Research on sex offender laws and their effects on people and society

Civil Commitment of Sex Offenders
by Marshall Burns, Ph.D. 
Detailed comments for Q&A # 32: “What is “civil commitment”?” and Q&A # 36: “Are only the most violent, predatory criminals put in civil commitment?”

Civil commitment is the confinement for an indefinite period of time of people deemed to be a danger to society. In the mid-1990s, it began being used in the United States to prolong the incarceration of certain sex offenders after they finished serving their prison sentences. Almost 3,000 people were in civil commitment for sex offenses in 18 US states by the end of 2006, and two more states have since adopted the practice.

 

Contents

      Introduction
      Juveniles in Civil Commitment
      The Linguistics of Civil Commitment
      Footnotes

 

Introduction

In general usage, “civil commitment” is the process by which a court of law orders a person to be confined in a psychiatric hospital due to a mental illness.1 It is called “civil” to distinguish from criminal confinement, which is based on a finding that a person is guilty of a crime. Because the conditions leading to civil commitment usually do not subside and are not cured, civil commitment is generally expected to last for the lifetime of the person committed.

There is a history of abuses of civil commitment to suppress political dissent or to remove “undesirables” from society. In such forms, when used to detain large numbers of people, it becomes equivalent to internment.2

  Map of US states with sex offender civil commitment
US states using civil commitment of sex offenders.
Source: New York Times

In the mid-1990s, US states began passing laws to permit the civil commitment of persons who, due to a “mental abnormality” or a “personality disorder,” were deemed likely to engage in “predatory acts of sexual violence.”3 This is used to continue the confinement of certain sex offenders after they have finished serving their prison sentences.

The New York Times did a study of civil commitment in a series of articles4 in 2007. Among its finding were:

  • The number of US states providing for civil commitment of sex offenders, as of March 2007, stood at twenty.5
  • The number of people civilly committed for sex offenses in 18 US states as of Fall 2006 was 2,694, except for some inmates not included in the count in two states due to changes in laws.5
  • The psychological treatment that sex offenders in civil commitment are supposed to receive is often either ineffective or just not provided.6
  • Release upon completion of treatment is relatively rare. The number of civilly committed sex offenders that have ever been fully discharged in 18 states as of Fall 2006 was 252, or nine percent of the committed population at that time. In addition, another 154 inmates (six percent) were on conditional, supervised, or transitional release.5

A professional lawyers’s journal published in 2008 a review of California’s implementation of civil commitment for sex offenders under the title, Trapped in the Treatment Mall.7 

Juveniles in Civil Commitment

The statistics collected by the New York Times also show that several states are putting juveniles in civil commitment for sex offenses.5 Two states have civil commitment inmates as young as 18 years old. To be in civil commitment by the age of 18, one must have committed the associated offense(s) as a juvenile. In six other states, the youngest civil commitment inmates are aged 21 or less. Because of the time that it takes for a person to become committed, it is likely at those ages as well that the offenses involved were committed entirely in the juvenile years.  

The Linguistics of Civil Commitment

The idea of civil commitment is to confine violent, predatory criminals who are a menace to society. This is the reason for the commonly used terms, sexually violent predator and sexually dangerous predator, to refer to civilly committed sex offenders. However, the language of these terms is deceptive, as many states define any kind of sexual activity or contact with a child below a certain age (such as 14), even when no force or coercion is used, as automatically violent.

An example of legislatures redefining the word “violence” was the passage of Senate Bill 2161 in California in 1996. Section 3 of this bill changed the meaning of the legal term, “sexually violent offense,” which is part of the qualification for civil commitment, to include essentially any sexual act with a child under the age of 14. This means, for example, that a woman allowing a thirteen-year-old boy to penetrate her is committing a violent act on him. Also, allowing a curious child of thirteen or younger to touch one’s genitals is now, by this definition, a violent act on the child.

California Attorneys for Criminal Justice opposed this bill, saying that “the civil commitment procedure for sexually violent predators was carefully crafted to be as narrow as possible and to apply only to the most violent predators. … there was agreement between the various parties that the statute would only apply to violent offenses.”

In discussing this bill, the Senate Committee on Criminal Procedure asked itself, “Should the civil commitment process for sexually violent predators be expanded to include nonviolent offenses? If so, should the statute refer to “sexual predators” rather than to “sexually violent predators”?” Apparently, the legislature’s answers to these questions were, respectively, “yes” and “no.” The bill passed without a single vote in opposition in both the State Assembly and Senate.

This means that for the purposes of determining who is eligible for civil commitment, the actual use of force in a sex act on a child under 14 is irrelevant. Since any sexual act at all with the child is automatically, by legal definition, violent, a brutal rape of the child is not any worse, in this linguistic construction, than a consensual act.


Although not applicable to civil commitment, there is a similar redefinition of language in federal law. 18 USC 3559(c)(2)(F)(i) defines serious violent felony to include a violation of 18 USC 2241(c), which includes any consensual sexual act with a person under 12 years old by a person at least four years older. This means that any touching of genitals between an eleven-year-old and a 15-year-old is a “seriously violent” act on the younger party, no matter how much he or she may have wished to participate or even initiated it.  

Footnotes

1. See Civil Commitment: Past, Present, and Future by Paul F. Stavis, Counsel's Corner, New York State Commission on Quality of Care, August 1995, for background on the concept before it was applied to sex offenders.

2. See Involuntary commitment and Internment in Wikipedia.

3. Kansas v. Hendricks (), US Supreme Court, June 23, 1997 (Link. 521 U.S. 346, Argued 1996 12 10, decided 1997 06 23), first paragraph of opinion.

4. Doubts Rise as States Hold Sex Offenders After Prison, New York Times, March 4, 2007

5. A Profile of Civil Commitment Around the Country, New York Times, March 3, 2007

6. A Record of Failure at Center for Sex Offenders, New York Times, March 5, 2007

7. Trapped in the Treatment Mall () — For some California sex offenders, prison is just the start of their confinement. — California Lawyer, September 2008 (Link)

 
This report posted on January 28, 2009.
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