During the past 15 years, sex offender civil commitment laws have emerged that require some dangerous sex offenders to receive involuntary treatment in a secure facility after their criminal incarceration. Following an assessment of risk, sex offenders who are considered likely to re-offend are entitled to a trial with a judge or jury, where evidence of their dangerousness is presented. If they are found to meet statutory criteria for civil commitment, they are detained, with yearly evaluations, until they are considered no longer dangerous to the community. Sexually violent predator (SVP) statutes seek to prevent the recurrence of sexual victimization by incapacitating potentially violent and dangerous sexual offenders. Though it is well established that a proportion of sex offenders are dangerous and likely to re-offend, the effectiveness of civil commitment in preventing re-offense has yet to be empirically determined.
The first of these new SVP commitment laws was passed in Washington state in 1990 after a convicted sex offender who was recently released from prison abducted and brutally sodomized a 7-year-old boy. Washington’s Community Protection Act of 1990 increased penalties for sex crimes and created stricter supervision for sexual offenders. It also contained the “Sexually Violent Predator Statute,” the nation’s first law allowing for the civil commitment of SVPs following their criminal incarceration.
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Currently, 17 states have passed sex offender civil commitment statutes (Arizona, California, Florida, Illinois, Iowa, Kansas, Massachusetts, Minnesota, Missouri, New Jersey, North Dakota, Pennsylvania, South Carolina, Texas, Virginia, Washington, and Wisconsin). Texas allows outpatient commitment only, where offenders are treated in an intensely supervised program in the community, and Pennsylvania allows commitment only for juvenile sex offenders who are likely to go on to commit sex crimes as adults.
Sex Offender Civil Commitment Criteria
The constitutionality of sex offender civil commitment was upheld by the U.S. Supreme Court in the 1997 ruling in Kansas v. Hendricks. The Court ruled that states must require that a sex offender exhibit both a mental abnormality and a likelihood to re-offend in order to be committed. A second Supreme Court ruling, in the 2002 case of Kansas v. Crane, established that some degree of inability for a sex offender to control his or her behavior must also exist. This concept is called “volitional impairment” and implies “difficulty if not impossibility” in controlling one’s behavior.
To meet criteria to be civilly committed, a convicted sex offender must display (a) a mental abnormality or personality disorder predisposing him to commit sexually violent offenses and (b) a likelihood of future sexual violence. The mental abnormality is generally diagnosed as a disorder listed in the Diagnostic and Statistical Manual of Mental Disorders, fourth edition, text revision (DSM-IV-TR). Because the disorder must “predispose” the offender to sexually re-offend, sex offenders who meet criteria typically display a paraphilia (e.g.,pedophilia) or personality disorder (e.g., antisocial personality). The likelihood of future sexual violence is usually determined through the use of actuarial risk assessment instruments, which estimate the probability of re-offense by using a formula incorporating risk factors statistically associated with recidivism. The most commonly used instrument for this purpose is the STATIC-99.
Determination of whether a sex offender meets criteria for civil commitment is a multistep process. In most states, the first step is a record review of sex offenders due to be released from prison. The screening identifies inmates who display a multitude of risk factors for sex-ual re-offense. These individuals are then referred for a more thorough face-to-face evaluation and risk assessment by a psychologist or psychiatrist. If the individual is found to meet the statutory criteria for commitment, a trial is held in which the state and the offender present evidence that is heard by a judge or a jury. Most states use a legal threshold of “more likely than not” to quantify re-offense risk. If found by the trier of fact to be an SVP, the individual is confined indefinitely for treatment in a secure facility, usually with yearly evaluations, until his risk to re-offend has diminished sufficiently to be returned to the community.
States differ somewhat in their implementation of sex offender civil commitment criteria. For instance, California requires that individuals evaluated for commitment have two or more sex crime arrests, while Florida allows commitment proceedings for any offender with a past conviction for a sexual crime— even if the sexual crime is not the offense for which the inmate is currently incarcerated. Other states, such as Illinois, Pennsylvania, Washington, and Wisconsin, allow juveniles to be considered for commitment. New Jersey requires a “pattern of repetitive, compulsive behavior” and Minnesota requires a “psychopathic personality,” while other states require a history of “predatory behavior.” Though the vast majority of civilly committed sex offenders are male, most states allow females to be considered for commitment.
Nationally, it is estimated that approximately 5% to 12% of sex offender inmates are referred for civil commitment proceedings. Child molesters account for the majority of individuals committed under SVP statutes (approximately 51% to 76%), with the remainder being rapists. Most state laws appear to exclude from their definitions those offenders who have had only incestuous victims or those who have not had physical contact with a victim (e.g., exhibitionists).
Mad or Bad?
The goals of sex offender civil commitment statutes have sparked controversy and debate among mental health professionals and legal scholars. Although the civil commitment of SVPs implies rehabilitation, some argue that punishment, isolation, and incapacitation are its primary purposes. Others question whether sex offender civil commitment criteria conform to the traditional concept of mental illness as established by courts to justify psychiatric civil commitment. The “mad or bad?” debate argues that if sex offenders are truly mentally ill, they should have qualified for an insanity defense or traditional psychiatric commitment in lieu of criminal sentencing. If sex offenders are responsible moral agents and were, therefore, appropriately tried and punished through the criminal justice system, then culpability and mental or volitional impairment should be mutually exclusive.
- Kansas v. Crane, 534 U.S. 407 (2002).
- Kansas v. Hendricks, 521 U.S. 346 (1997).
- Levenson, J. S. (2004). Sexual predator civil commitment: A comparison of selected and released offenders. International Journal of Offender Therapy and Comparative Criminology, 48(6), 638-648.
- Levenson, J. S., & Morin, J. (2006). Factors predicting selection of sexual offenders for civil commitment. International Journal of Offender Therapy and Comparative Criminology, 50(6), 609-629.