Third, as the instant offense demonstrated, the one instance in which his behavior was known to have escalated to a hands-on offense grew directly out of his exhibitionistic and voyeuristic behavior. That is, the hands-on offense did not arise in isolation from or from a different source than his voyeurism and exhibitionism. That offense arose directly from the same sexual fantasies and urges as his uncontrollable voyeurism and exhibitionism. When he escalated to a hands-on offense, moreover, he did so in an especially pernicious manner—the invasion of the sanctity of his victim’s home, the use of a deadly weapon and the implied threat, in the use of a knife, of death or serious injury were she not to comply with his sexual demands. It is also notable that the respondent has a long history of burglary and trespass arrests and convictions. His behavior in breaking into his victim’s apartment in the instant offense may have been more serious than his earlier trespass or burglary crimes. But, like his exhibitionism and voyeurism, respondent has a long history of entering locations or premises he is not entitled to be present in. This history amplifies the risk that the respondent could engage in such criminal conduct to facilitate a sex offense again.
While it is true that there was only one occasion on which the respondent was known to have escalated his exhibitionism and voyeurism to a contact offense, it is not necessary under article 10 that an offender must have previously committed more than one qualifying sexual crime. In drafting article 10, the legislature could have easily decided to require that no person be subject to civil management unless there was proof that such a person had committed more than one sexual offense as defined by the statute but the legislature did not choose to impose such a requirement. However, the commission of a single qualifying sexual offense is not by itself sufficient, under the statute, to find probable cause that an offender should be subject to civil management.
Here, there was much more than the commission of a single offense, there was the continuation of the specific precipitating behaviors from which that contact offense arose. Having no apparent ability to control his voyeurism and exhibitionism, the court was hard pressed to conclude that PH was able to control the kind of hands-on contact offense which previously arose out of those identical behaviors.
Although it is also true that at the time the instant offense was committed, the respondent was disinhibited by the use of cocaine and that his cocaine dependence is now, as Dr. EF testified, in sustained full remission. However, as Dr. EF credibly testified, the instant offense was not caused by cocaine disinhibition, it arose from his exhibitionism and voyeurism.
Respondent’s exhibitionism and voyeurism and his behavior during the instant offense were also strikingly connected. Just as PH feels shame and humiliation when he masturbates in public, he felt those same emotions, apparently, when he assaulted his victim during the instant offense at her home. Nonetheless, the fact that he did not achieve an erection on that occasion and was ashamed of what he had done does not, as Dr. EF testified, mean that he was not likely to repeat that conduct. The shame and humiliation he felt after the instant offense mirrors the shame and humiliation he feels when he masturbates in public. It is part of his offense cycle.
In view of the foregoing, the court found probable cause to believe that PH was a sex offender in need of civil management. A drug was involved.
On the issue of whether there was probable cause to believe that PH was dangerous and that lesser conditions of supervision would not suffice to protect the public during the pendency of the case:
Under the Mental Hygiene Law, once a court finds probable cause to believe that a respondent is a sex offender requiring civil management, the respondent must be committed to a secure treatment facility. However, in Mental Hygiene Legal Serv. v Spitzer (2007), the court enjoined the operation of this provision of the statute because it held that the continued detention of a respondent in every case following a probable cause determination but prior to a trial was “inherently coercive” and a violation of constitutional due process. The court held that this formulation lacked a rational basis and that such pretrial detention following a finding of probable cause should not be allowed “absent a specific, individualized finding of probable cause to believe that a person is sufficiently dangerous to require confinement, and that lesser conditions of supervision will not suffice to protect the public during the pendency of the proceedings.”
Adopting the ruling of the Federal District Court in the Mental Hygiene Legal Serv. Matter, the respondent cannot be detained absent a finding that there is probable cause to believe that he was dangerous and that lesser conditions of supervision would not suffice to protect the public during the pendency of the case.
Here, the conditions have been met. The fact that the respondent had no apparent ability to control his voyeurism and exhibitionism and that such conduct had led in the past directly to a hands-on sexual offense indicates that the respondent was sufficiently dangerous to require confinement and that lesser conditions of supervision would not suffice to protect the public during the pendency of the proceedings.
Thus, the respondent was ordered confined in a secure facility pending trial.