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Questions of competency


Respondent was found to suffer from a Mental Abnormality under Article 10 at a jury trial. The evidence from that trial was made a part of the record of the instant proceeding. At the trial, the State presented the testimony of two psychologists who opined that the Respondent suffered from a Mental Abnormality. The State also presented the testimony of two parole officers and introduced documentary evidence. The Respondent presented the testimony of a psychologist, who opined that the Respondent did not suffer from a Mental Abnormality.

A New York Criminal attorney said that during the trial, a psychologist witness provided a summary of the Respondent’s child, adolescent and adult history including his criminal history and history of disciplinary violations while incarcerated. Respondent’s childhood and adolescent history were also extensively outlined by the United States Court of Appeals for the Second Circuit in 1978 in one case. The Second Circuit noted that its recounting of the early life of the Respondent was based on “sketchy records based on secondhand information, or facts furnished by the Respondent, whose reliability for accurately conveying information is questionable”.

In the Court’s view, however, even assuming that not every fact in the Second Circuit’s decision is completely accurate, the general outlines of Respondent’s life prior to age 17 are useful in understanding the origins of his anti-social behavior. The Court therefore has taken judicial notice of the Second Circuit’s decision and has used it in recounting what appear to have been some of the relevant events in Respondent’s life prior to age 17.

His behavior problems continued unabated. When his mother died about a month after his admission, Respondent evidently became obsessed with the idea that the children in his dormitory were responsible for her death. In retribution he set fire to the dormitory, but did so where it would be found and no one would be hurt. On another occasion he was found packing dirt into the exhaust of a truck used to transport the children with the aim of blowing it up.

The opinion goes on to note that the Respondent’s method of establishing friendships was to engage in “assaultive behavior” and that he engaged in numerous hostile acts with students and teachers. Lewd conduct is apparent.

Respondent was then institutionalized at a psychiatric center where he was diagnosed as having some features of schizophrenia. He never returned to this facility after a Thanksgiving break and by 1965. The record of the following few years is not completely clear. In 1965, at Bellevue Hospital, he was diagnosed as ” not psychotic at present’ but having a strong tendency in that direction”.

The Respondent’s life begins with an utterly crippling home environment. Early on they exhibit signs of unusual, bizarre and even destructive behaviors, often the result of traumatic experiences. Society, with humanitarian motivation, institutionalizes them, ostensibly to protect itself or them, more probably because no alternative exists. The depth of the mental/emotional problem proves too great, the numbers of Respondents too large, the resources for positive assistance too few. When released into society, criminal behavior is probable, not merely possible. A rape, a robbery, a mugging or worse ensues.

To Be cont ….

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.

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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