Center. At one point, the video feed was lost at both locations, but the hearing was suspended for a short time while the connection was reestablished. The respondent objected during the hearing and on appeal, arguing that the video conference violated his statutory rights in Virginia Code § 37.2-901 to be represented by counsel, to be present during the hearing, and to present evidence and to cross-examine witnesses. Although he could ask to speak in confidence with his attorney, he also argued that is ability to consult and interact with his counsel during the hearing was stifled, thus violating his due process right to counsel. The record did not reflect, however, that the respondent or his counsel actually indicated they wished to confer at any point during the proceeding.

The Supreme Court first held that there was no statutory violation. The statutes granting the respondent’s rights, including the right to counsel, and authorizing the use of video conferencing were both plain on their face, were not clearly ambiguous, and did not conflict with one another. The respondent demonstrated no prejudice in appearing by video conference and the statute permitting its use “whenever practicable” was a matter committed to the court’s sound discretion. The respondent’s mere objection to the video conference did not render its use “impracticable,” and as such, was a matter left to the court’s sound discretion.

Turning to the constitutional issue, the Court applied the Fourth Circuit’s decision in United States v. Baker, 45 F.3d 837 (4th Cir. 1995), in which that Court upheld the use of videoconferencing in the context of competency commitment hearings. The Court found that the goal of both processes is to test the opinions of experts. Whereas in a criminal trial the demeanor of the defendant and witnesses is a major concern, decisions to commit for competency restoration or as an SVP are both based not so much on the demeanor of the witnesses, but on the qualifications of the experts and the substance and thoroughness of their opinions. The Court then found that “the purpose of the annual assessment hearing is to determine whether, in light of the treatment received in the preceding year, the respondent remains a sexually violent predator and, if so, whether there is a less restrictive alternative to secure inpatient treatment.” The Court therefore held that the use of video conferencing in this context is neither unconstitutional on its face nor as applied in this case.

Found in DMHL Volume 32 Issue 1

Sexually Violent Person

No due process violation in delay of over two years (due to prison sentence in unrelated matters) between finding that defendant is a sexually violent person and the start of his confinement based on that finding

Gilbert v. McCullough, 776 F.3d 487 (7th Cir. 2015)

Carl C. Gilbert, Jr. had his parole revoked twice after he violated the conditions of his parole. These violations occurred while a civil commitment petition was pending against him, but because Gilbert was sentenced to prison after his second parole revocation, he served that sentence before being transferred to a Wisconsin Department of Health Services ("DHS") facility as a civilly committed person (a jury having found that he qualified as a sexually violent person). Gilbert argued on habeas review that his commitment was contrary to the Supreme Court's decision in Foucha v. Louisiana, 504 U.S. 71 (1992) because the interposition of his prison term caused a delay between his commitment verdict and his entry in DHS care, meaning that there was no ”current" determination that he was a sexually violent person when he entered DHS care. After the Supreme Court of Wisconsin rejected Gilbert’s due process argument, both the federal district court for the Eastern District of Wisconsin and the Court of Appeals for the Seventh Circuit expressed concern regarding the delay, but ultimately held that the decision to reject Gilbert’s due process claim did not qualify as “contrary to or an unreasonable application of clearly established United States Supreme Court precedent.”

Although the Seventh Circuit acknowledged that “[w]ere the question presented to us as an initial question of federal constitutional law, we might reach a different result” and that the “two-and-a-half year delay between the order of commitment and Gilbert's entry into DHS care is certainly a concern for us,” they found themselves “constrained…by the narrow scope of habeas review.” In distinguishing Foucha, the Seventh Circuit found that, unlike in that case, there was “no suggestion that Gilbert no longer suffers from a mental disorder.” Further, there was no ruling or even intimation that “Gilbert could be committed, or that his commitment could continue, if he no longer had a mental disorder,” which would have been a holding contrary to Foucha.

Found in DMHL Volume 34 Issue 1

Sexually Dangerous Offender

Establishing personal jurisdiction over defendant for civil commitment hearing does not require service of summons under Rule 4

United States v. Perez, 752 F.3d 398 (4th Cir. 2014)

Jose De La Luz Perez appealed the determination of the district court that he was a "sexually dangerous person” under the Adam Walsh Child Protection and Safety Act of 2006 (the “Act”). On appeal, Perez asked the Fourth Circuit to vacate the civil commitment order, contending that the district court lacked personal jurisdiction because the government failed to serve him with a summons pursuant to Rule 4 of the Federal Rules of Civil Procedure. The Fourth Circuit affirmed the order, holding that although the Federal Rules of Civil Procedure are broadly applicable in civil commitment proceedings, that does not mean that they “cannot be displaced by specific procedural provisions included in the Act.” The central question on appeal was whether the Act required the government “to serve a summons pursuant to Rule 4 [of the Federal Rules of Civil Procedure] upon a respondent in federal custody despite the obvious differences between the initiation of civil commitment proceedings under § 4248 and a typical civil action.”

The Fourth Circuit pointed to a “streamlined procedure for initiating commitment proceedings against individuals in BOP custody” contained in the statutory language that served to supplant the usual summons requirements of Rule 4. Apart from the view that the text of the statute is sufficient to displace the summons requirement of Rule 4, the Fourth Circuit pointed out that while “physical custody is no longer necessary to endow a civil court with personal jurisdiction over a defendant, it is clearly sufficient to do so," and so the fact that the government “has physical custody over the respondent in § 4248 civil commitment proceedings obviates the need for a summons.”

Found in DMHL Volume 34 Issue 1

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

Sexually violent offender (Iowa)

Iowa’s statutory scheme allowing continuing community supervision of offenders who no longer meet the criteria for institutional commitment does not violate the due process clauses of the Iowa or United States Constitutions

In re Det. of Matlock, 860 N.W.2d 898 (Iowa 2015)

Calvin Matlock, a person civilly committed under Iowa’s Sexually Violent Predator Act, argued that his supervised release violated the Due Process Clauses of both the Iowa and the United States Constitutions. The Iowa Supreme Court held that an order of supervised release did not violate either state or federal due process so long as the supervisee “continues to suffer from a mental abnormality, the testimony supports the need for supervision, and the supervision strikes the right balance between the need to protect the community and the person's liberty interest.” Examining the specific release conditions imposed on Matlock, however, the Court found that “the plan [was] more consistent with a person just paroled from prison or on probation, not a person released from a civil commitment.” Of particular concern was the fact that “many of the conditions in the agreement appear[ed] to bear no relationship to Matlock’s treatment or the protection of the public.” Especially problematic was the fact that the Department of Corrections, which was responsible for supervising Matlock’s release, had never supervised a person released from the Civil Commitment Unit for Sexual Offenders, and was supervising Matlock as it would any sex offender released from prison. Ultimately, the Iowa Supreme Court remanded the case back to district court “to review the release conditions and enter the appropriate order consistent with due process.”

Found in DMHL Volume 34 Issue 2

Involuntary Commitment of Sexually Violent Predators

Commonwealth v. Proffitt, 792 S.E.2d 3 (Va. 2016)

Supreme Court of Virginia holds that in an action to involuntarily commit a convicted rapist as a sexually violent predator testimony by victims of sexual assault committed by the defendant is relevant and corroborative of the evaluation of the defendant and is not unfairly prejudicial, and the trial court’s exclusion of such victim testimony is reversible error.

Background: The Commonwealth of Virginia initiated proceedings to involuntarily commit Brady Arnold Proffitt, Jr. as a sexually violent predator under the Sexually Violent Predator Act (SVPA). A clinical psychologist evaluated Proffitt and diagnosed him with sexual sadism disorder, antisocial personality disorder, and alcohol use disorder. She gave testimony during the trial that Proffitt was a sexually violent predator and at risk of reoffending if released without treatment. The Commonwealth then attempted to call two of Proffitt’s rape victims as witnesses. Proffitt objected to the testimony as unfairly prejudicial because his rape conviction was already in evidence. The circuit court agreed and excluded the testimony.

Holding: The Supreme Court of Virginia ruled that the victim testimony was not unfairly prejudicial because the testimony would directly support the elements of the case that Proffitt met the statutory definition of a sexually violent predator.

Notable Point:

Rules of Evidence: The court conceded that the rules of evidence prohibit the introduction of evidence to prove that a defendant acted in conformity with a character trait. However, in the present case the material issue was whether Proffitt had a mental abnormality or personality disorder making him likely to engage in sexually violent acts in the future. The court explained that this made it proper to introduce evidence of specific conduct to prove the existence of a character trait that was a required element of the case.

Found in DMHL Volume 35, Issue 4

Involuntary Commitment of Sexually Violent Predators

In re Care & Treatment of Ellison, 384 P.3d 15 (Kan. 2016)

Supreme Court of Kansas holds that an ad hoc analysis of all of the factors resulting in a pretrial delay must be used to determine whether a defendant’s due process right to a speedy trial has been violated during proceedings for his involuntary civil commitment as a sexually violent predator.

Background: Todd Ellison was a convicted sex offender, and the state of Kansas sought to have him involuntarily committed under the Kansas Sexually Violent Predator Act (KSVPA). The KSVPA allows for the civil commitment of persons alleged to be sexually violent predators after the completion of their criminal sentences. A person suspected of meeting the statutory definition of a sexually violent predator is entitled to a probable cause hearing and a jury trial during which the state must prove its case beyond a reasonable doubt. The state filed a probable cause petition against Ellison in June 2009, but his trial was delayed more than 4 years due to multiple continuances. Ellison filed a motion claiming the delay violated his due process right to a speedy trial. The district court ruled that the delay violated Ellison’s due process rights and ordered his release. The court of appeals reversed and the state supreme court granted Ellison’s petition for review to determine the appropriate standard to measure due process claims for pretrial delays in KSVPA proceedings.

Holding: The Kansas Supreme Court ruled that the ad hoc analysis from Barker v. Wingo, 407 U.S. 514 (1972) in which courts must weigh various factors including the length of the delay, reason for the delay, defendant’s assertion of the right, and prejudice to the defendant applies to pretrial delays in KSVPA proceedings. The court held that the district court did not err in weighing the different factors that caused the delay in Ellison’s trial under the Barker analysis and affirmed the order for his release.

Notable Points:

Barker Factors: The court of appeals reversed the ruling of the district court on the assumption that too much weight was given to the 4-year delay and other factors were not properly considered. The Kansas Supreme Court emphasized that no one factor is either necessary or sufficient in determining whether a defendant’s due process rights have been violated and that the district court had properly considered other factors in reaching its decision.
Reason for Pretrial Delay: The district court inquired into which party was responsible for the continuances that led to the delay in Ellison’s trial. The court determined that some of the continuances were attributable to Ellison and others were by agreement. When the party responsible for any delay could not be determined, the court attributed it to the state. The court considered only the delay that was attributable to the state in reaching its decision in this case.

Found in DMHL Volume 35, Issue 4