July 6, 2011
IN THE MATTER OF THE CIVIL COMMITMENT OF W.A., SVP-183-01.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-183-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 14, 2011
Before Judges Carchman and Parrillo.
This appeal addresses two issues. First, W.A., a thirty-two-year-old male, appeals from a February 24, 2011 order of the Law Division, continuing his involuntary civil 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. As to that issue, W.A. does not challenge thefinding of the Law Division, and we affirm. In addition, however, W.A. challenges the failure of STU to transfer him to the Therapeutic Community pursuant to a June 25, 2010 order of the Law Division. As to that issue, we remand the matter to the Law Division.
Even though W.A. does not challenge the merits of the continuance of his civil commitment, we deem it appropriate to address the merits of the issues raised by the review hearing.
The issue before us is limited. 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(b).
[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 trial judge must address W.A.'s "present serious difficulty with control over dangerous sexual behavior," 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 re Civil Commitment of J.H.M., 367 N.J. Super. 599, 607-08 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
These are the facts adduced from the record. On May 6, 1993, W.A. assaulted a female acquaintance, S.W., (the victim) after she refused his initial advances. When the victim attempted to leave, W.A. struck her in the head with a flashlight twice, threatened to kill her and demanded she "take off [her] clothes." He then struck the victim two more times and forced her to "perform fellatio on him and to submit to vaginal and anal sexual intercourse." He used the flashlight to penetrate her.
W.A. was arrested the following day. After charges were filed, W.A. pled guilty to two counts of aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3), one count of aggravated assault, N.J.S.A. 2C:12-1(b)(1); and one count of conspiracy, N.J.S.A. 2C:5-2. In June 1995, W.A. was sentenced to time served in county jail.
During the period between his March 1994 plea and his June sentencing, W.A. committed another sexual assault; the victim in this assault was his twelve-year-old cousin. With the girl's family upstairs, W.A. found her in the basement of her home,approached her from behind, threw a coat over her and choked her to the ground. The girl said, "rape me, but don't kill me," at which time W.A. subjected her to vaginal intercourse. W.A.'s half-brother then came down to the basement and the victim told him that W.A. sexually assaulted her. He then notified the victim's aunt of the assault. The aunt called the police. W.A. was arrested, and officers "observed that the front zipper of his pants was open and protruding from the open zipper was his penis." W.A. later pled guilty to aggravated assault, N.J.S.A. 2C:12-1(b)(1); endangering the welfare of a child, N.J.S.A. 2C:24-4(a); and criminal restraint, N.J.S.A. 2C:13-2. He was sentenced to ten years in prison with three years of parole ineligibility.
The State filed a petition for civil commitment pursuant to the SVPA in June 2001. By order of the Law Division, W.A. was conditionally committed to the Special Treatment Unit in July 2001. W.A. appealed, and we affirmed. In re Civil Commitment of W.D.A., Nos. A-1591-02T2, A-6604-02T2 (App. Div. November 15, 2006).
As explained in this 2006 Appellate Division opinion, Dr. Michael McAllister evaluated W.A. after his temporary commitment. In the initial hearing for W.A.'s involuntary civil commitment, Dr. McAllister diagnosed W.A. with Paraphilia NOS (non-consent), sexual sadism, and anti-social personality disorder. Id. at 6.
Dr. Jeffrey Singer did not concur with Dr. McAllister's diagnosis of Paraphilia; however, he diagnosed W.A. with impulse control disorder and found W.A. received a borderline score on the Hare psychopathy checklist, which he characterized as "one of the more predictive risk factors for sexual recidivism." Id. at 7. Although he minimized the impact of sexual arousal on W.A.'s behavior, Dr. Singer expressed concern that because of his "psychological environment" he thinks "taking what he wants when he wants it [is] an okay thing to do." He opined that "for the foreseeable future, [W.A.] would more likely than not commit acts of sexual violence" if not confined to a treatment facility. Ibid. Even Dr. Timothy Foley, who testified on behalf of W.A., acknowledged that W.A. "shares characteristics with offenders who recidivate with sexual offenses at a medium high rate." Id. at 9.
The testimony at the review hearing revealed that although initially resistant to treatment session, over the last three years, W.A. has been increasingly engaged in treatment sessions. He has made some progress during his time at STU, beginning to acknowledge that his encounter with the initial victim was non-consensual and taking responsibility for the encounter.
However, he still minimizes certain aspects of the assault, denying that the more violent elements occurred and framing the non-consent in terms of manipulation and incapacitation due to drugs, rather than duress from his use of physical force. Furthermore, he continues to deny sexually assaulting his young cousin, acknowledging only that he struck her.
In a January 18, 2011 evaluation by Dr. Roger Harris, M.D., assessing W.A.'s need for continued confinement, W.A. received a Static-99R score of 6, placing him in a "category of men who were at high risk to sexually reoffend when released from prison." According to Dr. Harris, his failure to "explore the more aggressive aspects of his sexual offending and his arousal when engaging in these aggressive acts" demonstrates that W.A. has "hit a plateau in treatment." Although W.A. asserts that he has reformed, his statements "do not help the [treatment] team to understand what has actually changed[.]" Dr. Harris also noted that W.A. "remains a high risk to sexually reoffend and continues to meet the criteria for civil commitment under [the] NJ SVP statute."
Judge Mulvihill concluded that the State established by clear and convincing evidence W.A. is "still at high risk" and "is still predisposed to sexual violence." He continued W.A.'s confinement for additional year and scheduled a new hearing date. This appeal followed.
The scope of review of an order for commitment is limited and narrow. See In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We can modify the order "only where the record reveals a clear abuse of discretion." In re J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). We do not find such an abuse in this case as this record well supports continued commitment under the SVPA.
As to the transfer to the Therapeutic Community (TC), the issue arises as a result of an order entered by Judge Freedman on June 25, 2010. At that time, the judge ordered:
FURTHER ORDERED that the STU shall place W.A. on the wait list for transfer to the Therapeutic community, and it is FURTHER ORDERED that Treatment Team shall report to court and counsel of the status on September 17, 2010, and in the event that the TC transfer has not occurred by that time, W.A. can request the matter be scheduled for a hearing, . . . .
Apparently, subsequent to the entry of that order, W.A. was evaluated and rejected for entry into the TC, and at the February 24, 2011 review hearing on continuation of W.A.'s commitment, the issue of his referral to the TC, or lack thereof, was presented to the judge. The issue as to W.A.'s transfer to the TC was heard but not resolved. Because nomotion to enforce the June 25, 2010 order was before the court, the judge did not determine whether the STU had violated the order.*fn1
W.A. asserts that the STU is in violation of the order while the STU argues that it has not had an opportunity to present all of the relevant facts to the Law Division. We conclude, without any determination of the merits of the dispute, that the appropriate recourse is a remand to the Law Division for an expedited hearing to resolve the issues related to the transfer to the TC. Our remand does not foreclose either party from presenting any relevant proofs or raising any relevant issues.
The order of February 24, 2011 is affirmed, and the issues raised as to the June 25, 2010 order are remanded for further proceedings. We do not retain jurisdiction.