Differences in Legal and Medical Standards in Determining Sexually Violent Predator Status

Article excerpt

I. INTRODUCTION

Few crimes elicit public concern, fascination, and outrage like sexual offenses. (1) Furthermore, some of the worst sexual offenses are committed by individuals commonly referred to as "sexually violent predators." Sexually violent predators are those "who target strangers, have multiple victims, or commit especially violent offenses." (2) Public concern, and "moral panic" (3) in the most extreme cases, over sexual offenders and their likelihood of recidivism has led several states to adopt strict laws that deal with the threat of violent sexual offenders. (4) States have enacted laws that require longer sentences, have more stringent release conditions (such as heightened offender registration requirements), and provide for the indefinite civil commitment of sexually violent predators. (5) The purpose of this Article is to explore current sexually violent predator ("SVP") laws and to discuss the problems caused by disparities between the legal and medical definitions of an offender's "mental abnormality" in determining SVP status.

Most statutes addressing SVP's contain four substantive criteria: "(1) past sexually harmful conduct, (2) a current clinical condition, (3) a substantial risk of future sexual violence, and (4) a causal relationship between the mental abnormality and the potential sexual harm." (6) Despite these seemingly basic elements of SVP statutes, there is significant controversy over what specific characteristics of an individual offender's mental abnormality precipitate being labeled a sexually violent predator. (7)

This paper traces the history of SPV laws, discuss recent developments, looks at current problems, and offer some potential solutions. Specifically, Part II of this Article explores the recent history and development of SVP laws. Part III provides a brief survey of the civil commitment process for sexually violent predators. Next, Part IV briefly describes current methods used to treat sexually violent predators during civil commitment. Part V discusses the implications of recent Supreme Court decisions upholding SVP statutes. Part VI discusses the problems arising from disparities between the legal and medical communities in defining the mental abnormality that precedes sexually violent predator status. Finally, Part VII offers a recommendation of a course that legislators and mental health professionals can take to remove disparities in their definition of mental abnormality as it pertains to sexually violent predators.

II. RECENT HISTORY OF SEXUALLY VIOLENT PREDATOR LAWS

Most SVP laws are modeled after Washington's Community Protection Act of 1990. (8) Washington developed its Act, in large part, as a response to public outrage over the actions of Earl Shriner, a man with a twenty four year criminal history that included kidnapping, assault, and murder. (9) Shriner, who was released from prison just two years prior after serving time for kidnapping and a sexual assault charge, raped, strangled, and mutilated a seven-year-old boy and left him for dead in the woods. (10) In response, the Washington State Legislature established the Community Protection Act which allowed for the civil commitment of sexually violent offenders at the conclusion of their criminal sentence. (11)

From the mid-1990's to present day, a total of seventeen states (12) have followed Washington's SVP model and enacted similar laws that provide for the civil commitment of sexually violent predators. (13) These laws resulted from the "belief that traditional civil commitment procedures were inadequate to confront the unique danger presented by sex offenders who posed a continued threat to the health and safety" of society. (14) To address this subset of violent criminals, state legislatures have developed a unique form of commitment hearings which incorporate both legal and medical elements.

III. …