The legal system then assumes jurisdiction over the problem. Somehow the rights of the individual must be protected, while the danger to society is removed. Questions of competency to stand trial and of criminal responsibility arise. The psychiatric experts and the judges who must rule disagree; both psychiatry and law are insufficiently advanced to attain the scientific precision necessary to resolve these questions. Yet decisions have to be made. After a period of years the case is just as insoluble as it was in the beginning.
The standard which courts must use in determining whether to subject a sexual abuse offender found to have a Mental Abnormality to confinement or Strict and Intensive Supervision and Treatment (SIST) is provided by subdivision (f) of section 10. 07 of Article 10.
The dispositional determination in Article 10 cases requires courts to make a prediction about whether an offender is likely, if placed on SIST, to commit a sex crime. Predicting human behavior on an issue as complex as potential future sexual offending is, in this Court’s view, an enterprise of extraordinary difficulty in the vast majority of cases, including this one. The consequences of an incorrect decision (to the extent the correctness of a decision can even become known) are grave. On the one hand, to release an offender like the Respondent into the community and have him commit a further act of sexual violence would be to obviate the compelling goal which the Legislature had when they enacted Article 10: protecting the public from offenses which are among the most heinous known to our society. On the other hand, subjecting a man like the Respondent to continued indefinite confinement when such confinement is unnecessary would be to effectively punish an offender who has already been sanctioned for his crimes. Such a result would be offensive to our most precious notions of fairness and due process which are fully due, obviously, even to offenders who have committed crimes as horrible as those at issue here.
The burden in this proceeding, of course, is on the State, and given the inherent difficultly of predicting future human behavior, an argument could certainly be made that under the four corners of the statute courts should rarely order that an offender be confined, since predicting that a given individual will commit a sex crime is so difficult. The Legislature, however, clearly intended for reasoned judgments to be made on this issue and for courts to not simply rely on the inherent difficulty of predicting behavior to opt for supervision rather than confinement in all but the most obvious cases. As the Second Circuit noted in their 1978 decision, in exploring the difficulty of dealing with offenders like the Respondent, “decisions have to be made.” Moreover, those decisions cannot be made by reading an actuarial risk table or taking at face value the informed opinion of an expert. The Legislature has charged trial judges with making these important determinations. Prostitution was not involved.
In this regard the Court would note another observation about Respondent’s demeanor. In Court, Respondent has walked with the aid of a cane. There is no dispute that he suffers from a number of medical conditions. But beyond a slight limp, he does not by his outward appearance manifest, at least to this Court, any outward signs of being unhealthy. He is of average height, is only moderately overweight and appears to have a healthy physique. Respondent would appear to be perfectly capable of overpowering any number of female victims if he chose to.
To Be cont…