The civil commitment of sexually violent predators (SVP) remains controversial within the practice of forensic psychiatry and psychology. Despite this controversy, states across the United States continue to enact statutes calling for the civil commitment of those individuals who have a history of sexual offenses who also suffer from mental or behavioral abnormalities. With the exception of Texas, all of the state statutes call for inpatient commitment in secure facilities. Texas, on the other hand, has an outpatient commitment model.
There are currently fifteen states with some form of statute allowing for the civil commitment of sexual predators. The first modern statute to be challenged at the United States Supreme Court was from Kansas, and resulted in the landmark case of Kansas v. Hendricks , 117 S. Ct. 2072 (1997). The court in that case ruled that such statutes are constitutional despite the double jeopardy and equal protection arguments made by the civilly committed predator, Mr. Hendricks, in that case.
In May 1999, the Texas Legislature passed its version of an SVP statute. Texas Health and Safety Code, Sec. 841 (Vernon, 1999) The Legislature opted to enact such legislation in Texas noting: ".a small but extremely dangerous group of sexually violent predators exists and . those predators have a behavioral abnormality that is not amenable to traditional mental illness treatment modalities and that makes the predators likely to engage in predatory acts of sexual violence."
While there are many in the psychiatric community who disagree with the logic of the Legislature when deciding to enact this legislation, the Texas Legislature decided to follow similar language found in the statues of the other states with civil commitment of sexually violent predators.
In Texas, a petition can be filed for the commitment of sexually violent predators after two levels of review. The first step calls for a review by a group of people known as the Multi-Disciplinary Team. The Multi-Disciplinary Team is appointed jointly by the Executive Director of the Texas Department of Criminal Justice and the Commissioner of the Texas Department of Mental Health and Mental Retardation to review the record of the person being considered for commitment.
The Multi-Disciplinary Team makes a decision to either refer the potential subject of commitment for an assessment to determine whether the person suffers from a behavioral abnormality or to not refer the individual for assessment. The law requires that the assessment for the behavioral abnormality determine "whether the person suffers form a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence."
The expert providing the assessment is guided by definitions contained within the Texas Law. The term "behavioral abnormality" is defined as "a congenital or acquired condition that, by affecting a person's emotional or violent capacity, predisposes the person to commit a sexually violent offense to the extent that the person becomes a menace to the health and safety of another person."
Either a psychologist or psychiatrist conducts this assessment for behavioral abnormality as mandated by the statute. Most examiners conduct a clinical interview, if possible, review relevant records from the person's incarceration and psychological / psychiatric history and perform various risk assessments. Typically, these include the PCL-R, STATIC-99 and MnSOST-R. Prison records generally include a Personality Assessment Inventory (PAI). Based on the information obtained, a written report is generated which also includes factors which weigh against recidivism, i.e. protective factors. While this is the format for a typical assessment, the statute does not specify any given approach to the assessment and each expert is free to pursue any format.
The attorney representing the State may then decide to file a petition requiring the civil commitment of the person. The case then proceeds to trial or settlement. The State must prove its case beyond a reasonable doubt and there must be a unanimous verdict for commitment of the person as a sexually violent predator.
At trial, prosecution and defense often use experts in addition to the expert who performed the initial evaluation for behavioral abnormality. Since Article I, Section 15(a) of The Texas Constitution requires a medical doctor's opinion before there can be a commitment - and it has been unclear about whether this applies to civil commitment of sexually violent predators - both sides involved have been involving psychiatrists perhaps more than other states with these laws.
If committed as a sexually violent predator, the individual must comply with treatment and other requirements as specified by the Texas Council on Sex Offender Treatment. The statute allows for criminal prosecution of those predators who fail to comply with the requirements placed upon them. The unique part of the Texas Statute is that it allows reintegration into the community. In this sense, the Texas Statute is at the forefront of this area of the law nationally, and provides another option for those states considering the enactment of civil commitment of sexually violent predators.
Although there is some controversy concerning forensic psychiatrists and psychologists being involved in the assessments of sexually violent predators, a complete evaluation employing all of the current research and available techniques is vital to provide a complete picture to the trier of fact. Avoiding consulting and testifying in sexually violent predator commitment cases is unlikely to stop the passage of new statutes or the further commitment of sexually violent predators. Instead, the forensic psychiatrist can focus on providing such opinions in the most reasonably balanced manner possible.
Texas, by using the least restrictive alternative of outpatient treatment is able to provide civil commitment at a greatly diminished cost. Also, there is no evidence that this program has taken funding form traditional mental health programs.
Although neither the United States nor the Texas Supreme Court has yet reviewed the statute, the trial court in Texas has ruled that the statute is constitutional. Controversy among forensic psychologists and psychiatrist concerning these commitments continues; however, empirically guided clinical assessment when performed by qualified professionals can meet the ethical guidelines of the profession and be of relevance to judges and juries as well.