On December 19, 2013, following a bench trial, this Court reached a verdict finding that the Respondent suffers from a Mental Abnormality under Article 10 of the Mental Hygiene Law ("Article 10"). The Court's decision was contingent on a legal principle which will be reviewed this term by the New York Court of Appeals: Can a Mental Abnormality finding under Article 10 be premised solely on a determination that a Respondent suffers from Antisocial Personality Disorder? See State v. Donald DD., 107 AD3d 1062 (3d Dept 2013), lv granted, 21 NY3d 866. The Third Department answered that question affirmatively in Donald DD. The only relevant diagnosis which this Court credited as a basis for a Mental Abnormality in the instant case was Antisocial Personality Disorder. Three of the current judges of the Court of Appeals, however, in dissent and in dicta, expressed profound skepticism about subjecting sex offenders to civil management based only on such a finding in State v. Shannon S., 20 NY3d 99, 110 (2012) (Smith, J., dissenting). The remaining four judges of the current Court, moreover, have apparently never opined on the issue. In order to both provide a record on which this Court's verdict might be properly assessed and contribute to the legal debate on this important issue, the following findings and conclusions are provided.

The trial evidence primarily consisted of the testimony of three expert witnesses. Dr. Jennine R. Martinez and Dr. Kostas Katsavdakis testified for the State. Dr. Leonard Bard testified for the Respondent. All three witnesses are psychologists who have extensive training, education and experience in the evaluation and treatment of sex offenders although Dr. Martinez is at an earlier stage in her career than Drs. Katsavdakis or Bard. Dr. Katsavdakis is board [*2]certified in Forensic Psychology, a credential the other two experts did not have. Dr. Martinez is employed by the New York State Office of Mental Health. Dr. Katsavdakis in the past has testified both on behalf of the State and respondents in Article 10 proceedings. Dr. Bard has testified in Article 10 cases exclusively for respondents.

Respondent's Criminal History

Mr. R. is currently 49 years old. His first contact with the juvenile justice system occurred at age 13 and his criminal history dates to when he was 16 years old. He has been arrested more than 30 times, frequently while under parole supervision. His convictions or adjudications include those for attempted robbery, drug crimes, assault, larceny and possession of burglar's tools. He has been arrested for assaulting a police officer, resisting arrest and gang assault. He was arrested for jostling but convicted only of disorderly conduct in 1980. According to the Respondent, he has 33 convictions although he has only three convictions for sex offenses and five convictions which initially arose from such charges.

His first arrest for a sexual offense occurred on March 31, 1981 at the age of 16 while he was on probation. He was arrested for Sexual Abuse in the Third Degree but convicted only of Escape in the Third Degree. In that case, evidence indicated that he rubbed his erect penis while wearing his pants upon the buttocks of a woman on a New York City subway at 8:30 A.M. on a weekday morning. He ran away from the police following the incident. Mr. R. was next arrested for Sexual Abuse in the Third Degree for an incident occurring on the subway on June 2, 1983 but pled guilty to only harassment. He was 19 at the time of this offense and was also on probation. No evidence was adduced about what occurred in that case.

He was next convicted for Sexual Abuse in the Third Degree for an incident occurring on May 1, 1984. He was 20 years old and on probation at that time. This crime also occurred on a subway and arose when the Respondent touched the victim's buttocks and then, after she moved away from him, touched her buttocks again at 5:45 P.M. on a weekday evening. A police report with respect to this incident noted that "$35 were returned" without further elaboration. Mr. R. was not charged with any theft-related crimes in that case. On March 25, 1999, the Respondent was alleged to have rubbed up against a woman on the subway at 8:30 A.M. He was acquitted of criminal charges after a trial. Testimony at a parole revocation proceeding regarding the incident by a police officer who witnessed it, however, indicated that Mr. R. had cornered the victim in the subway car for several minutes and committed the crime. He was next convicted of Sexual Abuse in the Third Degree for an incident which occurred on September 27, 1999. In that case, he touched the buttocks of a woman on a subway car from behind at 9:35 A.M. on a weekday morning. He was on parole at the time.

The instant offense which forms the basis for this proceeding occurred on March 9, 2006 when Mr. R. was on parole. In that case he was convicted after a trial of two counts of Criminal Sexual Act in the Second Degree for engaging in oral and anal sexual conduct with a 13 year-old girl. According to the testimony of the victim, Mr. R. approached the victim, who did not know him, on the street and asked her to accompany him to the roof of a building. The crime took place on an evening when the victim was coming from a store where her mother had asked her to buy ginger ale. Mr. R. was smoking marijuana at the time.

After an approximate five minute conversation, the victim agreed to accompany Mr. R. to the roof. He placed his penis in her mouth for five to ten minutes but did not ejaculate. He then [*3]picked the victim up, turned her body around, pulled down her pants and rubbed his penis on her anus for about five minutes while making a sound, although he did not penetrate the anus or ejaculate. Mr. R.'s penis was described as being both soft and partially hard during the encounter. The police arrived at the roof after Mr. R. and the victim had put their clothing back on. Mr. R. fled and was arrested a couple of days later. The victim was initially arrested at the scene. The victim testified that she initially told the police that Mr. R. was her boyfriend because she did not want to get in trouble.

There was no evidence that the Respondent used forcible compulsion to commit the crime. The victim's adoptive mother, however, testified that the victim was in special education and the evidence indicated that she attended a special school. There was evidence that the victim looked older than her age and no allegation that Mr. R. knew what her age was. Mr. R., during the trial, apparently asserted that he had traded marijuana with the victim in return for sex. Mr. R. has reported that he has gone to clubs and attempted to trade drugs for sex on other occasions as well.

As part of his sex offender treatment homework, Mr. R. reported that the victim of the instant offense was "vulnerable and easy to influence".^[FN1] He also told Dr. Bard that the victim was "sexually developed". At the time of the crime, Mr. R. was in a consensual relationship with a woman who he was apparently living with prior to the crime. He had gotten into a dispute with the woman prior to the instant offense and the woman had apparently asked Mr. R. to leave their home. That dispute concerned the allegation that Mr. R. had been unfaithful to her. At sentencing, he said that although he did not engage in oral or anal sexual conduct with the victim, he would have had sexual relations with her if the police had not arrived. Mr. R. did admit at one point later, however, that he had touched the victim outside of her clothing.

Respondent's General Background

Mr. R. grew up in New York City, dropped out of high school but subsequently earned a GED while incarcerated. He described his childhood as happy. It appears he has a limited work history which is partly due to the long period of time he has spent in prison. He previously sold narcotics and before his arrest for the instant offense had a variety of odd jobs and also said that he had been employed as a driver transporting tennis players to the U.S. Open. He reported that he is heterosexual, has had approximately 100 sexual partners in his lifetime, has had two long-term romantic relationships and has engaged in frequent infidelities. Some of his arrests for sexual offenses occurred while he was also engaged in consensual sexual relationships.

Mr. R. began smoking marijuana consistently at the age of 14 and began using crack cocaine at 18. There is no evidence, however, that he used crack cocaine after 2001. He reported drinking socially and attending multiple substance abuse treatment programs. He participated in aggression replacement therapy in prison. He completed a year-long sex offender treatment program while in prison in 2012. The program faculty, however, noted that he was continuing to deflect blame for his sexual crimes even towards the end of this program. There is no evidence that Mr. R. engaged in any sexually deviant behavior while he was incarcerated. He has received 12 "Tier 2" disciplinary infractions during his current term of incarceration which began in 2006. The state correctional system classifies offenses into three tiers. Tier 2 offenses [*4]are those of moderate severity.

Conclusions of Dr. Martinez

Dr. Martinez opined that the Mr. R. suffered from a Mental Abnormality under Article 10.^[FN2] She interviewed the Respondent for approximately four hours by video-teleconference in September of 2012 and also reviewed extensive records about him. Mr. R. told Dr. Martinez that every case in which he had been arrested for sexual abuse had been an attempt at pickpocketing and that none were sexually motivated. She found it significant that he continued to deny any sexual motivation for these crimes even after he had completed sex offender treatment and opined that this indicated additional treatment was necessary. In discussing the impact of his sexual abuse crimes, he told Dr. Martinez, "no harm, no foul".^[FN3]

Regarding the instant offense, Mr. R. said that the semen of four different men had been found on the victim's clothing and that she was a streetwalker. The evidence at the trial did indicate that two incomplete male DNA samples had been found on the victim and that neither matched Mr. R. However, the evidence did not provide the source of these samples and indicated they could have come from sources other than semen. Mr. R. denied that he sodomized the victim. During his sex offender treatment program while incarcerated, he referred to this crime as having involved two perpetrators, himself and the victim, by referring to the crime with the pronoun "we".

Dr. Martinez testified that the fact that Mr. R.'s sexual abuse crimes were committed in public places (the subway) under circumstances where he was likely to be caught demonstrated impulsivity. She said that his convictions for sex crimes at the same time he was engaged in consensual relationships indicated that he had a degree of sexual preoccupation. Mr. R. minimized the degree to which his previous crimes involved violence. She also said that he consistently attempted to deflect the blame for his crimes and had a lack of remorse for them.The fact that many of his crimes, including the instant offense, were committed while he was on parole demonstrated that he had serious difficulty in controlling his sexually offending behavior. Mr. R.'s sexually offending behaviors have been present throughout his life.

Dr. Martinez diagnosed the Respondent with Frotteurism which she said was a condition where a person rubbed or touched a non-consenting person, or had fantasies of doing so which caused distress. Frotteuristic conduct usually occurs in a crowded place where the offender can escape arrest. She said that this diagnosis did not mean that Mr. R. was limited to only frotteuristic behaviors with respect to sexual offending as evidenced by the instant offense. She also diagnosed Mr. R. with cocaine and cannabis dependence in remission in a controlled environment. She diagnosed him with Antisocial Personality Disorder ("ASPD"), Narcissistic Personality Disorder, Psychopathy, which she said was a more extreme form of ASPD and Sexual Preoccupation. [*5]

She described ASPD as a disorder defined by the Diagnostic and Statistical Manual of Mental Disorders (the "DSM") characterized by a "disregard for the law . . . disregard for other people's safety and rights . . . impulsivity. . . failure to plan ahead, lack of remorse and responsibility" all of which were demonstrated by Mr. R.'s history. The condition also requires evidence of a conduct disorder before the age of 16 which was present in this case. 40-55% of the prison population can be diagnosed with ASPD; the figure may be as high as 75%. However, Dr. Martinez testified that only 2-5% of the prison population is incarcerated because of a sex offense conviction. Such a conviction is a predicate for an Article 10 proceeding.

She said that Narcissistic Personality Disorder shared characteristics with ASPD and also included a belief by the individual that he is unique, entitled and powerful or special. People with this disorder are exploitative and lack empathy. Mr. R. told Dr. Martinez that when he walks on the street, everyone wants what he has and so his life was in danger. He reported that he had spent time with high ranking NYPD officials and said the fact that he had spent only one year with his child in the community was sufficient to have the child establish a parental relationship with him. Dr. Martinez explained that the combination of Mr. R.'s disorders impacted his emotional, cognitive and volitional capacity in a manner which predisposed him to commit sex crimes and resulted in his having serious difficulty in controlling his sexually offending behavior. The combination of ASPD and Narcissistic Personality Disorder manifested itself in a "glibness, a superficial charm and grandiosity".^[FN4] She said that Mr. R. was predisposed to commit both the kind of sexual abuse crimes he was convicted of in the past as well as the more serious kind of crime he committed in 2006.

Dr. Martinez said that Mr. R. had a "Sexual Preoccupation" which she said was a term used in the psychological community. This condition was manifested by an undue focus on sexual behaviors, impersonal sex and sex outside a relationship which interfered with personal functioning. She was unable to cite any more specific clinical criteria to define the condition, said it was not a DSM diagnosis and said that she did not know whether the designation was accepted as valid by a majority of people in her field. She acknowledged that a scholarly article she had read said that it was difficult to describe what sexual preoccupation was.

The fact that Mr. R. did not commit sex crimes while in prison was not significant because Mr. R. did not have access to his victim pool there. Dr. Martinez did not diagnose Mr. R. with Pedophilia or "Hebephilia" (a sexual attraction to underage post-pubescent girls). She acknowledged that the denial by an offender of his sex crimes (as occurred here) is not correlated with an increased likelihood of recidivism. She said that Mr. R.'s cognitive distortions in which he blamed his victims, however, were correlated with an increased risk to re-offend. Dr. Martinez acknowledged that research indicates that the completion of a sex offender treatment program reduces re-offense risk and that Mr. R. was an active participant in his prison sex offender treatment program. She opined that Mr. R. received some benefit from this treatment but that his continued attempts to deflect blame for his crimes indicated that benefit was limited. She acknowledged that research indicates that sexual recidivism generally declines with age. Psychopathy is diagnosed through an instrument, the Psychopathy Checklist Revised ("PCLR"). Research has found, however, that the PCLR may be scored differently depending on which side [*6]of a dispute a reviewer is working for and has also concluded that two reviewers who are not working for opposing parties, using the same facts, will arrive at different scores on the instrument. The PCLR is more effective at predicting general rather than sexual recidivism.

Conclusions of Dr. Katsavdakis

Dr. Katsavdakis sought to interview Mr. R. but since Mr. R. did not agree to meet with him, based his conclusions solely on a record review. Dr. Katsavdakis diagnosed Mr. R. with ASPD with narcissistic features. He did not diagnose him with Narcissistic Personality Disorder. He agreed that 50-75% of the prison population could be diagnosed with ASPD. He also diagnosed the Respondent with cocaine dependence and marijuana abuse in remission. He said that Mr. R.'s trajectory of offending began before the age of 16 and was manifested by impulsivity, lack of remorse, numerous criminal acts, a callous disregard for the rights of others, a lack of empathy and repeated parole violations. Dr. Katsavdakis provided criteria for the ASPD diagnosis which mirrored those of Dr. Martinez.

Mr. R. has demonstrated a total lack of responsibility for his sexual and non-sexual crimes, attempting to pin the blame for them on others. Dr. Katsavdakis described the precise details of the Respondent's crimes in a manner which was more thorough than Dr. Martinez and said these details were important in understanding Mr. R.'s offense cycle. In the 1980's, Mr. R.'s offenses consisted of theft-related and sex crimes. Mr. R. also displayed a pattern of resisting arrest. In the 1990's there were also sex offenses, a reduction in theft offenses and an increase in drug crimes including drug sales. Resisting arrest also continued to occur. Most of the decade after 2000 was spent in prison but Mr. R. also faced a drug charge and the instant sex crime. Since 1994, he calculated, Mr. R. was in the community before he was assessed with a parole violation an average of about 4 ½ to 5 months at a time. The shortest period was 11 days; the longest was before the instant offense when he was in the community for 14 months.

According to Dr. Katsavdakis's review of Mr. R.'s sex offender treatment records, Mr. R. had tried to get his life on track when he was released on parole in 2005 but then believed he had gone back to his old habits of using drugs and cheating on his girlfriend. Mr. R, when talking about the instant offense in his sex offender treatment homework, "talked about that he just kind of lost control"^[FN5] which was significant to Dr. Katsavdakis with respect to the Mental Abnormality question. The instant offense occurred 25 years after Mr. R.'s initial sex crime and reflected an escalation in his offending behavior. Dr. Katsavdakis characterized the instant offense as opportunistic and impulsive. He opined that Mr. R.'s sex offender treatment had not provided him with the tools he needed to avoid re-offending.

According to Dr. Katsavdakis: "Mr. R. suffers from a pervasive patten of antisocial personality disorder and narcissistic pathology which began to crystalize around his teenage years and has continued to manifest itself throughout his adult life leading to sexual offenses."^[FN6] He opined that Mr. R. had a predisposition to commit sex crimes. He also found that Mr. R. was psychopathic which he defined using many of the characteristics of a person with ASPD. He said that psychopathic individuals tended to recidivate at a high rate and tend to continue to offend as [*7]they age as opposed to being responsive to treatment. Dr. Katsavdakis said he could not diagnose Mr. R. with having a "condition, disease or disorder" under Article 10 because he considered that to be a legal rather than a psychiatric concept. He said that Mr. R. had "characteristics consistent with a mental abnormality" under Article 10.^[FN7]

Dr. Katsavdakis did not diagnose Mr. R. with Frotteurism. He found it significant that in the May 1, 1984 incident in which Mr. R. was convicted of sexual abuse, he touched the victim, then followed her and touched her again. Dr. Katsavdakis said that frotteurs typically break contact with a victim after initially rubbing against them. He also said that Frotteurism is characterized by rubbing against a non-consenting victim typically with an erect penis under the offender's clothing rather than touching the victim with a hand. Mr. R., however, has engaged in touching rather than rubbing during some of his crimes. Frotteurism did not occur in the instant offense. Dr. Katsavdakis further did not diagnose Mr. R. with Frotteurism because frotteurs typically don't have the kind of diverse criminal background Mr. R. has. Finally, Mr. R.'s conduct was not typical of a frotteur because frotteurs exhibit other kinds of deviant sexual behaviors, like voyeurism or exhibitionism. Mr. R. has not committed such acts.

Dr. Katsavdakis acknowledged the same problems with scoring the PCLR as were acknowledged by Dr. Martinez. He did not assign the designation of "Sexual Preoccupation" to Mr. R. He said he was not aware of the criteria for such a term but that he did believe that Mr. R. had sexual interests which he wanted to gratify. Dr. Katsavdakis said that when Mr. R.'s sex offense and theft-related convictions were compared, there was no overlap in the methods Mr. R. used to commit these offenses. This supported his conclusion that Mr. R.'s sexual abuse crimes were not simply theft offenses which had been mistakenly construed as sex crimes. He further did not agree that the instant offense was an "outlier" which was inconsistent with Mr. R.'s criminal history. He said the instant crime was rather an escalation of the crimes Mr. R. had previously committed and indicated that Mr. R. may continue to escalate his sexually offending behavior in the future possibly committing a forcible rape.

Conclusions of Dr. Bard

Dr. Bard interviewed Mr. R. at Riker's Island in January of 2013 for an hour and 45 minutes and reviewed extensive materials about him. He was critical of conducting interviews of respondents by video-conference (as Dr. Martinez did) because in-person conversations led to a more fruitful relationship and allowed the interviewer to better assess a respondent's demeanor.

Dr. Bard began his description of the Respondent's criminal history by mistakenly saying that his arrest in 1980 for jostling had been dismissed; upon refreshing his recollection he then correctly said it had resulted in a finding that Mr. R. was guilty of disorderly conduct. He said that with respect to Mr. R.'s 1984 sexual abuse conviction, a police report indicated that $35 had been returned to the victim of the crime. The actual report, however, indicates only that $35 was returned without indicating who it was returned to. With respect to the instant offense, Dr. Bard initially testified that Mr. R. had pled guilty. When asked about it again, he said he believed Mr. R. had pled guilty. Upon being asked a third time and asked to refresh his recollection, he finally recalled that Mr. R.'s conviction was the result of a jury trial.

Dr. Bard opined that Mr. R.'s sexual abuse convictions did not have much bearing on his [*8]evaluation since those crimes were misdemeanors which could not result in a Mental Abnormality finding. Such crimes "really are not relevant" with respect to an assessment of whether Mr. R. has a Mental Abnormality.^[FN8] If these crimes did not relate to an alleged Mental Abnormality under Article 10, they are "meaningless".^[FN9] The instant offense is "the only one that has bearing on Article 10".^[FN10] When asked if he was familiar with the New York felony crime of Persistent Sexual Abuse, he said that he was "vaguely" aware of it. He said that this crime occurred when an offender committed "a certain number of offenses over a certain period of time" but that he didn't "know a lot more"^[FN11] and did not know if the crime was a felony.

When asked what the definition of sexual abuse was under New York law, Dr. Bard said he knew that it was a misdemeanor and involved touching someone without permission but did not know more than that. He acknowledged that he did not have a working understanding of the term "sexual contact" under New York law. He said that he did not know what the difference between a larceny and a robbery was. He said he did know what the legal age of consent was in New York, saying he had been told it was 18. (It is actually 17).

It was also obvious during his testimony that Dr. Bard did not ask Mr. R. detailed questions about his sexual abuse convictions or charges and did not review or assign significance to records describing them. For example, when asked about an accusatory instrument for Mr. R.'s 1984 sexual abuse conviction, Dr. Bard noted that "I don't pay much attention to those kinds of things".^[FN12] Asked whether he recalled the sworn testimony of a police officer who witnessed the Respondent's alleged commission of a sexual abuse crime on the subway in 1999, he said he recalled it "vaguely" but that nothing would likely refresh his recollection.^[FN13] He did not recall reading a transcript of the victim's testimony with respect to the Respondent's conviction for sexual abuse in September of 1999 because he only read what he thought was relevant.

Dr. Bard said that he did not know "off the top of my head" how long Mr. R. had been in the community before committing the instant offense, how many times he had been sentenced to probation or parole or whether Mr. R. committed sex crimes while on probation or parole. He did not know how many times Mr. R. had been charged with violating probation or parole or whether Mr. R. had been found guilty of a parole violation and sentenced to state prison. He did not recall whether the Respondent had an erection during the instant offense.

Dr. Bard diagnosed Mr. R. with ASPD but opined that he did not suffer from a Mental Abnormality. His ASPD diagnosis was based on many of the considerations outlined by Drs. [*9]Martinez and Katsavdakis. Dr. Bard acknowledged that the DSM provides, with respect to non-diagnostic criteria for ASPD, that persons with the diagnosis "may engage in sexual behavior or substance use, that has a high risk for harmful consequences".^[FN14] ASPD may be chronic but begins to decrease in the fourth decade of life. Dr. Bard said that Mr. R. did not have a Mental Abnormality because ASPD is not a sexual disorder. ASPD did not predispose a person to commit sex crimes because "[i]f it did predispose them then you would expect everyone who has ASPD to have sex offenses".^[FN15] Mr. R. has committed far more non-sex offenses than sex crimes. Regarding the instant offense, he said, he did not believe that Mr. R. had selected the victim because of her age. Mr. R. had indicated that the victim was sexually developed. Dr. Bard said that he thought that Mr. R. now believed that the instant offense was both inappropriate and harmful. He said that it is possible to be diagnosed only with ASPD and have a Mental Abnormality. But Mr. R. had committed only one relevant offense in this case which was insufficient to demonstrate a predisposition.

The instant offense did not reflect an "escalation" in Mr. R.'s offending because no violence was used and the crime occurred only once. Mr. R. told Dr. Bard that with respect to the instant offense he had been "stuck in the 80's" which Dr. Bard interpreted to mean that Mr. R. believed he had returned to behavior patterns he had been engaged in during the 1980's.^[FN16] There is no evidence that Mr. R. has an attraction to underage girls. He said that Mr. R. was unlikely to commit any kind of sex crime again but that if he did commit one it would likely be a touching offense. Regarding Mr. R.'s sex offender treatment, Dr. Bard said that it was impossible to know whether it had been beneficial until Mr. R. was released to the community. He opined, however, that the treatment did provide the Respondent with an understanding of his behavior which he did not have in the past. Dr. Bard testified that Mr. R. needed ongoing treatment but not necessarily sex offender treatment since ASPD was not a sexual disorder. He said that research indicated that the completion of a sex offender treatment program had a small but significant positive effect on reducing recidivism. An offender's denial of his crimes is not correlated with an increased risk to re-offend.

Mr. R. received a disciplinary infraction for an alcohol offense in October of 2013 while the instant matter was pending but Dr. Bard not find this significant. Alcohol removes inhibitions and so may make offending easier but there is no evidence that alcohol has been associated with any of Mr. R.'s crimes. During his initial direct testimony, he said that he had not diagnosed Mr. R. with any disorder other than ASPD. He said that he "could and should probably" have diagnosed him with substance abuse but didn't because that diagnosis didn't bear directly on Article 10. He later asserted that Mr. R.was an alcoholic but provided no further support for that assertion. He did not note this diagnosis in his written report. He said that this was because it was not relevant to Mental Abnormality.

Dr. Bard said he partially believed Mr. R.'s claims that his sexual abuse crimes were the [*10]result of attempts to steal. He pointed to the "money being returned" notation in the police report and the fact that Mr. R. had been charged in one case with jostling. He said the fact that Mr. R. had not been known to engage in any sexually deviant behavior while in prison was a positive thing, although not significant with respect to his alleged Mental Abnormality. Dr. Bard said he believed there was evidence with respect to the instant offense that the victim had been "sexually developed". He said that he relied upon Mr. R.'s statement in that regard, the fact that Mr. R. was not immediately arrested when the police came upon the scene of the crime (which suggested that it was not obvious the victim was a minor) and a statement which was made by the trial judge during sentencing that the victim looked older than her age.

Dr. Bard did not diagnose Mr. R. with Frotteurism. He said that frotteurs rubbed up against their victims with their genitals while a number of Mr. R.'s sexual abuse crimes involving touching. He said that there was not enough evidence to diagnose Mr. R. with Narcissistic Personality Disorder but that Dr. Katsavdakis's conclusion that Mr. R. had ASPD was narcissistic features was easier to accept.

Dr. Bard said that there are no defined criteria for "Sexual Preoccupation" and that the designation was not generally accepted in the scientific community. He said that some studies had defined as sexually preoccupied people who had more than three sexual partners in a year or looked at pornography more than once every two weeks and that this "would probably include most college kids".^[FN17] He did not diagnose Mr. R. with Psychopathy, noted some of the same difficulties with using the PCLR to diagnose that condition as the other witnesses and said that a diagnosis of Psychopathy didn't add anything useful with respect to the question of Mental Abnormality. Research indicates that sex offender recidivism gradually declines until age 50, then drops off significantly, then drops off even more significantly after age 60.

Dr. Bard testified that touching the sexual or intimate parts of a person without consent is not deviant because "we all touch and it's not considered deviant when it's done with a consenting person". He said that "rape is not a deviant act". He described deviant behavior, inter alia, as "something that most people do not do". He also asserted that rape is not a sexual disorder because rapes often occur for reasons which don't concern sexuality. He acknowledged that non-consensual sexual touching and rape are crimes. He said that the recidivism rate for Frotteurism had not been studied because "it's basically considered a nuisance offense".^[FN18] He said that being sexually attracted to post-pubescent under-age females is also not sexually deviant.

The Court concluded following the bench trial by clear and convincing evidence that Mr. [*11]R. suffered from a Mental Abnormality.^[FN19] The Court agreed with the vast bulk of Dr. Katsavdakis's testimony. The Court also credited the overall conclusion of Dr. Martinez that Mr. R. suffered from a Mental Abnormality although it disagreed with her findings on some important issues. The Court did not credit much of Dr. Bard's testimony for the reasons discussed below but did agree with some of his conclusions on specific issues.

In the Court's view, Mr. R. is not a difficult person to understand. All three experts agreed that he suffers from ASPD. It is obvious that Mr. R. has little if any regard for the rights of other people, is incapable of following laws and rules, has a grandiose sense of entitlement and seeks to deflect blame for his negative behaviors. In being questioned about his sexual abuse crimes, for example, he told Dr. Martinez: "no harm, no foul". In the instant offense, he said that the 13 year old victim looked like a streetwalker and had the semen of four men on her. He does not empathize with the pain he causes to other people.

Mr. R.'s criminal and sexual offending have been evident throughout his life, beginning from at least the age of 16. His instant crime post-dated his first known sexual offense conviction by 25 years. Dr. Katsavdakis testified that since 1994, he calculated, Mr. R. had been in the community before he was assessed with a parole violation an average of about 4 ½ to 5 months at a time. Parole and probation have not deterred his criminal conduct. Prison sentences have not stopped him from offending. Mr. R.'s sex crimes have been impulsive. That was most evident in the instant offense where, upon seeing a random 13 year-old girl walking down the street, he apparently decided on the spur of the moment to engage in conduct which in short order resulted in his commission of a serious sex crime. Indeed, as Dr. Katsavdakis noted during his testimony, Mr. R. had reported that in the instant case he had "talked about that he just kind of lost control". He told Dr. Bard that with respect to the instant crime he had been "stuck in the 80's", a time when he committed multiple sex and other crimes. Mr. R.'s most recent crime, moreover, was his most serious. At an age when many offenders begin to reduce their sexually offending behavior, Mr. R. is apparently proceeding in the opposite direction.

None of the facts relevant to Mr. R.'s ASPD and general criminal propensities would subject him to an Article 10 proceeding, of course, if he did not sexually offend. But Mr. R.'s ASPD has been paired with an intense interest in engaging in sexual relations, both legal and criminal. Mr. R. is predisposed to commit and has serious difficulty in controlling his sexually offending behavior not because he has any diagnosable sexual disorder. He is predisposed to commit sex crimes and exhibits serious difficulty in controlling his sexually offending behavior because he has an intense interest in sex, which is not necessarily abnormal in and of itself, coupled with a complete disregard for whether his sexual appetites result in the commission of serious crimes against other people. Simply put, Mr. R. often does whatever he feels like doing and what he has felt like doing repeatedly throughout his life is committing sex crimes.

Throughout the 1980's and 1990's, Mr. R. repeatedly rubbed up against or sexually [*12]molested non-consenting women in the subway. In 2006, he sodomized a 13 year old girl. The next time, maybe he will trade drugs for sex with a 15 year old who looks older than her age. Maybe he will go back to rubbing up against women in subway cars. Maybe he will encounter the chance to engage in sexual relations in some other felonious manner. The potential scenarios are limitless. Dr. Katsavdakis testified that he believed Mr. R.'s sexual offending was escalating and that the next time he offended he might commit a forcible rape. The Court does not necessarily believe that is true. Mr. R. has never been known to forcibly rape anyone. But Mr. R. certainly has demonstrated serious difficulty in controlling his sexually offending behavior.

Court's Specific Conclusions Regarding Contested Trial Issues

Dr. Martinez diagnosed Mr. R. with Frotteurism. Dr. Katsavdakis and Dr. Bard did not. The Court credited the latter conclusion. Dr. Katsavdakis explained that although Mr. R. had been known sexually rub up against the bodies of non-consenting women, he did not share a number of the important characteristics of frotteurs. Frotteurs, he said, typically break off contact with a victim after rubbing against them. But in the May 1, 1984 incident, Mr. R. touched his victim then followed her and touched her again. Frotteurs generally rub their erect penis while it is inside their clothing on the victim's body. But a number of Mr. R.'s crimes involved touching rather than rubbing. Frotteurs typically don't have a diverse criminal background. But Mr. R. has committed a wide range of non-sexual crimes. Finally, frotteurs typically engage in other sexually deviant behaviors like exhibitionism or voyeurism. But Mr. R. has never been known to engage in such conduct.

The Court likewise did not credit Dr. Martinez's assignment of a condition she described as "Sexual Preoccupation" to Mr. R. This again was a status which neither Dr. Katsavdakis nor Dr. Bard assigned to the Respondent. The evidence demonstrated that there are no defined criteria for such a designation and the court received no indication that it is a generally accepted diagnosis in the psychiatric community. It is not a condition described in the DSM and, depending on how it might be defined, could apply to a wide range of people. That does not mean that Mr. R.'s intense interest in sex is not relevant. The Respondent's sexual interests along with his ASPD are what predispose him to commit sex crimes. But Sexual Preoccupation is not, in the Court's view, a valid "condition, disease or disorder" under Article 10.

The Court likewise agreed with the Respondent's argument that Dr. Martinez's assessment of Mr. R. as having "Psychopathy" based upon his score on the "Psychopathy Checklist" was not persuasive. The evidence indicated that scores on this instrument are subject to an "allegiance effect" whereby a reviewer's score is influenced by which side of a dispute they are on; that such scores differ among two reviewers with the same information and that the scores are more robust in predicting general rather than sexual recidivism.

The Court did not credit the Respondent's argument that his sexual abuse charges and convictions arose from attempts at pickpocketing. There was scant evidence to support that assertion other than Mr. R.'s own self-serving statements. A police report for Mr. R.'s 1984 sexual abuse conviction noted that "$35 were returned" but did not indicate who that money was returned to or any other information. Moreover, Mr. R. was not charged with a larceny-related crime in that case. A thief intent on pickpocketing does not generally rub his erect penis on a victim's body. Nor is it plausible to believe that Mr. R. would have any larceny-related reason to touch the sexual or intimate parts of a victim while attempting to take a wallet from a purse. [*13]

The Respondent argued that Mr. R., rather than forcing victims to engage in sex with him, has repeatedly attempted to trade drugs for sex and intimated that this behavior argues against a Mental Abnormality finding. However, the Court does not see how engaging in an illegal activity like a narcotics sale, and, in addition, engaging in sexual relations with an underage victim would make Mr. R. less likely to have a Mental Abnormality than had he engaged in that same sex crime without committing a narcotics offense. The argument that Mr. R. does not have a Mental Abnormality because his sex crimes have been a minority of the crimes he has committed is also not persuasive. Mr. R. would not be less likely, in the Court's view, to suffer from a Mental Abnormality if he had never committed narcotics, violent and property crimes. Those other crimes rather support his ASPD diagnosis.

There was evidence presented during the trial which supported the argument that Mr. R. does not currently suffer from a Mental Abnormality. None of this evidence, however, in the Court's view, was sufficient to refute the clear and convincing evidence that Mr. R. has such a condition. Mr. R. did complete a sex offender treatment program which on an actuarial basis arguably reduces his re-offense risk. However, it is not clear that Mr. R. received any benefit from the program. At his current age of 49, Mr. R. is on an actuarial basis less likely to offend than a younger man. He committed his most recent and most serious offense, however, at the age of 41, at a time when his actuarial risk had already declined. Mr. R. is not known to have engaged in sexually deviant behavior while in prison. But his opportunities to commit sex crimes during his incarceration have obviously been limited. Dr. Martinez gave Mr. R. the full-blown diagnosis of Narcissistic Personality Disorder while Dr. Katsavdakis said only that Mr. R.'s ASPD had narcissistic personality features. This difference does not appear to be significant here. However, the Court found Dr. Katsavdakis's diagnosis on this point more persuasive.

Court's Assessment of Witness Credibility

As noted supra, the Court generally found Dr. Katsavdakis's testimony to be the most persuasive in this case. Dr. Katsavdakis had a more detailed focus on the precise facts of Mr. R.'s history than the other two experts. He also used those precise facts and related them to the details of the diagnoses he opined on with greater analytical rigor. The Court would note two other facts about Dr. Katsavdakis which, although they did not factor into the Court's credibility determination, are perhaps notable. Dr. Martinez is employed by the State. Dr. Bard testifies exclusively for respondents in Article 10 proceedings. Dr. Katsavdakis, however, although he was retained by the State in this case, has testified both on behalf of the State and respondents in other Article 10 cases. Dr. Katsavdakis is also board-certified in Forensic Psychology. The Court would normally ascribe little significance to such a credential. But in this case, the Court found Dr. Katsavdakis's ability to tie together the factual, psychological and legal aspects of the current case during his testimony to be superior.

The Court credited Dr. Martinez's general conclusion that Mr. R. suffered from a Mental Abnormality and much of her analysis although, as noted supra, it did not agree with some of her conclusions on specific issues. The Court recognizes that Dr. Bard is a qualified expert in this field and credited some of his conclusions as discussed supra. The Court also recognizes that Dr. Bard's in-person interview of Mr. R. was a far preferable method of obtaining information from him than the methods used by the other two experts. Overall, however, the Court found his [*14]testimony not credible for a number of important reasons.

First, as Dr. Bard testified, he assigned little if any significance to Mr. R.'s history of sexual offending prior to the instant offense. The reason was that these offenses did not qualify as sex offenses under Article 10. His lack of concern for the circumstances of these offenses, in turn, led him to simply not read, not recall or disregard extensive information which was available to him about these crimes, information the other two experts carefully reviewed and incorporated into their findings. For Dr. Bard, the vast bulk of Mr. R.'s criminal sexual behavior over the decades simply didn't matter.

The Court disagreed with Dr. Bard's assessment in that regard for two reasons. First, it is obvious that, regardless of whether a prior sex offense committed by a respondent technically qualifies as a sex offense under Article 10, a respondent's history of criminal sexual behavior certainly meets the minimal legal standard of relevance in determining whether he has a Mental Abnormality. The fact that Mr. R. has repeatedly committed what appear to be impulsive sexual crimes against strangers on subway cars over a period spanning at least 15 years is obviously informative about whether he has seriously difficulty in controlling his sexually offending behavior. Such crimes are also relevant to his ASPD diagnosis.

Dr. Bard's conclusions in this regard were also off-base for another reason. The commission three or more sexual abuse or other misdemeanor or felony crimes within certain time parameters can result in a felony charge under New York law for the crime of Persistent Sexual Abuse. See Penal Law § 130.53. A conviction for this crime alone can subject a respondent to Article 10 proceedings. Mr. R.'s sexual abuse convictions have never met the precise timing requirements for that felony crime. But he has been charged or convicted of sexual abuse crimes on five separate occasions. That history would obviously be relevant for an expert to consider in determining whether Mr. R. might be predisposed to commit three sexual abuse crimes within specified time parameters in the future.

Dr. Bard, however, did not have even a rudimentary understanding of which kinds of behaviors would qualify as sex crimes under New York law. Regarding the crime of Persistent Sexual Abuse, for example, he did not even know if the crime was a felony or how many sexual offenses a respondent would need to have committed to be guilty of the offense. He did profess to know what the age of consent for sexual relations was in New York. He just got that basic fact wrong. He had no idea what the difference between a larceny and a robbery is, although Mr. R. was convicted of an Attempted Robbery and the Respondent argued that his sex offenses were really attempts at larceny. He had no detailed understanding of how "sexual contact" was defined by New York law, although the degree to which Mr. R. had previously engaged in unlawful sexual contact in committing his sexual abuse crimes was the focus of much of the evidence during the trial.

A psychologist testifying at an Article 10 trial obviously cannot be expected to have the same legal expertise as a lawyer. But when opining, as Dr. Bard did, on legal issues, a witness should have a rudimentary knowledge of at least the basic legal concepts he is discussing. In this case, moreover, the scope of the legal knowledge the experts were required to possess was more extensive than in the average Article 10 case because Mr. R.'s offenses were so diverse. In a case where legal knowledge was particularly necessary, Dr. Bard's knowledge was uniquely lacking. Dr. Bard also appeared to assign little significance to the fact that Mr. R. repeatedly offended [*15]while on probation or parole and could not recall any significant details about that issue. But, in the Court's view, the fact that a respondent may commit criminal offenses while under law enforcement supervision is obviously relevant to both a respondent's ASPD and his ability to control his behavior.

Dr. Bard found only one sex crime in the Respondent's history relevant. That was the instant offense. Even with respect to that one crime, however, Dr. Bard could not recall even the most basic facts about the legal proceedings which led to the Respondent's conviction. He testified twice that Mr. R. had pled guilty in the instant case. In fact, there was a trial. At one point, Dr. Bard asserted that Mr. R. was an alcoholic. The Respondent has never been formally diagnosed with that condition, however, by Dr. Bard or anyone else. Indeed, as the Court understands the record, with the exception of one ticket he received for possessing alcohol while in jail, there is no evidence Mr. R. even has an alcohol problem.

Finally, some of Dr. Bard's conclusions about the nature of sexual offending in general were contrary to how this Court views reality. He described deviant behavior, inter alia, as "something that most people do not do". He went on to assert that "rape is not a deviant act". But in the year 2014, in the State of New York, thankfully, rape is quite obviously something which "most people do not do".^[FN20] He described Frotteurism as a "nuisance offense". The Court does not know the extent to which that view is shared by others. The Court submits, however, that a woman or a young girl, so closely confined on a crowded subway car that she cannot move, who suddenly feels the erect penis of a stranger repeatedly ground into her body is unlikely to perceive that event as nothing more than a minor annoyance.^[FN21]

ASPD as the Basis for a Mental Abnormality Finding

In Donald DD., the Third Department held that ASPD alone can be a sufficient condition, disease or disorder to result in a Mental Abnormality finding. The Court noted that Article 10 does not require that such a condition be defined by the DSM, that the statute provides that any condition can subject an offender to civil management [assuming the other requisites of the law are met] and that the experts who testified in that case (like all three of the experts in the instant proceeding) had opined that ASPD could be the basis for a Mental Abnormality. The Court found the Respondent's ASPD had predisposed him to act on his sexual impulses in an "aggressive manner" and "disregard any restraints he may have had against acting upon them." 107 AD3d at 188.

In Shannon S., however, three judges of the Court of Appeals in dissent and in dicta reached the opposite conclusion. The issue in Shannon S. was whether the diagnosis of the [*16]Respondent by the state's experts of "Paraphilia NOS" (Paraphilia Not Otherwise Specified) and Hebephilia was a sufficient predicate for an Article 10 proceeding. Paraphilia NOS was described as a condition arising from sexual fantasies, urges or behaviors involving non-consenting partners. Hebephilia, as noted supra, is a paraphilia (sexual disorder) involving the sexual attraction to underage pubescent girls. In Shannon S., the Respondent had engaged in sex with multiple girls between the ages of 13 and 16, both with and without forcible compulsion. The Respondent was also diagnosed with ASPD.

Judge Jones, joined by Judges Ciparick, Graffeo and Read found the Paraphilia NOS and Hebephilia diagnoses sufficient to support a Mental Abnormality finding. Judge Smith, writing in dissent, joined by Judges Lippman and Pigott disagreed and would have overturned the Mental Abnormality determination. Noting that the majority had mentioned but not relied upon the finding that the Respondent also suffered from ASPD, Judge Smith asserted that this had been a wise decision because:

ASPD, at least as used by the State's experts in this case, means little more than a deep-seated tendency to commit crimes. One of the State's experts acknowledged that "maybe somewhere around half" of the prison population could be labeled as having ASPD. If a diagnosis of ASPD could support civil commitment, the State could have locked up half of those now in prison without bothering with the complexities of the criminal law. 20 NY3d at 110.

Allowing ASPD alone to be a sufficient diagnosis to support a Mental Abnormality finding would not literally put half the prison population at risk for civil management for three reasons. First, under New York law, a respondent must have been convicted of a felony sex crime (or a "Designated Felony" which is "sexually motivated") and subject to additional parameters regarding their current sentence to be Article 10 eligible. See State v. Rashid, 16 NY3d 1 (2010).The Court is aware of the precise number of offenders who are reviewed for sex offender civil management every year but does not know how that number compares with the number of offenders released from prison during comparable periods. Dr. Martinez, however, estimated that only about 2-5% of the prison population are incarcerated for a sex offense.

According to an April 13, 2013 report from the New York State Attorney General, the New York State Office of Mental Health had, at the time of the report, reviewed the cases of 9,134 eligible sex offenders for potential civil management since the enactment of Article 10. Of that number, 560 had been referred to the Attorney General's office for Article 10 proceedings. That is 6.1 % of the eligible sex offender population.^[FN22] Using Dr. Martinez's number, therefore, [*17]that would limit the number of offenders referred for sex offender civil management to 6.1% of 5% of the prison population.^[FN23] That is 3/10 's of 1 % of prison inmates.

Not all respondents subject to Article 10 are found to have a Mental Abnormality, however, either because their cases are dismissed or they receive a favorable verdict after trial. Of the remaining offenders who are found to have a Mental Abnormality, moreover, most will have been subject to such a finding for reasons other than ASPD alone. There are no figures on this point that the Court is aware of. In this Court's admittedly limited anecdotal experience in trying or presiding over dispositions in more than a dozen SOMTA proceedings since 2007, however, cases in which a respondent is found to have a Mental Abnormality only by virtue of ASPD certainly comprise less than a quarter of the cases in which a Mental Abnormality is found. Allowing ASPD alone to be the basis for a Mental Abnormality finding has thus not resulted in a system in which 50% of the prison population are subject to civil management. A figure of less than 1/10 of 1 % would likely be closer to the mark.

That very small numerical percentage responds in part to a closely related concern: the idea that allowing ASPD alone to be the basis for a Mental Abnormality finding would run afoul of the requirement that to withstand due-process scrutiny, a sex offender civil management statute must distinguish between sex offenders with a Mental Abnormality and the ordinary recidivist convicted in a typical criminal case. As the United States Supreme Court outlined in their seminal decision in Kansas v. Crane, 534 US 407 (2002), offenders subject to sex offender civil management must have a serious difficulty in controlling behavior:

And this, when viewed in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in any ordinary criminal case. 534 US at 413 (citations omitted).

New York's current statute certainly meets that criteria with respect to raw numbers. Sex offenders chosen for civil management, moreover, are also not chosen randomly. They are the [*18]product of a rigorous multi-step, multi-agency review process which was established by the Legislature and relies upon detailed psychiatric evaluations to separate the vast majority of sex offenders who will never enter the Article 10 system from the small group who evidence a Mental Abnormality. New York's Article 10 system is not characterized by over-inclusiveness. It is characterized by great restraint. The Kansas statute which was reviewed in the first United States Supreme Court decision to uphold sex offender civil management statutes, Kansas v. Hendricks, 521 US 346 (1997) (discussed infra), moreover, explicitly included a "personality disorder" among the kinds of conditions which could subject an offender to civil commitment. ASPD is a personality disorder.

Allowing ASPD alone to be the predicate for a Mental Abnormality finding is consistent with the plain language of Article 10. The Legislature, in defining a Mental Abnormality as a "condition, disease or disorder" could obviously have inserted an adjective like "sexual" to further limit those broadly inclusive terms. The experts in this case, including Dr. Bard, the Court would submit, did not uniformly opine that ASPD can be the basis for a Mental Abnormality because they were tailoring their psychiatric opinions to the current state of New York appellate law. They opined in that manner because they construed the words of Article 10 as they were written. ASPD can impair one's emotional, cognitive or volitional capacity. That impairment can, obviously, result in an offender's predisposition to commit sex crimes. And that predisposition can then result in an offender having serious difficulty in controlling his sexually offending behavior. Holding that ASPD alone may constitute a Mental Abnormality is also consistent with the purposes of Article 10. The statute was enacted to meet the "compelling need . . to protect residents of this state from sex criminals whose recidivism is predictable and uncontrollable".^[FN24] A sex offender is not necessarily more or less dangerous, however, because his mental disorder is not sexual. An offender who has only ASPD may be at great risk to commit horrific sex crimes. An offender with a diagnosed sexual disorder, conversely, may present a minimal risk to re-offend.

In Shannon S., the majority concluded that Article 10's definition of a Mental Abnormality "does not reference or require that a diagnosis be limited to mental disorders enumerated within the DSM." 20 NY3d at106. In contrast to the Paraphilia NOS diagnosis accepted as valid by the Shannon S. majority, however, ASPD is a well-established DSM diagnosis. It is a diagnosis, moreover, at least in this Court's experience, for which experts apply uniform criteria. In that respect, ASPD is not a less valid basis for subjecting offenders to civil management than commonly used but controversial designations like Parphilia NOS. It is a more generally accepted and uniformly applied classification. Finally, of the roughly twenty other states which have adopted sex offender civil management systems like those in New York, numerous states have upheld sex offender civil commitments based on ASPD diagnoses or explicitly found that an ASPD diagnosis alone can be a sufficient predicate for sex offender civil [*19]commitment.^[FN25] Some of these statutes, however, unlike New York's law, explicitly provide that a "personality disorder" may qualify an offender for commitment.

Continuing to allow ASPD to serve as a predicate for a Mental Abnormality finding, then, would not open the floodgates to a vast number of new Article 10 cases. It would not literally run afoul of any existing constitutional prohibition. It would be consistent with the plain language of the statute. It would further the statute's purposes. It would promote public safety. It is a well-established diagnosis whose criteria are uniformly applied. It is a diagnosis which courts in multiple other states have found to be a sufficient predicate for civil commitment. The concern about allowing such a diagnosis to serve as the basis for an Article 10 proceeding ultimately does not concern any of those issues. It concerns something more fundamental.

Sex offenders are treated uniquely under our law in a number of important ways. None have so far reaching consequences for an individual as sex offender civil management. A sex offender civil management determination can result in lifetime confinement, a prospect which, from an offender's perspective, may be far more punitive than the consequences arising from all but the most serious criminal charges. The unique treatment of sex offenders under civil management statutes is justified, moreover, primarily by the notion that something about the makeup of those offenders is different than other criminals. The worst sex offenders are driven by uncontrollable urges. They are subject to compulsive disorders which cannot be controlled other than by confinement or strict supervision. It is worth noting that the United States Supreme Court decision which originally held that such statutes are constitutional concerned a pedophile named Leroy Hendricks who had reported that when he got "stressed out" he could not "control the urge" to molest children and that the only way to be sure he would not repeat his crimes in the future would be for him "to die". Kansas v. Hendricks, 521 US at 355.

Justice Breyer, joined by Justices Stevens, Souter and Ginsburg dissented in Hendricks. The dissenting justices held that the scheme Kansas had enacted (which is similar to New York's law) met the requirements of substantive due-process. They voted to reverse because they held that the statute was punitive and thus violated the Ex Post Facto clause. What persuaded the four dissenting justices the statute had otherwise been validly applied to Hendricks, however, were the unique attributes he possessed which distinguished him from other criminals. Mr. Hendricks, the justices noted, was a diagnosed pedophile, a condition which the psychiatric community uniformly regarded as a serious mental disorder. 521 US at 375. His abnormality did "not consist simply of a long course of antisocial behavior" but rather included "a specific, serious, and highly unusual ability to control his actions." (emphasis added). The law, the justices pointed out, had traditionally considered this kind of condition "akin to insanity for purposes of confinement"; an "utter lack of power to control . . . sexual impulses". Id, (citations and quotations omitted). In considering the present reach of sex offender civil management statutes [*20]to offenders like Mr. R., it is worth remembering how far we have come.

If a condition like ASPD which half the prison population has may be a valid basis for civil management, then there is no justification for subjecting sex offenders but not other criminals to these systems apart from the fact that we uniquely abhor what sex offenders do. If ASPD may serve as a basis for civil management then why, one might ask, should not murderers with ASPD at risk to kill again be subject to such proceedings? Or robbers? What about alcoholics who have repeatedly driven while drunk even after their licenses have been revoked? What about drug offenders? Surely, a drug dealer who is both addicted to narcotics and has ASPD may be far less able to control his impulse to sell narcotics to support his habit than a sex offender like Mr. R. would be to control his sexually offending behavior. A repeat alcoholic drunk driver may not be at risk to commit a crime like sexual abuse. He may be at great risk to kill someone. But most would find the notion of subjecting addicted drug offenders or alcoholic drunk drivers to potential lifetime confinement chilling.

The reason that ASPD strikes us as a potentially invalid predicate for civil management is because once we accept such a notion, in an important sense, we lift the veil on the sex offender civil management systems we have created and are forced to acknowledge that we are not confining and supervising sex offenders because they are subject to uniquely uncontrollable urges or incomprehensible compulsions. We are subjecting them to potential lifetime confinement because we hate what they are at risk to do. We have decided that their crimes, alone among any other kinds of possible criminal behaviors, are uniquely abhorrent. It is that simple.

In this Court's view, the question of whether ASPD may serve as a valid predicate for civil management is not one of statutory construction. The Legislature, in this Court's view, has spoken on the issue. The question is one of constitutional due-process. It is the question of whether we, as a society, may use our legitimate disdain for sexual offenders to single them out from all others even though their underlying mental pathology does not serve to distinguish them. It is the question of whether a system of sex offender civil management which is not tethered to any underlying assessment of sexual dysfunction has veered from a legitimate regulatory mechanism into an impermissibly punitive regime akin to indefinite preventive detention. It is the question of whether our representative government has the constitutional power to do what it apparently has done.

In Foucha v. Louisiana, 504 US 71 (1992) the Supreme Court in a 5-4 decision held unconstitutional a Louisiana law which allowed the continued psychiatric confinement of an offender who had been found not guilty by reason of insanity, recovered from his illness but continued to be confined because he was still thought to be dangerous by virtue of his Antisocial Personality Disorder. One of the state's doctors testified in that case that Mr. Foucha had recovered from his temporary psychosis but continued to have an antisocial personality, a "condition that is not a mental disease and that is untreatable". 504 US at 75. The Court held that confining an offender merely because he was dangerous, in the absence of any mental illness, violated substantive due-process. In Hendricks the high court held that sex offender civil commitment statutes did not require that offenders necessarily be diagnosed with a "mental illness" to be confined. The commission of a sex crime and a mental abnormality or personality disorder which made it difficult or impossible to control dangerous sexual behavior was [*21]sufficient, the Court held, to withstand due-process scrutiny. 521 US at 358.

The question at this point is whether substantive due-process is satisfied by a system which subjects sex offenders to potential lifetime confinement simply because they have the same disregard for laws and rules as at least half the prison population and are at great risk to commit sex crimes again. For in the end, if the only thing which distinguishes offenders like Mr. R. from 50-75% of prison inmates is that his crimes of choice include sex offenses, than it is his risk of committing those crimes alone which arguably must warrant his commitment. In Hendricks, the Court held that "[a] finding of dangerousness, standing alone, is ordinarily not a sufficient ground upon which to justify involuntary commitment". Id. In the instant case an additional factor was present. That factor was ASPD. Whether that additional fact, however, together with a previous sex crime conviction, is enough to warrant civil management, is a question which in this state has yet to be ultimately determined. The manner in which that question is finally resolved may end up determining the status of the Respondent here.

February 7, 2014______________________________

Daniel Conviser, A.J.S.C.