WPI 365.10 Sexually Violent Predators—Elements for Commitment

Use this instruction with the following instructions, as appropriate: WPI 365.11 for defining “reasonable doubt”; WPI 365.12 for defining “mental abnormality”; WPI 365.12.01 for defining “personality disorder”; WPI 365.13 for defining “predatory”; WPI 365.14 for defining “likely to engage”; and WPI 365.16 for defining “sexual violence.” There is no pattern instruction defining “secure facility.” See the Comment to WPI 365.14 (Sexually Violent Predators—Likely To Engage—Definition).

In elements (2) and (3), use the bracketed “mental abnormality” and/or “personality disorder” language in accord with the evidence presented at trial. Use the bracketed element (4) only when a recent overt act must be proved. If the bracketed element (4) is used, also use WPI 365.15 (Sexually Violent Predators—Recent Overt Act—Definition).

Fill in the name of the particular crime of sexual violence where indicated. For a list of offenses that qualify as crimes of sexual violence, see the Comment to WPI 365.16 (Sexually Violent Predators—Sexual Violence—Definition).

This instruction will need to be modified to address any of the following unusual circumstances: (1) when the first element depends not on a criminal conviction but on a finding of incompetence or insanity; (2) when the first element depends on an out-of-state conviction; or (3) when the first element depends on a criminal conviction, but the State still needs to prove sexual motivation before the offense can qualify as a crime of sexual violence.

This instruction is similar to that approved by the Supreme Court. See In re Detention of Turay, 139 Wn.2d 379, 986 P.2d 790 (1999); In re Detention of Thorell, 149 Wn.2d 724, 72 P.3d 708 (2003). The above elements are set forth in the various RCW 71.09.020 definitions and RCW 71.09.060.

Burden of proof. Although a commitment pursuant to the Sexually Violent Predator Act is a civil commitment, RCW 71.09.060 requires that the respondent's status as a sexually violent predator be proved beyond a reasonable doubt. See generally In re Young, 122 Wn.2d 1, 857 P.2d 989 (1993).

The State is not required to prove that the respondent is “highly likely” to engage in predatory acts. Due process is satisfied by the statutory requirement that the State prove, beyond a reasonable doubt, that the respondent is likely to engage in such acts. In re Detention of Brooks, 145 Wn.2d 275, 36 P.3d 1034 (2001), overruled on other grounds by Thorell, 149 Wn.2d 724; accord Young, 122 Wn.2d at 32 n.9; Turay, 139 Wn.2d at 407–08.

Statistical likelihood of re-offending, underlying facts supporting the petition, and expert opinions are examples of evidence that will support the “more probably than not” standard in RCW 71.09.020, fulfilling the requirement of proving dangerousness. In re Detention of Moore, 167 Wn.2d 113, 124–25, 216 P.3d 1015 (2009); see also State v. Hoisington, 123 Wn.App. 138, 147–49, 94 P.3d 318 (2004) (combination of evidence found sufficient to prove likelihood that respondent will re-offend with predatory acts of violence).

Recent overt act. The bracketed element (4) is to be used only when a recent overt act must be proved. See RCW 71.09.030; 71.09.060(1); Henrickson v. State, 140 Wn.2d 686, 2 P.3d 473 (2000); In re Detention of Albrecht, 147 Wn.2d 1, 11, 51 P.3d 73 (2002); Paschke v. State, 121 Wn.App. 614, 90 P.3d 74 (2004). The recent overt act requirement is mandated by due process in cases in which the respondent has been released from confinement since his or her last sex offense, but before SVP proceedings are initiated, because the State must prove current dangerousness. Young, 122 Wn.2d at 40–42; In re Detention of Hovinga, 132 Wn.App. 16, 21–23, 130 P.3d 830 (2006).

Whether a respondent is incarcerated for a sexually violent offense or for a recent overt act on the date the petition is filed is a question to be determined by the court pre-trial. In re Detention of Marshall, 156 Wn.2d 150, 158, 125 P.3d 111 (2005); In re Detention of Brown, 154 Wn.App. 116, 122–29, 225 P.3d 1028 (2010). For a useful summary of “recent overt act” case law, see In re Detention of Turay, 150 Wn.2d 71, 74 P.3d 1194 (2003), which was decided on procedural grounds, and In re Detention of Fair, 167 Wn.2d 357, 362–66, 219 P.3d 89 (2009).

Serious difficulty controlling behavior. In Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997), the United States Supreme Court upheld the Kansas sexual predator act—an act similar to Washington's—against a substantive due process challenge. In Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002), the United States Supreme Court reiterated its prior rule that confinement based only on concerns that a sex offender is dangerous cannot pass constitutional muster. The Court emphasized that:

Crane, 534 U.S. at 412 (quoting Hendricks, 521 U.S. at 360).

The Court further commented that “civil commitment of dangerous sexual offenders will normally involve individuals who find it particularly difficult to control their behavior[.]” Crane, 534 U.S. at 414. Although total lack of ability to control behavior is not required, the Court indicated that the Constitution does not permit “commitment of the type of dangerous sexual offender considered in Hendricks without any lack of control determination. … [T]here must be proof of serious difficulty in controlling behavior.” Crane, 534 U.S. at 413.

In Thorell, the Washington Supreme Court held that the jury is not required to make a separate finding on whether a respondent has serious difficulty controlling his or her sexually violent behavior. Nonetheless, the court suggested that “including an instruction on the serious lack of volitional control in future SVP cases will assist in appellate review and is therefore the better practice.” Thorell, 149 Wn.2d at 745 n.8. A similar “best practices” recommendation was made by the Arizona Supreme Court in In re Leon G., 204 Ariz. 15, 59 P.3d 779 (2002)—a decision relied upon throughout the Thorell opinion.

Jury unanimity. 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 order” 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 proffered 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 811–12; In re Detention of Sease, 149 Wn.App. 66, 75–76, 201 P.3d 1078 (2009).

When evidence is proffered as to several possible personality disorders, the jury need not be unanimous as to which diagnosis is appropriate. Sease, 149 Wn.App. at 76–79.