July-August 2010

Civilly committing sexually violent predators

Here’s how all Texas prosecutors can help the Civil Division of the Special Prosecution Unit (SPU)  keep these dangerous predators under intense supervision.

Lee Rech

Civil Division of the Special ­Prosecution Unit in Huntsville

Catherine Palmore

Civil Division of the Special ­Prosecution Unit in Huntsville

Meet three convicted sex offenders: David, William, and Jorge.

David

In 1997, 20-year-old David was a counselor at a popular Christian camp and was assigned to a cabin full of 7- and 8-year-old boys. During his first summer there, David befriended a young camper named Patrick, who introduced David to his parents. David developed a friendship with the family. After camp, David began visiting Patrick in his home, where he slept in the boy’s room. On his first visit, after everyone had gone to bed, David masturbated in front of Patrick and then performed oral sex on him. David continued to visit Patrick’s home over the next few months, and the sexual assaults escalated until they culminated in David anally raping Patrick while his parents slept.
During the summer of 1999, David sexually assaulted at least two other campers by climbing into their bunks with them, pulling down their pants and underwear, straddling them, and masturbating until he ejaculated on them. That fall, David began a sexual relationship with a 14-year-old boy that lasted several years. When his victims made outcries a few years later, David was arrested and prosecuted. After entering into a plea bargain, David received seven years for one count of aggravated sexual assault of a child and one count of indecency with a child by exposure, plus deferred adjudication for another count of aggravated sexual assault of a child.

Under the law, David is not a sexually violent predator so he was released from prison and returned to the community.

William

William is a convicted sex offender who, at the age of 15, brutally assaulted a 3-year-old girl for two hours. William beat her on the stomach and vaginal area with his fists and a horsewhip, picked her up like a bowling ball by placing his fingers in her vagina and threw her up in the air more than 50 times, shot her with hot and cold water from a water gun, and sexually assaulted her with the horsewhip. William admitted that if his mother had not come home and interrupted the assault, he would have killed the little girl. He also admitted that he had molested her daily over a six-month period. Although his offenses qualified him to be tried as an adult, he was instead adjudicated as a juvenile and sentenced to 10 years in TYC. He was later transferred to TDCJ after he turned 18.

Under the law, William is not a sexually violent predator so he was released from prison and returned to the community.

Jorge

Jorge is a pedophile and convicted sex offender whose record includes five felony convictions and five parole and supervision violations. When he was 20, Jorge raped a 9-month-old baby girl. He was charged with sexual assault of a child but, through a plea bargain, the charge was reduced to indecency with a child and Jorge was sentenced to only 10 years in prison. Then, while in his early 30s, he sexually assaulted a 14-year-old girl at gunpoint and was charged with aggravated sexual assault. These charges were dropped and Jorge was not convicted for that offense. Finally, at the age of 46, Jorge was caught sexually assaulting his 6-year-old niece both anally and vaginally with a stick. The charges were reduced to indecency with a child, and he was sentenced to only two years in prison.

Jorge was released from prison and, as expected, he returned to his mother’s home, where he once again had free access to children. Within weeks of his release, CPS received a report that he had a 6-year-old and an 8-year-old sleeping in his bed with him.

Under the law, Jorge is a sexually violent predator and has been civilly committed. He currently resides in a supervised halfway house where he will receive sex offender treatment until he no longer poses a threat to society. To date, he has violated no one else.

What’s the difference?

At first glance, all three of these sex offenders conjure the very image of a sexually violent predator. However, two of them don’t “qualify” for civil commitment under the Sexually Violent Predator (SVP) Act. So what makes Jorge different? The answer lies in the way their sex offenses were originally prosecuted. This article highlights nuances of the SVP Act to make prosecutors aware of the potential for inadvertently placing an offender beyond the reach of the law.

Prior to this act, the State was powerless to protect potential victims from sexually violent predators. But in 1999, the Texas legislature found that “a small but extremely dangerous group of sexually violent predators exists and that those predators 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.” In response to its finding, the Legislature created Chapter 841 of the Health & Safety Code, which provides for the civil commitment of certain sexually violent predators. Within Chapter 841, the legislature created the Civil Division of the Special Prosecution Unit and entrusted it with the responsibility of initiating and pursuing civil commitment proceedings against SVPs who meet the requirements in Chapter 841. An SVP civilly committed under this act is placed in a highly supervised outpatient sex offender treatment program upon his release from prison, and a violation of the terms of that supervised release can result in a third-degree felony charge.

Shortly before a sex offender’s release from prison, the SPU can file a civil lawsuit on behalf of the State claiming that the offender is a sexually violent predator and should be civilly committed. To prove SVP status of an offender, the State must establish two elements: 1) that the offender is a “repeat sexually violent offender” and 2) that he suffers from a “behavioral abnormality” that makes him likely to engage in a predatory act of sexual violence. The latter is established through expert testimony from forensic psychologists and psychiatrists who opine regarding the existence of a behavioral abnormality and the offender’s risk of re-offense. But the former, not surprisingly, is simply proven by the number of qualifying convictions for sexually violent offenses.

So an offender’s underlying sexual offense convictions serve as fundamental building blocks of the subsequent civil commitment case. The more solidly those building blocks are constructed, the more airtight the case for civil commitment becomes. Simply put, if the underlying convictions do not qualify, the SPU cannot proceed. David and William, even in light of the heinous nature of their sexual offenses, did not qualify as repeat sexually violent offenders because of the way they were prosecuted. Consequently, the State could not civilly commit them as sexually violent predators.

Qualifying convictions

In evaluating a case for civil commitment, the SPU first determines if the offender qualifies as a “repeat sexually violent offender” by ascertaining the type and number of convictions. According to the act, a “repeat sexually violent offender” is someone who:

  • has more than one conviction;
  • for a sexually violent offense; and
  • has been incarcerated for at least one of those convictions.

What is a “sexually ­violent offense?”  The following qualify:

  •  indecency with a child under 17 (contact but not exposure),
  •  sexual assault,
  • aggravated sexual assault,
  • aggravated kidnapping, if to violate or abuse sexually,
  • burglary of a habitation with intent to commit one of the above offenses, and
  • attempt, conspiracy, or solicitation to commit one of the above offenses.

Hindrances

If the offender has more than one of these enumerated offenses on his record and has served time for at least one, the SPU can pursue civil commitment. This seems fairly straightforward, right? Not exactly. There are several hindrances to our ability to cilly commit these offenders.

Plea bargains

Understandably, plea bargains are an effective tool in a prosecutor’s belt; they dispose of cases and help put offenders behind bars. But with respect to sex offenders in particular, some plea bargains can have an unintended negative impact on a subsequent civil commitment suit by inadvertently placing an offender beyond the reach of the SVP Act. In particular, pleas to lesser offenses, deferred adjudications, and juvenile adjudications can lead to non-qualifying convictions for purposes of civil commitment.

Pleading to a lesser offense

In Jorge’s case, his offenses were dismissed or pled down to almost nothing. The good news, however, is that his lesser offenses still qualified as sexually violent offenses under the statute, so the State was able to civilly commit him. Had he been allowed to plead down to, for example, indecency with a child by exposure, he would have been beyond the reach of the SVP statute because that offense is not considered a sexually violent offense and does not result in a qualifying conviction.

The SPU bases its case on an offender’s final convictions, regardless of the heinousness of the offenses’ underlying facts. Pleading a defendant down to a lesser charge that does not qualify as a sexually violent offense can mean that the State is powerless to protect potential victims in the future. In fact, even something as simple as a mistake in the name of the offense as listed in the judgment can have a detrimental effect on the civil commitment suit.

Deferred adjudications

The SVP Act does not count a deferred adjudication as one of the two required convictions unless it is followed by another conviction for an offense that occurred after the date of the deferred adjudication. Without two otherwise qualifying convictions, a deferred adjudication means that the offender will have to commit and be convicted of a completely different sex offense after receiving the deferred before the State can civilly commit him.

Although two experts agreed that David has a behavioral abnormality, he is not a repeat sexually violent offender because he has only one qualifying conviction. (Remember, indecency with a child by exposure is not a qualifying offense so this conviction does not count.) His aggravated sexual assault conviction counts as one qualifying conviction, but he was given a deferred adjudication for the second count so that offense does not qualify. Had David been given two sexually violent offense convictions outright, he would qualify.

The bottom line is that the order of convictions is paramount when dealing with deferred adjudications: When an offender is given deferred adjudication, a “wait and see” period is triggered so that the offender must commit a new offense after the date of the deferred adjudication—and be convicted of it—before the State can prove that he is a sexually violent predator and civilly commit him.

Juvenile adjudications

In certain situations juveniles can be certified and tried as adults. Consequently, to the extent that an offender is eligible to be tried as an adult, the law treats juvenile adjudications the same way it treats deferred adjudications: A juvenile adjudication is not considered a qualifying offense unless it is followed by a conviction for an additional qualifying sexually violent offense that occurred after the date on which the offender was adjudicated as a juvenile.

Remember William? Experts agreed that he has a behavioral abnormality, is still attracted to female children, that he will re-offend sexually, and that he will most likely kill his next victim. In spite of this knowledge, the SPU could not pursue civil commitment because both of his sexual offenses resulted in juvenile adjudications. Under the statute, a person can have an unlimited number of juvenile adjudications for heinous sexual offenses and not be considered a repeat sexually violent offender because he does not have a subsequent adult conviction. The statute requires that he commit a new offense and be convicted as an adult before any juvenile adjudication can be counted toward his two qualifying convictions.

Therefore, when possible, trying a juvenile as an adult gives the State the best opportunity for ensuring that the offender is not a threat to the health and safety of others in the future.

We’re in it together.

The Sexually Violent Predator Act is a powerful tool that enables the Special Prosecution Unit to meet the Texas Legislature’s goal of providing treatment for and keeping the public safe from SVPs. Although charged with very different responsibilities, prosecutors around the state form an important partnership with the SPU. By becoming aware of the strict letter of the SVP statute, trial attorneys can now prosecute underlying sex offenses with an understanding how the resulting convictions may or may not qualify for civil commitment purposes. When trying sex offenders, not only are prosecutors upholding the criminal laws of our state but also ensuring the SPU’s ability to qualify that same defendant as a repeat sexually violent offender in a later civil commitment case. Together, we will get these sex offenders into treatment and protect our communities from further victimization.

For more information about civil commitment of sexually violent predators, please contact Lee Rech at 936/291-0431, ext. 238 or [email protected] sputexas.com. i

Editor’s note: You can read an article (as a PDF) on civilly committing sexually violent predators from the Septmeber-October 2003 issue of this journal; it appears below as an attachment.