Massachusetts High Court Upholds Civil Commitment of Sex Offender against Substantive Due Process Challenge, But Declares Portion of Sex Offender Assessment Tests Now Inadmissible

SUMMARY: The Massachusetts Supreme Judicial Court (SJC) upheld the civil commitment of a defendant as a Sexually Dangerous Person (SDP) as a result of his diagnosis as having Antisocial Personality Disorder (ASPD). The SJC rejected defendant’s Substantive Due Process claims that ASPD was insufficient to commit him as an SDP, clarifying that ASPD is sufficient proof for sexual dangerousness if there is a nexus between the disorder and the factors warranting confinement. Despite upholding the decision, the SJC also declared that “Static 99R risk categories” are now inadmissible in SDP cases, although other portions of the Static 99R risk assessment tests are still admissible.

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CASE NAME: Commonwealth v. George , ____Mass.____ (2017), No. SJC-12173 (June 21, 2017).

DECISION: Unanimous, 6-0 (quorum), affirming defendant’s civil commitment as a sexually dangerous person.

JUSTICES/JUDGES:

RELEVANT FACTS:

  • The defendant was convicted of different sexual offenses against two victims on two separate dates:(1) indecent assault and battery on a child; and (2) aggravated rape and rape.
  • The Commonwealth filed a civil petition seeking adjudication that the defendant was a Sexually Dangerous Person (SDP). The Superior Court found probable cause that the defendant was an SDP and committed him for examination and diagnosis, where two qualified examiners (QEs) tested the defendant.
  • Pre-trial, the defendant moved to exclude (1) expert opinion testimony from the two qualified examiners (QEs) who examined the defendant; and (2)evidence from the “Static-99R risk assessment tool” on the grounds that these result improperly invaded the province of the jury. Both motions to exclude were denied.
  • Two qualified examiners (QEs) opined that the defendant was an SDP, based on their finding that the defendant had Antisocial Personality Disorder (ASPD).
  • The qualified examiners based this ASPD diagnosis on the defendant’s disciplinary problems in prison, including masturbating in front of a female guard , making sexually explicit threats, being expelled multiple times from a sex offender treatment program in prison.
  • In addition, both QEs scored the defendant’s on the “Static-99R risk assessment tool,” which is designed to predict recidivism in sex offenders. One of the QEs found the defendant to be a “high-risk” to reoffend, while the other found him to be a “moderately-high risk.”
  • The QEs opined at trial that civil commitment was appropriate.
  • The defendant was civilly committed as an SDP.
  • The SJC accepted the defendant’s application for direct appellate review.
  • On appeal, the defendant argued:
    • That a diagnosis of Antisocial Personality Disorder (ASPD) was constitutionally inadequate as a basis for commitment as a Sexually Dangerous Person (SDP), as it violated Substantive Due Process; “the defendant contends that the use of the ASPD diagnosis sweeps too broadly, permitting what amounts to unconstitutional preventive detention.”
    • That the Superior Court erroneously admitted the QE’s testimony and the results of the Static-99Rrisk assessment tool.

OPINION:

  • The SJC rejected the Substantive Due Process argument “ as it misapprehends the evidentiary weight to be accorded to an ASPD diagnosis in the sexual dangerousness calculus. The definition of an SDP …makes it abundantly clear that an ASPD diagnosis, standing alone, does not justify commitment as an SDP.”
  • “[O]ur law does not permit the indefinite and indiscriminate commitment of persons solely because of an ASPD diagnosis. The diagnosis requires an individualized review, and it is relevant only if it is predictive of a lack of control over the proclivity for criminal conduct and the conduct is likely to be sexual in nature.”
  • Because the QEs based their conclusions that civil commitment was appropriate on other facts combined with the ASPD diagnosis— such as the defendant’s incarceration history, expulsion from sex offender treatment programs, and lack of remorse— the SJC concluded that there were enough relevant factors to go along with the ASPD diagnosis to support the SDP commitment
  • “[O]ur law allows for expert opinion testimony to ‘touch on an ultimate issue of the case [where] that testimony aids the jury in reaching a decision.’… A qualified examiner’s opinion testimony is ‘the essential basis for a finding of sexual dangerousness.’”
  • However, despite upholding the commitment, the SJC did agree that the “Static-99R” risk categories should not have been admitted at trial.
  • “Static-99R is itself a limited tool… The test’s developers have acknowledged that the meaning of risk category labels is often unclear…. test developers have conceded that the lack of clarity is exacerbated by the absence of accepted standards or metrics connecting the risk category labels.”
  • However, the SJC found that the admission of this evidence was nonprejudicial: “the erroneous admission of testimony regarding the Static-99R risk category labels does not warrant reversal… The expert testimony regarding the defendant’s Static-99R risk category was appropriately limited; it was presented as only one of many factors in the SDP calculus.”

ANALYSIS:

  • It is important to note that the SJC requires a diagnosis of ASPD be united with other “relevant evidence” to justify an SDP commitment.
  • The SJC avoided parsing the definition of “personality disorder”, instead noting that ASPD was a type of personality disorder.
  • The SJC stressed the purpose/intent of the law, which was to commit those who could not control their impulses.
  • The SJC noted that not only was it proper for the QEs to testify, it would have been an error of law to have excluded them from testifying.
  • Very importantly, the Static 99R category labels are now inadmissible in Massachusetts SDP cases BUT this ruling only excludes the Static 99R category label, not the other data from the Static-99R tests: “the Static-99R score and the corresponding percentage reflecting the risk of sexual offense in qualified examiners’ testimony continue to be admissible. Our holding makes inadmissible the risk category labels only.”

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