Sexual Offender Civil Commitment

Several states have passed legislation requiring that sexual offenders be committed to a mental institution if they are assessed as having a mental abnormality or personality disorder and are dangerous. Labeled a “sexually violent predator” (SVP), the purpose of this legislation is to incapacitate recidivist sexual offenders until they are rehabilitated. This legislation assumes a relationship between mental disorder, risk, and sexual violence, and is based largely upon the ability of clinicians to accurately predict the risk an offender may present to the public in the future. Risk assessments are controversial, though, and most experts agree that they produce high rates of false positives for sex offenders except in extreme circumstances (e.g., with psychopathic, violent sex offenders who have at least two previous offenses). Although the Supreme Court has declared SVP legislation constitutional, legal challenges against it are continuing.

The concept of civilly committing sexual offenders is not new. In the 1930s, a number of states passed sexual psychopathy statutes based on the idea that sexually deviant behavior is caused by a diagnosable disorder and is treatable. Individuals who were diagnosed sexual psychopaths were civilly committed to a mental institution until rehabilitated. These statutes were enacted after emotionally charged sex crimes occurred, like those of Albert Fish. Fish committed numerous assaults, sexual offenses, and murders against children, culminating in the mutilation and cannibalism of a 12-year-old boy. Because such offenders are rare, however, the statutes fell into disuse and were repealed in most states by the 1980s.

Like the sexual psychopathy laws, SVP legislation was passed after emotionally charged sex crimes in the late 1980s. At this time, criminal legislation was ineffective at incapacitating dangerous sexual predators if they had a finite criminal sentence. Washington was the first state to enact SVP legislation, in 1990, and this was largely a response to cases like that of Earl Shriner. Shriner had a history of sexual violence and murder, and he had been in and out of institutions since the age of 15. During his time in prison, he bragged to inmates and staff, and confided in a journal, that he fantasized about killing again. He explained that when he was released, he would buy a van, kidnap boys, take them into the woods, and torture them. There was nothing the state could do to keep him incapacitated, and, once released, he kidnapped a 7-year-old boy, cut off his penis, and left him for dead. Shortly after Earl Shriner's crime of sexual mutilation, Washington passed the Community Protection Act of 1990, which contained 14 separate provisions for ensuring community safety against such predators. Sixteen states have since implemented similar statutes.

An SVP is generally defined as a person who has been convicted of a sexually violent offense and who suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory acts of sexual violence. SVP statutes were enacted specifically to target “a small but extremely dangerous group of SVPs who do not have a mental disease or defect that renders them appropriate for involuntary treatment” (Kansas SVPA § 59-29a). The statute requires proof of past sexually violent behavior and a present mental condition that is likely to cause similar violent behavior in the future.

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