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….
Historically, under New York criminal law, an expert witness was entitled to base his or her expert opinion only upon facts personally known to the expert or contained in the evidence at a trial. That traditional approach was liberalized by the New York Court of Appeals in the cases of People v Stone (1974) and People v Sugden (1974).
In Sugden, the Court ruled that in addition to the traditional bases on which an expert’s opinion could rely, an opinion could be based on “material, albeit of out-of-court origin, if it is of a kind accepted in the profession as reliable in forming a professional opinion” or information coming from a witness subject to full cross-examination at trial. The first of these additional bases for expert opinion has come to be known as the “professional reliability exception.” In Hambsch v New York City Tr. Auth. (1984), the Court of Appeals explained that the professional reliability exception requires “evidence establishing the reliability of the out-of-court material.”
Here, Dr. EF’s opinion regarding the respondent’s propensity to escalate his exhibitionism and voyeurism to a hands-on or contact offense relied upon unspecified “studies”. Clearly, it was not reliable and cannot be credited weight. Dr. EF’s description of the said studies did not satisfy any of the requirements of the professional reliability exception. She did not identify, in any manner, how the studies were conducted or what their specific conclusions were. She did not indicate that any of these studies were considered reliable in any respect within her profession. She did not provide any information or any opinion which might indicate that any of these studies had, in fact, produced reliable results.
The result of the Static 99 which showed that respondent was at a high risk to reoffend was also not given credit. Even assuming that the Static 99 result would qualify as a sound basis for an opinion under the professional reliability exception, it was not clear from the testimony of Dr. EF what the Static 99 concluded the respondent was at a high risk to do and whether that high risk related to the commission of a sex offense as defined under article 10.
Regardless, the evidence in the instant case, and Dr. EF’s opinion were based on much more than the problematic sources. When the bases for Dr. EF’s opinion which were clearly problematic are put aside, there was still probable cause to believe that PH has a propensity to commit the kind of hands-on offense he committed in 1993 and has serious difficulty in controlling his behavior in committing such an offense.
First, the respondent’s voyeurism and exhibitionism are conducts with compulsive quality. Given PH’s consistent history over decades of exposing himself and masturbating in public, despite numerous arrests, convictions, prison terms and sex offender treatment programs, it seems apparent that if he were to be released to the public again, and stimulated again by the presence of women who would sexually arouse him, he would simply do what he has so consistently done throughout his adult life. Neither arson nor assault was in question here.
Second, PH’s behavior has, as Dr. EF testified, a predatory and stalking quality. According to Dr. EF, respondent “focuses” on his victims through voyeurism and that focus then seems to lead inexorably to public masturbation. That was most apparent in the instant offense but is also apparent in his other public lewdness convictions.
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.
If you find yourself in a similar situation like the above, New York Sexual Abuse Lawyers or New York Rape Lawyers at Stephen Biliks & Associates can help you. Please feel free to dial our toll free number or visit any of our offices for a consultation. Our New York Criminal Attorneys would be more than honored to assist you.