The Community Protection Act and the Sexually Violent Predators Statute

The Community Protection Act and the Sexually Violent Predators Statute Norm Maleng* I. THE COMMUNITY PROTECTION ACT The Washington Community Protection Act was born of personal tragedy, public outrage, and unspeakable cruelty. Governor Booth Gardner created the Task Force on Community Protection following the murder of a young Seattle woman by a work release inmate with a history of violent sexual offenses and the brutal assault and mutilation of a young Tacoma boy by a recently released sex offender. The appointed members of the Task Force included representatives of the legislature, victims' support groups, law enforcement, victim and offender treatment agencies, the bench, and the bar.1 Their mission: to respond in a meaningful and responsible way to the public outrage over these and other cases in which violent sex offenders were released to the community only to reoffend. The Task Force held public hearings around the state in which citizens shared their experiences and frustrations with our state's response to sex offenders. The Task Force also heard from experts, studied the latest research on the issue, and developed the following principles for controlling sex offenders: * If sex offenders are not detected and prosecuted, they are likely to continue their crime patterns. e Without the participation of victims in prosecution, the state can rarely obtain a conviction. Sentencing policies * King County Prosecutor and Chair of the Governor's Task Force on Community Protection. 1. Task Force Members included: Norm Maleng, Chair; State Representative Marlin Appelwick; Ida Ballasiotes; Lucy Berliner; Rosemary Bippes; Professor David Boerner; Mary Margret Cornish; Fran Dew; Judge Anne Ellington; Spokane County Sheriff Larry Erickson; Helen Harlow; Pierce County Prosecutor John Ladenburg; Roland Maiuro, Ph.D.; Yvonne Huggins-McLean; Mike Patrick; King County Councilmember Kent Pullen; Department of Corrections Secretary Chase Riveland; Robert Scherz, M.D.; Robert Stalker; Melba Sunel; D.S.H.S. Secretary Dick Thompson; Trish Tobis; Paul Wert, Ph.D.; and State Senator R. Lorraine Wojahn. 822 University of Puget Sound Law Review [Vol. 15:821 must take into account victims' attitudes toward appropriate sentences. * Sex offenders who use direct physical violence and/or a weapon must be confined in prison for significant terms. " Repeat sex offenders require very severe sentences... " A certain group of sexual offenders identified as sexually violent predators must be confined under a special civil commitment procedure until they are safe to be released. e Sex offenders confined to a prison or juvenile institution will one day be released, thus treatment should be available during their incarceration. Participation in treatment should not reduce the confinement term. e Sex offenders must be supervised 2following their release from prison and juvenile institutions. Following these principles, the Task Force drafted a series of recommendations and submitted them to the 1990 legislature. These recommendations were passed by a unanimous vote of both houses.' While most of the attention has been focused on the sexually violent predator civil commitment section, 4 the Community Protection Act is a comprehensive package of which the civil commitment section is but a small piece. Other highlights of the Act include: 5 * Increased sentence ranges for all sexual offenses. For example, using the mid-point of the range, the statute increased the presumptive ranges for rape in the first degree and rape of a child in the first degree from five years to seven and one-half. The statute also elevated standard range sentences for rape in the second degree and6 rape of a child in the second degree from two to five years. * Mandated registration of sex offenders released into the community. 7 This provision authorizes police to notify, on a "need-to-know" basis, the community of the presence of a convicted sex offender in their neighborhood. 8 * Treatment for offenders and compensation for victims. 2. GOVERNOR'S TASK FORCE ON COMMUNITY PROTECTION, DEP'T OF SOCIAL AND HEALTH SERVICES, FINAL REPORT 11-2 to 11-3 (1989). 3. Second Substitute S. B. 6259, 51st Leg. (1990); S. J., 51st Leg., Vol. 1, 164 (1990); H. J., 51st Leg., Vol. 1, 370 (1990). See 1990 Wash. Laws ch. 3 (codified at WASH. REV. CODE §§ 71.09.010-.902 (Supp. 1990-91)). 4. WASH. REV. CODE ch. 71.09 (Supp. 1990-91). 5. Id. §§ 9.94A.310-.320 (Supp. 1990-91). 6. Id. 7. Id. §§ 9A.44.130-.140 (Supp. 1990-91). 8. Id. § 71.09.060(1) (Supp. 1990-91) (treatment for detained predators). 1992] The Community ProtectionAct The statute places a special emphasis on the juvenile offender in an effort to break the cycle of abuse that can produce adult sex offenders. II. THE SEXUALLY VIOLENT PREDATORS STATUTE Prosecutorial experience in capturing, prosecuting, and incarcerating sex offenders helped to convince the Task Force that a small number of offenders will predictably commit future acts of sexual predation unless they are given intensive treatment in a secure setting. While the treatment of sex offenders in prison has improved during the last decade, treatment does not guarantee that offenders being released from prison at the end of their confinement term are safe to be at large. Some of these individuals will be beyond the reach of criminal jurisdiction, having served out their sentences, yet will continue to pose a real danger to the community. The Task Force examined the gap in the system that allowed known violent and dangerous offenders to re-enter society after incarceration, largely untreated, and prey on more victims. To address the lack of treatment for offenders under existing law, the statute's civil commitment section provides treatment in a secure setting for chronic sex offenders.9 For a court to hold that a person is a "sexually violent predator," a person must have a past history of a crime of sexual violence and "a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence" if released into the community. 10 "Predatory" acts are those directed toward "strangers or individuals with whom a relationship has been established or promoted for the primary purpose of victimization."" Through a civil proceeding, the statute gives respondents an array of due process rights normally associated with a criminal proceeding, including the right to counsel and the right to a jury trial. 12 In addition, the prosecutor bears the burden of the highest standard of proof in the law-proof beyond a rea13 sonable doubt. A respondent found to be a sexually violent predator will 9. See id. § 71.09.060(1). 10. Id. § 71.09.020(1). 11. Id. § 71.09.020(3). 12. Id. § 71.09.050. 13. Id. § 71.09.060(1). 824 University of Puget Sound Law Review [Vol. 15:821 be sent to the Special Commitment Center operated by the Department of Social and Health Services, where a treatment program (...truncated)