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By Philip Fornaci and Roger Lancaster August 23 at 11:32 AM
Philip Fornaci is a civil rights lawyer based in Washington. Roger Lancaster is the author of “Sex Panic and the Punitive State.“
On Monday, the Circuit Court in liberal Arlington County will be the scene of a heavy-handed morality play, with prosecutors seeking lifelong incarceration for a young gay man who has already paid an extraordinary price for youthful, nonviolent sexual indiscretions.
Virginia, like 19 other states and the federal government, has a Sexually Violent Predators Act (SVPA). Under these laws, people who have completed their criminal sentences under any of a large number of sex-related offenses can be indefinitely detained in a high-security facility until the state determines that they no longer present a risk, typically never.
Civil libertarians have always objected to such practices. They smack of double jeopardy, of ex post facto punishment and of a glaring form of Catch-22: The defendant is deemed mentally fit to stand trial but is mentally unfit for release. The Supreme Court has swatted aside such objections, ruling that civil commitment is not punitive as long as the state claims that the purpose of detention is psychiatric treatment.
SVPA laws and practices refer to “mental abnormalities,” which sounds scientific. But the American Psychiatric Association has opposed such laws, citing their abuse of civil liberties and the use of unscientific “disorders” as the basis for punishment. In practice, designation as a sexually violent predator (SVP) is not based on substantial scientific research, and the therapy received by detainees in “treatment facilities” is based more on passing fads than on careful scholarship.
Nationwide, some 6,400 people are being held in civil commitment.
Galen Baughman could be one of them. At age 20, Galen pleaded guilty to two charges of illegal sexual misconduct: The first “offense” occurred 10 days after his 14th birthday (he was charged as an adult six years later) and the second when he was 19. Neither charge involved violence or deception; neither “victim” participated in his prosecution. As a consequence of an unwise plea agreement, he served six and a half years in prison, much of the time in solitary confinement.
Before Baughman could begin his probation term, he was detained for two and a half more years pending a civil trial as an alleged predator under the Virginia SVPA.
The commonwealth’s attorney general at the time, Ken Cuccinelli, attempted to paint Baughman as a dangerous sexual criminal. But an Arlington County jury of his peers unanimously rejected the prosecution’s arguments and refused to find Baughman a SVP.
After his release on probation in 2012, Baughman became a professional advocate for himself and others victimized by SVPA laws. He held a Soros Justice Fellowship, writing articles and speaking on the topic in forums around the country and internationally. Much of his work was focused on the Virginia law under which he had been so abused.
But the commonwealth was not finished with him.
In 2017, Baughman went to a funeral in another state — with his probation officer’s permission. There, he met a 16-year-old family acquaintance and began exchanging text messages with him. The messages were non-sexual, and the boy was above the age of consent in his state. But the commonwealth seized this as an opportunity to revoke Baughman’s probation.
Fred Berlin, a psychiatrist and internationally recognized expert on sexual disorders, testified at the hearing that the messages did not constitute “grooming” or manipulation. But Arlington Circuit Court Judge Daniel S. Fiore II insisted that the texts were evidence that Baughman was trying to recruit the heterosexual youth into gay sex. Asserting that a “tragedy for a minor” had been narrowly averted, the judge sentenced Baughman to 21 months in jail. Such a minor technical violation would normally not result in jail time.
Despite the tenuousness of its case, the commonwealth has seized on Baughman’s second incarceration — on a technical, not criminal, probation violation — to initiate a second attempt to have Baughman labeled a SVP.
As a standard part of the SVPA process, the Department of Behavioral Health and Developmental Services hired a psychologist to determine whether Baughman was a sexual predator. After conducting a mental health assessment, psychologist Ilona Gravers found that Baughman was not a predator and recommended his release.
Unsatisfied with this opinion, Virginia Attorney General Mark R. Herring (D), ignored Virginia law and hired a second psychologist, Michelle Sjolinder, who was handpicked by prosecutors outside the statutory process. With the first report in hand, the replacement expert gave the state what it wanted and claimed that Baughman was a SVP in need of potentially lifelong commitment. She did not allege any change in Baughman’s mental health since his previous SVP trial in 2012, effectively rejecting and reversing the 2012 jury decision.
Baughman’s second SVPA jury trial is scheduled for Arlington next week. He is facing the possibility of indefinite detention despite having never committed a violent offense.
This new civil trial will be played out with few of the legal protections assured criminal defendants. Fiore has barred Baughman’s attorneys from presenting the state’s first psychologist as a witness or from even introducing her report into evidence. Nor can any mention be made of the first SVPA trial and that jury’s findings. Psychiatric evaluations by Fred Berlin and psychiatrist Richard Krueger at Columbia University that found that Baughman suffered no mental health problems also will not be admitted.
If Baughman’s offenses had involved noncoercive, nonviolent conduct with a young woman under the age of consent, it is unlikely Virginia would have prosecuted him under SVP laws. The “scientific” instrument Virginia uses to screen for future dangerousness, known as the Static 99, is simply a checklist of supposedly relevant factors, including the offender’s age, whether he has had a long-term intimate relationship and the victim’s gender. Because he is young, has no “significant other,” pleaded to two offenses and is gay, Baughman accumulated four points, scoring him as “high-risk.”
It is impossible to call any of this “scientific” or fair. Homophobic bias is built into the process.
The SVPA also grants the state extraordinary power to impose potential life imprisonment. Prosecutors unilaterally decide which of those individuals previously convicted and punished for sex-related offenses (typically fewer than 17 percent) will be tried again for lifelong civil commitment.
If a jury rejects the state’s assessment, the process can be repeated under a variety of pretexts a second (or third) time until the state achieves its goal. And as seen in this case, prosecutors are free to shop for “experts” whose paid assessments match that goal.
Baughman’s case stretches legal practices and commonsense definitions to their breaking points, but it is not altogether exceptional. Others who have never committed a violent crime have been civilly committed. Minors have been subjected to indefinite detention, as have senior citizens in debilitated condition.
Indeed, our civil containment practices for sex offenders are so extreme that high courts in the United Kingdom and Canada have deemed that they are in flagrant violation of international human rights standards and have blocked defendants’ extradition to the United States.
Some states are rethinking their civil commitment statutes in the face of successful legal challenges to portions of their SVP laws and practices. Virginia, by contrast, is expanding its 28-acre Nottoway County treatment facility by 258 beds at a cost of $110 million, or $426,000 per bed. It expects to run out of beds (again) in 2022 as the state zealously expands SVPA prosecutions.
Baughman’s case is a prime example of why Virginia and other states should scrap the SVPA: It corrupts science and the legal system. It normalizes prosecutorial vindictiveness. It erodes citizens’ basic rights and protections against punishment without a crime.