December 17, 2008
IN THE MATTER OF THE CIVIL COMMITMENT OF R.G. SVP-462-07
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-462-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 8, 2008
Before Reisner and Sapp-Peterson.
R.G. appeals from a June 30, 2008 order committing him to the Special Treatment Unit (STU), with a future review date of May 20, 2009, pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm, substantially for the reasons stated by Judge Freedman in his forty-page oral opinion placed on the record on June 23, 2008.
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 that 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," and the State must establish that it is highly likely that the committee will reoffend by clear and convincing evidence. Id. at 132-34. See also In the Matter of the Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). After thoroughly reviewing the record, we are satisfied that the State has met its burden in this case.
R.G. has a lengthy history of violent sexual assaults on women, including nine convictions plus at least six additional rapes, which he admitted to therapists, for which he was not apprehended. Some of his sexual assaults were characterized by beating or biting the victims. He also admitted to sexually brutalizing his wife during their five-year marriage, and he admitted trying to rape his sister when he was eighteen. He also has a history of alcoholism. In 1977, while on parole for a sexual assault, he raped a woman and threatened to kill her. He was convicted of rape and assault with intent to rape in 1978 and was sentenced to thirty years in prison.
While in prison, in 2004, R.G. attempted extortion and blackmail by claiming that he knew the location of several barrels of cyanide and forty cases of dynamite and offered to reveal the location in exchange for $767,000 and release from prison. In 2006, he was disciplined for threatening bodily harm.
At the end of his sentence in 2007, the State moved to have R.G. civilly committed pursuant to the SVPA. He was temporarily committed in November 2007. After a plenary review hearing, Judge Freedman entered the June 30, 2008 commitment order which gave rise to this appeal.
At the hearing before Judge Freedman, the State presented testimony from Dr. Pogos Voskanian, a psychiatrist, who reviewed R.G.'s institutional records and interviewed him. According to Dr. Voskanian, R.G.'s history showed many victims and "poor response" to treatment, in the sense that he would do well while incarcerated and then commit more offenses when released. During his interview, R.G. described the predicate 1977 offense as "pretty much . . . consensual sex," thus showing that even after years of treatment R.G. still did not "accept the crime." Dr. Voskanian also testified that R.G. still had not sufficiently addressed the "anger at women" which was the underlying factor in the commission of the rapes. He also viewed the extortion attempt as a manifestation of the way R.G. would typically behave when he did not get what he wanted.
Dr. Voskanian testified that while R.G. was intelligent and could "appear motivated" but still had not made real progress. He recalled during the interview that R.G. made a joke about the way he accomplished his rapes by simulating sticking a gun in the victims' backs.
[H]e giggled like it's a joke . . . . No empathy. To him it's a joke, you know, just scare somebody, rape, go ahead. It's the same scenario, same state of mind that remains the way he presented it and imitated it, actually. And it was his high point when they begged: Mister, just don't hurt us.
According to Dr. Voskanian, R.G. has many risk factors including "substance dependence, personality style, repeat offenses, violence, victim-within-the-family[,] rape victims . . . . multiple incarcerations for the same things, he could not refrain." Dr. Voskanian opined that R.G.'s age did not make him less dangerous, because he was a physically healthy 64-year old whose anger had not abated. He diagnosed R.G. with paraphilia N.O.S. and sexual sadism based on his desire to inflict pain and humiliation on his victims. He also diagnosed alcohol dependence and anti-social personality disorder, based on R.G.'s lack of empathy and remorse. All of these added up to a predisposition to commit sexual violence and a high risk to re-offend. Moreover, during the interview, R.G. admitted to Dr. Voskanian that "he's in early stages of treatment and that he has a lot to learn in order to decrease his risk for sexual re-offense."
The State also presented testimony from Dr. Shaun McCall, a psychologist who testified concerning the report of the STU's Treatment Progress Review Committee (TPRC). The TPRC recommended R.G. for Phase-3 instead of the lower Phase-2, based in part on its understanding that the court's initial temporary commitment order had contemplated that a discharge plan must be completed for R.G. However, Judge Freedman clarified that the order did not contemplate R.G.'s release pursuant to an immediate discharge plan, but only required the STU to assist R.G. in completing a plan if he wanted to propose one. The TPRC also decided to give R.G. "the benefit of the doubt" because he attended his therapy groups faithfully, although there was some question as to how much progress he was making. He particularly needed more work on specific strategies for relapse prevention.
According to Dr. McCall, it was cause for concern that R.G. was proposing to live with the same sister whom he had molested in childhood, despite his reported anger and resentment at his sisters. He also opined that R.G.'s self-reports that he masturbated to fantasies of "faceless women" was a continuation of his pattern of using victims as "surrogates for other people who he was angry at." Dr. McCall also reported that when a woman doctor confronted R.G., during the TPRC interview, about how well he understood his rape dynamics, his posture and voice became "intimidating" and "hostile." He also testified that the research on recidivism by offenders over age sixty was not reliable.
R.G. presented testimony from Brian Nolan, a Public Advocate investigator who had prepared a discharge plan and report for R.G. The plan included available housing and sex offender therapy in New Jersey and, alternatively, in Arizona, where one of R.G.'s sisters lived. The sister, K.S., testified that R.G. never molested her, and that she was willing to let him live with her if he was released. She was also willing to take him to sex offender therapy in Arizona. On cross-examination, she was confronted with R.G.'s statement that he did molest her, that she and he had discussed those events and that she had forgiven him. She denied all of those things. A friend of R.G. testified that he would assist R.G. in the community if R.G. were released in New Jersey.
R.G. also presented testimony from Dr. Timothy Foley, a psychologist who conducted an assessment of R.G. After reviewing his treatment records and interviewing R.G., Dr. Foley concluded that R.G. "knows his triggers, . . . he understands a large part of what led him to behave as the way he does. He understands the role of alcohol [and anger]." Dr. Foley diagnosed R.G. with "a paraphilia N.O.S non-consent" in other words "what was gratifying with his victims was the non-consenting nature of the sexual assault." He also diagnosed "alcohol abuse in institutional remission." He could not reach a diagnosis of anti-social personality disorder due to a lack of evidence of "the conduct disorder before the age of 15" even though "[R.G.] demonstrates many anti-social traits." On cross-examination, he also testified that he did not diagnose sexual sadism, because the victim's pain and suffering was not "the essential part of the paraphilia."
He testified that R.G. had participated in therapy and Alcoholics Anonymous to address his diagnosed conditions and had "been an active participant in treatment for 30 years." Dr. Foley therefore disagreed with the STU treatment plan to require R.G. to re-take at STU many of the same modules he had completed while in prison. Dr. Foley testified that R.G. was "less than highly likely" to re-offend if released from STU, largely based on R.G.'s age. While his score on a risk assessment instrument was "quite high," R.G. was also over sixty. Dr. Foley testified that actuarially, sixty is an age at which "incidents of rape . . . are extraordinarily rare," and therefore R.G. "has aged-out of his risk." He opined that R.G. would present a less than high risk to re-offend if conditionally discharged with oversight such as random drug and alcohol screening, GPS monitoring and sex offender treatment. He characterized the proposed release as R.G.'s last chance at freedom.
On cross-examination, Dr. Foley downplayed the significance of R.G.'s charges for extortion in 2004 and making a threat in 2006. He also admitted that R.G. had told therapists that he just told treatment professionals what they wanted to hear, and that R.G. "has difficulties and he struggles with being inconsistent, conning, manipulative, glib - all those sorts of things." However, he insisted that R.G.'s age was a determinative factor.
In a comprehensive oral opinion, Judge Freedman reviewed the evidence presented at the hearing, emphasizing that he would not consider included hearsay diagnoses for their truth. He did not find the testimony of K.S., the sister, credible. The judge was not persuaded by Dr. Foley's opinion that R.G.'s age was a significant factor in reducing the risk of relapse, because the research on which he based that opinion was based on a sample population "far too small from which to draw conclusions about the effect of age at release of 60-plus on offenders' high risk status." Instead, the judge credited Dr. McCall's opinion on that issue.
The judge found by clear and convincing evidence that R.G. was not ready for conditional discharge despite his many years of treatment. Judge Freedman concluded that R.G. suffers from paraphilia and a personality disorder. "He meets the threshold for psychopathy, which is the extreme anti-social." The judge also considered R.G.'s long history of violent sex offenses, creating a risk not mitigated by his age:
As Dr. Voskanian pointed out, he's in good health, personally and apparently sexually. He masturbates twice a week. . . That he's clearly predisposed by his problems: his paraphilila, his anger, his personality disorder, severe personality disorder. . . . His problems don't go away. They can only be controlled. And while he's learned a lot and knows a lot, he is apparently substantially lacking in internalization of what he knows and applying it to himself.
Judge Freedman concluded by clear and convincing evidence that if released, R.G. "would be highly likely to engage in acts of sexual violence within the reasonably foreseeable future." The judge did, however, note some hope that if R.G. progressed further in treatment he might be ready for conditional discharge on a future review.
On this appeal, our review of Judge Freedman's decision is "extremely narrow," and we must defer to the trial court'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). See also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). Having reviewed the record, we find no basis to disturb Judge Freedman's factual and legal conclusions, including his decision to credit the State's expert witnesses instead of R.G.'s expert. We affirm substantially for the reasons stated in Judge Freedman's comprehensive and thoughtful oral opinion.
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