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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...