The case involves a respondent named PH who is the subject of a sex offender civil management petition filed pursuant to article 10 of the Mental Hygiene Law.
On 22 September 2008, a hearing was conducted to determine whether probable cause exists to believe that PH is a sex offender requiring civil management pursuant to Mental Hygiene Law § 10.06 (k).
The petitioner called one witness, Dr. EF. While the court did not credit certain aspects of her testimony, her testimony in general was still found to be credible. The respondent did not call any witnesses.
After due consideration, the court found that “probable cause” did exist, that respondent is a sex offender requiring civil management and that respondent should be confined rather than released to supervision pending trial.
The following were the basis for the court’s ruling:
On the issue of whether there was probable cause to believe that PH was a sex offender requiring civil management:
The first problematic issue here was the term “sex offense” as defined under the law, what was included or excluded.
A “sex offense” is defined under article 10 as a specific list of sex crimes. The definition includes a range of felony sex offenses as well as a list of nonsexual offense felonies which can qualify an offender for civil management if those crimes were “sexually motivated.” The list of sex offenses under the statute does not include any misdemeanors.
In order for a valid sex offender civil management petition to be filed, a respondent must have been convicted of committing a defined sex offense. Here, there was no dispute that the respondent was previously convicted of a qualifying sex offense, the crimes of attempted rape in the first degree and sexual abuse in the first degree. The definition of a “sex offense”, however, is also applicable to the definition of the mental abnormality which an offender must have in order to be found to be in need of civil management. That definition requires that an offender have a “predisposition” to commit a “sex offense” and also have “serious difficulty in controlling such conduct.” As is true with the “predisposition” prong of this definition, the “serious difficulty” prong, in referring to “controlling such conduct,” clearly also relates back to the earlier term in the sentence “sex offense.” Thus, in order to be found to be in need of civil management, an offender must be found to have a predisposition to commit and serious difficulty in controlling his conduct with respect to committing a “sex offense” as defined under the statute. That “sex offense” definition, in turn, clearly refers only to a sex offense as defined under the statute because the term “sex offense” used in the mental abnormality definition is also a defined term under the law. Thus, the term “sex offense” in the definition of a mental abnormality under article 10 is not a generic or general term subject to varying interpretations—it is an explicitly defined term which relates to the specific offenses listed in the definition and no other offenses.
Exhibitionism, which formed the bulk of the State’s proof at bar, is the crime of “public lewdness” as defined in section 245.00 of the Penal Law. That crime, a class B misdemeanor, is not a “sex offense” under article 10. Thus, proof that a person had a predisposition to commit the crime of exhibitionism and serious difficulty in controlling his behavior with respect to exhibitionism would be clearly insufficient, on its face, to constitute a mental abnormality under article 10.
The closely related activity which the State presented evidence of with respect to respondent’s sexual activities was “voyeurism.” That conduct does not, in and of itself, constitute a crime. Voyeurism, of course, may be engaged in by an offender in conjunction with other behaviors which are criminal, like the crimes of stalking, public lewdness or “unlawful surveillance.”
Like exhibitionism, however, “voyeurism,” standing alone, is not a “sex offense” under article 10.20
While the testimony of Dr. EF referred to “sex offenses”, it was not clear whether she was using the term generically, discussing exhibitionism or discussing sex offenses as defined under article 10. In discussing the Static 99, for example, and indicating that PH had scored a seven indicating that he was at high risk to commit a criminal sex offense, it was not clear to the court whether this meant that PH was at high risk to commit additional acts of exhibitionism or that PH was at a high risk to commit a sex offense as defined under article 10.
The second problematic issue here was the basis of Dr. EF’s opinion that exhibitionists typically escalate to hands-on offenses, a conclusion she stated on a number of occasions.
Dr. EF’s opinion was based, in part, on facts which were clearly in the record, including the way in which PH had escalated in the instant offense from voyeurism and exhibitionism to burglary and attempted rape, the statements PH had made to her about the pattern of his sexual offenses over the years and the uncontroverted evidence that PH continues to have an inability to control his exhibitionistic and voyeuristic behaviors. However, she also indicated that she had relied on “studies” which showed that exhibitionists often escalated to “hands-on” offenses. She cited two specifics. First, she mentioned an article by “Firestone, Et. Al.” but it was not clear to the court whether this article supported the conclusion that exhibitionists recidivate at a high rate with respect to further acts of exhibitionism or whether the article stood for the proposition that exhibitionists escalate to “hands-on” offenses. Other than noting the study’s author and its general conclusion, she did not provide any information or opinion relevant to the study’s findings or its reliability. Second, Dr. EF indicated her view that exhibitionists escalate to hands-on offenses was “based upon the research book, the DSM-IV-TR.” She did not elaborate further with respect to that research.
To Be Cont….
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