Uncertainty in NY on Confining Sex Offenders

     ALBANY, N.Y. (CN) – A New York judge who vacated his decision to detain a dangerous sex offender after prison misapplied precedent, a state appeals court ruled.
     “As the evidence otherwise supports the finding that respondent is a dangerous sex offender requiring civil confinement, and the interests of justice plainly do not support granting the motion to vacate, Supreme Court abused its discretion in doing so,” the Appellate Division’s Third Department in Albany ruled Thursday.
     The opinion identifies the respondent as Richard TT, saying he began showing “sexually inappropriate behavior” at age 12, when a court adjudicated him a juvenile delinquent for attempting to anally rape two children, ages 5 and 8.
     As a juvenile, Richard TT also allegedly victimized his sister, stepsister, two cousins and two other children.
     He went to prison for three years after pleading guilty at age 19 to rape and sexual misconduct for having sex with two underage girls.
     As Richard TT’s release neared in 2010, the state went to court to have the man civilly confined as a dangerous sex offender.
     New York’s Sex Offender Management and Treatment Act of 2007 amended sections of the mental-hygiene law to permit continued treatment in a secure facility for certain sex offenders who have served their prison sentences but are judged by the courts as still dangerous to society.
     A sex offender must suffer from a “mental abnormality” to qualify for civil confinement, but New York’s high court, the Court of Appeals, ruled last year that a diagnosis of antisocial personality disorder is not enough to meet this threshold.
     As the high court handed down this decision for an offender named Donald DD in October 2014, Richard TT was appealing the Warren County Supreme Court’s finding that he was a dangerous sex offender with a mental abnormality who required confinement.
     Richard TT then moved to vacate the confinement order, arguing that while he may suffer from various psychiatric disorders, including antisocial personality disorder, none of them rose to the level of a mental abnormality.
     New York appealed after Judge David Krogmann vacated the order earlier this year. Thursday’s reversal says the lower court “expressed its continued belief that respondent suffered from a mental abnormality,” but felt that the new Donald DD precedent “required a different conclusion.”
     A three-person majority of the appeals court agreed with New York on Thursday that Donald DD “did not compel the conclusion that respondent did not suffer from a mental abnormality.”
     Prosecutors made the required showing “by clear and convincing evidence” that Richard TT suffered from a mental abnormality that predisposed him to commit sex offenses that he lacks the ability to control, Justice Eugene Devine wrote for the majority.
     Devine noted that the psychologists called by the state and Richard TT both agreed that he suffered from antisocial personality disorder and borderline personality disorder, which “result in emotional reactivity, aggressiveness and impulsivity.”
     While neither disorder results “in a predilection to commit sex offenses,” they can combine with other traits to “create a toxic mix” that left Richard TT feeling “entitled to sex regardless of impact, but have also impelled him to satisfy those desires,” Devine wrote.
     “The trial evidence therefore reflected that respondent has a variety of disorders that can lead not only to a generalized willingness to commit crimes, but impulsive sexual behavior in particular,” the ruling continues.
     Richard TT’s failure to complete sex-offender treatment in prison also suggests “that he has not brought his urges under control, recognized them as destructive, or developed any meaningful strategies for dealing with them,” Devine wrote.
     Justice John Egan Jr. and Presiding Justice Karen Peters concurred. Peters vouched in after the four-judge panel that heard oral arguments split 2-2.
     Justices William McCarthy and Michael Lynch dissented, contending there was insufficient evidence that Richard TT suffered from a mental abnormality.
     “Specifically, neither expert witness diagnosed respondent with an ‘independent mental abnormality diagnosis’ because none of the conditions, diseases or disorders that were attributed to respondent bear a ‘necessary relationship to a difficulty in controlling one’s sexual behavior,'” McCarthy wrote, citing Donald DD.
     Without a finding that Richard TT had a condition that made it difficult for him to control his sexual behavior, no mental abnormality could be said to exist within the meaning of mental hygiene law, making civil confinement improper, McCarthy said.

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