Sixteen states, including Virginia, have laws providing for the civil commitment of sexually violent predators (SVP). (1) Virginia's SVP law was initially enacted in 1999 (2) but funds for the program were not appropriated and the law did not become effective. During the 2003 legislative session, amidst heavy publicity surrounding the impending release of a man convicted of a particularly egregious and shocking sexually violent crime, the Virginia General Assembly appropriated funds and made the law effective upon its enactment on April 2, 2003. (3) The 2003 General Assembly also made some substantive changes to the law itself.
Prior to the 2003 session, a "sexually violent predator" was defined as any person who was convicted of a sexually violent offense or charged with such an offense but found unrestorably incompetent to stand trial and who suffered from a mental abnormality or personality disorder. (4) In January 2002, the United States Supreme Court issued an opinion in Kansas v. Crane, holding that while it was not necessary to show that a sexually violent predator had a complete lack of control over his behavior, there must at least be proof of serious difficulty in controlling behavior to permit a commitment under an SVP law. (5) To comport with this decision, the 2003 General Assembly amended Virginia's definition of sexually violent predator to mean any person who has been convicted of a sexually violent offense (6) or charged with such an offense but found unrestorably incompetent to stand trial and 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. (7)
The 2003 General Assembly also made amendments to the procedure used to commit a sexually violent predator. Under the Virginia law, the Director of the Department of Corrections is responsible for beginning the SVP commitment process for prisoners who have been convicted of sexually violent offenses. Prior to the 2003 General Assembly session, the Director of the Department of Corrections was required to review his database of prisoners and refer any prisoner incarcerated for a sexually violent offense and scheduled for release from prison within ten months to the Commitment Review Committee (CRC) (8) for an assessment for possible civil commitment. After the 2003 legislative session, an additional qualification for referral to the CRC was added. Now, only prisoners incarcerated for sexually violent offenses who are scheduled for release within ten months and who receive a score of four or more on the Rapid Risk Assessment for Sexual Offender Recidivism or a similar score on a comparable instrument will be referred to the CRC. (9)
Once a prisoner is referred, the CRC must complete its assessment of the prisoner for possible commitment and forward its recommendation regarding the prisoner to the Virginia Attorney General within ninety days. (10) The CRC assessment must include a mental health examination conducted by a licensed psychiatrist or clinical psychologist designated by the Commissioner of the Department of Mental Health, Mental Retardation and Substance Abuse Services (DMHMRSAS). (11) A provision was added in 2003 providing that if the prisoner refuses to cooperate with the mental health examination, such refusal could be admitted into evidence by the court in a commitment proceeding and the prisoner could be barred from introducing his own expert psychiatric or psychological evidence. (12) Once the CRC receives the mental health examination and reviews the prisoner's institutional history and treatment record, his criminal background, and any other relevant factor, the CRC makes a recommendation to the Attorney General regarding whether the prisoner should be committed as an SVP, conditionally released to a less restrictive alternative, or released because he does not meet the definition of an SVP. (13) …