Sex Offender Law

In the United States, twenty states, the federal government, and the District of Columbia have a version of these commitment laws, which are referred to as “Sexually Violent Predator” (SVP) or “Sexually Dangerous Persons” laws.

Generally speaking, SVP laws have three elements: (1) That the person has been convicted of a sexually violent offense (a term that is defined applicable statutes) (2) That the person suffers from a mental abnormality and/or personality disorder, which causes him/her serious difficulty controlling his/her sexually violent behavior. (3) That this mental abnormality and/or personality disorder makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility.

A “mental abnormality” is a legal term of art that is not identical to a mental disorder, though experts generally refer to diagnoses contained in the Diagnostic and Statistical Manual of Mental Disorders (DSM) as evidence of a mental abnormality.

In most cases, commitment as an SVP is indefinite; however, once a person is committed, the confining agency is constitutionally required to conduct periodic reviews of that person’s mental condition. If the committed person’s condition changes so he/she no longer meets commitment criteria, he/she must be released.

In Kansas v. Hendricks (1997) the United States Supreme Court reviewed and upheld as constitutional a statutory process adopted in Kansas. There, civil confinement proceedings could be initiated against “any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence.” Many of those terms were themselves defined in the statute, including “mental abnormality,” defined as “congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others.”

If a prison identified an inmate who was about to be released but potentially fit this definition, the prison authorities were required to notify the local prosecutor of the impending release. The prosecutor was then required to decide whether to petition for commitment. The court would then have to determine whether probable cause existed to support the inmate’s status as a “sexually violent predator,” and, upon such a determination, order the inmate to be psychologically evaluated. The psychological evaluation would then form the basis of a further trial to determine whether the inmate qualified as a violent sexual predator. Upon such a determination, the inmate would be subject to involuntary commitment at a medical facility until such time as his mental abnormality had changed and it was safe to release him. Id. at 353. The court would then be required to conduct an annual review of the determination, and the inmate would always be allowed to petition for freedom under the same standards. The Supreme Court concluded that this process met previously established standards of constitutional substantive due process governing voluntary confinement, did not constitute double jeopardy because the proceedings were civil rather than criminal, and was not an ex post facto law for the same reason. Kansas v. Crane (2002), the United States Supreme Court clarified that the government must demonstrate that the inmate has at least a serious lack of ability to control his behavior.  United States v. Comstock (2010) the Supreme Court has determined that Congress has the authority to pass a similar law affecting federal prisoners.

United State of America (Federal Court)

18 U.S. Code § 4248. Civil commitment of a sexually dangerous person.

(a) Institution of Proceedings

In relation to a person who is in the custody of the Bureau of Prisons, or who has been committed to the custody of the Attorney General pursuant to section 4241(d), or against whom all criminal charges have been dismissed solely for reasons relating to the mental condition of the person, the Attorney General or any individual authorized by the Attorney General or the Director of the Bureau of Prisons may certify that the person is a sexually dangerous person, and transmit the certificate to the clerk of the court for the district in which the person is confined. The clerk shall send a copy of the certificate to the person, and to the attorney for the Government, and, if the person was committed pursuant to section 4241(d), to the clerk of the court that ordered the commitment. The court shall order a hearing to determine whether the person is a sexually dangerous person. A certificate filed under this subsection shall stay the release of the person pending completion of procedures contained in this section.

(b) Psychiatric or Psychological Examination and Report

Prior to the date of the hearing, the court may order that a psychiatric or psychological examination of the defendant be conducted, and that a psychiatric or psychological report be filed with the court, pursuant to the provisions of section 4247(b) and (c).

(c) Hearing

The hearing shall be conducted pursuant to the provisions of section 4247(d).

(d) Determination and Disposition

If, after the hearing, the court finds by clear and convincing evidence that the person is a sexually dangerous person, the court shall commit the person to the custody of the Attorney General. The Attorney General shall release the person to the appropriate official of the State in which the person is domiciled or was tried if such State will assume responsibility for his custody, care, and treatment. The Attorney General shall make all reasonable efforts to cause such a State to assume such responsibility. If, notwithstanding such efforts, neither such State will assume such responsibility, the Attorney General shall place the person for treatment in a suitable facility, until—

  • (1) such a State will assume such responsibility; or
  • (2) the person’s condition is such that he is no longer sexually dangerous to others, or will not be sexually dangerous to others if released under a prescribed regimen of medical, psychiatric, or psychological care or treatment; whichever is earlier.

(e) Discharge

When the Director of the facility in which a person is placed pursuant to subsection (d) determines that the person’s condition is such that he is no longer sexually dangerous to others, or will not be sexually dangerous to others if released under a prescribed regimen of medical, psychiatric, or psychological care or treatment, he shall promptly file a certificate to that effect with the clerk of the court that ordered the commitment. The clerk shall send a copy of the certificate to the person’s counsel and to the attorney for the Government. The court shall order the discharge of the person or, on motion of the attorney for the Government or on its own motion, shall hold a hearing, conducted pursuant to the provisions of section 4247(d), to determine whether he should be released. If, after the hearing, the court finds by a preponderance of the evidence that the person’s condition is such that—

  • (1) he will not be sexually dangerous to others if released unconditionally, the court shall order that he be immediately discharged; or
  • (2) he will not be sexually dangerous to others if released under a prescribed regimen of medical, psychiatric, or psychological care or treatment, the court shall—
    • (A) order that he be conditionally discharged under a prescribed regimen of medical, psychiatric, or psychological care or treatment that has been prepared for him, that has been certified to the court as appropriate by the Director of the facility in which he is committed, and that has been found by the court to be appropriate; and
    • (B) order, as an explicit condition of release, that he comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment.

The court at any time may, after a hearing employing the same criteria, modify or eliminate the regimen of medical, psychiatric, or psychological care or treatment.

(f) Revocation of Conditional Discharge

The director of a facility responsible for administering a regimen imposed on a person conditionally discharged under subsection (e) shall notify the Attorney General and the court having jurisdiction over the person of any failure of the person to comply with the regimen. Upon such notice, or upon other probable cause to believe that the person has failed to comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment, the person may be arrested, and, upon arrest, shall be taken without unnecessary delay before the court having jurisdiction over him. The court shall, after a hearing, determine whether the person should be remanded to a suitable facility on the ground that he is sexually dangerous to others in light of his failure to comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment.

(g) Release to State of Certain Other Person

If the director of the facility in which a person is hospitalized or placed pursuant to this chapter certifies to the Attorney General that a person, against whom all charges have been dismissed for reasons not related to the mental condition of the person, is a sexually dangerous person, the Attorney General shall release the person to the appropriate official of the State in which the person is domiciled or was tried for the purpose of institution of State proceedings for civil commitment. If neither such State will assume such responsibility, the Attorney General shall release the person upon receipt of notice from the State that it will not assume such responsibility, but not later than 10 days after certification by the director of the facility.

Illinois

In Illinois a Sexually Violent Person is defined in 725 ILCS 207/5 (f) as the following:  “Sexually violent person” means a person who has been convicted of a sexually violent offense, has been adjudicated delinquent for a sexual violent offense, or has been found not guilty of a sexual violent offense by reason of insanity and who is dangerous because he or she suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence.  This act became effective on January 1, 1998.

Kansas

In Kansas, Statute Chapter 59, Article 29a (59-29a02 Commitment of Sexually Violent Predators) defines a Sexually Violent Predator as:

  • (a)Sexually violent predator” means any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in repeat acts of sexual violence.
  • (b)Mental abnormality” means a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others.
  • (c)Likely to engage in repeat acts of sexual violence” means the person’s propensity to commit acts of sexual violence is of such a degree as to pose a menace to the health and safety of others.

Arizona

ARIZ. REV. STAT. ANN. § 36-3701 (2012).

“Sexually Violent Person” means a person to whom both of the following apply”

  • (a) Has ever been convicted of or found guilty but insane of a sexually violent offense or was charged with a sexually violent offense and was determined incompetent to stand trial.
  • (b) Has a mental disorder that makes the person likely to engage in acts of sexual violence

“Mental  disorder”  means  a  paraphilia,  personality  disorder  or  conduct  disorder  or  any   combination of paraphilia, personality disorder and conduct disorder that predisposes a person to commit sexual acts to such a degree as to render the person a danger to the health and safety of others.

The court or jury shall determine beyond a reasonable doubt if the person named in the petition is a sexually violent person. If the state alleges that the sexually violent offense on which the petition for commitment is based was sexually motivated, the state shall prove beyond a reasonable doubt that the alleged sexually violent act was sexually motivated.

California

California Welfare and Institutions Code = SECTION 6600-6609.3

As used in this article, the following terms have the following meanings:

(a) (1) “Sexually violent predator” means a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.

“Diagnosed mental disorder” includes a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others.

Convictions of one or more of the crimes enumerated in this section shall constitute evidence that may support a court or jury determination that a person is a sexually violent predator but shall not be the sole basis for the determination.

Jurors shall be admonished that they may not find a person a sexually violent predator based on prior offenses absent relevant evidence of a currently diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.

To be found a Sexually Violent Predator the level of proof is beyond a reasonable doubt.

Florida

2001 Florida Statutes Title XXIX, Chapter 294 – 394.910 Legislative findings and intent.

The Legislature finds that a small but extremely dangerous number of sexually violent predators exist who do not have a mental disease or defect that renders them appropriate for involuntary treatment under the Baker Act, part I of this chapter, which is intended to provide short-term treatment to individuals with serious mental disorders and then return them to the community. In contrast to persons appropriate for civil commitment under the Baker Act, sexually violent predators generally have antisocial personality features which are unamenable to existing mental illness treatment modalities, and those features render them likely to engage in criminal, sexually violent behavior. The Legislature further finds that the likelihood of sexually violent predators engaging in repeat acts of predatory sexual violence is high. The existing involuntary commitment procedures under the Baker Act for the treatment and care of mentally ill persons are inadequate to address the risk these sexually violent predators pose to society. The Legislature further finds that the prognosis for rehabilitating sexually violent predators in a prison setting is poor, the treatment needs of this population are very long term, and the treatment modalities for this population are very different from the traditional treatment modalities for people appropriate for commitment under the Baker Act. It is therefore the intent of the Legislature to create a civil commitment procedure for the long-term care and treatment of sexually violent predators.

394.912 Sexually Violent Predator.

  • (10)“Sexually violent predator” means any person who:
    • (a) Has been convicted of a sexually violent offense; and
    • (b) Suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment.

394.917 Determination; commitment procedure; mistrials; housing; counsel and costs in indigent appellate cases.

(1)  The court or jury shall determine by clear and convincing evidence whether the person is a sexually violent predator. If the determination is made by a jury, the verdict must be unanimous. If the jury is unable to reach a unanimous verdict, the court must declare a mistrial and poll the jury. If a majority of the jury would find the person is a sexually violent predator, the state attorney may refile the petition and proceed according to the provisions of this part.

At the hearing, the state bears the burden of proving, by clear and convincing evidence, that the person’s mental condition remains such that it is not safe for the person to be at large and that, if released, the person is likely to engage in acts of sexual violence.

Iowa

In Iowa, Code 229 (229A.2) – Commitment of Sexually Violent Predators, defines a Sexually Violent Predator as: “a person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality which makes the person likely to engage in predatory acts constituting sexually violent offenses, if not confined in a secure facility.

Massachusetts

Massachusetts General Laws Part I Title XVII Chapter 123A Section 1 defines a ”Sexually Dangerous Person”, any person who has been (i) convicted of or adjudicated as a delinquent juvenile or youthful offender by reason of a sexual offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in sexual offenses if not confined to a secure facility; (ii) charged with a sexual offense and was determined to be incompetent to stand trial and who suffers from a mental abnormality or personality disorder which makes such person likely to engage in sexual offenses if not confined to a secure facility; or (iii) previously adjudicated as such by a court of the commonwealth and whose misconduct in sexual matters indicates a general lack of power to control his sexual impulses, as evidenced by repetitive or compulsive sexual misconduct by either violence against any victim, or aggression against any victim under the age of 16 years, and who, as a result, is likely to attack or otherwise inflict injury on such victims because of his uncontrolled or uncontrollable desires.

Minnesota

In Minnesota, there are two civil commitments for dangerous sexual offenders Sexual Psychopathic Personality and Sexually Dangerous Person.

Minnesota Statutes CHAPTER 253D. CIVIL COMMITMENT AND TREATMENT OF SEX OFFENDERS

Subd. 15. Sexual Psychopathic Personality

“Sexual psychopathic personality” means the existence in any person of such conditions of emotional instability, or impulsiveness of behavior, or lack of customary standards of good judgment, or failure to appreciate the consequences of personal acts, or a combination of any of these conditions, which render the person irresponsible for personal conduct with respect to sexual matters, if the person has evidenced, by a habitual course of misconduct in sexual matters, an utter lack of power to control the person’s sexual impulses and, as a result, is dangerous to other persons.

Subd. 16. Sexually Dangerous Person

  • (a) A “sexually dangerous person” means a person who:
    • (1) has engaged in a course of harmful sexual conduct as defined in subdivision 8;
    • (2) has manifested a sexual, personality, or other mental disorder or dysfunction; and
    • (3) as a result, is likely to engage in acts of harmful sexual conduct as defined in subdivision 8.
  • (b) For purposes of this provision, it is not necessary to prove that the person has an inability to control the person’s sexual impulses.

Missouri

In Missouri, Section 632.480 defines a “Sexually Violent Predator” as “any person who suffers from a mental abnormality which makes the person more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility and who:

  • (a) Has pled guilty or been found guilty, or been found not guilty by reason of mental disease or defect pursuant to section 552.030 of a sexually violent offense; or
  • (b) Has been committed as a criminal sexual psychopath pursuant to section 632.475 and statutes in effect before August 13, 1980.”

New Hampshire

New Hampshire Statutes Title X – Public Health (Chapter 125 – 129 – O) Chapter 135-E – Involuntary Civil Commitment of Sexually Violent Predators defines a Sexually Violent Predator” as any person who:

  • (a) Has been convicted of a sexually violent offense;
  • (b) Suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment; and
  • (c) Is not eligible for involuntary admission under RSA 135-C or RSA 171-B.

New Jersey

New Jersey Sexually Violent Predator Act 30:4-27.24defines a “Sexually Violent Predator” as a person who has been convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of a sexually violent offense, or has been charged with a sexually violent offense but found to be incompetent to stand trial, and suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment.

“Likely to engage in acts of sexual violence” means the propensity of a person to commit acts of sexual violence is of such a degree as to pose a threat to the health and safety of others.

“Mental abnormality” means a mental condition that affects a person’s emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of sexual violence.

New York

New York Laws MHY Mental Hygiene Title B – Mental Health Act Article 10 – (10.01 – 10.17) Sexual Offenders Requiring Civil Commitment or Supervision defines a “Dangerous sex offender requiring confinement” means a person who is a detained sex offender suffering from a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the person is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility.

North Dakota

North Dakota, Chapter 25-03.3 Commitment of Sexually Dangerous Individuals defines a “Sexually dangerous individual” as an individual who is shown to have engaged in sexually predatory conduct and who has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction that makes that individual likely to engage in further acts of sexually predatory conduct which constitute a danger to the physical or mental health or safety of others. It is a rebuttable presumption that sexually predatory conduct creates a danger to the physical or mental health or safety of the victim of the conduct. For these purposes, intellectual disability is not a sexual disorder, personality disorder, or other mental disorder or dysfunction.

South Carolina

South Carolina Sexually Violent Predator Act

The South Carolina General Assembly found that a mentally abnormal and extremely dangerous group of sexually violent predators exists who require involuntary civil commitment in a secure facility for long-term control, care, and treatment.  The General Assembly further found that the likelihood these sexually violent predators will engage in repeated acts of sexual violence if not treated for their mental conditions is significant.

South Carolina, Title 44 – Chapter 48 – Sexually Violent Predator Act defines a Sexually Violent Predator as a person who has been convicted of a sexually violent offense; and suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment.  Mental abnormality means a mental condition affecting a person’s emotional or volitional capacity that predisposes the person to commit sexually violent offenses. “Likely to engage in acts of sexual violence” means the person’s propensity to commit acts of sexual violence is of such a degree as to pose a menace to the health and safety of others.

Texas

In Texas, Title 11, Chapter 841 Civil Commitment of Sexually Violent Predators focuses on an extremely dangerous group of sexually violent predators who have a behavioral abnormality that is not amenable to traditional mental illness treatment modalities and that makes the predators likely to engage in repeated predatory acts of sexual violence.  A “Behavioral abnormality” means a congenital or acquired condition that, by affecting a person’s emotional or volitional capacity, predisposes the person to commit a sexually violent offense, to the extent that the person becomes a menace to the health and safety of another person.  The criteria to be found a Sexually Violent Predator includes the following:

  • (a) A person is a sexually violent predator for the purposes of this chapter if the person:
    • (1) is a repeat sexually violent offender; and
    • (2) suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence.
  • (b) A person is a repeat sexually violent offender for the purposes of this chapter if the person is convicted of more than one sexually violent offense and a sentence is imposed for at least one of the offenses or if:
    • (1) the person:
      • (A) is convicted of a sexually violent offense, regardless of whether the sentence for the offense was ever imposed or whether the sentence was probated and the person was subsequently discharged from community supervision;
      • (B) enters a plea of guilty or nolo contendere for a sexually violent offense in return for a grant of deferred adjudication;
      • (C) is adjudged not guilty by reason of insanity of a sexually violent offense; or
      • (D) is adjudicated by a juvenile court as having engaged in delinquent conduct constituting a sexually violent offense and is committed to the Texas Youth Commission under Section 54.04(d)(3) or (m), Family Code; and
    • (2) after the date on which under Subdivision (1) the person is convicted, receives a grant of deferred adjudication, is adjudged not guilty by reason of insanity, or is adjudicated by a juvenile court as having engaged in delinquent conduct, the person commits a sexually violent offense for which the person:
      • (A) is convicted, but only if the sentence for the offense is imposed; or
      • (B) is adjudged not guilty by reason of insanity.

Sex. 841.062. DETERMINATION OF PREDATOR STATUS.

  • (a) The judge or jury shall determine whether, beyond a reasonable doubt, the person is a sexually violent predator. Either the state or the person is entitled to appeal the determination.
  • (b) A jury determination that the person is a sexually violent predator must be by unanimous verdict.

Sec. 841.081. CIVIL COMMITMENT OF PREDATOR. (a) If at a trial conducted under Subchapter D the judge or jury determines that the person is a sexually violent predator, the judge shall commit the person for outpatient treatment and supervision to be coordinated by the case manager.

Virginia

Virginia Title 37.2 Behavioral Health and Developmental Services, Chapter 9 Civil Commitment of Sexually Violent Predators, defines a Sexually Violent Predator as any person who (i) has been convicted of a sexually violent offense, or has been charged with a sexually violent offense and is unrestorably incompetent to stand trial pursuant to § 19.2-169.3; and (ii) 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.

Washington

Washington RCW Title 71 Chapter 71.09 Section 71.09.020 defines a Sexually Violent Predator as any person who has been convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility.

“Likely to engage in predatory acts of sexual violence if not confined in a secure facility” means that the person more probably than not will engage in such acts if released unconditionally from detention on the sexually violent predator petition. Such likelihood must be evidenced by a recent overt act if the person is not totally confined at the time the petition is filed under RCW 71.09.030.

“Mental abnormality” means a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to the commission of criminal sexual acts in a degree constituting such person a menace to the health and safety of others.

Wisconsin

In Wisconsin, Chapter 980 – Sexually Violent Person Commitments, defines a Sexually Violent Person as a “person who has been convicted of a sexually violent offense, has been adjudicated delinquent for a sexually violent offense, or has been found not guilty of or not responsible for a sexually violent offense by reason of insanity or mental disease, defect, or illness, and who is dangerous because he or she suffers from a mental disorder that makes it likely that the person will engage in one or more acts of sexual violence.”