Sex Offender Civil Commitment: Civil vs. Societal Rights

Introduction to Civil Commitment

Civil commitment is a legal process typically applied to mentally ill individuals, or those whom the courts or other professionals believe pose a danger to themselves or to others. Society recognizes that, at times, an individual may be unable to make rational decisions while simultaneously presenting a risk to the public. In most jurisdictions in the modern world, involuntary commitment procedures are specifically applied to individuals who have manifested a serious mental illness that impairs their reasoning to such a degree that they are unable to make cogent and logical decisions. At these times, the state must intercede to make appropriate decisions within a legal framework. Involuntary commitment may, in the past, have been used inappropriately in certain situations, but the statutory criteria indicating that a person is a danger to self or others generally functions as a legal threshold (Korba, 2008).

Legislative Origins and Community Protection Acts

Following a series of violent sexual assaults in the 1980s, many states commissioned special task forces to review aspects of state law that permitted the release of sex offenders. In many states, this resulted in Community Protection Acts that accomplished some or all of the following:

Changes to and increases in criminal sentencing for convicted sex offenders; the institution of registration and notification statutes regarding convicted offenders; the creation of special "End of Sentence" Review Committees designed to make recommendations regarding offenders prior to their release; and the formation of civil commitment laws to confine and provide treatment for individuals deemed to be sexually violent predators.

During the civil commitment stage of an offender's sentence, a judge or jury must legally determine whether, beyond a reasonable doubt, the person meets the definition of a sexually violent predator. If that determination is made, the person is civilly committed to a special Commitment Center for control, care, and treatment until their condition has changed significantly or release to a less restrictive environment is deemed in the best interests of both the individual and the community. The offender must also comply with treatment procedures and supervision requirements. They do not surrender their rights, however, and are entitled to an annual review by a court or jury (Department of Corrections, 2012).

Legal Standards for Sexually Violent Predators

At least 20 of the 50 states have active civil commitment procedures in place. The overriding definition requires that the person have a "sexual psychopathic personality" and be a "sexually dangerous person." This is defined as a person who has engaged and continues to engage in sexual misconduct, lacks the power to control inappropriate sexual impulses, and is dangerous to others because of an inability to control behavior they have been made aware is illegal or unwarranted.

However, even if a person's behavior does not rise to the level of sexual psychopathic personality, they may still be deemed dangerous if the state can demonstrate that they have engaged or continue to engage in a course of harmful sexual conduct creating a likelihood of serious physical or emotional harm to another; that the person has been diagnosed by at least two concurring professionals as having a sexual, personality, or mental disorder; or that the person shows signs of likely engaging in harmful sexual conduct in the future (Sex Offender Civil Commitment Fact Sheet, 2004).

This may, to some, appear draconian, but proponents argue it is in the best interest of society given the variations in criminal sentencing, the availability of time off for good behavior, and the capacity of the penal system to release a convicted sex offender into the community without certainty of rehabilitation. Prison confines the offender but does not require psychological rehabilitation, and the underlying motivations that drove the offense may remain a persistent force within the offender's personality.

Conclusion: Societal Rights and the Greater Good

Utilitarianism holds that the most ethical thing one can do is any action that will maximize happiness within an organization or society. Actions have quantitative outcomes, and the ethical choices that lead to the "greatest good for the greatest number" are the appropriate decisions, even if that means subsuming the rights of certain individuals (Troyer, 2003, pp. 256–262). It is considered a consequentialist outlook in the sense that, while outcomes cannot always be predicted, the judgment of an action is ultimately based on its outcome — the ends, in this framework, justify the means. While the legal system is imperfect, the needs of the many do outweigh the needs of the few.

Annotated Bibliography

Atkinson, J. (2006). Private and public protection: Civil mental health legislation. Dunedin Academic Press.

Primarily intended to review the overall international legal issues surrounding what does and does not constitute danger to the public, this is a volume in which the legal, moral, and ethical issues of individual rights versus state and societal rights are debated. It is a scholarly volume with contributions from scholars across multiple fields. It is designed for the informed student of the subject and presupposes some knowledge of legal and moral theory and the process by which society protects itself. The volume also presupposes that a convicted sexual predator is, by most contemporary psychological measurements, mentally ill. The establishment of mental illness, however, requires a burden of proof from the state and a showing that the individual in question would be dangerous if released.

Department of Corrections. (2012, January). Civil commitment of sexually violent predators. Washington State Department of Corrections.

This is an exhaustive examination of how one state — Washington — approaches its civil commitment responsibilities and actions. It details the process by which civil commitment takes place, the rights of the convicted predator, and the means test used to determine whether that person poses a danger to society. The document serves as a template for the manner in which most states view their responsibilities to the public while also protecting the civil rights of all individuals. It specifies which department is responsible for each stage of the process and how the offender flows through the system from incarceration through release, civil commitment, and final release contingent on behavior and court rulings.

Korba, A. (2008). Involuntary commitment. Publish America.

The concept of involuntary commitment extends well beyond the sexual predation context. It carries broad implications for many states, for interpretations of legal documents, and for constitutional questions. Because no individual is exactly alike, a single boilerplate definition of danger to self, danger to society, or potential future menace cannot serve all cases. This book arose from a series of misuses of involuntary commitment law in New York State and attempts to establish a balance between individual liberty and societal responsibility.

Sex Offender Civil Commitment Fact Sheet. (2004, January). Minnesota Office of the Ombudsman for Mental Health and Developmental Disabilities. http://www.ombudmhdd.state.mn.us/cctrc/sexoffenderccfactsheet.htm

Just as the Washington State document identifies the steps and procedures many states apply to civil commitment, this document spells out how Minnesota treats the legalities and definitions of sexual predation and the behaviors associated with those who fall within the definition of a menace to society. While not exhaustive, it provides a working definition of the manner in which courts may interpret mental dysfunction as it relates to sexual predation or behavior.

Liptak, A. (2010, May 17). Extended civil commitment of sex offenders is upheld. The New York Times. http://www.nytimes.com/2010/05/18/us/politics/18offenders.html

This is a journalistic account of the Supreme Court's decision finding that it is legal and constitutional for states — and Congress — to enact civil commitment for individuals proven to be dangerous to society. The article does not attempt to exhaustively define "danger" but documents how the Court authorized authority to flow from Congress to the lower courts regarding the commitment of individuals following their incarceration.

McIntyre, A. (2006). Ethics and politics. Cambridge University Press.

Civil commitment is not merely a legal or political issue; it is also a moral and ethical philosophical debate within society. This is a scholarly volume intended for a scholarly audience that raises several pertinent questions about the role the political process plays in decisions that are uncomfortable for society — among which defining and responding to sexual predation is a prominent example.

Troyer, J. (2003). The classical utilitarians: Bentham and Mill. Hackett Publications.

Also a scholarly publication, this book describes the evolution of utilitarian thought from antiquity through the nineteenth century. It is a standard text that illuminates the differences between utilitarianism and deontology and analyzes why the concept of the social good can be a culturally contingent value that changes over time.