With respect to “the probable value, if any, of additional or substitute procedural safeguards” there are certainly provisions the Legislature might have chosen to import into the statute to minimize the risk that an offender would be erroneously found to have previously committed a sexually motivated felony. For example, proof beyond a reasonable doubt could have been required. The Legislature might have chosen to require certain specific kinds of evidence be provided to establish sexual motivation. A statute of limitations which was greater than five years might have been adopted. The Legislature might have chosen to require the State to prove the commission of a previous sex crime, rather than simply a sexual motivation.
Any of these provisions, however, would also have the potential effect of limiting the number of sexually motivated offenders who currently suffered from a mental abnormality who could be reached by the statute. It could certainly be argued that additional protections and procedures to minimize the risk of an erroneous sexual motivation finding might make for better policy. But the fact that the Legislature might have chosen to write a more narrow statute does not mean that it was constitutionally required to do so.
Third, the court must consider “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” The Government’s interest here is in protecting the public from sex offenses, including the most serious of those offenses like rape. Protecting public safety is obviously a governmental interest of the highest order. The Legislature has also made it clear over the past two decades through its enactment of a variety of laws that sexual offenses are a particularly heinous form of criminal behavior which warrant a range of punitive sanctions and regulatory requirements which are not applicable to other serious crimes. The State’s interest in protecting the public from sexual offenders who are predisposed to commit sex crimes and have serious difficulty in controlling their sexually offending behavior is obviously a compelling one and must weigh heavily in the due-process analysis.
The Legislature is obviously empowered to allow criminal prosecutions which are subject to no statute of limitations at all for some crimes. Indeed, one of the very acts which the State alleges was previously committed by the respondent in this case, forcible rape, is not currently subject to any statute of limitations under the criminal law, although it was subject to a five year statute of limitations at the time the respondent’s crimes were committed. Given the fact that the Legislature may choose to impose no statute of limitations in criminal cases, it is difficult to understand why it would not be entitled to make the same determination in a civil proceeding like the one here.
On the equal protection challenge, the Farnsworth Court held that SOMTA proceedings interfered with a “fundamental right” because they could result in the physical restraint of an offender. Thus, the challenged SOMTA restriction would be upheld “only if it is narrowly tailored to serve a compelling state interest”. The Farnsworth Court essentially addressed the basic equal protection argument raised by the respondent here, although it did so in ruling on a challenge to differing proof standards rather than the differing statutes of limitation applicable to conduct which pre-dated and post-dated SOMTA’s enactment. In Farnsworth, the Court held: “Mental Hygiene Law § 10.07 (d) as it applies to those detained sex offenders who were convicted of designated felonies that were sexually motivated and committed before the effective date of article 10 is narrowly tailored to serve the State’s interest. Those individuals are equally as dangerous as those who commit the newly enacted sexually motivated felony. Based on the Ex Post Facto Clause of the U.S. Constitution, however, the State could not have tried and convicted anyone of the sexually motivated felony before it was enacted, nor may it retroactively seek to obtain such a conviction”.
The reasoning of the Farnsworth Court is equally applicable. Respondent’s equal protection challenge does not merely assert that different procedural rules than the Legislature enacted should be applied to retroactive sexually motivated felony determinations. The assertion is that the respondent should not be covered by the statute at all, because the sexually motivated felony determination was not made within the statute of limitations applicable in a criminal proceeding. With respect to the respondent, in the Court’s view, the statute is narrowly tailored to meet a compelling state objective, that is, the protection of the public from dangerous sex offenders, because without the challenged provision, offenders like the respondent would not be covered by the statute at all.
There is no statute of limitations applicable to a lewd sexual motivation determination for a Designated Felony which was committed prior to SOMTA’s effective date. But that is because, for such crimes, that designation has no effect on a Defendant’s criminal conviction. It serves only as a screening device to determine which offenders may be eligible for civil management. The statute is, in fact, limited with respect to how far back in time a “sexually motivated” felony classification can reach. An offender must be in the “care, custody, control or supervision” of a relevant agency like the State Department of Correctional Services or the Division of Parole with respect to a prior Designated Felony in order to be eligible for civil management.
Here, the respondent has clearly met the aforementioned criteria. But if the respondent, for example, had finished serving his entire sentence for his Designated Felony and had not been committed to DOCS for another sex crime, under the SOMTA statute, the State would not have been entitled to bring a petition in this case because the respondent would not be a “Detained Sex Offender”. The requirement that an offender meets the definition of a Detained Sex Offender imposes an effective temporal limitation in a wide range of cases on the ability of the state to allege that a prior Designated Felony was sexually motivated.
While the respondent’s claims assert valid policy concerns about the manner in which the Legislature has chosen to allow for the retroactive designation of prior convictions for non-sexual offenses as sexually motivated felonies which may result in civil management, those arguments raise policy issues within the Legislature’s province to determine rather than constitutional defects requiring judicial intervention.
In view of the above, the respondent’s motion to dismiss the petition was denied.