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SVP Commitment and Physical Disability

Sometimes it's argued that sexual predator civil commitment proceedings are too broad because they often don't include any assessment of physical limitations of the offender.  An offender may become physically disabled, yet none of the current risk assessment instruments take this factor into account.  A recent case out of Minnesota demonstrates why even physical disability doesn't mean no risk.

The unpublished decision In the Matter of the Civil Commitment of: James Adam Roth, 2011 WL 3241892 (2011) provides the backdrop. James Roth was confined to a wheelchair since the age of three.  Yet as an adult he managed to sexually assault at least four victims.  After eight years in prison, the state moved to have him civilly committed under the state's sexual psychopath statute.  Roth claimed that the district court erred by finding him "highly likely" to engage in harmful sexual conduct of released because he is "physically incapable of physically forcing anyone to do anything"  and because his prior sex crimes relied upon the assistance of others.

The appellate court disagreed:

Appellant's argument is not supported by the record. Neither the experts nor the district court concluded that he is highly likely to engage in acts of harmful sexual conduct based upon other people's conduct. Rather, Dr. Gilbertson testified that appellant has historically shown an ability to manipulate other people to help him commit his sexual crimes. Further, Dr. Henning testified that appellant's physical disability does not lower his risk of reoffense. The Project Pathfinder evaluator who interviewed appellant wrote in his report that,

although appellant's  extreme physical disability limits his mobility and his capacity to engage in any harmful acts ... he has historically demonstrated an ability and willingness to manipulate or use others to commit sexual abuse and numerous other criminal acts. So his disability is clearly not a protective factor, nor does it appear to mitigate the risk of any type of criminal recidivism. 

The district court also found that appellant "did not play a passive role in these sexual assaults." The experts agreed that, in light of appellant's ability to manipulate others to assist in the commission of his crimes, his disability does not minimize his dangerousness to the population or the risk of further offenses. Appellant himself admits in his brief to this court that "[a]ll of the experts agreed Appellant's ability to manipulate people is what makes him dangerous," conceding the role of his own agency in his harmful sexual conduct. After interviewing and testing appellant and considering his history, the experts concluded that appellant is highly likely to reoffend. Their conclusions were not based upon the imputation of anyone else's crimes to appellant. Thus, the record contains clear and convincing evidence that appellant is highly likely to reoffend.

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