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Treatment of Sex Offenders

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252<br />

K.N. Daly<br />

In reaching his concurrence, it was important to Justice Kennedy that the individual<br />

at issue, Hendricks, had a serious and highly unusual inability to control his<br />

actions, that Hendricks suffered from pedophilia which was accepted by many mental<br />

health pr<strong>of</strong>essionals as a serious mental disorder, and lastly, that Hendricks’<br />

pedophilia presented a serious danger to children. While Kennedy was willing to<br />

accept the facial validity <strong>of</strong> SVP statutes, he appeared open to subsequent as-applied<br />

challenges.<br />

Seling v. Young<br />

In Seling v. Young 501 U.S. 250 ( 2001 ), the United States Supreme Court upheld<br />

Washington’s sexually violent predator commitment scheme. The main significance<br />

<strong>of</strong> Young is that the Supreme Court abandoned its statements in Hendricks regarding<br />

the incidental nature <strong>of</strong> the requirement that the individual receive treatment. Rather<br />

the court indicated that because the sexually violent predator statute at issue was<br />

indeed a civil rather than criminal statute, due process required the conditions and<br />

duration <strong>of</strong> commitment bear a reasonable relation to the purpose for which an individual<br />

was committed, i.e., treated.<br />

Crane<br />

In 2002 the United States Supreme Court took up a second challenge to SVP statutes<br />

in Kansas v. Crane 534 U.S. 407, 412 ( 2002 ). In Crane the High Court clarified<br />

that a constitutionally valid SVP statute need not require an individual be wholly<br />

unable to control their actions because <strong>of</strong> their mental disease, defect, or disorder.<br />

The Court wrote:<br />

Hendricks underscored the constitutional importance <strong>of</strong> distinguishing a dangerous sex<br />

<strong>of</strong>fender subject to civil commitment ‘from other dangerous persons who are perhaps more<br />

properly dealt with exclusively through criminal proceedings’. [Citation omitted.] That distinction<br />

is necessary lest ‘civil commitment’ become a ‘mechanism for retribution or general<br />

deterrence’ functions properly those <strong>of</strong> criminal law, not civil commitment. ( Kansas v.<br />

Crane 534 U.S. 407, 412 ( 2002 ))<br />

Crane arguably increased the burden on the state necessary to show a person<br />

should be subjected to a civil commitment in an SVP proceeding. While the Supreme<br />

Court did not require that an individual be “wholly unable to control” their actions<br />

because <strong>of</strong> their mental disease or disorder, the Court found that the constitution<br />

requires the state to prove that the individual lacks control over their behavior. The<br />

Court indicated that it is impossible to define “lack <strong>of</strong> control” such that it would<br />

apply in every individual case but that, at a minimum, there must be evidence <strong>of</strong> a<br />

“serious difficulty” in controlling behavior. The Court also required there be a link<br />

between the disorder or disease and violent behavior.

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