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Questions of competency…cont

The Court also does not credit Respondent’s assertions about his erectile dysfunction. Part of this is because the Court found Respondent’s testimony incredible in other respects. But that conclusion is also due to two other facts. First, there was no evidence presented at the hearing that Respondent suffered from erectile dysfunction, other than his own self-report.
Second, his account of the way in which he learned of this condition and his lack of any attempts to further diagnose or treat it did not seem credible. Respondent is a man whose entire life has been driven by sexual abuse violence. Yet, according to him, when he was told by his reported erectile dysfunction had likely been caused by his diabetes, that ended the matter. There was apparently no follow-up, to make a more definitive diagnosis. No treatment was offered and none was requested. No additional discussions were had. The Respondent claimed during his testimony that the last time he had an erection was six years ago. His testimony created the impression that he has simply accepted that sexual function and sexual desire are no longer any part of his life. The Court finds that highly unlikely.

As the witness testified, the number of Respondent’s prior arrests and his prior criminal history and history of parole violations increase his actuarial likelihood to re-offend. Additional factors which made him more likely to re-offend, according to the doctor, are the violence involved in his prior crimes, the fact that a number of these crimes occurred in close temporal proximity to each other and the fact that the first series of rapes he committed or attempted were at a very young age. A number of significant things have changed about the Respondent since he committed his first five rapes and attempted rape in 1968. What has not changed, as the witness testified, is anything about his basic psychological makeup as it relates to his history of sexual violence. In that respect, Respondent is the same man today as he was 40 years ago.

What is particularly striking in this regard is Respondent’s continued denial of his crimes. During 1968 he “blacked out”. He simply denies committing a violent rape which he was found guilty of committing by a jury in 1978 as well as an additional rape he was charged with but not convicted of in that year. Even with respect to the one statutory rape he has admitted to committing, he continues to significantly minimize his conduct. Rather than acknowledging that he raped the victim, he asserts that he and the victim had consensual sexual intercourse. The only thing he did wrong on that occasion, according to Respondent, was to not stop when the victim, in the midst of intercourse, asked him to stop. The Court finds none of the foregoing assertions credible.

The Court fully understands that denial of one’s sexual offenses and the failure to accept responsibility for them are not predictive on an actuarial basis of increased re-offense risk. The Court also understands, however, that sex offender treatment can be effective for some offenders in mitigating risk. Respondent, over 40 years, has never advanced to any degree in a sex offender treatment program. Such programs typically require an offender to acknowledge committing sexual offenses in order to progress in treatment. That is certainly the model used by the State.

The reason, in the Court’s view, is obvious. It is difficult to change a behavior which a person does not even acknowledge has occurred. Sex offender treatment might have the potential, in the Court’s view, to reduce Respondent’s risk to re-offend. But the Court does not understand what kind of treatment could be effective for a man who continues to deny virtually all of his crimes.

Respondent denies that he is sexually deviant. He says that he does not have any “triggers”, that is, things in the outside world which might precipitate his commission of another sex crime. He describes the sex crime offender treatment program offered at CNYPC as “garbage”. He asserts that the anti-social characteristics he may have are possessed by everyone. In his mind, apparently, his anti-social behaviors can be analogized to the conduct any average person might exhibit when crossing the street in defiance of a red light. He is a man who is utterly devoid of any understanding about what has precipitated the crimes he has committed or any need to guard against committing those crimes in the future. Given the carnage he has wrought, that is chilling.

Respondent has committed his crimes while under parole supervision. He has committed them within a brief time of being released from prison. He has committed them while living with his wife and infant daughter. He has committed them at multiple times during his life which have been separated by decades. It might be argued that in a sense, Respondent’s patterns of criminal behavior have moderated over time.

The Court does not believe that if Respondent was released from custody he would immediately proceed to sexually assault a victim. But the Court does believe Respondent would commit a sex crime at some point again if he were released onto SIST. SIST is an extremely restrictive regimen designed to protect public safety. But respondent has previously committed multiple sexual assaults against stranger victims, people he has encountered simply walking in a park, on the street or in a school. There is nothing about the SIST regimen which would prevent him from committing such opportunistic crimes again. A GPS device or a curfew would not prevent Respondent from sexually assaulting women in broad daylight in public places as he has done in the past. Respondent has had no compunction in the past about committing sex crimes while on parole. There is no reason, in the Court’s view, to believe that a more stringent parole regimen would stop him from offending again. Prostitution was not an issue.

For all of these reasons, the Court finds that the Respondent is a Dangerous Sex Offender in Need of Confinement.

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