January 4, 2010
IN THE MATTER OF THE CIVIL COMMITMENT OF B.L. SVP-463-07.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-463-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 9, 2009
Before Judges Cuff and C.L. Miniman.
B.L. appeals from an order of involuntary commitment to the Special Treatment Unit (STU) as a sexually violent predator pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.
B.L. pled guilty to second degree sexual assault on January 23, 1995; the victim was a fourteen year old girl. B.L. was sentenced to a ten-year period of imprisonment. He was paroled on February 24, 1997, violated parole, and returned to prison on May 27, 1997. Released from prison on June 28, 1998, B.L. was arrested and charged with sexual assault, criminal restraint and theft on October 27, 1999. His victim was a young woman, aged seventeen. He pled guilty to second degree sexual assault and sentenced to ten years in prison. Defendant served the last two years of this term of imprisonment at the Adult Diagnostic and Treatment Center.
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 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).
In anticipation of the completion of his term, B.L. was evaluated for civil commitment pursuant to the SVPA. On June 14, 2007, one week before the expiration of his second term of imprisonment, the State filed a petition for civil commitment. B.L. was temporarily committed to the STU pending a final hearing. This hearing occurred on January 24, 2008, and February 1, 2008. At this hearing, the State presented the testimony of Howard Gilman, M.D., and Brian Friedman, Psy.D. B.L. offered no witnesses.
In order to be considered a sexually violent predator, an individual must have committed a sexually violent offense. N.J.S.A. 30:4-27.26. Sexual assault is considered a sexually violent offense. Ibid. In this case, it is uncontested that B.L. pled guilty in 1994 and 1999 to sexual assault, and these convictions serve as the predicate acts in support of the petition for involuntary civil commitment.
Dr. Gilman diagnosed B.L. as a sexual sadist. Sexual sadism is sexual arousal to cause pain or excessive fear in the victim or someone else and is considered a paraphilia. He reported that B.L. acknowledged sexual sadism in his past. Dr. Gilman also related that B.L. believes that he no longer has sadistic arousal. Dr. Gilman explained, however, that he did not accept this self-assessment because B.L. "described enjoying these activities in a much more convincing way than he described being over it." Moreover, Dr. Gilman stated that sexual sadism is a paraphilia and "a true paraphilia... is something that is generally well ingrained within personality, and it tends to be enduring."
Dr. Gilman also found multiple substance dependence in a forced institutional remission, anti-social personality disorder, and mild mental retardation. The doctor explained that research suggests that substance abuse creates a risk factor for re-offense because the substances have the ability to impair judgment, reduce inhibition, and escalate violence.
Dr. Gilman opined that B.L. posed a high risk to sexually re-offend because he was confused about his sexual arousal patterns, his ongoing sexual sadism and his ability to control that arousal pattern. The doctor also noted B.L.'s multiple sex offenses, emphasizing that the offense that formed the basis of his second conviction occurred one month after arrest on another sexual offense.*fn1 Dr. Gilman noted that the Static 99 test score of plus 5 was not an accurate assessment of risk in this case.
The State also produced Dr. Friedman, a psychologist. Following a lengthy interview and completion of psychological testing, Dr. Friedman concluded that B.L. functions at a somewhat higher level than suggested by intellectual testing that places his I.Q. in the low 70s. He noted that B.L. acknowledges the sexual offenses that formed the basis of the two convictions and the sadistic elements to his arousal pattern. He reported that "a number of the comments he made [about these offenses] just were suggestive of really that the roughness of the attacks was stimulating to him and fueled his arousal."
Dr. Friedman's primary diagnosis is sexual sadism and paraphilia N.O.S.*fn2, non-consent. He also proffered a provisional diagnosis of hebaphilia, that is, a preference for adolescent victims. Dr. Friedman also rendered a diagnosis of poly-substance dependence in a controlled environment, borderline intellectual functioning, a reading disorder, and anti-social personality disorder with borderline features. The characteristics of his conduct disorder influence his risk to re-offend because this conduct is characterized by impulsivity, aggressiveness, disregard for societal rules, and a lack of empathy and callousness towards others. According to Dr. Freidman, these personality characteristics make it more likely that a person will act on deviant urges.
Dr. Friedman also explained that substance abuse, coupled with deviant sexual urges, particularly in a person who has a deviant arousal pattern and an anti-social personality, enhances the impairment of impulse control and can increase aggressiveness. Dr. Friedman opined that B.L. posed a high risk to re-offend unless confined to a secure facility for treatment. He noted that B.L.'s failure to control his sexual sadistic arousal pattern following his second arrest was a "robust predictor of recidivism." He also noted that B.L.'s violation of parole conditions following his release on parole in 1997 suggested a poor response to supervision requirements. Finally, he stated that "[t]his combination of a deviant arousal pattern and a severe personality disorder has been found to be one of the most robust predictors of sexual recidivism."
In the course of rendering her opinion, Judge Perretti stated and summarized the testimony of the various professional witnesses and then made the following findings of fact:
It is clear that this respondent is a sexual sadist who has visited his sadistic deviance on two[,] at least[,] non-consenting victims. The respondent is clearly a sexually violent predator. He clearly suffers from abnormal mental conditions and personality disorder that influence his cognitive, emotional and volitional functioning so as to predispose him to commit sexually violent acts.
He has serious difficulty controlling his... sexually violent behavior as he has demonstrated by repeat offending in the community and by his continuing arousal... by sexual sadism.
It is highly likely that this respondent will commit sexually violent offenses in the foreseeable future if not confined for care and for the protection of the public. This is a dangerous predator.
Our review of these findings is extremely narrow. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We may modify an order "only where the record reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001).
The findings are well-supported by the evidence of record, and there is sufficient evidence by which Judge Perretti could make these findings to satisfy the clear and convincing standard of proof.
The February 14, 2008 order committing B.L. to the STU is, therefore, affirmed.