State Civil Commitment for Sex Offenders

By , Attorney · Seattle University School of Law

Sex offender registration is one of the post-sentence penalties that states impose on people convicted of certain sexual offenses. Twenty states (and the federal government) also have "sexual predator" laws. People convicted of a sub-set of sexual offenses may be labeled "sexually dangerous persons" or "sexual predators," and may face another, perhaps greater additional penalty -- civil commitment.

For more information on sexual offender registration laws, see Federal Registration and Civil Commitment Laws for Sex Offenders.

What Is "Civil Commitment?"

Civil commitment is a court order requiring that an individual be involuntarily confined to a mental institution. Individuals suffering from severe mental illness may be civilly committed for their own and others' protection.

Under state sexual predator laws, a person convicted as a sexual predator may be involuntarily committed to a mental institution in addition to any prison sentence. Civil commitments are typically not for a specified period, and offenders who are committed are not released until a mental health examiner deems them to no longer present a danger to others.

What Is a "Sexual Predator?"

Under state laws, crimes such as indecent exposure to a child, possession of child pornography, and statutory rape are considered sexually violent crimes. A person convicted of such crimes may be designated as a sexual predator subject to civil commitment.

These laws are often quite broad. For example, a high school student was convicted of indecent exposure after he exposed himself to female classmates. Courts have convicted teenagers of statutory rape, even where both parties were teenagers and both consented. And, if a minor texts a nude picture of himself to an adult, the adult is in possession of child pornography regardless of whether the adult was aware of the sender's age.

First Amendment and other challenges have been raised to civil commitment and other enhanced penalties for possession of child pornography. Those challenges and the Supreme Court response are covered in Computer Generated Images and Child Enticement.

How Is "Danger to Others" Determined?

In situations not involving a sex crime (for example, where a person begins acting erratically and is clearly delusional), a state can commit a person to a mental institution only upon a showing in court that the person is mentally ill. To commit a person convicted of a predatory sexual offense, however, the state need not make such a showing. A sex offender may be civilly committed based on a much lesser showing by the state.

The states that have sexual predator laws providing for civil commitment generally require a special hearing at which the state presents evidence of the offender's "volitional impairment," which means inability to control him/herself from engaging in similar illegal behavior in the future. However, the state does not have to prove that the offender suffers from mental illness, as defined by mental health professionals, research, and professionally-accepted diagnostic manuals. Many sexual predator laws permit the state to civilly commit an offender who has a "personality disorder" or "mental abnormality" that affects his/her emotional or volitional capacity (in other words, self-control), in addition to allowing commitment of those deemed mentally ill. For example, the Washington State sexual predator law defines "personality disorder" as "an enduring pattern of inner experience and behavior that deviates markedly from the expectations of the individual's culture, is pervasive and inflexible, has onset in adolescence or early adulthood, is stable over time and leads to distress or impairment." (Wash. Rev. Code Ann. § 71.09.020.)

The civil commitment hearing is held before a judge rather than a jury, such as the one that heard the evidence and rendered the verdict on the sex offense charge.

Among the evidence the state may present at such a hearing is a mental or even a personality evaluation of the offender. The basis of commitment is the "likelihood" that the offender will engage in a similar offense in the future. This evaluation may be made even while the offender is in prison on the underlying sexual offense (and, hence, not in a situation in which his/her conduct in the community may be assessed).

Isn't Civil Commitment "Double Jeopardy"?

The Fifth Amendment to the U.S. Constitution says that no one may be subject to punishment twice for the same offense (the "Double Jeopardy" clause). A punishment that is added onto the original punishment for a crime, such as civil commitment on top of the prison sentence for a sex offense, seems to violate the Double Jeopardy Clause. But, the U.S. Supreme Court has held that civil commitment under sexual predator laws is not double jeopardy, although the Court admitted that psychiatry is "not ‘an exact science.'" The Court gives "considerable leeway to states in defining the mental abnormalities and personality disorders that make an individual eligible for commitment."

So, a double jeopardy objection to civil commitment by a person convicted under a state sexual predator law will fall on deaf ears in the appellate courts.

A Sexual Offense May Result in Federal Prosecution

Some offenses are considered sexually violent offenses that may be prosecuted under federal law. If the offender is determined to be a sexual predator, the federal law provides for civil commitment at the request of the U.S. attorney or the Bureau of Prisons. This additional penalty is particularly onerous, as explained in Federal Registration and Civil Commitment Laws for Sex Offenders.

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