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SOMTA

The case involves a respondent who is the subject of a petition for sex offender civil management pursuant to Sex Offender Management and Treatment Act (SOMTA, Article 10 of the Mental Hygiene Law of 2007). He moved to dismiss the petition on the basis that certain provisions of the statute as applied to him are violative of the United States and New York State constitutions. The respondent’s motion was denied.

The following are the relevant facts that led to the denial:

On 3 May 1995, the respondent was sentenced in the Supreme Court of New York County for convictions of Kidnapping in the Second Degree, Promoting Prostitution in the Second Degree and Bail Jumping in the First Degree. He received concurrent indeterminate sentences of 9-18 years incarceration on the kidnapping charge, 4-8 years on the promoting prostitution charge and 3-6 years on the bail jumping charge. According to the State, respondent’s kidnapping and promoting prostitution charges included conduct in which he restrained the victim, repeatedly rape her, forced her to engage in prostitution, beat her and forced her to ingest narcotics, all of which allegedly occurred in 1992. The respondent also has prior convictions for unlawful imprisonment, attempted assault and forcing a person to engage in prostitution.

On 3 December 2009, a sex offender civil management petition was filed in the Supreme Court of Greene County and, on 18 December 2009, an amended petition was filed in the Supreme Court of New York County. The respondent was in DOCS custody pursuant to his sentence at the time of the filing of the initial petition and has been in DOCS or OMH custody since that time. On 17 February 2010, the acting Greene County Supreme Court Justice found that there was probable cause to believe that the respondent was a detained sex offender who suffered from a mental abnormality. Thereafter, the venue of the proceeding was transferred to the New York Court where the respondent awaited trial.

To Be Cont…

The court ruled as follows:

Firstly, the respondent argued that the designation of a non-sexual offense committed prior to the effective date of SOMTA as sexually motivated violates the Ex Post Facto clause of the United States Constitution.

In the case of Smith v. Doe in 2003 held that, citing the seven factors articulated by the Supreme Court in Kennedy v. Mendoza-Martinez in 1963, the Mendoza-Martinez factors were “useful guideposts” in an inquiry as to whether a statute challenged on ex post facto grounds had a punitive effect. The Mendoza-Martinez factors are: whether the sanction involves an affirmative disability or restraint; whether it has historically been regarded as a punishment; whether it comes into play only on a finding of scienter; whether its operation will promote the traditional aims of punishment-retribution and deterrence; whether the behavior to which it applies is already a sex crime; whether an alternative purpose to which it may rationally be connected is assignable for it; and, whether it appears excessive in relation to the alternative purpose assigned. The Mendoza-Martinez factors were not intended to be applied mechanically. The analysis does not call for a court to simply add up the factors and then determine how many are in each column.

Here, the Court has determined that four of the Mendoza-Martinez factors weigh towards a finding that the statute is not punitive and three of them point towards the opposite conclusion. A consideration of those factors as a whole, however, further supports the view that the retroactive sexually motivated felony designation is not punitive. SOMTA obviously may result in the restraint of persons covered by the statute. But “the mere fact that a person is detained does not inexorably lead to the conclusion that the government has imposed punishment”. A statute’s “rational connection to a non punitive purpose is a most significant factor in our determination that the statute’s effects are not punitive”. In the Court’s view, it is obvious here that the Legislature rationally designed the retroactive sexually motivated felony designation to provide for the treatment and management of rape offenders suffering from a mental abnormality for the purpose of protecting public safety.

The fact that a number of the Mendoza-Martinez factors weigh in favor of a finding that SOMTA imposes punishment arises from the fact that the statute has a number of the attributes of a criminal proceeding. It imposes confinement. It applies only to convicted felons. It incorporates many of the protections and procedures of the criminal law. It is designed to protect public safety. However, the intention of the Legislature must be given great weight, that is, an essentially civil procedure. As held, only the “clearest proof” is sufficient to construe a statute which the Legislature intended as civil into a criminal proceeding. That standard has not been met here.

Thus, the respondent’s motion to dismiss the petition on ex post facto grounds was denied.
Secondly, the respondent argued that different standards of required proof of “sexual motivation” depending on the date of an offender’s crime violates due process and equal protection.

Where an offender is alleged to be a sex offender in need of civil management because he committed a sexually motivated felony subsequent to SOMTA’s effective date, an offender can only be eligible for civil management if the sexual motivation was found by a criminal jury by proof beyond a reasonable doubt. Where such a sexual motivation is alleged to have occurred for a Designated Felony committed prior to SOMTA’s effective date, however, the sexual motivation finding must be made by a civil management jury using the lower standard of clear and convincing evidence. Child pornography was not involved.

To Be Cont….

Here, respondent alleged that the lesser standard of proof for retroactive determinations and the discrepancy between the findings required for crimes committed prior to or after SOMTA’s effective date were a violation of due-process and equal protection. However, as respondent acknowledged, the identical claim was recently decided by the Fourth Department in State v. Farnsworth, 2010. In that case, the Court determined that the clear and convincing evidence standard applied by the statute to backward-looking determinations of sexual motivation did not violate either the respondent’s due-process or equal protection rights. Farnsworth is the only New York State appellate decision on this topic which has been rendered thus far and the instant Court is bound to follow the Farnsworth holding.

Thus, the respondent’s motion to dismiss the petition on the ground that the clear and convincing evidence standard applied to determinations of sexual motivation violates due-process and equal protection was denied.

Lastly, the respondent argued that the petition should be dismissed because there is no statute of limitations applicable to a retroactive sexual motivation claim and thus violates his rights to due process and equal protection.

Here, respondent did not indicate whether he believed the absence of the five year statute of limitations violates procedural or substantive due-process.

Procedural due process imposes constraints on the procedures through which the government deprives persons of protected liberty or property interests. It requires notice of such potential deprivations and an opportunity to be heard. Substantive due process, on the other hand, bars certain governmental actions regardless of their procedural fairness. It prohibits abuses of governmental power which are arbitrary and without reasonable justification in the service of a legitimate governmental objective.

In Matthews v. Eldridge, the court outlined the factors which must be analyzed in considering a procedural due process challenge. These factors are: the private interest that will be affected by the official action; the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
As the Farnsworth Court held in analyzing the respondent’s procedural due-process challenge in that case to the use of the clear and convincing evidence standard to establish sexual motivation, “freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause. It is clear that commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection”. Rape is another matter.

There is a risk of an erroneous deprivation of that interest through the absence of a statute of limitations. As the respondent claimed, his ability to defend against allegations that his crimes were sexually motivated would be compromised because he would have to contest and potentially present evidence concerning events which occurred 18 years ago. While that risk is not insignificant, however, there are also a number of aspects of the procedures which the law provides in such cases that militate against that risk. Child molestation is in play.

First, the burden of proving sexual motivation in this case is on the State, not the Respondent. Thus, while the respondent would obviously have difficulty defending against allegations which occurred 18 years ago, the State would face an even more significant burden in proving those allegations by clear and convincing evidence.

Second, the ultimate deprivation of liberty under the statute can only occur upon a finding that the respondent currently suffers from a mental abnormality. In cases where an offender is alleged to have committed a sexually motivated Designated Felony prior to the statute’s effective date, the retrospective designation of such a prior felony as sexually motivated is a necessary prerequisite to such a current mental abnormality finding. But it does not establish that finding. The finding is established only through a determination of the respondent’s current condition. Thus, the risk of an erroneous deprivation of a person’s liberty inherent in the absence of a statute of limitations arises because persons subject to a retroactive sexually motivated felony determination are eligible for civil management. Previous sexual motivation, however, cannot alone establish that the offender currently suffers from a mental abnormality.
The retrospective inquiry concerning sexual motivation will occur in a proceeding which will usually involve an analysis of the entire course of the Defendant’s life and multiple events which may have taken place in the distant past. Sex offender civil management trials typically include a review of an offender’s psychological, sexual child abuse and sexually offending behaviors over the course of many decades. In the Court’s view, the fact that a sexual motivation finding will usually be made with the benefit of extensive information about an offender’s behaviors and motivations over the course of his lifetime militates against the risk of an erroneous deprivation of liberty which would arise if only a limited number of facts from a single incident could be considered.

To Be cont….

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.

New York Sex Crime Attorneys and New York Sex Offense Attorneys at Stephen Bilkis & Associates are well versed in the fields of law mentioned in the case above. If you have questions or clarifications you wish answered, please give us a call at our toll free number or visit our firm.

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