Treatment of Sex Offenders

11 The Best Intentions: Flaws in Sexually Violent Predator Laws
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Serious Difficulty Is Probably Just That
Just as no case has specific criteria for “likely,” there is little clear guidance regarding
“serious difficulty ” as required by most states or “volitional control” as discussed in
the federal statute. Expert witnesses are required to opine on such issues before
juries who come into the court with little background on the causes of criminal
recidivism.
Any individual who has committed more than one crime has clearly failed to
restrain their criminal urges. However, the causes of a lack of restraint are not necessarily
“serious difficulty.” The reasons for criminal recidivism are widely varied. It
could be someone has never tried to exercise restraint when faced with a choice
about committing a crime. In such a case an individual’s conduct would not be
caused by a serious difficulty in controlling their conduct, rather it would be caused
by a lack of effort. It is important therefore to explain to juries that recidivism alone
is not necessarily a “serious difficulty.” Evidence such as that in Hendricks , an individual
with a more than 20-year history of sexual offenses against children coupled
with admissions that he could not control his conduct, clearly meets the definition
of “serious difficulty.” There is every reason for experts to provide triers of fact with
such hypotheticals such as Hendricks to give the trier of fact meaningful comparisons
to the evidence before them. That is not to suggest an individual’s criminality
and mental disorders must rise to the levels displayed in Hendricks to render a civil
commitment appropriate. Rather expert witnesses are tasked with the duty of educating
the jury not just providing an opinion. The diligent performance of that duty
requires the expert to provide some background with which to evaluate the expert’s
opinion. While experts are paid witnesses, they better serve the function of justice if
they refrain from acting an advocate inside of the courtroom.
The Future of Sexually Violent Predator Laws
Sexually violent predator laws have received constant criticism since their passage
because of their reliance on a so-called civil commitment system. The laws arose in
large part to address a gap created by the adoption of determinate sentencing
schemes. Some commentators have speculated that the use of sexually violent predator
proceedings will decrease due to increasing reinstatement of indeterminate
terms in many sex crimes. Many state and federal statutes either carry indeterminate
terms for first-time child molesters or sentencing schemes that functionally equate
to life sentences. Recidivist sex offenders convicted of crimes that do not involve
children also receive substantially longer sentences, often well in excess of 15 or 20
years.
This author does not believe these sentences will bring about the functional if not
the actual demise of sexually violent predator proceedings. Both state and federal
governments are dealing with the side effects of legislation such as the three-strikes