May 14, 2010
IN THE MATTER OF THE CIVIL COMMITMENT OF D.B. SVP-472-07.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP No. 472-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 3, 2010
Before Judges Baxter and Coburn.
D.B. appeals from a judgment entered on May 21, 2008 that continued his involuntary psychiatric commitment to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We reject D.B.'s claim that the State's proofs fell short of establishing by clear and convincing evidence that he is highly likely to engage in acts of sexual violence if not involuntarily confined. We affirm.
D.B. is a sixty-three year old man with a lifelong history of psychiatric hospitalizations. When he was three years old, he became hyperactive and uncontrollable, repeatedly biting his arms while banging his head on the floor. This conduct, along with performing fellatio on his younger brother, caused D.B.'s family to commit him to various psychiatric institutions from the time he was eleven years old until he was twenty-three, which was in 1970.
In 1975, five years after his release from that psychiatric hospitalization, D.B. committed his first violent sexual offense by raping a fifteen-year-old girl at knife point. After initially denying that the victim ever entered his car, D.B. later admitted she did, but insisted that she, not he, was the sexual aggressor. In July 1975, D.B. pled guilty to that crime, which was then known as statutory rape. He was sentenced to an indeterminate term not to exceed fifteen years at the Adult Diagnostic and Treatment Center at Avenel (ADTC or Avenel). D.B. served the entire sentence at the ADTC and maxed out on March 26, 1990.
D.B. was next arrested in October 2002, twelve years after his release from the ADTC, when he was charged with paying his godson, R.E.K., the sum of forty dollars so that D.B. could perform oral sex on him. D.B. tried to entice another boy, N.B., but N.B. refused. At the time of his arrest, D.B. admitted that his sexual contact with R.E.K. had begun in 1998, when he started fondling R.E.K.'s penis. As a result of his victimization of R.E.K., D.B. was convicted of two counts of second-degree sexual assault. His attempted sexual conduct with N.B. resulted in a conviction for one count of second-degree endangering the welfare of a child. The aggregate sentence imposed on September 22, 2003 for the three offenses was a five-year term of imprisonment to be served at Avenel.
In preparation for the September 2003 sentencing, D.B. was evaluated by Dr. Donna LoBiondo on July 17, 2003. LoBiondo administered a psychological profile known as the Bumby Scale, in which D.B. agreed with nineteen of the thirty-six items on the Rape Scale and twenty-nine of the thirty-seven items on the Molest Scale. Among the statements with which D.B. agreed are "Kids who get molested by more than one person probably are doing something to attract adults," and "It is better to have sex with one's child than to cheat on one's wife."
D.B. admitted to LoBiondo that the 2002 incident with R.E.K. in which he had paid the child $40 for sex was the culmination of "four years" of "having fantasies about him." When LoBiondo asked D.B. whether he believed his fifteen years of treatment at the ADTC from 1975 to 1990 had been helpful, D.B. stated that he participated only partially because he did not "take it to heart." D.B. reported that he viewed his 1975 rape of the fifteen-year old girl "as a one time thing" that he "didn't take . . . very seriously." He did, however, acknowledge to LoBiondo that he needed treatment and was willing to return to Avenel to develop better insight into his deviant sexual conduct.
When D.B.'s commitment to the ADTC for the crimes involving R.E.K. and N.B. was nearing an end, D.B.'s treatment team prepared a Termination Report discussing his progress in treatment. The report noted that D.B.'s progress was hindered by "his fears of failing, oppositional behaviors and refusal to ask for help, or accept help from others when offered." The treatment team remarked that although D.B.'s intelligence was "estimated to be within the average range," D.B. repeatedly refused to complete written assignments in the following psychoeducational modules to which he was assigned: sex education, relapse prevention I, relapse prevention II, and anger management. Although assigned to the victim empathy module, D.B. was forced to drop out due to lack of attendance.
The treatment team described D.B.'s progress as limited:
[D.B.] had discussed the details of his offense in group, and has a very basic understanding of the motivating and disinhibiting factors associated with his crime. His overall progress can best be described as uneven. While there is some indication that he may possess a basic, cognitive understanding of his deviant cycle and relapse prevention skills, it does not appear as though he has internalized these concepts so as to prevent relapse. Furthermore, it would appear as though [D.B.'s] continued sabotaging behaviors in the Therapeutic Community, including his failure to complete assignments and repeated accusations of stalking, staring, bumping into, and sexualizing other inmates, would indicate a lack of adequate interventions to prevent these behaviors from recurring. Additionally, [D.B.] seems to be unclear as to what his sexual orientation and arousal patterns are. His choice of victims would indicate either a broad pattern of arousal or an opportunistic offending pattern.
Throughout his current incarceration, [D.B.] has failed to avail himself of the help offered to him, preferring instead to sabotage his recovery. He . . . has failed to internalize [the] relapse prevention skills necessary to prevent re-offense. It is therefore recommended that he be screened to determine if he meets the criteria for commitment as a Sexually Violent Predator.
Thereafter, two psychiatrists completed clinical certificates in which they concluded that D.B. was currently suffering from pedophilia, anti-social personality disorder and was likely to commit another sexually violent offense unless involuntarily hospitalized.
On October 4, 2007, a judge found probable cause to believe that D.B. was a sexually violent predator in need of commitment and signed an order of temporary commitment to the STU pending a final hearing. D.B.'s initial commitment hearing was held on April 23, 2008 before Judge Philip M. Freedman.
At the hearing, the State presented the testimony of Pogos Voskanian, M.D., while D.B. presented the testimony of Brian M. Friedman, Psy. D. Voskanian characterized D.B.'s overall attitude as "indifferent" with only a "superficial appreciation of the offenses that he committed." When asked to describe the significance of D.B.'s sexual offense history, Voskanian responded that the "range of ages [of the victims]" and the "range of acts" D.B. committed were "quite concerning." Voskanian testified:
There is a range of ages, a range of acts. There's a history of rape. [D.B.] raped a 15 year old girl when he was a truck driver.
Then we have offenses against three children. He presents it like no big deal, I just needed something in my mouth. That's what his statement is. Minimization.
On the other hand, he does describe [his] current state that he feels aroused in his mind even though he does not get [an] erection.*fn1 And he just needs something in his mouth.
The description of his offenses when he speaks out in [a] quite vulgar manner regarding children's genitals and what he did, and in . . . a matter of factness of him needing something in his mouth. . . .
[T]hat's why I expressed my opinion that I did not see any [in] depth appreciation of the severity of the offenses that he committed.
According to Voskanian, D.B.'s statement "that it doesn't matter" whether his victims were boys or girls was also troubling due to the "indiscriminate nature" of D.B.'s offenses. Voskanian also opined that D.B.'s admission to being aroused "in his mind" to thoughts of young boys was a "significant factor" in establishing a risk of repeated sexually violent behavior. Of equal concern was the fact that -- at the age of sixty-two -- D.B. was still expressing deviant arousal patterns despite "his prior incarcerations" and "long periods" of treatment at the ADTC. As Voskanian commented, "So neither treatment nor [the] incarceration component of being at A.D.T.C. had [any] effect" because D.B. had victimized two victims even after his release from his first, and very lengthy, period of incarceration at Avenel.
Another factor that Voskanian pointed to as demonstrating D.B.'s significant risk of future violent behavior was the fact that even while hospitalized in "structured setting[s]," D.B. continued to engage in deviant or prohibited sexual behavior. Voskanian pointed to medical records establishing that while hospitalized from age eleven to age twenty-one, D.B. was placed in "boys homes," where "he always acted out sexually. Males or females. He -- nothing stopped him." Voskanian also commented on the numerous incidents during D.B.'s second confinement at Avenel where D.B. had "sexualized" other inmates by bumping into them, staring at them or stalking them. According to Voskanian, such "sexually acting out" behavior even in a structured setting is "a component of [D.B.'s] being" because he "violates the [Avenel] policy [even] while there is a[n] officer at the elbow." Such inability to control his deviant behavior is, according to Voskanian, "significant" because it demonstrates "what would happen if he is on his own. And it happened when he was on his own in 2002."
Voskanian was also asked whether there was any significance to D.B.'s inability to achieve an erection. Voskanian answered in the negative "because [D.B.] likes oral sex and despite not having the erection, . . . he's aroused in his mind and he needs to perform oral sex and he performs . . . it on the young boys" regardless of his own inability to achieve an erection. Voskanian described D.B. as a "life long offender" with no "empathy" for his victims and no remorse for the crimes he had committed. He also observed that "pedophilia does not fade away with age."
Voskanian opined that D.B.'s history of alcohol abuse was a further risk factor because of the capacity of alcohol to "disinhibit" a person who, like D.B., has an "unhealthy sexual interest." After explaining that he had diagnosed D.B. with personality disorder NOS with anti-social traits, paraphilia NOS and pedophilia, Voskanian was asked whether D.B. "suffer[s] from a mental abnormality or personality disorder that [a]ffects him either emotionally, cognitively or volitionally so as to predispose him to commit acts of sexual violence." Voskanian answered unequivocally, "Yes." Last, Voskanian was asked to assess the risk of D.B. sexually re-offending in the foreseeable future if not confined in a secure facility. Voskanian answered, "I rate it as high risk."
For his part, Friedman agreed with the diagnoses Voskanian had assigned; however, he disagreed with Voskanian's conclusion that D.B.'s risk of re-offending was "high." Friedman observed that D.B. had taken his second Avenel commitment more seriously than his first and had achieved a "basic understanding of his offense cycle" and his "deviant arousal pattern."
Friedman administered the Static 99 test to D.B. and, according to Friedman's scoring of that instrument, D.B. "attained a score of four[,] which corresponds with the moderate to high risk category." Acknowledging that the Static 99 is known to frequently underestimate the risk of future sexually violent behavior, Friedman opined that D.B.'s advanced age and his medical conditions "may compensate for this potential underestimate of risk."
Friedman also opined that D.B. was not likely "to re-offend in the way that he did back in the 70's," when he had raped a fifteen-year-old at knife point. According to Friedman, "[i]f he did re-offend, it would be more like his predicate offense. That did not involve physical strength, sexual prowess, the ability to maintain an erection, things along those lines."
Because the "primary type of offense" that D.B. might commit if released on conditional discharge was the type of offense he committed in 2002, which involved performing oral sex on newly pubescent or pre-pubescent boys, Friedman opined that D.B. should be released, but should be required to "live in a residence approved by parole" where he "would not be allowed to reside with families with children." Ultimately, Friedman concluded that D.B.'s overall risk to re-offend was "moderate." He based that conclusion on the factors we have identified, as well as D.B.'s "expos[ure] to 20 years of treatment, even if the first 15 years he did not truly take to heart." According to Friedman, "he's been exposed to that [treatment]." When asked to elaborate on the reasons why he believed D.B.'s risk of future offenses was moderate, rather than high, he responded that D.B.'s "age, some treatment effect and the CSL [Community Supervision for Life] status" brought the risk of re-offending "into the moderate range."
In a comprehensive oral opinion rendered on May 21, 2008, which covered fifty transcript pages, Judge Freedman concluded that the State had proved by clear and convincing evidence that D.B. suffers from Paraphilia and from a Personality Disorder that predispose him to engage in acts of sexual violence. He also found that D.B. is highly likely to commit acts of sexual violence if not involuntarily confined.
In reaching those conclusions, the judge credited the opinion offered by Voskanian and specifically rejected Friedman's opinion as unpersuasive. The judge based his rejection of Friedman's views on the following factors: Friedman's opinion that D.B. had learned some relapse prevention techniques at Avenel was "contrary to the treaters at the ADTC"; neither the record nor the psychiatric literature supported Friedman's view that D.B.'s age and medical condition counterbalanced the Static 99's potential underestimation of D.B.'s risk of re-offending; Friedman's reliance upon CSL as providing "some protection" against re-offending is unfounded as D.B. could easily offer money in return for sex even while subject to CSL; and Friedman's reliance on D.B.'s assurances that he would "seek out help on the outside" was unfounded because D.B.'s entire history shows that he "doesn't seek out help."
In the course of his oral opinion, Judge Freedman thoroughly reviewed the actuarial studies, psychiatric interviews, treatment notes and psychological reports that both experts had discussed. The judge described in considerable detail why each document contributed to a conclusion that D.B. was highly likely to re-offend in a sexually violent manner if not confined. The judge also relied heavily on the fact that D.B. "did not take his treatment seriously at ADTC the first time," which had contributed to D.B. re-offending in 2002 with R.E.K. and N.B. The judge found that when D.B. was readmitted to Avenel after being sentenced for his sexual victimization of R.E.K. and N.B., his participation in treatment was inadequate and his mastery of relapse in prevention techniques was poor because, as the Termination Report noted, he "preferred to sabotage his recovery." The judge also found that neither D.B.'s impotence nor his advanced age had any impact on reducing his risk of re-offending because D.B.'s risk factors and his deviant arousal patterns had remained constant despite decades of treatment.
The judge commented that while a conditional discharge might be "possible" if there were a placement where D.B.'s access to children could be controlled, such possibility should not be considered. The judge reasoned that D.B.'s intention to obtain a driver's license and "go out in the world to work," where he would be "very capable even with [CSL] of engag[ing] in the kind of behavior that he behaved [in] with these children," created an unacceptable risk of further criminal behavior.
Having found that the State satisfied the standard for involuntary commitment under the SVPA, the judge entered an order continuing D.B.'s involuntary commitment for a period of one year. He established April 6, 2009 as the date of the next hearing.
On appeal, D.B. maintains:
THE STATE HAS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT D.B. IS HIGHLY LIKELY TO COMMIT A SEX OFFENSE IF RELEASED TO THE COMMUNITY.
The SVPA was intended to protect society from persons whose "mental abnormalities or personality disorders . . . make them likely to engage in repeat acts of predatory sexual violence if not treated for their mental conditions." N.J.S.A. 30:4-27.25(a). Civil commitment, after release from imprisonment following a criminal conviction, is consistent with the purpose of the SVPA to protect the public from sex offenders at risk to re-offend. In re Civil Commitment of P.Z.H., 377 N.J. Super. 458, 465 (App. Div. 2005). A court may not order involuntary civil commitment to the STU unless 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. The State must prove such threat by clear and convincing evidence demonstrating that the individual has a "present 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 re-offend. In re Commitment of W.Z., 173 N.J. 109, 132-33 (2002). "An inability to control one's sexually violent behavior is the very essence of the SVPA." Id. at 129.
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). Measured by this standard, the May 21, 2008 order must be affirmed.
First, the uncontroverted evidence in the record demonstrates that D.B. suffers from paraphilia and a personality disorder, both of which constitute "a mental abnormality or personality disorder" that satisfies the first portion of N.J.S.A. 30:4-27.26. The only issue in dispute is whether, as the State argued before Judge Freedman, such mental abnormalities caused D.B. to be "highly likely," W.Z., supra, 173 N.J. at 132, to re-offend.
Based upon our careful review of the record in light of D.B.'s arguments on appeal, we are satisfied, as was Judge Freedman, that D.B. is "highly likely" to re-offend if released to the community. Our review of Judge Freedman's findings and conclusions demonstrate that he properly evaluated both the actuarial and clinical evidence before him. The record amply supports his conclusion that: D.B.'s diagnoses are unchallenged; his insight into his deviant arousal and history of sexual violence is non-existent; his risk factors remain unabated; and his progress has been insubstantial. We conclude that the record fully supports Judge Freedman's findings and satisfies the State's heavy burden of proof that D.B. continues to qualify as a sexually violent predator and remains subject to involuntary commitment.