In 1999, Virginia General Assembly developed a process that provides inpatient treatment to those accused of sexually violent crimes and are more likely to re-offend. The Department of Behavioral Health and Developmental Services (DBHDS) administers this process and relies on licensed psychiatrists and psychologists' evaluations.

Sometimes people might end up being subjected to this civil commitment when they are not supposed to. If you or your loved one is facing a civil commitment as a sexually violent predator, you should seek the help of a professional attorney. An attorney will take you through every legal process and protect you from the shame and burden that comes with a conviction. At the Virginia Criminal Attorney, we offer the best legal services to clients on the verge of being civilly committed as sexually violent predators and ensure that their dignity and rights are held.

Definition of Civil Commitment of Sexually Violent Predators in Virginia

Civilly committing a sexually violent predator involves several factors. Below are the definitions of common terms used in this law.

Definition of Civil Commitment

Civil commitment is a court order that requires individuals to be involuntarily confined to a mental institution. These individuals must suffer from a severe mental disorder or illness that makes them civilly commit to their own or other person's protection. Under Virginia sexual predator laws, a person convicted as a sexual predator can be involuntarily committed to a mental institution besides serving his or her prison sentence. There is no specific time limit connected to civilly committing someone as a sexually violent predator. The only criteria used to release committed offenders is through confirmation by a mental examiner that they do not pose a danger to themselves or others.

Sexual Predator

Under Virginia laws, sexual predators can be anyone convicted of sexually violent crimes. The following is a list of literary offenses which are classified as sexually violent crimes.

  • Abduction for immoral purposes
  • Rape
  • Object sexual penetration aggravated.
  • Forcible sodomy
  • Marital sexual assault
  • Entering a dwelling place with the intention to rape
  • Child pornography
  • Commercial sex trafficking
  • Receiving money from prostitution
  • Aiding prostitution or illicit sexual intercourse for victims under 18 years

Using your vehicle to promote prostitution or unlawful sexual intercourse for victims below 18 years

Under the Virginia Sexually Predators Act, most sexual predators include prisoners imprisoned for sexually violent crimes. Most of these offenders are nearing their release, are facing sexually violent criminal charges, and are found incompetent to be tried in court.

How Civil Commitment for Sexually Violent Predators Work in Virginia


In Virginia, the Department of Correction screens offenders using protocols approved by the Department of Behavioral Health and Development Services (DBHDS). Based on the screening results, offenders perceived to re-offend are referred to a licensed psychiatrist or psychologist's evaluation. An interagency committee is involved when intensive screening is required.

The interagency committee involves members from the DBHDS, DOC, qualified psychiatrists, qualified psychologists, and representatives from the Attorney General. Once the review is completed, the committee makes recommendations about whether the Commonwealth will file a petition in one of the courts to commit the offender civilly.

Once the Commonwealth files a civil commitment, they should file a probable cause hearing within ninety days in the circuit courts. If the judge finds out that the defendant is a sexually violent predator, a trial must be held within one hundred and twenty days. The trial aims to confirm whether the defendant is a sexual predator and decide whether to release or commit him or her. The Commonwealth should prove beyond doubt that the offender is a sexual predator and should seek inpatient treatment.

At probable cause hearing and trial, the defendant has certain rights, which includes the following:

 

  • To be represented by counsel.
  • To be noticed about the proceeding.
  • To testify or remain silent.
  • To present his or her evidence and examine witnesses.

To view and copy all the petitions and reports filed in the court.

Please note, respondents are not permitted to raise any challenges about the validity of their prior criminal and institutional convictions, sentences, charges, or computation of their term of confinement. Respondents are also not permitted to raise objections or defenses related to the proceedings under this chapter unless these defenses and objections were raised in a written motion to dismiss, stating the factual and legal grounds why the proceedings should be objected to. The written motion of dismissal should be filed to the court within fourteen days before the hearing or trial.

Those that are convicted as sexually violent offenders are placed in an inpatient, secure, and intensive DBHDS facility. They also have the right to an annual review trial for the first five years and two years afterward. In every review, the court decides whether the offender remains a predator and the need for confinement.

If the offender is conditionally released from the treatment program, they are usually monitored according to the provision of a court-approved DBHDS release plan. Supervision typically includes GPS monitoring and by parole or probation officer. These officers should file with the court on the offender's compliance at least twice a year. In case the conditionally released offender violates the terms and conditions of the release, it will be revoked, and the offender will be returned to a DBHDS facility.

What you Need to Know About Commitment Review Committee

The Commitment Review Committee (CRC) is significant in civilly committing a sexually violent offender. The director of the DBHDS is responsible for establishing a Commitment Review that will evaluate, screen, and make recommendations regarding the offender. The CRC, however, is under the supervision of the Department of Correction.

Please note, members of the CRC are immune from any personal liability that results while acting within the scope of their duties. However, they are held responsible for any intentional misconduct or gross negligence related to the execution of their responsibilities.

The CRC consists of seven members appointed by the director of the DBHDS. This include:

  • Three full-time employees of the Department of the Corrections
  • Three full-time employees of the DBHDS. The commissioner should appoint these members. One of the members should be a licensed psychologist or psychiatrist licensed to practice in the Commonwealth and has the skills in diagnosis and risk assessment of sex offenders. They should also have the knowledge to treat sex offenders.
  • Deputy attorney general or an assistant, appointed by the attorney general

    The CRC should schedule a meeting at least once a month or more when appropriate. The CRC-appointed members are also required to elect a chairperson from the membership to preside over their meetings.

    CRC Assessment and Recommendations on Offenders

The CRC should complete an assessment on a defendant for possible commitment and forward a written recommendation regarding the offender to the Attorney General within 180 days after receiving the offender's name.

The offender's assessment includes a personal interview by a licensed psychiatrist or psychologist. However, if the defendant's or offender's name was forwarded to the CRC after an evaluation by a licensed psychologist or psychiatrist, a different psychologist or psychiatrist should perform the assessment. The licensed psychologist or psychiatrist will decide whether the offender is sexually violent and forward the evaluation results and relevant supporting documents to the CRC.

The CRC bases their assessment on several factors. This includes a clinical evaluation, actuarial evaluation, and other information that CRC has decided to be relevant. This consists of the offender's treatment record and institutional history, criminal background, and other factors determining whether the offender is a sexually violent predator.

After the assessment, CRC can recommend whether the offender be committed as a sexually violent predator, not be committed, or placed in a conditional release program. When an offender is not committed, they do not meet the definition of a sexually violent predator.

The CRC must back their assessment report with necessary documents like the criminal records, medical files, and other relevant files that prove whether the offender is a sexually violent predator.

Recommendations to enter a conditional release program are made when the CRC finds outs that:

  • The offender does not require inpatient treatment but requires monitored outpatient treatment to prevent deterioration of the condition to the degree that they will eventually need inpatient treatment.
  • There is appropriate and enough supervision and treatment for the conditional release program.
  • There is a substantial belief that once the defendant is conditionally released, they would comply with the conditions specified in the release.
  • The offender's conditional release does not bring undue risk to the public in any way.

The Process of Probable Cause Hearing

Once a petition is filed in the circuit court alleging that the defendant is a sex predator, the court should:

  • Immediately process the order until a final order is made if the prisoner remains in prison.
  • Schedule a hearing within ninety days whether there is a probable cause that exists to consider that the accused is a sex predator


Defendants can obtain a continuance to extend the trial beyond ninety days after showing a reasonable cause. The circuit court's clerk should make copies of the petition to the defendant's attorney or the person running the facility where he or she is held. A written explanation is given to the defendant explaining the statutory protection provided to the defendant during the delivery of the petition.

All hearing proceedings for probable cause are conducted in two-way electronic audio and electronic communication to provide the witnesses' and other parties' appearance. These means of communication should meet the following standards:

  • Must provide a way that the people communicating can simultaneously speak to each other
  • Must have a live and real-time signal transmission
  • Must be secure from any interception through lawful means apart from the person communicating
  • Must adhere to any other specification provided by the Chief Justice of the Supreme Court

Before the probable cause hearing, the judge should ascertain whether the respondent has legal representation. If the defendant has no representation, the judge should appoint a lawyer on his or her behalf. Nevertheless, if the defendant requests a chance to employ his or her counsel, the court should allow a reasonable time for this.

Please note, in a situation where the defendant fails to participate in a mental examination, the court will admit the refusal or failure and bar any psychiatric or psychological evidence presented by the defendant.

During this hearing, the judge will verify the defendant's identity and determine whether there is existing probable cause to conclude that the offender is a sex predator. The prosecution may present prior allegations and convictions with documentary evidence and testimonials. The documentary evidence or testimonies may show behaviors or activities that led to the sentencing. This might also include parole and probation reports, sentencing reports, sheriff or police reports, trial transcriptions, and psychological evaluations.

For defendants who meet CRC standards, an expert witness should testify at this hearing. The expert witness should give his or her opinion on whether the defendant is a sex predator. However, these opinions do not solely determine whether the respondent is a sexually violent predator.

For prisoners who remain in custody and have been found to have no reasonable cause to be considered as sexually violent predators, the judge will dismiss the allegations, and the prisoner will continue serving his or her term. For defendants, the judge will discharge the petition and order him or her to be discharged as a certified admission pursuant.

Rights to Assistance of Experts in a Probable Cause Hearing

Once the court makes its findings on the probable cause, the judge will confirm whether the respondent needs expert assistance. If the defendant requests expert assistance and has not appointed one at his or her own expense, the judge will assign an expert on their behalf. However, when defendants fail to cooperate with the mental health examination, any expert appointed by the court to assist them should not testify during the trial, nor will their report be admitted by the court. Any expert appointed or employed at the probable cause hearing should be skilled with the treatment or assessment of sex offenders and must not be a CRC member.

These experts can have access to relevant psychological and mental records related to the defendant. If the expert represents a compliant defendant, they cannot testify as expert witnesses of the defendant unless they have a detailed finding and conclusion, along with relevant supporting data. The expert should submit this report to the court, attorney general, and the defendant's counsel.

Please note that the expert witness should submit the report not less than forty-five days before the trial unless the participating parties agree on a different date.

Every psychologist, psychiatrist, or other court-appointed expert should render their services under this law's provision. They should not be regular employees of the Commonwealth, except by the Commonwealth University School of Medicine or the University of Virginia School of Medicine. According to the Supreme Court’s guidelines, the fee that they receive from their participation is determined by the court. Nevertheless, the payment should not exceed $5000 with an addition of $750 as mileage fee for every day they are required to serve.

An itemized account of these expenses will be represented to the court, certified by the Supreme Court to authorize payment from the state treasury. Any allowance fee and per diem allowed amount should also be made to the court and approved by the Supreme Court for payment authorization.

Proceedings in a Trial Aimed to Civilly Commit a Sexually Violent Predator

The court should conduct a trial to determine whether the respondent is a sexually violent predator 120 days after completing the probable cause hearing. The court might grant an extension of the 120 days to the respondent or Attorney General if a good cause is shown or agreed upon among the concerned parties.

The Attorney General or respondents have the right to trial by jury. The jury usually consists of seven people from a panel of 13 people. If the jury determines that the defendant is a sexually violent predator, they must resolve this through a unanimous verdict. If the jury makes no verdict, the case should be held before a judge.

The court or jury should determine whether the respondent is a sexually violent predator when there is clear and convincing evidence to prove this. In the case of a prisoner, the court will direct the respondent to return to the Department of Corrections' custody. The Department of Corrections should hold the respondent until the scheduled release date.

In the case where the court finds out that a defendant is not a sexually violent predator, it orders a release or discharge of the defendant.

Once the court finds out that the respondent is a sexually violent predator, it shall decide whether to commit the defendant civilly or continue the trial for not less than forty-five days or more than 60 days. A decision to continue the trial for more than sixty days can be agreed on only after the participating parties show a reasonable cause towards the agreement.

When the court is making its decision, the following factors come into play:

  • The circumstances and nature of the sexually violent offense which the defendant was charged or convicted for. This includes the maturity and age of the victim.
  • The results were acquired from the actuarial test, which includes the likelihood of recidivism.
  • The results of prior diagnosis made on the respondent
  • The defendant's mental history, treatment for mental illness, participation in therapy and treatment, and prior hospitalization
  • The defendant's present medical condition
  • The defendant's disciplinary record and type of infractions committed when hospitalized or while under arrest
  • The defendant's possibility of employment and living arrangements if he or she was discharged on condition
  • The availability of adequate supervision and transport needed to ensure that the respondent participate in necessary treatment
  • Other factors that the court finds necessary

In case the court decides to continue with the trial, it should aim into receiving additional evidence and alternatives to the civil commitment supposed to subject the respondent to. The commissioner should submit a report to the court, Attorney General, and the respondent's counsel, suggesting possible commitment alternatives. The court will then convene again and receive alternatives to civilly committing a defendant.

While receiving the testimony, the court will consider the following:

  • The kind of treatment that the respondent needs
  • Whether there are less restrictive alternatives to the commitment that are deemed to be ideal
  • Whether the alternatives that exist will accommodate the needs like access to medication, location of a proposed residence, counseling or therapy, and availability of travel
  • Whether these alternatives will accommodate the need for regular physiological and psychological testing on the defendant. These tests also include sexual interest testing and penile plethysmograph testing.

When the court finds out that the criteria mentioned above are well-addressed by the proposed alternative sentencing, they will order the respondents to be returned to custody and processed for their conditional release. The court usually orders the defendant to be subjected to electronic monitoring or other similar devices as a release condition. The DBHDS should recommend a specific course of treatment and programs to be provided to the respondent. However, when the defendant is on parole or probation, the probation or parole office will monitor the respondent's compliance.

Find a Criminal Attorney Near Me

There are possibilities of having your loved one committed as a sexually violent predator if there is no adequate legal representation at the probable cause hearing and trial. That's why it is always recommendable to hire a criminal attorney specialized in sex crimes to help you or your loved one sail through this process.

At the Virginia Criminal Attorney, we are committed to ensuring that all our clients at risk of being civilly committed as sexually violent predators are well represented, and we'll do the same when it comes to your case. For more information, contact us at 703-718-5533 and schedule an appointment.