Brief Description: Clarifying how demographic factors are used with regard to sexually violent predators.

Sponsors: Senators Regala, Hargrove, Stevens, Carrell, Franklin, McAuliffe and Kohl-Welles.

Hearing Date: 3/25/05

Staff: Kathryn Leathers (786-7114).

Background:

A "sexually violent predator" means a 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.

A "mental abnormality" is defined by statute as 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. "Predatory" acts means acts directed towards: (a) strangers; (b) individuals with whom a relationship has been established or promoted for the primary purpose of victimization; or (c) persons of casual acquaintance with whom no substantial personal relationship exists.

If a person is found at trial to be a sexually violent predator, the state is authorized by statute to involuntarily commit a person to a secure treatment facility. Civil commitment as a sexually violent predator is for an indefinite period. Once a person is so committed, the Department of Social and Health Services (Department) must conduct annual reviews to determine whether (1) the detainee's condition has "so changed" such that he or she no longer meets the definition of a sexually violent predator; or (2) conditional release to a less restrictive alternative is in the best interest of the detainee and conditions can be imposed to protect the community. The review is filed with the court and served on both the prosecutor and the detainee. Even if the Department's annual review does not result in a recommendation of any type of release, the detainee may nonetheless petition annually for conditional release or unconditional discharge.

If a detainee petitions for release or discharge, the court must set a show cause hearing to determine whether the detainee is still mentally ill and a danger to the public. In order for a new trial to be granted on the issue of the detainee's continued commitment, there must be probable cause to warrant a new commitment trial. Probable cause may be established in one of two ways: (a) if the state fails to provide prima facie evidence that the detainee continues to meet the definition of a sexually violent predator; or (b) if the detainee presents prima facie evidence that he or she no longer suffers from a mental abnormality or personality disorder, or is not likely to engage in predatory acts. "Prima facie" evidence means evidence of sufficient circumstances which, if accepted as true, would support a logical and reasonable inference of the facts sought to be proved.

Case Law:
The Washington State Court of Appeals (Court), Division I, issued two recent decisions regarding the sufficiency of a detainee's petition at a show cause hearing for a new trial on the issue of his or her release from civil commitment as a sexually violent predator.

1. In re Young, 120 Wn.App. 753 (2004): Following a jury trial, Mr. Young was civilly committed as a sexually violent predator in 1991. Mr. Young's criminal history included six felony rapes of adult females, two of which involved threatening the victims with a deadly weapon. He later petitioned the trial court for release from civil commitment. At the show cause hearing, Mr. Young presented the report and declaration of Dr. Barbaree, a licensed psychologist with extensive experience evaluating and treating individuals with sexual deviancy problems. [Mr. Young filed a petition for a show cause hearing in 2001. At that hearing, Dr. Barbaree's report was in letter form, based on reviewing nine documents and did not contain any facts about Mr. Young other than his age and actuarial scores. The court denied Mr. Young's 2001 petition, finding that the evidence contained in the report was insufficient to establish that Mr. Young met the statutory standard for a new hearing because it was not a complete assessment of his condition. Mr. Young filed a subsequent petition in 2002, along with an updated assessment of Mr. Young. The facts of this second hearing are further discussed in the body of the bill analysis.] This report was based on interviewing Mr. Young and reviewing all of the Commitment Center's psychological reports about his condition. Dr. Barbaree concluded that Mr. Young was no longer a sexually violent predator because, having reached the age of 61, his risk of re-offending was reduced to zero. The trial court terminated Mr. Young's show cause hearing without granting a new trial, ruling that Mr. Young had not established probable cause that his condition had "so changed" such that he no longer met the definition of a sexually violent predator.

On appeal, the Court reversed and remanded for a new commitment trial, holding: (1) a detainee can establish probable cause by making a prima facie showing that he or she has "so changed" or that conditional release to a less restrictive alternative is appropriate; (2) in determining whether the detainee has established probable cause, the trial court may not weigh the evidence but, rather, may only determine whether the evidence, if believed, is sufficient to require a new commitment hearing; (3) the proper venue for exploring the credibility of any witnesses and validity of such witnesses' findings is at the new commitment trial; and (4) the report offered into evidence by Mr. Young was sufficient evidence to establish probable cause.

2. In re Ward, 104 P.3d 747 (2005): In the Ward case, the Court likewise reversed the trial court's determination that the evidence presented by the detainee in support of his petition for release from civil commitment was not sufficient to establish probable cause sufficient to warrant a new commitment trial.

Briefly, the facts in this case are as follows: At age 16, Mr. Ward was hit by a car and suffered a brain injury. After he was released from the hospital, Mr. Ward committed numerous sex offenses, including the making of 200 obscene telephone calls and exposing himself to others in public. After his arrest, Mr. Ward pleaded guilty to one count of indecent liberties and two counts of public indecency. His sentence included commitment at a school for rehabilitation, community supervision, and sex offender counseling. Mr. Ward was later sentenced to jail time for failing to complete the counseling program.

While in jail, the state petitioned to have Mr. Ward committed as a sexually violent offender. In 1991, Mr. Ward stipulated to being a sexually violent predator and was sent to a special commitment center for treatment. Mr. Ward has admitted to committing incest with his younger brother and to molesting at least five female children. In 2003, Mr. Ward petitioned the court for release from commitment, asserting that he did not meet the definition of a sexually violent predator.

The court held a show cause hearing to determine whether probable cause existed to warrant a full trial on the issue. In support of his petition, Mr. Ward filed a report written by Dr. Wollert, an expert in psychology who worked as a professor of psychology for over 25 years and authored numerous papers on sex offenders. The report was over 50 pages in length and detailed facts regarding Mr. Ward's history of sexual violence and treatment, diagnostic tests, and scientific literature. Dr. Wollert opined, in part, that Mr. Ward's sexually offensive behavior escalated after his brain injury and, because Mr. Ward was no longer a juvenile, his recidivism risk was very low, at 10 percent or less. Dr. Wollart concluded that Mr. Ward no longer met the definition of sexually violent predator because: (1) Mr. Ward's brain injury is not the same as having a mental abnormality and Mr. Ward therefore has never suffered from a mental abnormality; and (2) Mr. Ward's behavior had changed such that he was no longer a threat to society.

It is undisputed that at the show cause hearing the state presented prima facie evidence that Mr. Ward's condition had not changed. The trial court denied Mr. Ward's petition, holding, in part, that changes in diagnostic practices (e.g. tests for brain injuries versus mental abnormalities) could not be the basis for change under the sexually violent predator commitment statute.

The Court reversed and remanded for trial, holding: (1) that a new diagnosis, which conflicts with the premise underlying a detainee's initial commitment, can be a basis for "change" pursuant to the sexually violent predator commitment statute; (2) Dr. Wollert's conclusion that Mr. Ward did not meet the definition of a sexually violent predator was supported by facts; and (3) Mr. Ward presented prima facie evidence establishing that he was not a danger to society.

The court went on to explain that the court's role in a show cause hearing is minimal – it's role is limited to determining whether a detainee has "presented facts that, if believed, would lead a reasonable person to conclude that, more probably than not, he no longer meets the definition of a sexually violent predator." Although the court must determine whether an expert's stated conclusions are supported by sufficient facts, it cannot weigh the evidence by comparing the opposing parties evidence and it cannot weigh the credibility of an expert's opinion – these determinations must be made by the fact finder at trial.

Summary of Bill:

This bill clarifies that, for purposes of a hearing on a sexually violent predator's petition for release from civil commitment, a change in a person's age or any other single demographic factor, standing alone, cannot establish probable cause sufficient to warrant a new commitment trial. Demographic factors include, but are not limited to, age, marital status, and gender.

Probable cause that a detainee's condition has "so changed" such that he or she no longer meets the definition of a sexually violent predator, is established when a detainee shows that, since his or her last commitment proceeding, there has been a substantial change in his or her physical or mental condition that indicates either: (a) that the person no longer meets the commitment standard; or (b) that conditional release to a less restrictive alternative is in the person's best interest and conditions can be imposed that adequately protect the community.

Sufficient evidence of such a change is established by showing: (a) an identified, permanent physiological change to the detainee (such as paralysis, stroke, or dementia) that renders him or her unable to commit a sexually violent act; or (b) a change in the detainee's mental condition brought about through positive response to continuing participation in treatment which indicates that the person meets the standard for conditional release to a less restrictive alternative or that the person would be safe to be at large if unconditionally released. Absent such a showing, a detainee's petition must be denied.

Appropriation: None.

Fiscal Note: Available.

Effective Date: The bill contains an emergency clause and takes effect immediately.