ANTISOCIAL PERSONALITY DISORDER AND DONALD D.D.: DISTINGUISHING THE SEX OFFENDER FROM THE TYPICAL RECIDIVIST IN THE CIVIL COMMITMENT OF SEX OFFENDERS.

Author:Walsh, Kaitlyn
 
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Introduction 868 I. An Overview of Sex Offender Civil Commitment Laws in the United States and How It Relates to Psychological Diagnoses in New York 873 A. History of Civil Commitment in the United States 874 B. Early Forms of Civil Commitment Laws for Sex Offenders: Sexual Psychopath Laws 880 C. Modern form of Civil Commitment Laws for Sex Offenders: Sexually Violent Predator Laws and the United States Supreme Court's Constitutional Interpretation 883 1. New York's Sexual Psychopath Law: New York Mental Hygiene Law Article 10 887 2. The New York Court of Appeals' Interpretation of Article 10 and Its Constitutionality In Relation to Antisocial Personality Disorder 892 II. Antisocial Personality Disorder and Distinguishing the Sex Offender from the Typical Criminal Recidivist 897 A. Antisocial Personality Disorder: Its Definition and its Relation to the Law 898 B. Jurisdictional Analysis of ASPD as a Condition Sufficient under Sexually Violent Predator Laws 900 1. Iowa: Individual Inquiry 900 2. Kansas: Individual Inquiry 902 3. Minnesota: Individual Inquiry 903 4. Missouri: Past Sexually Violent Behavior 905 5. North Dakota: Nexus Between Disorder and Future Dangerousness 907 III. Antisocial Personality Disorder Should Be a Condition Sufficient to Civilly Commit a Sex Offender 909 A. ASPD Can Distinguish the Sex Offender from the Typical Recidivist 909 1. Kansas v. Crane Leaves Open the Possibility that ASPD Can Be a Condition Sufficient for Civil Commitment 910 2. Subsequent New York Case Law Alludes that ASPD Can Be a Condition Sufficient to Civilly Commit a Sex Offender 911 3. Permitting ASPD as a Condition Sufficient to Civilly Commit Sexual Offenders is Not Contrary to the Purpose of Sexually Violent Predator Laws 913 B. Balancing Liberty Interests and the Police Powers of the State: An Analogy to Fourth Amendment Searches 914 Conclusion 916 INTRODUCTION

Over the span of thirty years, eleven women accused Frank of rape. (1) Frank's first relevant convictions occurred in 1970. (2) That year, Frank broke into four homes over a four-month period. (3) The home invasions were "virtually identical;" (4) Frank would target unsuspecting women, follow each one to her apartment, force his way inside her home and threaten to harm or kill her. (5) He forced the women to undress and proceeded to rape and to rob each of them. (6) Frank was arrested on sexual assault charges (7) and was indicted for sexual offenses in one of the four home invasions. (8) He was convicted of burglary in the second and third degrees, robbery in the first, second, and third degrees, and grand larceny. (9) Although he was sentenced to a maximum of twenty-five years, he only served seven. (10)

Upon his release in 1977, Frank committed another six home invasions and rapes within a four-month period. (11) He committed the first invasion one month after he was discharged. (12) The invasions followed the same pattern Frank presented prior to his incarceration. (13) This time, when Frank was caught, he was convicted of three of the rapes and convicted of the nonsexual offenses he committed against each woman. (14)

Frank then spent thirty-three years in prison. (15) In 2010, Frank was up for parole once again. (16) The State of New York began a proceeding to civilly commit Frank under New York Mental Hygiene Law Article 10 ("Article 10"). (17) Under this law, New York State has the power to civilly commit detained sex offenders (18) who are determined at trial to suffer from a mental abnormality that predisposes the offender to commit another sex offense. (19) At Frank's trial, two experts concluded that he suffered from paraphilia not otherwise specified ("paraphilia NOS") (20) based on urges related to non-consenting partners, and antisocial personality disorder ("ASPD"). (21) Both experts concluded that the diagnosis of paraphilia NOS predisposed Frank to commit sexual offenses and caused him serious difficulty in controlling his sexual impulses. (22) They also opined that his diagnosis of ASPD hindered his volitional control, making him predisposed to committing sexual assaults if released again. (23) At trial, a jury found Frank suffered from a mental abnormality and qualified for civil commitment. (24) The Court placed Frank P. under strict intensive supervision and treatment ("SIST"), (25) a form of civil commitment under Article 10. (26)

Nevertheless, the First Department of the New York Appellate Division reversed the trial court's holding. It instead held that Frank's condition was insufficient for civil commitment. (27) The First Department relied on the New York Court of Appeals' decision in State v. Donald DD. (28) Donald DD. held that a diagnosis of ASPD alone is insufficient to establish the requirement of a mental abnormality under Article 10 (29) because the diagnosis does not distinguish the repeat sex offender from the typical recidivist. (30) The First Department dismissed the petition to civilly confine Frank because his diagnosis of ASPD was insufficient to show he had difficulty in controlling his behavior and therefore he was not distinguished from the typical criminal recidivist. (31) Frank was no longer subject to SIST conditions under Article 10. (32)

New York courts have consistently interpreted Donald DD. as holding that a sole diagnosis of ASPD is insufficient to civilly confine a sex offender. (33) To be sure, some courts in New York have instead stated that, under certain conditions, ASPD may be sufficient to civilly confine a sex offender. (34) This Note argues that ASPD alone should be a condition sufficient to civilly commit a sex offender. This is demonstrated when evaluating the purpose of Sexually Violent Predator Laws, (35) the manner in which other states have permitted ASPD to be a sufficient diagnosis in Sexually Violent Predator proceedings, (36) and why civil commitment hearings should not proceed under bright-line rules, but instead under an individualized approach. (37)

Part I describes the development of the civil commitment of sex offenders through Sexually Violent Predator Laws (38) and the constitutionality of these laws under Kansas v. Hendricks (39) and Kansas v. Crane. (40) Part I then explains the New York Court of Appeals' decision in State v. Donald DD., which held that ASPD was not a sufficient diagnosis on its own to civilly confine a sex offender under New York's law because of the constitutional considerations in Kansas v. Crane. (41) Part II presents a comparison of how other states have used the diagnosis of ASPD and the holding in Kansas v. Crane in the context of evaluating if the offender has a record to distinguish him (42) from the typical recidivist. (43)

Finally, Part III argues that a diagnosis of ASPD on its own should be sufficient to civilly commit a sex offender under New York's Sexually Violent Predator Law. (44) Part III argues that the totality of the circumstances--an individualized approach--is better than a bright-line rule where the law and psychology interact. This is conveyed by evaluating the constitutional standard set out in Kansas v. Crane, which leaves open the possibility that ASPD could be a condition sufficient for civil commitment, by looking at subsequent case law in New York that disagrees with the reasoning in Donald DD., and by evaluating the purpose of civil commitment laws. Part III also demonstrates how the totality of the circumstances approach is already used when balancing the considerations of constitutional rights of a citizen and the police power of the state in the Fourth Amendment context and thus should also be used in this case. (45)

  1. AN OVERVIEW OF SEX OFFENDER CIVIL COMMITMENT LAWS IN THE UNITED STATES AND HOW IT RELATES TO PSYCHOLOGICAL DIAGNOSES IN NEW YORK

    Sex Offender Civil Commitment Laws have been evolving since their inception. Part I explains the development of civil commitment in the United States. It begins with the early forms of civil commitment and then describes the creation of the modern civil commitment law, the Sexually Violent Predator Law, and its constitutionality. Part I then specifies New York's version of the civil commitment law, Mental Hygiene Law Article 10, and examines the New York Court of Appeals' interpretation of this law in light of the United States Supreme Court's interpretation of civil commitment laws.

    Section I.A portrays a brief history of civil commitment in the United States of persons with mental illness who were deemed to be a danger to society. Section I.B describes the earliest form of civil commitment laws for sex offenders, Sexual Psychopath Laws. Section I.C portrays the development of modern civil commitment laws for sex offenders, the Sexually Violent Predator Laws. It also explains the leading United States Supreme Court cases, Kansas v. Hendricks (46) and Kansas v. Crane, (47) which upheld the constitutionality of these laws. Section I.C.1 then describes New York's Sexually Violent Predator Law, Mental Hygiene Law Article 10. (48) Section I.C.2 finally illuminates how the New York Court of Appeals interprets the constitutionality of Article 10 within the context of Kansas v. Hendricks and Kansas v. Crane in State v. Donald DD. (49)

    1. History of Civil Commitment in the United States

      The idea of the civil commitment of persons with mental illness (50) dates back to colonial times. (51) Initially, there were no hospitals for the mentally ill. (52) It was primarily expected that family would take care of those who could not conform to societal norms. (53) Nevertheless, the public feared that the burden would soon shift to them to support those without familial help. (54) The public also feared those persons with mental illness who were deemed to pose a danger to society. (55) This led to the incarceration of those with mental health issues. (56) The "treatment" of these individuals consisted of restraint, sedation with medications, or experimental treatments. (57)

      This...

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