SD30 - Civil Commitment of Violent Sexual Offenders

Executive Summary:
In 1998, the Virginia General Assembly approved Senate Joint Resolution 69 (SJR 69/Howell) directing the Virginia State Crime Commission to conduct a study on the feasibility of enacting a Virginia statute which allows for certain violent sexual predators to be civilly committed after completing their sentence. The civil commitment of sexual predators was recently held by the U.S. Supreme Court in the Kansas v. Hendricks decision to be constitutional. (*1)


Largely due to the demographic characteristics of their victims (women and children), sex offenders are today among the most vilified of all offender groups. This sentiment has helped to drive calls for stiffer punishment of sexual predators. "Megan's Law" legislation, community notification when a sex offender is released, was passed in New Jersey when young Megan Kanka was brutally raped and murdered by a twice convicted child molester living in the Kanka's neighborhood. A New Jersey congressman introduced similar federal legislation which required all states to enact legislation which provided public access to information on violent sex offenders. Virginia passed its version of "Megan's Law" during the 1998 General Assembly session (SB369/Howell and HB570/Deeds). The legislation provides for all sexually violent offenders to be posted on an internet web page. Schools and day-care facilities will be automatically notified when a sex offender is released and moves into their area.

In recent years, Virginia has enacted stiffer sentences and created a statewide registry of sex offenders. Offenders convicted the second time of certain violent offenses receive life in prison. With the abolition of parole and the use of sentencing guidelines, sex offenders in Virginia typically receive very lengthy sentences in prison. The Sex Offender Registry has been expanded to include numerous additional sex offenses as well as certain other crimes against children. Offenders convicted of "sexually violent" crimes have to register every 90 days for life.

A growing number of states have enacted what is referred to as "sexual predator" legislation. This legislation provides for certain sex offenders who have completed their sentence but who are still considered to be a danger to society to undergo a clinical evaluation to determine if they have a "mental abnormality". If the evaluation indicates a problem, the offender goes through a civil commitment procedure, a procedure which introduces the possibility that the offender will be committed. In July, 1997 the U.S. Supreme Court upheld the constitutionality of "sexual predator" legislation in its Kansas v. Hendricks decision (see Appendix A). The Virginia State Crime Commission adopted a study proposal in 1998 to examine the feasibility of enacting a "sexual predator" statute in Virginia (SJR 69/Howell). This study proposal was passed by the 1998 General Assembly. Senator Howell chaired the subsequently assembled study group, one comprised of individuals from Corrections, Mental Health, Mental Retardation & Substance Abuse Services, Office of the Attorney General's Office, members of the legal community, and private clinicians. The study group was staffed by the Crime Commission.

Using the Kansas v. Hendricks decision as a springboard, the study group examined a number of complex issues related to enacting "sexual predator" legislation, including:

• the criteria for commitment;
• the process for commitment; and
• the expense of commitment.

Using as a foundation other on-point data and information collected, the study group examined also other strategies for addressing the issue of sex offenders, including:

• sentencing enhancements;
• risk assessment, treatment and/or pharmacological controls; and
• community containment models for supervision of sex offenders.

Findings & Recommendations

The resultant body of recommendations from the work group studying civil commitment of sexual predators is directed towards improving public safety in the area of sex offending in the most cost effective manner. The Crime Commission adopted recommendation that enhance sentencing options to address the predatory sex offenders, increase penalties for certain sex offenses, and improve assessment and treatment of sex offenders within the correctional system. These recommendations include:

• Introduce a study resolution requesting that the Virginia Criminal Sentencing Commission, in cooperation with the Department of Corrections, develop a risk assessment instrument for "sexually violent offenses" and report back to 2000 General Assembly;

• Introduce a memorializing resolution which requests that the Judicial Conference include a section on sex offenses and the high rate of recidivism.

The section should provide information on the necessity of providing adequate post incarceration supervision for sex offenders;

• Include § 18.2-67.5:1 convictions on the Registry (third misdemeanor sex offense conviction becomes a Class 6 felony);

• § 18.20370-Indecent liberties with a child: Increase the second conviction to a Class 5 felony;

• Cross reference the crimes in the two strikes statute (§ 18.2-67.5:3-the second conviction of certain sexually violent crimes carry a life sentence) in § 18.2-67.5:2(Second conviction triggers maximum penalty);

• Include aggravated sexual battery in the two strikes statute: § 18.2-67.5:3;

• Require a formalized sex offender assessment and treatment, if indicated, of all convicted sex offenders at some time during their incarceration or probation in the Department of Corrections. Assessment should include evaluation for psycho-pharmacological sex offender treatment, such as antiandrogens or SSRI's (specific serotonin reuptake inhibitors) proven to be effective in treating some deviant sexual behaviors;

• Establish intensive prison-based treatment programs with a proven record of success.

Resources Needed: $600,000;

• Provide resources to community corrections for treatment, including polygraphing, of sex offenders under community supervision.

Resources Needed: $655,000;

• Provide resources to Department of Juvenile Justice to establish one additional sex offender treatment unit.

Resources Needed: $125,000; and

• Introduce a study recommendation to direct the Department of Mental Health, Mental Retardation and Substance Abuse Services, in collaboration with the Department of Corrections, the Department of Juvenile Justice, the University of Virginia, and Virginia Commonwealth University to explore the development of a Center for Sex Offender Assessment and Treatment including the Professional structure, organizational context, assessment and treatment programming. The study will:

1. Review the availability of facilities and professional staff, and explore the legal issues pertinent to this type of Center, including informed consent, liability, inmate/patient security requirements;

2. Include consultation with other states, state agencies, and academic institutions regarding the multiagency utilization of a Center.

3. A report will be completed to present to the Governor and the 2000 General Assembly. The report will include a proposal for a Commonwealth Center for Assessment and Treatment of Sexual Disorders, to include the needed resources to implement the proposal.

Resources for Planning: $50,000.

The Crime Commission will continue to examine the issue of civil commitment of sexual predators.

Secondly, the mental health system in Virginia is currently undergoing serious reform. There is an effort to reduce the state mental hospital census and place the majority of the patients in less restrictive, community-based alternatives. This will require a major overhaul of the current system as well as a significant infusion of resources. Crime Commission staff recommended that the Commission defer making a decision on enacting a sexual predator civil commitment procedure which would place a serious burden on a system already under stress.

Notwithstanding the current crisis in the mental health system, mental health advocates argue that sex offenders are not truly clinically impaired and do not belong in the mental health system. Sex offender treatment is not readily available in the mental health system and certainly not a standard treatment protocol within state mental health hospitals. Finally, the mental health system does not have a secure facility to house violent sexual predators. The Crime Commission concurred with the recommendation to defer the decision for further study.
(*1) Kansas v. Hendricks, 117 S.Cr. 2072, 138 L.Ed.2d 501 (1997).