Civil Commitment of Sexual Predators

Civil Commitment Statutes

In 1990, Washington became the first state to enact a sexual predator statute. Missouri became the latest state to enact such a statute in 2002. Other states that provide for the involuntary civil commitment of sex offenders include Arizona, California, Colorado, Connecticut, Florida, Illinois, Iowa, Kansas, Massachusetts, Minnesota, Nebraska, New Jersey, New Mexico, North Dakota, Oregon, South Carolina, Tennessee, Texas, Utah, Virginia, and Wisconsin. The statutes in all states presume that sexual predators have a mental abnormality or disability and that they are persons who lack the ability to control their sexual deviancy.

These civil commitment statutes have similar procedural processes governing the postprison confinement of sexual predator offenders. A local prosecutor will be notified that a sexual offender is about to be released from prison. If a prosecutor decides to pursue civil commitment, he or she will begin an involuntary civil commitment hearing or trial to determine if the offender is too dangerous to be released. The commitment proceeding can be held before a judge or jury, and if the prosecutor proves beyond a reasonable doubt that the offender is a sexual predator then the offender will be committed to a secure facility. The commitment is indefinite, and the offender will be held until such time as it is shown that the offender is no longer a threat to the community.

Constitutional Challenges

Constitutional challenges to sexual predator statutes have questioned whether the statutes satisfy due process. Substantive due process prohibits a state from limiting an individual's fundamental rights unless the state has a compelling state interest. In addition, the state statute has to be narrowly tailored to achieve that interest. In regard to sexual predator statutes, states argue that the state must protect the community from the substantial harm that a sexual predator can inflict on victims of rape and sexual assault. Opponents of sexual predator statutes argue that the statute's presumption is not based on a showing of a mental illness or defect, the traditional focus of civil commitment laws, but on a showing of a mental “abnormality,” an overbroad characterization. In addition, opponents argue that an individual's procedural due process rights are violated when fact finders presume habitual offending propensities based on past conduct without adequate procedural protections to ensure that such commitments are not indefinite.

Civil commitment is traditionally based on the need to confine and treat persons who suffer from a mental illness and release persons when they are no longer a danger to themselves or others. Because civil confinement of sexual offenders does not depend on the ability of the state to provide treatment, opponents of sexual predator laws argue that the statutes do not comport with the expanded rights of the mentally ill that has occurred over the past 30 years.

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