WPI 365.14 Sexually Violent Predators—Likely to Engage—Definition

The first paragraph should be used in all cases. The bracketed word “unconditionally” should be removed when there is evidence that the respondent will be under court-imposed conditions or on community custody following release.

The bracketed second paragraph should be used when evidence of “voluntary treatment” or “placement conditions” has been introduced into evidence. Use the bracketed phrase “placement conditions” only if the evidence indicates that the respondent will be subject to court-ordered supervision, even if released on the predator petition.

If the word “unconditionally” is removed from the first paragraph, it should also be removed from the second paragraph.

The State need not prove that the respondent is likely to engage in predatory behavior in the foreseeable future. Rather, the State is simply required “to prove that the alleged SVP is mentally ill and currently dangerous.” In re Detention of Moore, 167 Wn.2d 113, 124–25, 216 P.3d 1015 (2009). 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 current dangerousness. Moore, 167 Wn.2d at 124–25; see also State v. Hoisington, 123 Wn.App. 138, 147–49, 94 P.3d 318 (2004).

In assessing respondent's risk to commit future acts of sexual violence, the finder of fact is limited to consideration of conditions that respondent would face if the SVP petition were dismissed. RCW 71.09.020(7).

Although a discussion of evidence admissibility is beyond the scope of this Comment, the above instruction allows consideration of respondent's voluntary measures to reduce his or her risk to the community and consideration of court-ordered conditions that would exist if the SVP petition were dismissed. In general, voluntary measures include things such as respondent's promise to engage in community treatment regardless of commitment status. “Conditions that would exist” are typically pre-existing community supervision conditions placed on respondent in connection with a prior criminal conviction. The Thorell decision includes a discussion of what evidence the finder of fact may consider. In re Detention of Thorell, 149 Wn.2d 724, 751–52, 72 P.3d 708 (2003).

Because of the possibility of juror confusion when a respondent will be subject to conditions upon release from confinement, the court may wish to remove the word “unconditionally” from the first paragraph of this instruction. A jury can consider conditions to which the respondent will be subject, such as conditions of community custody, in determining whether the respondent is likely to engage in predatory acts of sexual violence if released.

The WPI Committee recommends that the term “secure facility” not be defined for the jury. This term is relevant in a commitment proceeding only as part of the larger phrase “likely to engage in predatory acts of sexual violence if not confined in a secure facility.” As discussed above, this phrase carries a particular meaning and limits jury consideration to particular types of evidence. Defining security facility outside the context of this phrase adds nothing to the commitment trial instructions. Indeed, in the context of a commitment trial, the statutory definition of secure facility is wholly circular—it includes any place (including private homes and half-way houses) where sexually violent predators are placed. RCW 71.09.020.