Opponents of the law claim that it violates prohibition against double jeopardy, ex post facto, self-incrimination, and vagueness of content. Opponents also claim that the statute violates equal protection and due process and that the law sets up an Orwellian "dangerousness courts" masquerading as mental health treatment. David Summers, writing on behalf of the Washington State Psychiatric Association in an amicus brief, states that the "Sex Predator Law" is based on an invented pseudo-science that encourages the ad hoc invention of psychiatric disorders to achieve a social end.
Although those who are found to be sexual predators are confined to a "treatment center" until they can show that they are no longer dangerous, the laws true purpose is indefinite imprisonment of those who fall under its scope. Challenges to the civil commitment law itself have withstood state supreme court scrutiny. (See: In re Young, 122 Wn2d 1 (1993)(En Banc), reported in PLN Volume 4, No. 12) Since that ruling similar laws have been passed - based on Washingtons "Sex Predator Law" - in Wisconsin, Kansas, New Jersey and California. The Washington law is currently being litigated in federal district court.
Recently the application of civil commitment ventured into new territory. In March of this year a prisoner, Mitch Gaff, was civilly committed even though he had successfully completed the state run Sex Offender Treatment Program (SOTP) before completing his ten year sentence. Past and present directors of the SOTP testified at Gaffs civil commitment trial that only about a third of prisoners who enter the SOTP complete the program, about a third drop out and another third are kicked out. Mitch spent 26 months in the SOTP and successfully completed the program.
The prosecution argued that the SOTP does not provide adequate treatment and presented expert witnesses whose testimony was designed to discredit the state run sex offender program. The prosecution also presented to the jury extensive information about Gaffs history of sexual assaults and deviant behavior. The overwhelming bulk of this damaging testimony about his past behavior was gleaned from information that Gaff self-disclosed while in treatment. While such open self-disclosure is a critically important part of the treatment process, it has also been shown in this instance to be a critically important part of the prosecutions case.
The prosecution also relied heavily on the expert testimony of Dr. Robert Wheeler who touted recent advances in the "science" of predicting future dangerousness of sex offenders. Most of Wheelers expert testimony was based on his interpretation of the research of Dr. Vernon Quincy of Canada. Dr. Quincy has developed a statistical scoring method for predicting future dangerousness of sex offenders. The offenders history is analyzed and compared to a series of actuarial tables based on data relating to other offenders who have reoffended.
Gaffs attorney, Caroline Mann, argued that the statistical data should not be presented to the jury because of its purely speculative nature. The judge allowed the testimony about statistical actuarial tables, though, as a means of letting the jury know what Dr. Wheelers expert opinion was based upon. In that indirect way the actuarial tables were allowed to sway the opinion of the jury, lending scientific authority to the state witnesses claims that Gaff was likely to reoffend.
Of the dozens of variables used to calculate the actuarial risk of reoffense, all but one are based on the offenders past history, i.e. family history, performance and behavior in school, record of arrests, etc. Only one of the variables considered can be changed over time, results of a plethismograph test that measure physical arousal to various sexual stimuli. When Gaffs attorney pointed out that his plethismograph scores indicate a low arousal to sexually deviant stimuli, Dr. Wheeler countered that most offenders have the ability to purposely suppress their arousal and thereby "beat" the test. It would appear, then, that there is absolutely nothing Gaff can ever do - not with any amount of treatment - that would lower his "scientifically" calculated risk to reoffend.
Gaff was housed in the states Special Commitment Center during the pretrial proceedings and the trial. He reports that staff at the center told him they have no idea of what treatment they could offer that he had not already successfully completed during his 26 months in the SOTP.
In theory the civil commitment law is designed to allow for the confinement of persons who suffer from a "mental abnormality" until they have received sufficient treatment to no longer present a threat to the community. In practical application the law is nothing more than indefinite incarceration of prisoners who have already completed their full sentences. Period. This case illustrates that point rather clearly.
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