The Sex Offender Act, N.J.S.A. 2C:47-1 to -7, permits a sentencing judge to order a convicted sex offender to serve his sentence at the adult diagnostic and treatment center in Avenel where he will receive intensive psychological treatment and therapy, rather than to be placed in the general prison population, if a psychological "examination reveals that the offender's conduct was characterized by a pattern of repetitive, compulsive behavior" of a criminal nature. N.J.S.A. 2C:47-3a.
The issue in this case is whether a single act of fellatio committed by a 28-year-old defendant upon a 15-year-old boy and subsequent fantasies about the boy by defendant constitutes a "pattern of repetitive, compulsive behavior" of a criminal nature? We hold it does. The statute does not define "repetitive, compulsive behavior" and no case has ever addressed the issue.
Defendant asserts that a single criminal sexual act as a matter of law cannot constitute "repetitive, compulsive behavior," no matter what thoughts or fantasies he had thereafter. He submits that there must be, at the very least, a second criminal sexual act, albeit not necessarily a conviction, before his conduct may be described as repetitive. Moreover, he contends that since he successfully resisted the subsequent fantasies and did not have further criminal sexual contact, his sexual proclivities, whatever they may be, cannot be described as compulsive.
The State argues that the purpose of the act is not only to provide treatment for convicted sex offenders but, equally important, to protect society from further criminal sexual assaults
when the offender is released. It asserts that a single criminal sexual act and subsequent sexual fantasies can constitute evidence of repetitive, compulsive behavior of a criminal nature which may require specialized medical treatment before the offender can safely return to live in the community and that this is such a case.
The Sex Offender Act was adopted in 1950 following a detailed report submitted by a legislative commission, "The Habitual Sex Offender: Report and Recommendations of the [New Jersey] Commission on the Habitual Sex Offender," (February 1, 1950) which recognized that there will be "a very serious hazard either from a legal or medical point of view" in establishing who shall be subject to the act because we are dealing with persons whose "emotions are abnormally strong or . . . volitional capabilities are subnormally weak," id. at ch. 5, par. 2, but concluded that given "the threat to public security" from persons who have "demonstrated some sexual psychopathy" and "the possibility that methods of effective treatment for them may be worked out" it is far better to treat such persons as a clinical problem rather than warehouse them as a correctional problem. Id. at ch. 4, par. 8.
There are several reasons why a sex offender would prefer to be committed to the general prison population rather than go to Avenel. First, in the view of some there is a greater stigma if one is committed to Avenel as a sex offender, rather than being placed in the general prison population. Moreover, criminals in the general prison population can compute with greater certainty their parole date which more probably will be at an earlier date than if committed to Avenel. If committed to the general prison population parole eligibility is about one-third of the maximum sentence. See N.J.S.A. 30:4-123.51 and N.J.A.C. 10A:71-3.2(c)2. However, if committed to Avenuel, parole will not be granted until:
it shall appear to the satisfaction of the State Parole Board, after recommendation by a Special Classification Review Board appointed by the Commissioner
that such person is capable of making an acceptable social adjustment in the community. N.J.S.A. 2C:47-5.
And, of course, that determination will depend upon the success of the treatment process and the efforts of the patient himself. See State v. Howard, 110 N.J. 113, 125 (1988) (requiring that when a sex offender enters a plea of guilty he must be informed that he may have to serve his sentence at Avenel where the "period of ...