Trowbridge Foundation: Current Article in Full

The Washington Supreme Court Holds that the Fact Finder in Sexually Violent Predator (SVP) Cases does not need to Make a Separate Finding that the Alleged Sexual Predator has “Serious Difficulty Controlling Behavior”, Rules that Less Restrictive Alternatives cannot be Considered at the Commitment Hearing, and Decides that Both Actuarial and Clinical Approaches to Predicting Dangerousness are Admissible from Experts in SVP Cases

By Brett Trowbridge, Ph.D., J.D.
A Report for The Trowbridge Foundation

The U.S. Supreme Court seemingly held in Kansas v. Crane, 534 U.S. 407 (2002), that in SVP cases the fact finder must make a separate finding that the person facing commitment “has serious difficulty controlling behavior” as a result of his mental condition. The U.S. Supreme Court required proof “sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case,” rejecting Kansas’ position that it need not prove any lack of control. Indeed, the U.S. Supreme Court held that a person may not be committed as an SVP “without any lack of control determination”, and reversed a SVP commitment because there was no finding the respondent could not control his dangerous behavior.

After Crane, the question arose whether the “lack of control” requirement constitutes a separate element requiring a jury instruction that “lack of control” must be proven beyond a reasonable doubt. Psychologists and commentators pointed out that it is not possible to measure the extent to which a person acted with “free will” scientifically, and that “lack of control” cannot be operationally defined.

In Washington, in order to find that a respondent is a SVP, each of the following elements must be proven beyond a reasonable doubt:

(1) That the respondent has been convicted of or charged with a crime of sexual violence; and
(2) That the respondent suffers from a mental abnormality or personality disorder; and
(3) That such mental abnormality or personality disorder makes the respondent likely to engage in predatory acts of sexual violence if not confined to a secure facility. RCW 71.09.020(16).

The Kansas statute is almost identical (indeed, its SVP statute was patterned after Washington’s SVP statute), and in an earlier decision, Kansas v. Hendricks, 521 U.S. 346 (1997), the U.S. Supreme Court had held, “These added statutory requirements serve to limit involuntary civil commitment to those who suffer from a volitional impairment rendering them dangerous beyond their control. The Kansas Act is plainly of a kind with these other civil commitment statues: it requires a finding of future dangerousness, and then links that finding to the existence of a ‘mental abnormality’ or ‘personality disorder’ that makes it difficult, if not impossible, for the person to control his dangerous behavior.”

Various jurisdictions have interpreted Hendricks and Crane differently. Decisions from some jurisdictions, such as Arizona [In re Leon G., 204 Ariz. 15 (2002)], Massachusetts [In re Dutil, 437 Mass. 9 (2002)], Minnesota [In re Linehan, 594 N.W. 2d 867 (Minn. 1999)], and The 8th Circuit [Linehan v. Mil C Zark, 315 F.3d 920 (8th Cir 2003)], can be read as not requiring a separate element of “lack of control”. However, a case under Illinois’ SVP statute (also very similar to Washington’s statute), In re Detention of Varner, 198 Ill. 2d 78 (2001), was granted certiorari, vacated, and remanded by the U.S. Supreme Court for further consideration in light of Crane because of lack of a separate “lack of control” element, Varner v. Illinois, 123 S. Ct. 69 (2002), and a subsequent Illinois appellate decision has recognized that after Crane there must be a determination the respondent has serious difficulty controlling behavior, and failure to make this determination at trial requires remand. People v. Gilford, 336 Ill. App. 3d 722 (2002).

On the other hand, the Missouri Supreme Court recently held that the jury instruction defining “mental abnormality” in its SVP statute must be updated in light of Crane to “mean a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to commit sexually violent offenses in a degree that causes the individual serious difficulty in controlling his behavior.” Thomas v. State, 74 S.W. 3d 789 (Mo. 2002). Furthermore, the New Jersey courts have taken a similar position in In re Commitment of W.Z., 173 N.J. 109 (2002).

The Washington Supreme Court has sided with Arizona, Minnesota, Massachusetts and the 8th Circuit, and against Missouri and New Jersey; this issue will likely have to be finally resolved by the U.S. Supreme Court. In In re Detention of Thorell (69574-1; decided 7-10-03) the Washington Supreme Court held “that proof that a person facing commitment under Chapter 71.09 RCW lacks behavioral control is not a new element of SVP commitment and a jury need not make a separate funding regarding ‘lack of control’. However, the jury’s finding that an SVP suffers from a mental illness, defined under our statute as a ‘mental abnormality’ or ‘personality disorder’, coupled with a person’s history of sexually predatory acts, must support the conclusion that the person has serious difficulty controlling behavior, although this evidence need not rise to the level of demonstrating the person is completely unable to control his or her behavior.” The Court therefore upheld the standard “to commit” jury instruction which has no express element of “lack of control”, explaining, “We hold that although Crane did not impose a new element in SVP commitments, Crane did require SVP commitments to be supported by proof beyond a reasonable doubt of serious difficulty controlling behavior.” In a footnote, however, the Court also stated, “Although not constitutionally or statutorily required, including an instruction on the serious lack of volitional control in future SVP commitments will assist appellate review and is therefore the better practice.”

The Court then reviewed each of six cases consolidated for review in In re Detention of Thorell to analyze whether enough proof of “lack of behavioral control” had been provided. In the case of Thorell no evidence of lack of control was in the record, but the Court felt that Thorell’s modifying children’s pictures, writing pornographic stories about children, keeping store advertisements involving children, and under-reporting his deviant fantasies, somehow showed proof that “allowed the jury to conclude, beyond a reasonable doubt, that…serious lack of control, led to a likelihood Thorell would engage in future predatory acts if not confined.” In other words, the fact of the deviant behavior alone was proof beyond a reasonable doubt of lack of control. In Ross, a State’s expert had testified, “when you have this stance to the world, this set of attitudes, you have difficulty looking at the law as applying to you. You don’t see how it protects other people. If you want something, you want it for yourself, and nothing will stand in your way. If you are told that something is illegal and you still have a strong compulsion to do it, for example, drug or sexual offenses, you will continue to do it and use whatever resources you have to hide your behavior and to con, manipulate, get around a lot.” Again, this testimony did not even address the issue of volitional control, but the Washington Supreme Court cited that testimony as having been sufficient proof of lack of volitional control beyond a reasonable doubt. Two other experts testified, but they also did not address the volitional control issue.

In Gordon the State’s expert testified that Gordon was schizophrenic and heard voices, and he had told a counselor, “I’m going to rape again.” Again, that evidence did not address any volitional impairment, but the Washington Supreme Court found it had been sufficient beyond a reasonable doubt. In Bishop the respondent himself had said he was likely to re-offend within nine months, and he had solicited sex from other inmates. Again, the volitional issue was never addressed, but the Court found the evidence had been sufficient beyond a reasonable doubt. In Strauss the evidence showed he had re-offended 39 days after his release, and he had not sought counseling. When asked if he could control his impulse to rape, he testified he had never been in a position to attack somebody and refrained from doing so. Again, the issue of whether he attacked of his own free will or because of lack of volitional control was not addressed, but the Court found sufficient evidence of lack of control beyond a reasonable doubt. Finally, in Johnson the State’s expert testified that Johnson’s lack of remorse reduced Johnson’s interest in controlling his impulses, again avoiding the issue of whether he could control his behavior but chose not to as opposed to an inability to control it. Again, the Court found sufficient evidence beyond a reasonable doubt of lack of volitional control.

One can only conclude that in any case in which the alleged sexual predator has engaged in numerous instances of dangerous deviant sexual behavior, the Court will conclude that constitutes “lack of behavioral control”. As Chief Justice Alexander stated in his lone dissent, “Inextricably, our majority in this case follows the Crane dissent rather than the holding embraced by a majority of the United States Supreme Court.”

The Supreme Court also reversed its earlier holding in In re Detention of Brooks, 145 Wn. 2d 275 (2001) that the jury must be instructed as to less restrictive alternatives (LRAs) at initial commitment, based on subsequent statutory amendments which precluded consideration of LRAs during the commitment hearing. Instead, LRAs may only be considered for the first time at the annual review and may be limited to the LRAs provided for under the Act, although placement at a “secure facility”, apparently a “residential facility for persons civilly committed and conditionally released to a less restrictive alternative” under the SVPA can still be considered at the time of commitment. The Court explained that SVPs must spend time in treatment that occurs after commitment, since before commitment individuals are pre-occupied with their legal dealings, and thus may limit their participation in treatment, so it is only after commitment that LRAs can accurately be evaluated.

The Supreme Court also ruled that so-called “actuarial” instruments developed scientifically through research to weigh various factors in a quantifiable fashion to predict future dangerousness do meet the Frye test of admissibility (i.e., they are accepted in the relevant scientific community), and are therefore admissible in SVP commitment hearings. Examples would be Hare’s Psychopathy Check-List-Revised (PCL-R) and the SORAG developed in Canada by Vernon Quinsy, et al. The Court held that such actuarial approaches do not constitute inadmissible profile evidence, as the probative value of such evidence is high, outweighing its prejudicial impact. Indeed, the Court held that clinical evidence on future dangerousness based on clinical assessment (unquantified opinion evidence based merely on a clinician’s experience and training) is also automatically admissible, citing In re Detention of Campbell, 139 Wn. 2d 341 (1999) and the U.S. Supreme Court case Barefoot v. Estelle, 463 U.S. 880 (1983). Thus, in the future all expert opinions about future dangerousness, whether based on clinical or on actuarial analysis, will automatically meet the Frye test, in SVP commitment hearings, and (presumably by the same reasoning) in all other types of court cases as well.

In a related case, Division III of the Washington State Court of Appeals ruled that if a person who has been committed as a SVP requests it, the Court must appoint him a qualified expert and authorize funds to pay that expert’s fee at each annual review at which conditional release or SRAs are considered. A committed SVP is entitled to such an annual review, and in this case the Court refused to appoint an expert for an annual review because the Court concluded he had not shown any improvement from his four earlier evaluations. The Court of Appeals reversed, holding that the trial court had abused its discretion by requiring some threshold showing of improvement before authorizing funds for a psychologist. It also said that if that psychologist felt that there had been sufficient improvement for release under an LRA, then a full hearing must be held. In re Detention of Rogers, No. 20181-3-III, decided 6-17-2003.

In another Division III Court of Appeals case, State v. Woods, No. 21008-1-III, decided June 17, 2003, the defendant wished to present testimony from a sexual offender treatment provider who had completed a psycho-sexual evaluation, and would have testified that Woods had no indication of sexual impulsivity, and no predisposition to sexual attraction to children. The trial court refused to allow the testimony, and Woods was convicted of raping two children. Upon appeal the Court of Appeals affirmed, adding that opinion evidence is not admissible as proof of character. In a footnote the Court indicated a defendant is permitted to present evidence regarding his reputation in the community for sexual activity. Washington’s courts do rely on evidence from psycho-sexual evaluations to determine an offender’s amenability to treatment under the Special Offenders Sentencing Alternative, RCW 9.94A.670(3), and in child custody disputes, if one parent has a history of sexual offenses, then that parent may be required to undergo a psycho-sexual evaluation. In re Marriage of Ricketts, 111 Wn. App. 168 (2002).