Violence, including any form of sexual violence, is generally regulated through criminal prosecutions, convictions, and punishments. However, sexual offender civil commitment statutes have changed over the years, forcing some violent sex offenders to undergo compulsory rehabilitation in secured institutions after they have completed their criminal sentence.

After a risk evaluation, sexual offenders who are found likely to commit the offenses again are subjected to trial before a judge or jury, during which proof of their dangerous behavior is submitted. If they satisfy the constitutional requirements for civil commitment, they're held and assessed annually till they're no longer regarded as a threat to the public.

Sexually violent predator statutes aim to deter sexual victimization from happening again by immobilizing potentially dangerous and aggressive sexual offenders. Although this is widely known that some sex offenders are violent and probable to commit more crimes, the efficacy of civil commitment in deterring reoffending is still yet to be objectively established.

Unfortunately, innocent people could also find themselves in situations where they risk facing civil commitment procedures. If you have been accused of a sex crime, you ought to seek legal advice as soon as possible. At the Virginia Criminal Attorney, we provide the best legal representation to people who risk being civilly committed as sexually violent predators, ensuring that their integrity and constitutional rights are protected. We serve throughout Fairfax and Northern Virginia.

Virginia Code Section 37.2-910 - Review of Continuation of Secure Inpatient Treatment Hearing

Civil commitment refers to the state's involuntary commitment of an individual proven to be a Sexual Violent Predator to a mental health institution after they've served their jail sentence.

Sexually aggressive predators, as per state legislative studies, have behavioral anomalies that make them unsuitable for "conventional mental illness rehabilitation approaches." As a result, unlike psychologically ill people who are served by current involuntary commitment processes, violent sexual predators require a special commitment process to handle both their long-term rehabilitation needs and the significant risks they present to the public.

All jurisdictions with involuntary commitment systems offer treatment to people who have been imprisoned as sexually violent predators. Among the core elements of civil commitment is the idea that sex offenders can be rehabilitated; because if they can't, a growing proportion of civilly confined sexual predators will probably never be freed.

The state plans an autonomous system of imprisonment with specific treatment techniques since "the prospects for treating sexually violent offenders inside a prison context is poor." Many state statutes define treatment as a "privilege" of the committed offenders or a state obligation.

Rehabilitation of sexually violent predators is important to the state's statutory structure because it symbolizes the completion of commitment.

In Virginia, committed persons are subjected to yearly or biennial assessments under Virginia Code Section 37.2-910. Since the state government cannot civilly hold people "without a judgment in civil commitment hearings of present mental instability and dangerousness," these evaluations are critical to the legitimacy of the commitment procedure.

Before we can look at the procedures in Virginia Code Section 37.2-910, we need to understand the history of civil commitment laws as well as the commitment process.

The History of Civil Commitment of Sexually Violent Predators

The civil commitment of SVPs has been an element of the legal system since 1880. During that time, the New Hampshire Supreme Court defined the common practice of civil commitment along these lines: "It is legal to detain and imprison any individual incapable of managing his behavior, whose presence at large jeopardizes the security of others."

The length of a civilly committed offender's imprisonment is determined solely by his persistent dangerousness and illness. Since then, the US Supreme Court has sustained civil commitment provided it is "conducted under proper protocols and evidence criteria."

Civil commitment could be applied to anyone whose mental condition endangers the safety of the public. However, specific sex offenders could be civilly committed too. States passed legislation in the 1930s to move "sex psychopaths or offenders" from the criminal justice systems to the mental healthcare system, resulting in the involuntary commitment of sexual predators.

During that time, society understood that sexual predators commit felonies, but their obsessive, repetitive, and driven behavior reveals a mental disorder that could be best addressed by the mental health institutions. These initial sex predator civil commitment rules allowed for institutionalization rather than imprisonment for sex offenders. These laws went into decline until there was an increase in the number of confirmed sexual crimes in the country.

For instance, the FBI stated in 1990 that rape cases were increasing four times quicker than any other offense and that although 683,000 rape cases were documented, the exact number of rape crimes perpetrated was thought to be above two million. According to the National Victim Center, 61 percent of the 12 million females who reported being sexually assaulted were below 18 years and 30 percent of them were below 11 years.

These figures prompted several states to pass legislation known as Sexually Violent Predator Commitments, which aims to find high-risk offenders about to be discharged from their criminal imprisonment and who are capable of committing sexually violent crimes again in the foreseeable future and offer treatment in a secured environment.

These statutes differ from prior civil commitment provisions in that they allow for institutionalization along with a prison sentence, addressing both community safety and sexual predator treatment concerns.

In a broad sense, these laws define an SVP as an offender who has been found guilty of a sexually aggressive crime and still finds it hard to regulate his or her predatory behavior due to a mental anomaly or personality abnormality, making him or her more likely to perpetrate sexually violent actions and requiring the perpetrator to continue to stay in rehabilitation until he/she is no longer probable to perpetrate any sexual violent acts.

How Virginia’s Sexually Violent Predator Laws and Processes Work

Virginia calls for the obligatory civil commitment of Sexually Violent Predators. As we have seen before, an SVP is defined in Virginia Code 37.2–900 as someone:

  • Found guilty of a sexually violent crime, or has been indicted of a sexually violent crime and is unfit to stand trial
  • Due to mental disease or personality problem, he or she has trouble controlling his or her predatory nature, making him or her more prone to commit sexually aggressive acts

This article of the Code defines "sexually violent crime" in detail.

  • A felony charge of:
  1. Rape under Former Section 18.1-44 or 18-54
  2. Rape under Section 18.2-67.1 (Rape)
  3. Forcible sodomy under Section 18.2-61
  4. Sexual penetration with an object under Section 18.2-67.2
  • A charge under Section 18.2-67.3 (Aggravated sexual battery) in which the victim is below 13 years
  • A felony charge under Virginia laws for a violent sexual crime occurring before the 1st of July 1981, with the criminal conduct described in:
  1. Forcible sodomy under Section 18.2-67.1
  2. Object Sexual Penetration under sections 18.2-67.2 
  3. Aggravated sexual battery under sections 18.2-67.3 in which the victim is under the age of 13

The Evaluation of Offenders Eligible For Civil Commitment

Virginia has implemented a verification and evaluation process for determining who may be designated as a Sexually Violent Predator. To begin, the Director of the Department of Corrections (DOC) has created a registry of inmates under his supervision that is either detained for sexually violent crimes or who face consecutive or successive sentences for other charges while serving a sentence for a sexually violent crime.

These individuals are subsequently subjected to the Rapid Risk Assessment for Sexual Offender Recidivism (RRASOR) by the Department of Corrections. The RRASOR is an analytic tool for predicting recidivism among sexual offenders.

In reaching its prediction, it takes into account four factors:

  • The frequency of sex crimes committed in the past
  • The age of the perpetrator at the time of the assessment
  • The gender of the victims
  • The familial relationship between the offender and his or her victim

The RRASOR assigns a value from 0 to 5, with the accompanying recidivism probability spanning from 6.5% to 73.1 percent over ten years. The RRASOR was created as an instrument to assess perpetrators into comparative risk categories, not as a thorough evaluation of all elements essential to the prognosis of reoffending for the sexual offenders.

The DOC performs monthly inspections of its sexual predator registry to identify offenders with an RRASOR or similar instrument rating of four or higher who are due to be released in 10 months. The DOC subsequently sends the names of these offenders, as well as a duplicate of their files as well as their projected release dates, to the Commitment Review Committee (CRC) for evaluation.

The CRC was founded by the Director of the Department of Corrections to screen, analyze, and offer recommendations on individuals in DOC care who may be prospects for the SVP status.

The CRC gets ninety days to conduct the assessment, which covers the following:

  • Personal interview and mental health examination
  • The RRASOR or a similar instrument rating is taken into account
  • An assessment of:
  1. The inmate's institutional background and rehabilitation history
  2. The criminal history of the inmate, as well as
  3. Other important considerations

After the evaluation, the CRC will propose to the Virginia Attorney General's Office (OAG) that the inmate:

  • Be placed as a Sexually Violent Predator in the Virginia Center for Behavioral Rehabilitation (VCBR)
  • As a rather restrictive option, be enrolled in a conditional release plan, or
  • Since he or she does not fit the criteria of a Sexually Violent Predator, he or she should not be committed

The CRC may suggest that the defendant be placed on a conditional release program when it discovers the following:

  • While the offender does not require inpatient care, he or she does require outpatient care and supervision to keep his or her condition from worsening.
  • Sufficient outpatient monitoring and rehabilitation are easily accessible
  • There's reason to expect that the defendant will abide by the terms of his or her sentencing; and
  • There will be no undue threat to public welfare as a result of conditional release

The Civil Placement of Committed Defendants

The OAG gets 90 days after receiving the CRC referral to evaluate the recommended inmate or offender and submit a request to the circuit court for the involuntary commitment of this offender as a Sexually Violent Predator.

Additionally, the OAG can inform the Director of the Department of Corrections as well as the Commissioner of the Department of Mental Health, Mental Retardation, and Substance Abuse Services (DMHMRSAS) that no request for commitment would be submitted.

The OAG is entitled to hold, duplicate, and use prosecution findings, post-sentence reviews, and victim impact testimonies for any legitimate reason in reaching its decision.

Furthermore, the OAG must consider the following factors while deciding whether to civilly commit an inmate:

  • CRC's findings and recommendations.
  • The findings from a mental health examination completed by a DMHMRSAS-designated licensed psychiatrist or a clinical psychologist.
  • The offender's institutional as well as treatment background.
  • The prisoner's criminal background.
  • Other important considerations; and.
  • Any psychiatric evaluation ordered by the court.

The circuit court will hold a hearing once the petition is filed to assess if there is probable cause to conclude the named offender is a Sexually Violent Predator. If no probable cause is found, the motion will be rejected, and the defendant will be transferred to the Department of Corrections until his or her planned release date.

When the court concludes that there is probable cause, the court must hold a trial within ninety days of the probable cause proceeding.

The defendant is entitled to the following constitutional rights throughout the procedure:

  • Legal representation.
  • Be given sufficient notice of the proceedings.
  • Stay silent or present their testimony.
  • Attend the hearings or trial in person.
  • Submit evidence and question witnesses in cross-examination.
  • Go through the court files and record all motions and findings.
  • Expert assistance; and.
  • A jury trial to determine whether the defendant is a Sexually Violent Predator based on clear and compelling evidence.

When the jury or court does not rule that the defendant is an SVP by strong and compelling proof, the court will remit the defendant to DOC supervision until his or her release date. When a judge or jury determines that an individual is an SVP based on clear and compelling proof, the court will decide whether the individual should be completely committed or put on conditional discharge.

When the court concludes that total commitment is not necessary, a proceeding on alternatives will be held. The court will grant conditional release when it determines that the committed defendant meets the following criteria:

  • The defendant does not require inpatient treatment, but he or she does require outpatient services or monitoring to keep his or her illness from worsening.
  • There is a reasonable amount of outpatient monitoring and treatment provided.
  • There is good cause to assume that the committed defendant will follow the rules.
  • There will be no undue threat to public security as a result of conditional release.

When the defendant satisfies the conditions for conditional release, the court could impose outpatient care, day/night hospitalization, or outpatient mandatory antipsychotic drug treatment, among other options.

When the court determines that alternative options to civil commitment and rehabilitation have been probed and considered unfit, and there's no less constrictive option to institutional detainment and rehabilitation, the court shall officially confirm and request that the d be defendant be placed in the DMHMRSAS custody by court notice as well as specific conclusions drawn.

A civilly committed Sexually Violent Predator will continue to stay in the care of the DMHMRSAS till his or her mental condition or personality issue has improved to the point where he or she no longer poses an unreasonable threat to the public.

Virginia Code 37.2-910 - Recommitment Hearing Procedures and Disposition

The committing court must hold a session 12 months following the first date of commitment to determine whether inpatient treatment is still necessary. Hearings on recommitment are conducted yearly for the initial five years, then biennially after that.

Rehearings could be held annually or biennially, with the defendant participating by video. Irrespective of whether the defendant agreed to cooperate with the state government doctor in the VCBR, the Defendant's second opinion physician can offer up a review to the judge and give testimony at these court proceedings. However, he or she has a strong motivation to cooperate because they "have him or her" and refusing to cooperate is not likely to help his or her situation.

There will be a variety of reports produced at the VCBR. The reports comprise quarterly progress accounts, release schedules, observation statements, records from sessions participated, and so forth. Before the yearly (and subsequently biennial) assessment hearings, these, along with the yearly reports from the VCBR as well as your second opinion physician, should be evaluated. Preparations for a potential conditional discharge report will be made by your lawyer again.

The Commissioner of DMHMRSAS must present the judge with a review reassessing the committed defendant's condition and suggesting treatment before the hearings. The Commonwealth has the burden of proof during this session to show that the individual is still a Sexual Violent Predator through clear and compelling evidence.

Obtaining Conditional Release

The court has the option of granting conditional discharge to the society during the first SVP hearing or a later recommitment. When the court authorizes it, a conditional discharge report is written, thereby "trifurcating" the processes into three stages:

  • Has the defendant been found to be an SVP (or will he or she remain so during a recommitment)?
  • Secondly, should a conditional discharge plan be issued for the court's evaluation?
  • If that's the case, should the judge allow the conditional discharge plan, allowing the defendant to be discharged into society?

To achieve conditional discharge, a viable housing plan is necessary, and the Defendant's relatives and/or prospective housemates will be subject to intensive examination in the guise of questions like:

  • Who are the residents of that house? (No minors in the home)
  • Is there going to be a separate room for the defendant?
  • What are the ages of the people in the house?
  • Do children come to visit or stay the night? If that's the case, the court needs to know their gender and ages
  • What kind of dwelling? is (is it owned or leased. apartment, etcetera)
  • What kind of neighborhood will the defendant live in? (not near low-income housing or in a high-crime neighborhood)
  • Are there any nearby schools, daycare facilities, nursing homes, or parks?
  • Who comes to the house regularly, do they stay the night, and what are their sexes and ages?
  • Status of employment or income
  • Sufficient phone service (landline/cell) to allow GPS tracking
  • Are there computers in the house, and if so, will the defendant be able to use them?
  • Are there any firearms or other weaponry in the house?
  • Are there any children's objects in the house or yard?
  • Do the residents of the residence realize they won't be able to celebrate Halloween again?

Since the judge makes the final decision, issues with any or several of these criteria are not inherently disqualifying. However, if there are too many issues, the court is less inclined to approve the proposal. If the defendant is granted a conditional discharge, he or she will be placed on an intensive form of probation (contracted via the Virginia Department of Corrections) with very stringent terms, such as GPS, additional polygraphs, as well as other types of outpatient services.

If he or she violates any of the conditions, he or she could face an Emergency Custody Order (ECO), which would lead to another hearing, putting him or her in jail till the matter is heard, and possibly putting him or her back in the VCBR.

If he or she does not breach the conditions, they will still be subjected to regular assessments (at least once every six months), although there won't be automatic periodic hearings for those who are on conditional discharge.

Petition For Conditional Release After the Recommitment Hearings

The Commissioner of the DBHDS could submit a plea for a defendant's conditional discharge at any moment, and the defendant could do so every year during the periods when no recommitment hearings are required.

The court can revise SVP requirements, eliminate them, or perhaps even allow the defendant to be discharged from SVP designation when the court accepts the petition. The defendant, on the other hand, can only do so after 6 months of their conditional release, and then only once a year after that.

Find a Criminal Defense Attorney Near Me

At the Virginia Criminal Attorney, we are dedicated to making sure that our clients facing civil charges as sexually violent predators are vigorously defended, and we will do the same for you. Call us at 703-718-5533 to set up an appointment with our attorneys. We serve Fairfax and the Northern Virginia area.