On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-208-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 17, 2008
Before Judges Fisher and C.L. Miniman.
W.W.P. appeals from an order of continued commitment to the Special Treatment Unit (STU) as a sexually violent predator (SVP) under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.
Defendant is a pedophile who sexually assaulted his six-year-old sister in 1984, when he was sixteen years old. He admitted that he raped her over a period of one-and-a-half years. His predicate offenses were multiple sexual assaults on his two half-brothers, ages seven and nine. He admitted to performing anal intercourse and fondling the buttocks of both boys and of forcing fellatio on his nine-year-old half-brother. W.W.P. was charged with two counts of aggravated sexual assault, sexual assault, and endangering the welfare of a child and was found guilty of aggravated sexual assault on October 5, 1993. W.W.P. was sentenced on April 7, 1994, to sixteen years at the Adult Diagnostic Treatment Center. Thereafter, W.W.P. was temporarily committed to the STU on October 31, 2001. A judgment of commitment was entered on November 16, 2001, and his commitment was continued by judgments entered on June 18, 2002, February 3, 2003, April 22, 2005, April 10, 2006, and March 21, 2007. His commitment was most recently continued by judgment of March 12, 2008, from which he now appeals.
This is the third time that W.W.P. has appealed judgments for continued commitment. First, W.W.P. appealed the judgment of February 2, 2003. In re Civil Commitment of W.W.P., No. A-3802-02 (App. Div. Dec. 1, 2004) (W.W.P. I). Second, W.W.P. appealed the judgment of April 10, 2006, and, in affirming this continued commitment, we summarized the evidence existing in the record as of that date, In re Civil Commitment of W.W.P., No. A-4352-05 (App. Div. Nov. 21, 2006) (W.W.P. II), and we incorporate that summary here, id., slip op. at 4-9.
In continuing his commitment on March 12, 2008, Judge Serena Perretti summarized the treatment records and expert opinions respecting W.W.P. The state's evidence was uncontradicted and the only witnesses to testify at this sixth annual review were Dr. Howard Gilman and Dr. Jamie Canatara.
Dr. Gilman diagnosed W.W.P. as having pedophilia, sexual attraction to boys and girls, nonexclusive type; sexual sadism by history; alcohol dependence in institutional remission; antisocial personality disorder; and borderline intellectual functioning. Dr. Gilman based these diagnoses on W.W.P.'s patent pedophilia and his self-reported history of sexual sadism. Dr. Gilman also based his diagnoses on W.W.P.'s history of antisocial personality disorder; of preying upon weaker men in institutional settings; of continued sexual acting out, most recently by possessing a pornographic DVD; and of borderline intellectual functioning. Dr. Gilman further based his diagnoses on the assessment of W.W.P.'s treaters that W.W.P. was stagnant in therapy and had only a superficial knowledge of relapse prevention techniques and offense cycle dynamics. Additionally, Dr. Gilman based his diagnoses on the assessment of the Treatment Progress Review Committee (TPRC), which concluded that W.W.P. had made little progress in treatment over the preceding year, despite good attendance and participation in group.
Dr. Gilman observed that overall W.W.P.'s treatment was seen as superficial and limited by the professionals on his team and Dr. Gilman stated that he agreed with this assessment. Dr. Gilman concluded that W.W.P.'s "denial of ongoing pedophilic arousal is worrisome in that it does not appear likely to be genuine, especially when contrasted with his ongoing predatory behavior toward others" in institutional settings.*fn1 Dr. Gilman concluded that W.W.P. was at high risk to sexually reoffend despite a Static-99 score that did not predict a high likelihood of reoffense. Dr. Gilman opined that the Static-99 score "may not be an accurate overall predictor of his sexual reoffense potential" in light of W.W.P.'s other behaviors and attitudes, including the minimization of the pedophilic nature of his sexual arousal. Dr. Gilman concluded that W.W.P. required continued civil commitment under the SVPA.
The judge found that W.W.P. "has not addressed all of his sexually violent predatory behavior toward underage children" because he would only discuss three victims with Dr. Gilman whereas in earlier questionnaires he had admitted to at least five victims prior to the assaults on his half-brothers and he had a history of sexual abuse of children from the time he was thirteen until he was twenty-three. The judge continued:
Dr. Gilman also pointed out that [W.W.P.] continues to express confusion as to his sexual identity. He has represented to the TPRC in the past that he is a homosexual. His current statement is to the effect that he masturbates to thoughts of his girlfriend. He also refers to his girlfriend in connection with his viewing of the pornographic DVD.
The court infers that [W.W.P.] is either confused as to his own sexual identification or, which is more likely, that [W.W.P.] is not candid ...