WPI 365.00 Introduction

The core provisions of the Sexually Violent Predator Act (SVPA), RCW Chapter 71.09, have been found to be constitutional. In re Young, 122 Wn.2d 1, 857 P.2d 989 (1993); Seling v. Young, 531 U.S. 250, 121 S.Ct. 727, 148 L.Ed.2d 734 (2001).

Although SVPA proceedings are civil in nature, the State must meet its burden of proving the status of the respondent as a sexually violent predator beyond a reasonable doubt. RCW 71.09.060. Both parties have a right to a 12-person jury, and jury unanimity is required. RCW 71.09.050; RCW 71.09.060; Young, 122 Wn.2d at 48.

The Legislature has defined a “sexually violent predator” as “any person who has been convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility.” RCW 71.09.020(18). “Mental abnormality” and “personality disorder” are alternative means and the jury need not be unanimous as to which means has been proved, so long as substantial evidence supports each alternative. In re Detention of Halgren, 156 Wn.2d 795, 807–12, 132 P.3d 714 (2006). Of course, if there is insufficient evidence proferred as to one of these two alternatives (personality disorder or mental abnormality), the jury must not be instructed as to that alternative. Halgren, 156 Wn. 2d at 811; In re Detention of Sease, 149 Wn.App. 66, 75–79, 201 P.3d 1078 (2009).

Although certain protections consistent with criminal procedures do apply, Washington does not consider a civil commitment proceeding to be quasi-criminal; they are “resolutely civil in nature.” In re Detention of Reyes, 184 Wn.2d 340, 347, 358 P.3d 394 (2015) (doctrine of structural error does not apply). Caution must be used in applying criminal jurisprudence when analyzing issues in a sexually violator predator proceeding. However, the possibility of indefinite commitment in a secure facility places at stake a vital liberty interest. In recognition of this, the Legislature provided for certain protections that do not apply in other civil cases, such as right to counsel, right to a unanimous jury, and the burden of proof beyond a reasonable doubt. RCW 71.09.050; RCW 71.09.060; Young, 122 Wn.2d at 48; see Kansas v. Hendricks, 521 U.S. 346, 372, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (Kennedy, J., concurring) (“the practical effect of [an SVP] law may be to impose confinement for life”).

The SVPA has been challenged in court numerous times, with major amendments enacted in 1995, 2001, 2005, 2009, and 2021. As a result, care must be taken to ensure that the case law relied upon is actually interpreting the current version of the statute. In addition, because a number of other states have similar SVP provisions, Washington courts have looked to federal and state opinions interpreting these other statutes to assist in interpreting Washington law. See, e.g., In re Detention of Thorell, 149 Wn.2d 724, 72 P.3d 708 (2003).

The current statutory framework provides for two separate categories of trial proceedings. Within 45 days of a finding of probable cause on a commitment petition, see RCW 71.09.040, a respondent is entitled to a jury trial on the question of whether he or she is a sexually violent predator. RCW 71.09.050. The first set of instructions (and Comments) that follow in this chapter, WPI 365.01 through 365.21, are proposed for use in these initial civil commitment proceedings.

The second set of instructions, WPI 365.30 through 365.37, are proposed for use in conditional release (LRA) and unconditional discharge trials that potentially follow the initial civil commitment under the terms of RCW 71.09.090. The instructions for conditional, or unconditional, release trials are selected instructions rather than a full set. These selected instructions combine with other instructions in WPI Chapter 365 (Involuntary Treatment—Sexually Violent Predators) as required by the circumstances of the particular case.

The conditional release (LRA) procedures of the SVPA do not violate equal protection. Thorell, 149 Wn.2d 724. In Thorell, the Washington Supreme Court summarized the statutory shifts, including the impact of both the 1995 and 2001 amendments to the SVPA, summarized the sometimes conflicting cases interpreting the LRA provisions, and overruled In re Detention of Brooks, 145 Wn.2d 275, 36 P.3d 1034 (2001), to the extent it is inconsistent with Thorell.

Under Thorell, “those who meet the statutory definition and are committed as SVPs are not entitled to consideration of LRAs until their first annual review.” Thorell, 149 Wn.2d at 751. During each annual review, DSHS must also provide the respondent with an annual written notice of the person's right to petition the court for conditional release to an LRA or unconditional discharge. If the respondent does not affirmatively waive the right to petition, the court must set a show cause hearing. RCW 71.09.090.

At the show cause hearing, the State is required to present a prima facie case (typically with the RCW 71.09.070 annual review report) demonstrating that (1) the respondent's condition has not changed sufficiently, and therefore he or she continues to meet the definition of an SVP; and (2) any proposed LRA placement is not in the respondent's best interest and the proposed LRA will not adequately protect the community. RCW 71.09.090; In re Detention of Jones, 149 Wn.App. 16, 24–30, 201 P.3d 1066 (2009). In addition, the committed person may petition for trial addressing conditional release to an LRA or unconditional release. 71.09.090(2).

A respondent is entitled to a full trial addressing either the LRA or unconditional release question, only if the court concludes that (1) the State has failed to put forward a prima facie case, (2) the respondent has made an affirmative showing establishing probable cause to believe that his or her condition has changed due to continuing participation in treatment such that the respondent is appropriate for an LRA or unconditional release, or (3) the respondent had a permanent physiological change rendering the person unable to commit a sexually violent act. In re Detention of Savala, 147 Wn.App. 798, 803, 199 P.3d 413 (2008); RCW 71.09.090(4)(b).

The court, at the show cause hearing, is not to weigh the evidence. In re Detention of Jacobson, 120 Wn.App.770, 778–81, 86 P.3d 1202 (2004) (superseded by statute on other grounds).

If the respondent is seeking conditional release to an LRA, he or she is required to propose a specific LRA that meets the six statutory requirements of RCW 71.09.092. Jones, 149 Wn.App. at 24–30. Provisions added to RCW 71.09.090 further limit the type of proof sufficient to support a new unconditional or conditional release trial.

Respondents committed under the SVPA who have satisfied the procedures of RCW 71.09.090, and who have overcome any summary judgment proceedings under RCW 71.09.094, are entitled to a trial addressing placement in an LRA and/or unconditional release. RCW 71.09.090. The protections afforded to a respondent at a commitment trial—including the right to a trial by jury and proof beyond a reasonable doubt—are equally available in an LRA or unconditional release proceeding. RCW 71.09.090.

At a trial addressing release to a proposed LRA, the State must prove, beyond a reasonable doubt, that (1) the proposed less restrictive alternative placement plan is not in the respondent's best interests, or (2) the proposed plan does not include conditions that will adequately protect the community. RCW 71.09.090; Thorell, 149 Wn.2d at 746, 751–52. If the trial addresses the unconditional release question, the State must prove that “the committed person's condition remains such that the person continues to meet the definition of a sexually violent predator.” RCW 71.09.090. Evidence of the prior commitment trial and disposition is admissible. RCW 71.09.090.

If a respondent prevails at an LRA trial, the procedures for effectuating a release are set forth in RCW 71.09.096. The statute provides an additional layer of community protection by allowing the trial court to supplement the LRA conditions that were presented to the jury. The court is required to order the Department of Corrections to investigate the proposed LRA and suggest any additional conditions. RCW 71.09.096.

The statute sets forth certain minimum requirements. The trial court is required to “impose any additional conditions necessary to ensure compliance with treatment and to protect the community.” RCW 71.09.096. If the court finds that “conditions do not exist that will both ensure the person's compliance with treatment and protect the community, then the person shall be remanded to the custody of the department of social and health services for control, care and treatment in a secure facility.” RCW 71.09.096(2). The timing of the release must also comply with other applicable statutes, including with regard to community notification. RCW 71.09.096(5)(b). The court is to receive monthly reports on the conditional release and is required to review the conditional release annually. RCW 71.09.096.

If the Department fails to conduct an annual review, the remedy available to a respondent is to hold a show cause hearing and not release from confinement. In re Detention of Rushton, 190 Wn.App 358, 374–378, 359 P.3d 935 (2015).