Sex Offender Civil Commitment Research Articles

No Check We Won't Write: A Report on the High Cost of Sex Offender Incarceration.

Child sexual abuse is a preventable public health problem that is addressed primarily via reactive criminal justice efforts. In this report, we focus on the cost of incarcerating adults convicted of sex crimes against children in the United States. Specifically, we summarize publicly available information on U.S. state and federal prison and sex offender civil commitment costs. Wherever possible, we used government data sources to inform cost estimates. Results indicate the annual cost to incarcerate adults convicted of sex crimes against children in the United States approaches $5.4 billion. This estimate does not include any costs incurred prior to incarceration (e.g., related to detection and prosecution) or post-release (e.g., related to supervision or registration). Nor does this estimate capture administrative and judicial costs associated with appeals, or administrative costs that cannot be extricated from other budgets, as is the case when costs per-prisoner are shared between prisons and civil commitment facilities. We believe information on the substantial funding dedicated to incarceration will be useful to U.S. federal, state, and local lawmakers and to international policymakers as they consider allocating resources to the development, evaluation and dissemination of effective prevention strategies aimed at keeping children safe from sexual abuse in the first place.

Sex Crimes: Second Edition

This is a textbook for an upper-level Sex Crimes course at a law school or graduate-level seminar in a variety of disciplines. It covers the criminalization of sexual deviance, rape, sexual assault, obscenity, non-consensual pornography, child molestation, incest, child pornography, sex trafficking, sex work, prostitution, sex offender registration, sex offender residency restrictions, and sex offender civil commitment. The included material is either public domain, Creative Commons, or included with the copyright owner's permission. The book itself is released under a Creative Commons license which you can find at the beginning of the book. I encourage editing, revising, and distributing under those permissive terms.

Sex Crimes: First Edition

This is a textbook for an upper-level Sex Crimes course at a law school or graduate-level seminar in a variety of disciplines. It covers the criminalization of sexual deviance, rape, sexual assault, obscenity, non-consensual pornography, child molestation, incest, child pornography, sex trafficking, sex work, prostitution, sex offender registration, sex offender residency restrictions, and sex offender civil commitment. The included material is either public domain, Creative Commons, or included with the copyright owner's permission. The book itself is released under a Creative Commons license which you can find at the beginning of the book. I encourage editing, revising, and distributing under those permissive terms. If you are interested in using this book in your class, please email me at coreyyung@ku.edu from your official school account and I can provide access to an editable Word version of the casebook and accompanying slides. At some point in the future, I hope to have an available teacher's manual as well.

Diagnostic Standards for Sex Offender Civil Commitment

In United States v. Charboneau , 914 F.3d 906 (4th Cir. 2019), the Fourth Circuit Court of Appeals considered an appellant's claim that a federal district court had erred in finding him a sexually dangerous person under the Adam Walsh Child Safety and Protection Act of 2006 (18 U.S.C. 4247(a)(5) (

Associations between MMPI-2-RF Scale scores and institutional violence among patients detained under sexually violent predator laws.

Sexually violent predator (SVP) laws allow the postprison civil commitment of sex offenders to a secure psychiatric hospital because of mental abnormality and posing a serious risk to public safety. Research on predictors of future institutional violence in this population is lacking because adequately sized samples are difficult to obtain. In the current study, we examined psychological predictors of future institutional violence in a sample of 171 psychiatrically hospitalized males detained or civilly committed under an SVP laws. Using the Minnesota Multiphasic-Personality Inventory-2-Restructured Form (Ben-Porath & Tellegen, 2008/2011), we found that scales assessing thought dysfunction, emotional dysregulation, and externalizing behaviors were associated with future physical violence at the hospital. Relative risk ratio analyses indicated that SVPs producing elevations on these scales were at 1.5-2.5 times greater risk of future physical violence than those without elevations. Overall, the results suggest the Minnesota Multiphasic-Personality Inventory-2-Restructured Form is associated with future institutional violence among SVPs. Implications and limitations of these findings are discussed. (PsycINFO Database Record (c) 2019 APA, all rights reserved).

Promoting Dignity and Preventing Shame and Humiliation by Improving the Quality and Education of Attorneys in Sexually Violent Predator (SVP) Civil Commitment Cases

In Strickland vs. Washington, the Supreme Court acknowledged that the role of counsel is critical to the ability of the adversarial system to best insure that just results are produced. Yet, the Court did not elaborately define the Sixth Amendment constitutional right to counsel and lower courts, have set the bar shockingly low.In this article we examine the quality of attorneys who litigate Sexually Violent Predator Act (SVPA) cases, and conclude that a failure to apply a higher standard of adequate counsel – beyond what was set out in Strickland – results in humiliation, shame and lack of dignity for clients. Effective and competent counsel must be cognizant of how shame and humiliation corrupts our legislation, court proceedings and subsequent management of the sex offender population.We explore the concepts of shame and humiliation and how the effects of these concepts damage not only the client, but the integrity of the court proceeding and subsequent goals of treatment rehabilitation. We focus on the volatile “arranged marriage” of law and psychology in sex offender civil commitment cases that require attorneys to have a particular set of skills and knowledge in order to conduct a fair, judicious and ethical trial, and to secure an accurate verdict. This is necessary to not only preserve the dignity of the legal system but additionally preserve the dignity of clients facing – what is most likely considered – one of the most undignified adjudicative determinations: that of “sexual violent predator. We propose that without specialized training and expert collaboration, attorneys cannot provide even remotely adequate or effective representation.We consider these issues through the prism of therapeutic jurisprudence, which we believe is vital to any authentic understanding of the underlying issues and offer suggestions to prevent and minimize client shame, humiliation and lack of dignity (including sample dialogues that counsel might have with her client).

Beyond Strict Scrutiny

Sex offender civil commitment (SOCC) is a massive deprivation of liberty as severe as penal incarceration. Because it eschews most of the “great safeguards” constraining the criminal power, SOCC demands careful constitutional scrutiny. Although the Supreme Court has clearly applied heightened scrutiny in judging civil commitment schemes, it has never actually specified where on the scrutiny spectrum its analysis falls. This article argues that standard three-tier scrutiny analysis is not the most coherent way to understand the Supreme Court’s civil commitment jurisprudence. Rather than a harm-balancing judgment typical of three-tier scrutiny, the Court’s civil commitment cases are best understood as forbidden purpose cases, a construct that is familiar in many areas of the Court’s constitutional analysis. But the Court’s civil commitment cases tie the search for punitive purpose to another genre of constitutional analysis, the application of the substantive boundaries on governmental power most commonly associated with the specific grants of federal power. In contrast to the normal conception of state power as plenary, limited only by the specific constraints of the bill of rights and the amorphous limits of “substantive due process,” the Court has posited a narrowly limited “civil commitment” power. The search for the forbidden purpose maps directly onto the inquiry into the limits of this discrete and special state power. Finally, the article argues that the forbidden purpose/discrete power analysis provides clarity on another vexing issue, the facial/as-applied distinction.

Treatment During Civil Commitment for Sexual Offending Behaviors.

The first sex offender civil commitment legislation passed in Washington State in 1990. Since that time, 21 additional jurisdictions in the USA have passed similar statutes. Although considered controversial by some, the statutes have withstood legal scrutiny at the state and federal levels. These statutes have been found constitutional in large part because they offer treatment to those individuals detained under them. In the 25years since sex offender civil commitment became a reality, significant advances in sex offender assessment and treatment have shaped the landscape of the associated treatment programs. This article reviews current practice in programs that treat individuals detained under these laws and provides a framework in which these programs are delivered.

The Admissibility of Hearsay Evidence in New York State Sex Offender Civil Commitment Hearings After <i>State v. Floyd Y.</i>: Finding a Balance Between Promoting the General Welfare of Sexual Assault Victims and Providing Due Process of Law

In twenty states throughout the country, the government may petition for the civil commitment of detained sex offenders after they are released from prison. Although processes differ among the states, the government must generally show at a court proceeding that a detained sex offender both suffers from a mental abnormality and is dangerous and that this combination makes a detained sex offender likely to reoffend. At such court proceedings, both the government and the respondent will present evidence to either the court or the jury on these issues. As in most court proceedings, hearsay evidence is inadmissible at sex offender civil commitment hearings unless it meets sufficient indicia of reliability or fits within an established exception to the general rule against hearsay.On November 19, 2013, the New York State Court of Appeals determined that in sex offender civil commitment hearings, the best way to show that hearsay evidence regarding uncharged crimes and/or dropped charges meets sufficient indicia of reliability is to require live confrontation of the declarant. This Note argues, however, that neither the U.S. Constitution nor New York State's Civil Practice Law and Rules require live confrontation. In addition, live confrontation conflicts with the legislative intent of New York State's sex offender civil commitment statute and is detrimental to the psychological well-being of victims of sexual assault.

Predictors of the sex offender civil commitment trial outcomes in New York State.

The present study analyzed sex offender civil management (i.e., civil commitment) legal proceedings in New York State and identified factors that predict trial results. Specifically, the current study compared a sample of 38 sex offenders who were released to the community after winning their civil management trials to 183 sex offenders who lost their civil management trials. Additionally, for the 183 sex offenders who lost their civil management trials, the current study compared 146 offenders who were ordered to inpatient civil commitment to 37 offenders who were deemed fit for civil management in the community. Results of the analyses indicated that sexual criminality, sexual deviance, and criminality involving child victims increased the likelihood of offenders both losing their civil management trial and being found to be in need of inpatient care, while the presence of variables associated with nonsexual criminality increased the likelihood of offenders both winning their civil management trials and being deemed fit for management in the community. The findings of this study provide guidance for psychiatric examiners who testify in civil management legal proceedings, as well as for legal professionals specializing in civil management cases.

Sex offender laws in the United States: smart policy or disproportionate sanctions?

In the 1990s, the United States began enacting a series of laws to monitor and supervise sex offenders living in the community. These evolved to include Internet registries of sex offenders, sex offender residence restrictions, GPS monitoring, and even civil commitment of sex offenders at the conclusion of their criminal sentences. Though other countries have enacted legislation to monitor sex offenders, none have implemented laws impinging on the civil liberties of offenders to the extent of those in the United States. This article examines the basis of the US laws and their challenges, provides an overview of their efficacy, and compares the US approach to those of other countries.

Jurors' views on the value and objectivity of mental health experts testifying in sexually violent predator trials.

Although psychologists and psychiatrists often testify in court, we know relatively little about the extent to which jurors value the testimony they hear from these experts. We surveyed 161 jurors who rendered opinions in 14 sex offender civil commitment trials after hearing testimony from psychologists and psychiatrists serving as expert witnesses. Most jurors reported that the experts they heard testify were honest, and they tended to attribute disagreements among experts to case complexity, as opposed to adversarial allegiance or bias. Most reported that hearing from the experts helped them make better decisions and that experts using risk assessment instruments could make more accurate predictions than those who did not. Jurors were, however, more skeptical about the ability of experts to accurately predict recidivism when they heard testimony from both prosecution and defense experts. Findings suggest that jurors value risk assessment testimony from experts, but that experts must think carefully about how to best make risk assessment instrument results accessible to jurors.

How likely is “likely to reoffend” in sex offender civil commitment trials?

Many sexually violent predator (SVP) laws are ambiguous regarding the degree of reoffense risk that would indicate that an offender is sufficiently "likely to reoffend" to justify civil commitment. We review how SVP statutes operationalize likelihood of reoffending. We then examine what likelihood of recidivism actual SVP jurors considered to indicate that an offender was likely to reoffend. Real jurors (N = 153) from 14 actual SVP hearings completed a questionnaire after deliberating to a verdict. Most jurors (81.7%) considered a 15% estimated chance of recidivism to mean that the respondent was "likely" to reoffend, and many (53.6%) even considered a 1% chance to indicate likely reoffense. Jurors who heard lower risk estimates in trials were more likely to report that a low chance of recidivism (as low as 1%) indicated an offender was likely to reoffend. Results suggest that jurors view risk more in terms of the severity of potential harm than in terms of strict statistical probability. Results also suggest that when laws give jurors discretion to define tolerable risk, jurors consider even a statistically low degree of risk intolerable.

Civil Commitment for Sex Offenders

Civil commitment of sex offenders is morally problematic in part because it depends on the idea that the medical profession can determine whether offenders fit legal, rather than medical, categories and can make accurate predictions of a person's future behavior.

Expensive, harmful policies that don't work or how juvenile sexual offending is addressed in the U.S.

In this policy paper we briefly review the historical predecessors of modern sex crime legislation. We then review modern policies, focusing on those that have been applied to youth who have sexually offended and for which there is at least some empirical evaluation. These include sex offender civil commitment, registration and public notification. None of the existing research validates the use of these strategies with juveniles and indeed there is growing evidence of harm. As such, we recommend that policies be revised to either exclude juveniles altogether or to mitigate the negative effects of policies when applied to juveniles.

Preventing Sex-Offender Recidivism Through Therapeutic Jurisprudence Approaches and Specialized Community Integration

The public’s panic about the fear of recidivism if adjudicated sex offenders are ever to be released to the community has not subsided, despite the growing amount of information and statistically-reliable data signifying a generally low risk of re-offense. The established case law upholding sex offender civil commitment and containment statutes has rejected challenges of unconstitutionality, and continues to be dominated by punitive undertones. We have come to learn that the tools used to assess offenders for risk and civil commitment are often inaccurate and that meaningful treatment for this population is often unavailable and ineffective. Yet, society continues to clamor for legislation confining this cohort of offenders for “treatment,” and, ostensibly, protection of the community, and legislatures respond quickly to these calls. This “reform legislation” often includes strict and demeaning post-release restrictions that track offenders and curb their integration into society. These “reforms” continue to show no benefit either to the public or to the individual offender. The absence of meaningful and effective treatment during confinement, combined with inhumane conditions upon release, make it far less likely that this cohort of individuals will ever become productive members of society. Only through therapeutic jurisprudence, a focus on rehabilitation, and a dedication to treating sexual offenders humanely, will it be possible to reduce recidivism and foster successful community reintegration.This article takes a new approach to these issues. It examines sex offender laws, past and present, looks at this area of sex offender commitment and containment through a therapeutic jurisprudence lens, and suggests basic policy changes that would optimally and constitutionally minimize re-offense rates, while upholding and protecting human rights of all citizens. It highlights the failure of community containment laws and ordinances by focusing on (1) the myths/perceptions that have arisen about sex offenders, and how society incorporates those myths into legislation, (2) the lack of rehabilitation offered to incarcerated or civilly-committed offenders, resulting in inadequate re-entry preparation, (3) the anti-therapeutic and inhumane effect of the laws and ordinances created to restrict sex offenders in the community, and (4) the reluctance and resistance of courts to incorporate therapeutic jurisprudence in seeking to remediate this set of circumstances. It concludes by offering some modest suggestions, based on the adoption of a therapeutic jurisprudence model of analysis.

Do PCL-R scores from state or defense experts best predict future misconduct among civilly committed sex offenders?

In a recent study of sex offender civil commitment proceedings, Murrie et al. (Psychol Public Policy Law 15:19-53, 2009) found that state-retained experts consistently assigned higher PCL-R total scores than defense-retained experts for the same offenders (Cohen's d > .83). This finding raises an important question about the validity of these discrepant scores: Which type of score, state or defense evaluator, provides the most useful information about risk? We examined the ability of PCL-R total scores from state and defense evaluators to predict future misconduct among civilly committed sex offenders (N = 38). For comparison, we also examined predictive validity when two state experts evaluated the same offender (N = 32). Agreement between evaluators was low for cases with opposing experts (ICCA,1 = .43 to .52) and for cases with two state experts (ICCA,1 = .40). Nevertheless, scores from state and defense experts demonstrated similar levels of predictive validity (AUC values in the .70 range), although scores from different types of state evaluators (corrections-contracted vs. prosecution-retained) did not. The finding of mean differences between opposing evaluator scores, but similar levels of predictive validity, suggests that scores from opposing experts in SVP cases may need to be interpreted differently depending on who assigned them. Findings have important implications for understanding how rater disagreement may relate to predictive validity.

Rethinking the Indefinite Detention of Sex Offenders

Thousands of sex offenders in the United States are being held indefinitely under civil commitment programs. The analysis in this Article suggests that none (or precious few) belong there. Specifically, in a large dataset, an instrument as good as the one most widely used by experts (the “Static-99”) could not identify even one sex offender who met the legal standards for commitment. Supplementing such instruments with additional information appears not to improve matters, so the failure of the instrument is profoundly disturbing. There are three possible responses: (1) improve instruments to meet existing standards; (2) lower the standards; and (3) abandon sex offender civil commitment. This Article focuses on the first response, identifying and correcting flaws in the most widely-used instrument. But the greater significance of the Article is to reframe the debate around the other two potential responses. Can we predict the future well enough to justify the indefinite detention of “dangerous” people?

Paraphilias and Predators: The Ethical Application of Psychiatric Diagnoses in Partisan Sexually Violent Predator Civil Commitment Proceedings

The U.S. Supreme Court upheld the civil commitment of sex offenders with paraphilia disorders in Kansas v. Hendricks and Kansas v. Crane. These proceedings have essentially created a cottage industry and generated two partisan advocacy expert camps (defense and prosecution). Both camps are challenged with the burdens of diagnosing paraphilias when considering the nebulous descriptive language within the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR). This article will discuss shortcomings of the DSM as well as potential inherent clinician bias relevant to proferring diagnoses in SVP evaluations. The author will include a brief case study addressing diagnostic dilemmas within a framework that considers professional ethical issues, recognizing one' s forensic ideology and forensic identification with the retaining legal counsel, while attempting to minimize bias. The author will recommend that experts consider the functional abilities and behavioral symptoms of the sex offender as they relate to patterns of sex offending, there nature to sexual deviance, and there relationship to future sexual recidivism in addition to the diagnostic requirements and subsequent forensic limitations of the DSM-IV-TR.

Hebephilia: Quintessence of diagnostic pretextuality

Hebephilia is an archaic term used to describe adult sexual attraction to adolescents. Prior to the advent of contemporary sexually violent predator laws, the term was not found in any dictionary or formal diagnostic system. Overnight, it is on the fast track toward recognition as a psychiatric condition meriting inclusion in the upcoming fifth edition of the Diagnostic and Statistical Manual of Mental Disorders. This article traces the sudden emergence and popularity of hebephilia to pressure from the legal arena and, specifically, to the legal mandate of a serious mental abnormality for civil commitment of sex offenders. Hebephilia is proposed as a quintessential example of pretextuality, in which special interests promote a pseudoscientific construct that furthers an implicit, instrumental goal. Inherent problems with the construct's reliability and validity are discussed. A warning is issued about unintended consequences if hebephilia or its relative, pedohebephilia, make their way into the DSM-5, due out in 2013.