May 1, 2007
IN THE MATTER OF THE CIVIL COMMITMENT OF L.G. SVP-78-00
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-78-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 18, 2007
Before Judges Cuff and Baxter.
L.G. appeals from the May 22, 2006 order continuing his commitment to the Special Treatment Unit (STU) as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. L.G. was initially committed to the STU on May 22, 2000. L.G.'s commitment has been reviewed and continued on five prior occasions.
The predicate offenses are two convictions for aggravated sexual assault, in violation of N.J.S.A. 2C:14-2(a)(1), and one conviction for sexual assault, in violation of N.J.S.A. 2C:14-2(b), resulting from a 1997 guilty plea. The three female victims ranged in age from three to twelve, and all were the granddaughters of L.G.'s girlfriend. The fourth victim was a nine-year-old male whom L.G. met when he was painting the victim's parents' home.
The May 18, 2000 petition for commitment as a sexually violent predator described the offenses pertaining to each victim. As to the first victim, A.A., L.G. committed vaginal penetration when A.A. was between the ages of nine and twelve. On one occasion, after A.A. attempted to push him away, L.G. called her a "fat pig" and "fatso" and then pushed his fist toward her mouth and teeth at the same time as he pushed her head down on the bed. When A.A.'s lip began to bleed, L.G. sucked the blood from her lip. He threatened to kill her grandmother if she told anyone what he had done. L.G. anally penetrated the second victim, M.L., when she was eight-years old, and in another incident forced her to perform fellatio. The third victim, J.L., was three-years old when L.G. grabbed and squeezed her vagina. The fourth victim, M.D., was nine-years old when L.G. pulled his bathing suit down and put M.D.'s penis in his mouth on five occasions over a period of two weeks. As a result of this conduct, L.G. was sentenced on May 9, 1997, to a term of six years imprisonment at the Adult Diagnostic and Treatment Center (ADTC) at Avenel, and was committed to the STU upon his release from Avenel.
An involuntary civil commitment can follow service of a sentence, or other criminal disposition, when the offender "suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment." N.J.S.A. 30:4-27.26. "[T]he State must prove [a] threat [to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts] by demonstrating that the individual has serious difficulty in controlling sexually harmful behavior such that it is highly likely that he or she will not control his or her sexually violent behavior and will reoffend." In re Commitment of W.Z., 173 N.J. 109, 132 (2002). The court must address "his or her present serious difficulty with control over dangerous sexual behavior," and the State must establish by clear and convincing evidence that it is highly likely that the person will re-offend. Id. at 133-34. See also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 607-08 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
Since commitment at the STU, L.G. has carried the following diagnoses: pedophilia (sexually attracted to boys and girls), polysubstance dependence in institutional remission, chronic post-traumatic stress disorder in substantial remission and rule out antisocial personality disorder.
In May 2006, Dr. Vivian Shnaidman, a psychiatrist, reported that the Static-99 measure was Moderate. At this level, L.G. is considered at a "low-risk of sexual reconviction." She observed that "if [L.G.] was now being screened for civil commitment, he would most likely not meet the criteria for initial referral." Despite those conclusions, Dr. Shnaidman opined that although L.G. has "accomplished much in sex-offender-specific treatment, [i]t is unclear . . . whether [L.G.] has addressed his sexual deviance in a systematic and meaningful way." Her May 18, 2006 report concluded that although L.G. had benefited from the treatment being provided at the STU, she saw "no evidence to convince [her] that he has benefited from treatment to such a degree that he is no longer highly likely to commit further acts of sexual violence if not in a supervised setting. . . . [L.G.] requires continued confinement to the Special Treatment Unit until such time that his re-offense risks can be reliably mitigated by supervised discharge."
At the May 22, 2006 hearing, Dr. Shnaidman testified that L.G.'s anti-social personality disorder, chronic alcohol abuse, history of pedophilia, and unwillingness to fully participate in therapy groups combined to predispose him to sexually reoffend. In particular, Dr. Shnaidman focused on L.G.'s antisocial personality disorder, defining it as "not caring about the rights of other people, and if you don't care about the rights of other people and you have deviant impulse, it's easy to act on that impulse because you don't really care what happens to the victim." Shnaidman also opined that L.G.'s substance abuse created an increased risk of reoffending because alcohol is a "disinhibitor" that "takes off the social control that most people have[,] . . . allow[ing] the underlying deviance to express itself."
She concluded that L.G. "suffers from a mental abnormality or personality disorder that affects him emotionally, cognitively and volitionally that predisposes him to sexual violence," stating that although he demonstrates "some understanding" of why he committed offenses in the past, that understanding is not sufficient to reduce his risk to an acceptable level.
The Treatment Progress Review Committee (TPRC) Annual Review Report was introduced in evidence. The TPRC recommended that L.G. continue at Phase 3 of treatment, an intermediate stage in the five-stage treatment progression. Its report explains that L.G.'s Static-99 score "corresponds with about a ten percent likelihood for being re-convicted of a new sexual offense within five years post-incarceration, a fourteen percent likelihood within ten years post-incarceration, and an eighteen percent likelihood for being re-convicted of a new sexual offense within sixteen years post-relief from incarceration."
The TPRC also discussed the results of a polygraph examination in which L.G. was asked a series of three questions involving licking blood from A.A.'s lip, threatening her and punching her. The results of the polygraph examination showed deception on L.G.'s part, causing the TPRC to conclude that L.G. presented an increased risk of reoffending. L.G. refused to submit to a repeat administration of the polygraph, from which the TPRC concluded that "mov[ing] beyond this impasse is essential for his progression in treatment."
The TPRC also observed that L.G.'s failure to have produced the required written sex offense report and autobiography constituted an obstacle to L.G.'s ability to progress in his sex offender treatment. The TPRC, although noting L.G.'s positive attitude, opined that L.G. needed to gain a better understanding of "his cognitive and behavioral dynamics involved in [his behavior] post and prior to the sexual assault cycle," and needed to "further delineate the planning and grooming aspects of his offense cycle."
Finally, the TPRC expressed particular concern about the reliability of L.G.'s denial of a deviant arousal pattern with children. In particular, its members noted that although L.G. denied "being aroused to children," he was unable to articulate how that change had occurred except for explaining that he now understands his behavior was wrong. The TPRC concluded that in light of records reporting that L.G. "was more aroused by his girlfriend's daughter than his girlfriend, it is unlikely that this arousal would disappear."
In her ruling, Judge Perretti concluded that L.G. demonstrates an insufficient understanding of his deviant sexual arousal. She found that L.G. is not in "complete compliance with the therapy [at the STU] and this is an impediment to his progressing" from Phase 3. The judge accepted Dr. Shnaidman's opinion that although L.G. has benefited from the treatment being provided at the STU, he has not benefited to such a degree that he is no longer highly likely to commit further acts of sexual violence if released. Ultimately, Judge Perretti found that the State had proven by clear and convincing evidence that L.G. has a mental abnormality that "predispose[s him] to commit sexually-violent acts. He has demonstrated a serious difficulty in controlling his sex offending behavior. . . . As a result of his lack of control, he is currently highly likely to reoffend."
On appeal, L.G. argues that the record does not support the finding that he is likely to reoffend. Moreover, he contends that he does not require placement in the restrictive environment of the STU, and requests that we remand for preparation of a discharge plan. He argues that the judge did not give sufficient weight to the "treatment effect" L.G. has demonstrated. The State responds that although L.G. has made considerable progress in his treatment, he has not improved to the point where discharge would be warranted.
Our scope of review is "extremely narrow," and we must defer to the trial judge's determination unless the record "reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 311 (1978)). See also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003).
Measured by this standard, the May 22, 2006 order must be affirmed. The current psychiatric opinions, polygraph results and L.G.'s failure to progress beyond Phase 3 amply support the trial judge's findings and satisfy the State's heavy burden of proof that L.G. continues to qualify as a sexually violent predator and should remain subject to involuntary civil commitment.
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