April 13, 2010
IN THE MATTER OF THE CIVIL COMMITMENT OF R.L.L., SVP-42-00
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-42-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 12, 2010
Before Judges Carchman and Ashrafi.
R.L.L. appeals from an order under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, continuing his civil commitment to the Special Treatment Unit (STU) after a sixth review hearing. We affirm.
We have previously affirmed appellant's continued commitment in unpublished opinions containing detailed statements of the facts and the law relevant to identifying appellant as a sexually violent predator subject to civil commitment. In the Matter of the Civil Commitment of R.L.L., SVP-42-00, No. A-6496-05T2 (App. Div. March 1, 2007); In the Matter of the Civil Commitment of R.X.L.*fn1 , SVP-42-00, No. A-5883-04T2 (App. Div. May 1, 2006). We adopt those statements of fact and law, without repeating them in full, as the background and more complete legal explanation for the current review and appeal.
Appellant, who is now sixty-six years old, has a record of sexually violent acts dating from about 1960, when he was sixteen years old, until his last conviction in 1991, at the age of forty-seven. He had a substantial record of juvenile adjudications, although he was never charged with sexual offenses as a juvenile. At a later time, he admitted that, while with a gang as a teenager, he had raped girls on two occasions. During his early adult years, in 1963 and 1971, rape charges were brought against him and subsequently dismissed for reasons that are no longer contained in the records. Appellant has admitted raping eight women during his lifetime, only a relatively small part of which has been spent in the community, outside the restricted setting of juvenile detention, adult prison, and STU.
His first sexual conviction occurred as a result of charges brought in 1972 on three counts of rape. Appellant was twenty-eight years old. He was convicted on two of the counts and sentenced to prison. He was paroled in 1977. Within months, in January 1978, appellant was arrested for another rape, this one committed at gunpoint in a car. He was convicted again and sentenced to prison. He served that sentence at the Adult Diagnostic and Treatment Center at Avenel, where he received treatment as a sexual offender. He served the maximum time under that sentence and was released in October 1989.
Eighteen months later, in April 1991, appellant sexually assaulted a woman he had met at work, this time by threatening her with a knife in her apartment and also threatening to hurt her sleeping children. Upon his conviction for first-degree aggravated sexual assault and a weapons offense, he was sentenced to ten years in prison.
In February 2000, just before appellant completed the maximum time under the 1991 sentence, the State successfully petitioned the court to commit appellant civilly under the SVPA. His commitment has been continued after five prior review hearings.
Under the SVPA:
"Sexually violent predator" means a person who has been convicted . . . of a sexually violent offense . . . and 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.]
"'Mental abnormality' means a mental condition that affects a person's emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of sexual violence." Ibid. "'Likely to engage in acts of sexual violence' means the propensity of a person to commit acts of sexual violence is of such a degree as to pose a threat to the health and safety of others." Ibid.
"To be committed under the SVPA, an individual must be proven to be a threat to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts." In re Commitment of W.Z., 173 N.J. 109, 132 (2002). "[T]he State must prove that threat 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." Ibid.
The SVPA provides for annual judicial review of continued commitment. N.J.S.A. 30:4-27.35. The "standard of proof and the burden of meeting it at each periodic review hearing must be identical to that required in the initial proceeding." In re Civil Commitment of E.D., 183 N.J. 536, 550-51 (2005) (quoting State v. Fields, 77 N.J. 282, 295 (1978)). The reviewing judge must assess the offender's "present serious difficulty with control over dangerous sexual behavior," and the State must establish by clear and convincing evidence a high likelihood that the person will offend again. W.Z., supra, 173 N.J. at 131-33; accord 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).
On this appeal, there is no dispute that appellant has been convicted of sexually violent crimes and that he suffers from mental abnormality or personality disorder that, in the past, made it likely he would engage in sexual violence if not confined. The relevant issue at this time is whether the evidence at the sixth review hearing held on August 18, 2009, established that appellant remains highly likely to re-offend despite his advancing age.
At the review hearing, psychiatrist Marta P. Scott testified for the State, and her report was admitted in evidence. She diagnosed appellant with paraphilia*fn2 NOS (non- consent), sexual sadism, poly-substance dependence, and antisocial personality disorder*fn3 . She testified that appellant scored an eight on the Static-99 test, which indicates a high risk of recidivism. Despite appellant's completion of several treatment modules at STU, and despite his age, Dr. Scott believed that he still has serious difficulty controlling his sexually offending behavior and that he remains highly likely to re-offend. She explained that appellant's deviant sexual arousal through humiliation and frightening of his victims "is a deeply-ingrained behavior that is probably the most reluctant [sic] to treatment efforts out of all the various paraphilias and - sexual disorders."
Dr. Christine Zavalis, a psychologist on the Treatment Progress Review Committee (TPRC), testified that appellant scored a 25.3 on the psycopathy checklist, a high score, but not high enough for a true diagnosis for psychopathy, which requires a score of 30. She scored appellant as a ten on the Static-99, indicating high risk of re-offending. Consistently with Dr. Scott, Dr. Zavalis also diagnosed appellant with paraphilia NOS (non-consent), sexual sadism, poly-substance dependence, and antisocial personality disorder. She testified that appellant was doing well in his treatment, but he "still has work to do," especially in "acknowledging the sadistic arousal" and "resistance to the healthy fantasies." She also testified that sexual sadism is difficult to treat. She stated that the TPRC recommended continuing treatment in Phase 3 at this time, with repetition of the arousal reconditioning module and moving appellant to therapeutic community, to which he was somewhat resistant.
Dr. Timothy P. Foley, a psychologist, testified on behalf of appellant. He diagnosed appellant with paraphilia NOS (non-consent), poly-substance dependence (remission in institution), and antisocial personality disorder. Dr. Foley did not diagnose sexual sadism, explaining "the diagnosis of sexual sadism requires that the real pain and real suffering of the individual is really a central part of the sexual excitement. . . . I think [R.L.L.] enjoyed forcing people to have sex, but the violence or the aggression was instrumental rather than gratuitous." He described appellant's behavioral history as "a merger of sexual and aggressive arousal." Dr. Foley testified on cross-examination that appellant "enjoyed" the "violent part" of his sexual assaults but the "gratuitous part . . . is missing."
Dr. Foley scored appellant 24.2 on the psychopathy checklist and eight on the Static-99. Nevertheless, he did not believe appellant was highly likely to re-offend. He testified, "[R.L.L.] is able to express credible victim empathy. He's able to express and look at elements of his cycle that are associated with re-offending. And whether or not [R.L.L.] continues to think about it, thinking about it, having fantasies about it, and doing it are very much different things." Dr. Foley testified further, "He's 65 years old. . . . it's one of the most substantiated factors in risk assessment that -- age reduces risk." In conclusion, Dr. Foley believed that appellant "has aged out of the highly likely categorization [of re-offending] and is clearly less than highly likely." Appellant could, in his opinion, be "safely conditionally discharged to the community with an approved plan."
Dr. Scott had disagreed with Dr. Foley's views and conclusions during her earlier cross-examination. She testified that appellant admitted he was aroused by and enjoyed intimidating and humiliating his victims. In Dr. Scott's opinion, such arousal and enjoyment constituted sexual sadism, even in the absence of additional gratuitous physical pain inflicted on the victim. Dr. Scott further testified that appellant still had erections, and while age diminishes an offender's physical ability to commit sexual assaults, appellant's risk of re-offense remained high because of his inability to "re-channel his deviant sexual arousal." Dr. Scott found it significant that appellant had been charged with an institutional infraction while past the age of sixty, having been caught smoking marijuana at STU. The infraction showed that antisocial behavior had not been eliminated by advancing age.
Having heard the testimony of the three expert witnesses, the reviewing judge credited Dr. Scott's and Dr. Zavalis's conclusions over Dr. Foley's, finding that appellant "has not yet come to grips with his sexual arousal cycles and ha[s] not developed a mechanism to deal with them." The judge concluded that appellant "has not so mitigated his potential to re-offend that it has become less than highly likely." As a result, the reviewing court continued appellant's civil commitment.
The scope of appellate review is extremely narrow in a commitment proceeding. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). "The reviewing judge's determination should be accorded 'utmost deference' and modified 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) (quoting Fields, supra, 77 N.J. at 311).
Here, the judge's findings and conclusions are supported by the evidence presented at the review hearing. The judge did not abuse his discretion in accepting Dr. Scott's broader definition of sexual sadism and concluding, based on her expert opinions and all the other evidence, that appellant still presents a high risk of re-offending if released back to the community, despite his age. The State satisfied by clear and convincing evidence the criteria for continued commitment of appellant.