On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Essex County, Docket No. SVP-6-99.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Parrillo.
J.A. appeals from a June 25, 2008 order of the Law Division continuing his involuntary 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. We affirm.
J.A., born March 27, 1980 and currently twenty-nine years of age, was committed to the STU as a sexually violent predator in 1999. The predicate offense occurred on an unknown date between August 31 and September 13, 1994, when fourteen-year-old J.A. committed an act of anal penetration upon six-year-old D.L. On September 14, 1994, J.A. was arrested and charged with aggravated sexual assault. On May 10, 1995, J.A. was adjudicated delinquent on the charge of sexual assault pursuant to N.J.S.A. 30:4-27.26(a) and was sentenced to three years probation and residential placement. When J.A. represented a danger to other residents based on his continued sexually deviant behavior, he was transferred to the Garden State Correctional Facility in Yardville.
Upon his scheduled release, the State petitioned for SVPA commitment and an order of commitment was entered on September 9, 1999, committing J.A. to the STU. Yearly review hearings resulted in orders continuing commitment in 2000, 2001, 2002, 2003, 2005, 2006, 2007, and 2008.*fn1 Apparently, the only appeal filed was from the 2003 order of commitment, but it was later dismissed on November 20, 2003, presumably in light of a recent Supreme Court ruling, In re Commitment of W.Z., 173 N.J. 109 (2002).
J.A. has a history of criminal behavior. Aside from the predicate offense, on December 1, 1994, the Vernon Township Sex Crimes Unit received reports that J.A. sexually assaulted ten- year-old H.A. H.A.'s sister corroborated the reports, stating that she had seen J.A. lying on top of H.A., both with their pants down. During his November 28, 2007 interview with the Treatment Progress Review Committee (TPRC), J.A. admitted to sexually assaulting a total of eight victims, although one of whom he considers a victim he supposedly never touched but simply fantasized about.
J.A.'s most recent review hearing occurred on May 28, June 18 and June 25, 2008, at the close of which Judge Freedman continued his involuntary civil commitment. At the hearing, Drs. Voskanian and Carlson testified on behalf of the State while Dr. Katz testified on behalf of J.A. On May 28, all three experts testified, but the judge continued the matter until June 18 after ordering the State to produce missing treatment notes from July 31 to October 1, 2007 and also ordering that J.A. be interviewed by Dr. Voskanian. On June 18, the State produced the missing notes, which were incorporated into the record, and Dr. Voskanian re-testified based on his interview with J.A. On June 25, the court rendered its decision and entered an order continuing J.A.'s commitment, from which this appeal is taken.
On the first day of the hearing, May 28, 2008, Dr. Voskanian testified that J.A. had a history of being unable to control his sexual deviance while in treatment. J.A. was removed from residential placement because he exposed himself, masturbated with other residents' underwear, fantasized about young children during church services, encouraged his roommate to dance naked for him, and engaged in non-consensual sexual contact with other male residents. This behavior did not remit even when J.A. was placed in the Garden State Youth Facility. According to Dr. Voskanian, J.A. was not motivated to stop this behavior, testifying that as of March 5, 2008, J.A. had not vocally participated in treatment, had not completed any new treatment components, had not completed any new modules, was reluctant to take any psychological classes, and was recommended to repeat Relapse Prevention II.*fn2
Dr. Voskanian diagnosed J.A. with mental abnormality which predisposes him to sexually re-offend, specifically non-explosive pedophilia, attracted to both genders; dysthymic disorder NOS, a mild form of depression; and rule-out pyromaniac. He testified that the risk to re-offend is higher when male pedophilia is combined with the type of depressive personality disorder from which J.A. suffers.
On cross-examination, counsel challenged Dr. Voskanian's interpretation of J.A.'s progress, eliciting from Dr. Voskanian that J.A. has admitted to bisexual interests, which counsel tried to argue is contrary to Dr. Voskanian's portrayal of J.A. as a person of confused sexuality. Dr. Voskanian instead responded that J.A.'s claimed bisexual interests were not credible because his sexual history did not reveal any contact with age-appropriate females.*fn3 Counsel also elicited testimony from Dr. Voskanian that J.A. has not shown any sexually deviant behavior while at STU similar to that documented before his arrival, which had lead to his removal from residential placements. Yet on redirect, after refreshing his recollection, Dr. Voskanian testified that in fact J.A. had been caught with pornography and had admitted to having sex with P.R. in July 2004 while at STU.
Dr. Katz, having had the opportunity to interview J.A. for two hours, testified that while J.A. admitted to still being attracted to young children, J.A. had not exhibited signs of inappropriate behavior while at STU because he had learned to interrupt his attraction to children with techniques learned through treatment. According to Dr. Katz, the so-called "acting out" at STU that Dr. Voskanian testified about was true, but the pornography was adult pornography, not child porn; the sexual contact with P.R. was a consensual relationship; and since 2004, there had been no reported behavioral problems.*fn4 J.A. had not engaged in a pedophilic act since around the time of the predicate offense. According to Dr. Katz, J.A. had made substantial progress in treatment, having completed all major components of the program, and that he was receiving positive feedback from his reviews as recent as the January 31, 2008 TPRC report. Dr. Katz acknowledged, however, that the TPRC recommended that J.A. retake Relapse Prevention II, but saw such a requirement to be unnecessary. Dr. Katz was concerned that because J.A. has been confined since age 14, he has never had the opportunity to demonstrate his ability to engage age-appropriate adults, and will never be able to do so at STU where he is reprimanded for his homosexual relationships. While Dr. Katz also acknowledged the criticisms of J.A. in treatment sessions,*fn5 he found it unfair to punish J.A. solely for being less verbal than others when he is otherwise ...