Most Virginia sex offenders who are scheduled for release from prison within 24 months are subjected to a mental health evaluation before they're allowed to return to society. The assessment is conducted to determine if the offender is a sexually dangerous person or a sexually violent predator. If they're found to be a sexually dangerous person, they will not be released but rather involuntary committed. 

Mental health assessments can take a toll on you, especially if you know you are in perfect health mentally. The evaluators can be thorough since they aren't on your side. They're keen on finding mental instability signs and a possibility that you can relapse in the future. You can avoid a psychological evaluation if you successfully fight the sex crime charges against you. The best way to fight these charges is by retaining the services of a sex crimes defense lawyer.

At Virginia Criminal Attorney, we do not condone sexually dangerous persons to be on the loose. However, a person can only be considered a sexually violent predator if they're found guilty of the charges against them. If we can prove that you're innocent of the charges against you, you won't have to be considered sexually dangerous. We'll evaluate the details of your case and mount a strong defense strategy to help you prove your innocence. Call us if you've been charged with a sex crime in Northern Virginia or Fairfax for a comprehensive case evaluation. 

Mental Health Evaluation of Sex Offenders for Commitment as Sexually Violent Predators 

Virginia law allows the state government to civilly commit sexually violent predators. A sexually violent predator (SVP) is a person who has a personality disorder or mental abnormality that makes them likely to commit sexual misconduct over and over again. Examples of Virginia sex offenses include:

  • Aggravated and simple sexual battery 
  • Carnally knowing a minor
  • Rape
  • Object sexual penetration
  • Forcible sodomy
  • Forcible fondling
  • Statutory rape
  • Incest
  • Child pornography
  • Infected sexual battery
  • Prostitution and solicitation

Civil commitment, as it relates to sexual offenders, is when the state retains custody of a person found to be an SVP by involuntary committing them to a mental health facility after they’re done serving their prison sentence. Before the civil commitment, an offender has to undergo a psychological evaluation to determine if they're an SVP. 

The practice to civilly commit an offender is dependent on the belief that a person convicted of a sexual offense is highly likely to re-offend compared to other offenders. However, statics about sex offender reoffending varies. Per the statistics, the likelihood of sex offenders re-offending might be lower than it’s generally thought to be. As a matter of fact, some studies have shown that sex offenders re-offend at a lower rate compared to many other wrongdoers. Other studies reveal that, given time, nearly all sex offenders will commit new sex crimes. 

Most discussions concerning recidivism examine ways of decreasing recidivism, like offering treatment to sex offenders. Research shows that sex offender treatment is efficient, but it can’t prove that it lowers recidivism. CBT (cognitive-behavioral techniques) is perhaps the most effective form of sex offender treatment, even though some research shows that sex offenders diagnosed with psychopathy could be less responsive to treatment. 

Civil commitment is effective only if practitioners identify sexual offenders that pose a higher risk of reoffending. Even though the practitioners’ capability to identify sex offenders has improved, there’s still a chance that a sex offender who wouldn’t re-offend might be civilly committed. Additionally, it is still challenging for practitioners to determine when it’s safe to set an offender free from the mental facility. Concerns like these have raised several questions about finding civil commitment alternatives. One possible option is using less restrictive measures like intensive community supervision. Another alternative is using indeterminate sentences for sexual offenders. 

The Process to Civilly Commit Defendants as Sexually Violent Predators

The process to civilly commit you as an SVP starts with initial screening by the Virginia Department of Corrections. The screening aims at determining if you are an unrestorable incompetent defendant.

Once you’ve been screened, the director Department of Corrections will forward your name, scheduled date of release, court order finding you are an unrestorable incompetent defendant, and a copy of your file to the CRC (Commitment Review Committee) for assessment. Within a hundred and eighty days of receiving your name, the CRC will:

  • Complete its evaluation on you for possible civil commitment, then
  • Forward its written recommendations concerning to the state’s attorney general 

Mental Health Evaluation 

Depending on the screening results from the director of the Department of Corrections, you’ll undergo a psychological assessment and additional review by an interagency committee if you’re likely to re-offend. Psychological evaluations include being personally interviewed by a licensed clinical psychologist or psychiatrist appointed by the CRC commissioner. The psychiatrist or clinical psychologist shouldn’t be a member of the CRC. They should be experienced in risk assessing and diagnosing sexual offenders and knowledgeable about treating sex offenders. 

If your name was forwarded to the CRC based on the Department of Corrections' licensed clinical psychologist or psychiatrist’s evaluation, a different clinical psychologist or psychiatrist would conduct the assessment for the CRC. The psychiatrist or clinical psychologist will determine whether you’re a sexually dangerous person then send the assessment results and other supporting documents to the CRC for review. 

Various Mental Health Assessment Tests Physiatrists and Clinical Psychologists Use 

Like other forensic examinations, evaluating a sex offender involves conducting comprehensive psychiatric evaluations, reviewing any criminal record and police reports available, and checking other available information sources to corroborate the information the offender provided. Furthermore, to accurately assess sex offenders requires carefully evaluating deviant sexual arousal patterns and sexual history. Usually, psychiatrists or psychologists use questionnaires to assess behavioral patterns or sexual history.  

Apart from obtaining a sexual offender’s subjective report of arousal patterns, it’s crucial to acquire objective measures of their sexual desires. Manipulating actual arousal patterns will comprise an offender’s evaluation and result in incorrect risk evaluation decisions. Considering that there’s an evident drive to conceal true arousal patterns whenever someone commits asexual misconduct, the psychiatrists tend to utilize objective arousal techniques to increase the arousal evaluation accuracy. Psychological tests that psychiatrists and clinical psychologists use in assessing sex offenders include polygraph, penile plethysmography, the Abel assessment, and visual reaction time.

Visual Reaction Time (The Abel Assessment) 

Visual reaction time is seen as an unobtrusive way to measure sexual interest. Founded on the idea that visual reaction time indicates sustained sexual interests, Doctor Abel Gene developed the Abel Assessment for Sexual Interest (AASI). The AASI comprises objective and subjective elements meant to gauge sexual interests based on age and sexuality.

The first part of the AASI comprises a questionnaire, which collects info concerning your sexual conduct and preferences, subjective capability to control your sexual behavior, and your legal history. Also, the questionnaire contains various items the psychiatrist/psychologist analyzes to evaluate whether you:

  • You’re faking the results of the test
  • You have psychological distortions about involving yourself in sexual relations with young ones
  • You fit the profile of people (known sexual offenders) who’ve sexually abused young children

The psychiatrist or psychologist performs the objective measure of the Abel Assessment during the second phase of the test. They measure visual reaction time beyond your awareness while you view a hundred and sixty slides (in twenty-two categories) showing clothed teenagers, adults, and teens. During this exam, you’ll also be needed to rate your degree of arousal to the various visual stimuli. The psychiatrist or psychologist then sends the data obtained from this test to Abel Screening, Inc. (ASI) for processing and analysis. After which, ASI provides a comprehensive report of your response patterns.  

Most psychiatrists are increasingly using the AASI because it’s a non-invasive and easy-to-administer method of gauging sexual interest. Although, the validity and reliability of this test have faced several debates. Also, it’s unclear whether the data obtained from the AASI test is admissible in court. Psychiatrists and psychologists are also advised not to rely on the AASI test alone— doing so may lead to them making wrong clinical extrapolations concerning risk evaluations, recidivism predictions, or disproving/proving sexual abuse accusations. When utilized as a part of a detailed psychiatric assessment, the AASI is a valuable technique for evaluating sexual interests and obtaining an in-depth sexual conduct history. 

Penile Plethysmography 

The penile plethysmography test is the only objective way to assess pedophilic sexual interests as of now. It entails directly measuring your penile erection as it responds to emotional, visual, or auditory cues. This test is used to gauge penile arousal changes as you react to different sexual stimulation. Two penile plethysmography types that psychiatrists or psychologists use nowadays gauge changes in penile circumference or volume. 

The volume plethysmography test works by gauging displacement of air that’s in a tube enclosing your penis. Generally, the psychiatrist places a rigid or glass cylinder over your penis and an inflatable cuff to enclose the penis base. If the penis erects and becomes filled with blood, the air in the cylinder will be displaced. The resulting rise in the pressure within the cylinder is utilized to determine an indirect measure of penile volume. 

On the other hand, circumferential penile plethysmography directly gauges changes in the penis diameter when responding to various sexual stimuli. This method has been endorsed as being effective when it comes to measuring arousal. The psychiatrist places a mercury strain gauge around the penis base and connects it to a gadget that monitors minor changes in voltage through the strain measure. Before placing the mercury strain gauge, the psychiatrist will first calibrate it to correlate alterations in voltage with known diameter settings. As you're exposed to a sexual stimulus, changes in voltage through the mercury strain gauge are monitored then converted to penile diameter size depending on the pre-calibrated settings. Both circumferential and volume plethysmography have to be conducted in a controlled environment that reduces exposure to any external stimulus that may interfere with the results. 

Penile plethysmography results are frequently used to categorize deviant arousal patterns, create a treatment plan, and observe treatment efficiency. Although, this test has received several criticisms because it doesn’t have standardized scoring and testing techniques, and it’s susceptible to purposeful change of results. Faking results by initiating arousal or suppressing erections to usual sexual stimuli may be problematic. Also, several ethical concerns are linked to how intrusive the penile plethysmography test is in teenagers and having people watch pornographic stimuli. Despite its drawbacks, this test is seen as the most reliable when measuring sexual arousal. 

Polygraph Assessments 

Persons accused and found guilty of sexual crimes have little or no incentive to give truthful information concerning their crimes or adherence to required treatment programs. Most psychologists and psychiatrists use the polygraph test to verify info that sex offenders provide concerning the details surrounding the supposed crime, prior sexual history, and conduct. The polygraph test is also used to detect the accuracy of reports of convicted sex offenders’ adherence to probation terms or treatment plans. 

A polygraph test is an effective way to acquire a detailed sexual crime history and increase the number of disclosures offenders make. Polygraph results highly depend on the psychiatrist or psychologist's skill, and they're generally inadmissible in court. Polygraph assessment, too, has received criticism like other psychological evaluation tests, and this is because it lacks generalizability and standardization of research findings. 

What Happens After Psychological Evaluation?

After the psychiatrist or clinical psychologist has administered their tests, they'll send their findings to the CRC for review. 

The CRC review or evaluation may be dependent on an actuarial assessment, clinical assessment, or any other assessment or information the CRC determines to be relevant, including but not limited to a review of:

  • Your treatment record and institutional history, if any
  • Your criminal history
  • Any other relevant factor that will help in determining whether you are an SVP

After the CRC has conducted its review and examination and considering the results, it will recommend that:

  • The attorney general seeks to have you civilly committed as an SVP. A jury or judge makes the final decision on whether civil committed is appropriate or you must be released 
  • You shouldn’t be committed since you don’t meet the definition of an SVP 
  • You shouldn’t be civilly committed but be placed in a conditional release program as a less restrictive alternative


1) If You Are Conditionally Released


If you are conditionally released, you will be monitored and supervised per the provision of a court-approved DBHDS (Department of Behavioral Health and Developmental Services) release plan. Generally, supervision includes GPS monitoring by a probation or parole officer. The parole/probation officer must file a report with the court about your compliance at least semi-annually. If you violate the terms of your conditional release, the release will be revoked, and you'll be returned to a DBHDS facility. 

The CRC might recommend that you be placed in a conditional release program if it finds that: 

  1. The conditional release won’t present an unnecessary risk to public safety
  2. There’s a good reason to believe that, if you’re conditionally released, you will adhere to the specified conditions 
  3. Appropriate out-patient treatment and supervision are available 
  4. You don’t require in-patient treatment. Instead, you require outpatient treatment plus monitoring to prevent your condition from deteriorating to the extent of requiring in-patient treatment


2) If the Attorney Generally Seeks to Have You Civilly Committed


If the CRC recommends that the attorney general move to have you Civilly Committed, the attorney general will have to bring a petition in court. To help the attorney general in their move to seek to have you civilly committed, the psychologist or psychiatrist who carries out the psychological evaluation, the CRC, and Department of Corrections will provide them with:

  • All assessment reports, 
  • Your records, 
  • Medical files, 
  • Criminal records, and
  • any additional documents relevant in determining whether you are a sexually dangerous person.

Once the attorney general files the petition, they should also seek a probable cause hearing within 90 days in the circuit courts. If the jury/judge determines that you're an SVP, a trial will have to be scheduled within four months. This trial will aim to substantiate whether you're an SVP then the judge/jury will decide whether you should be committed or released. The state must prove beyond any doubt that you are an SVP and therefore must seek in-patient treatment. 

At the probable cause hearing and trial, you have certain rights. They include the right to:

  • Legal counsel representation
  • Remain silent or testify 
  • Be notified about the proceeding 
  • Present your prove and cross-examine witnesses
  • View and copy all reports and petitions filed in the court 

The attorney general has to provide enough evidence that you're an SVP. They have to show that: 

  • You have a mental condition that incites sexually violent activities
  • You fail to recognize the consequences of your sexually violent acts
  • You are dangerous and capable of committing sex crimes in the future

Note that if you're facing civil commitment, you have little legal protection that'll promise you freedom. Therefore, you want to have a lawyer capable of conducting an independent investigation into your situation. A separate probe ensures that you present your facts in court so that your case is justly assessed. 

The judge can review the info provided by the psychiatrist or clinical psychologist and the CRC through the attorney general. It's worth repeating that the psychiatrist or psychologist evaluating you isn't on your side. To make sure your side of the story is heard, you can have your lawyer conduct an independent investigation.

Note that you aren't allowed to challenge the validity of your past institutional and criminal convictions, charges, sentences, or computations of your confinement period. You're also not allowed to raise defenses or objections related to the proceedings unless the objections or defenses were raised in a written motion to dismiss, outlining the legal and factual grounds why you're objecting to the proceedings. The motion has to be filed within 14 days before the trial or hearing. 

3) The End of Civil Commitment 

If you're no longer considered a danger to society, the court can order your release if you obey specific codes of conduct and regulations. For you to be released from civil commitment, your lawyer has to bring a petition with the court or attorney general explaining that you’re fit to return to the community. A hearing may then be scheduled to decide whether or not you can leave the civil commitment facility. Should the judge find that you aren’t a sexual danger to others, you must be released immediately. If the judge also finds that you can leave the facility under specified psychiatric or medical administration, you'll be conditionally released. If you're conditionally released, you're usually permitted to return to the community if you obey the codes of conduct and regulations that the court and medical or psychiatric administration have established. 

When you are conditionally released, you have to obey the laws and set conditions, or you may have your civil commitment release revoked. When the police are notified that you have failed to follow the regulations imposed during the court hearing, you'll be placed under arrest and taken back to a holding facility to wait for a hearing. The hearing will reassess you to determine if your failure to obey the conditions warrants civil commitment. 

Find an Experienced Sex Crimes Defense Lawyer Near Me

At Virginia Criminal Attorney, we know that some people are wrongly convicted of a sex offense and subjected to unnecessary mental health evaluation or unfairly civilly committed. We can help you avoid all this by developing a solid defense during your sexual offense prosecution. If we prove that you’re innocent of the sex offense you're being accused of, there won't be the need for mental health assessment or civil commitment. Contact us at 703-718-5533 if you've been charged with a sex offense in Fairfax, VA, or the Northern Virginia area, and we'll listen to your case, evaluate each fact, and explain your legal options.