This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
In the Matter of the
Civil Commitment of
Filed November 22, 2005
in part and reversed in part
Marshall County District Court
File No. P5-04-238
Considered and decided by Klaphake, Presiding Judge, Halbrooks, Judge, and Wright, Judge.
D E C I S I O N
Standard of Review
district court’s findings of fact are not set aside unless clearly erroneous;
deference is paid the district court’s opportunity to judge the credibility of
Sexually Dangerous Person (SDP)
The statute defines a SDP as a person who
(1) has engaged in a course of harmful sexual conduct as defined in subdivision 7a;
(2) has manifested a sexual, personality, or other mental disorder or dysfunction; and
(3) as a result, is likely to engage in acts of harmful sexual conduct as defined in subdivision 7a.
Minn. Stat. § 253B.02, subd. 18c (a) (2004). Subdivision 7a defines harmful sexual conduct
to include “sexual conduct that creates a substantial likelihood of serious
physical or emotional harm to another[,]” and imposes a rebuttable presumption
that acts constituting criminal sexual conduct in the first through fourth
degree create a substantial likelihood that the victim will suffer serious
physical or emotional harm. Minn. Stat.
§ 253B.02, subd. 7a (a), (b) (2004).
There is no requirement that a victim suffer actual emotional or
physical harm. In re Civil Commitment of Martin, 661 N.W.2d 632, 639 (Minn. App.
2003), review denied (
SDP statute does not require proof that the person to be committed completely
lacks the ability to control his sexual impulses. Minn. Stat. § 253B.02, subd. 18c(3)(b)
(2004). But the statute has been
interpreted to require that the person must be “highly likely” to engage in
future harmful sexual conduct. In re Linehan, 594 N.W.2d 867, 876 (
expert witness psychiatrists,
to be committed as a SDP, one must have an identifiable mental, sexual, or
personality disorder that causes serious difficulty in controlling the individual’s
sexual behavior. In re Martinelli, 649 N.W.2d 886, 890 (
It is enough to say that there must be proof of 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 an ordinary criminal case.
Here, both experts diagnosed appellant with a variety of mental disorders, including bipolar disorder, attention deficit hyperactivity disorder, impulse control disorder, emerging personality disorder, oppositional defiant disorder, unspecified sexual disorder, and “rule out” pedophilia. Both experts indicated that these disorders affect appellant’s ability to control his sexual conduct, particularly because they are related to emotions, mood, and impulsivity, which create the conditions for sexually abusive behavior. Based on the experts’ opinions, we conclude that there is sufficient evidence to support the district court’s finding on the second SDP statutory requirement, that appellant suffered from a mental or emotional disorder that made it difficult for him to control his sexual behavior.
The experts also agreed that because of his mental or emotional disorder, appellant was highly likely to reoffend within the meaning of the third requirement of the SDP statute. Both the experts and the district court analyzed the evidence in light of the Linehan factors, which are a tool for predicting serious danger to the public. See Linehan I, 518 N.W.2d at 614. The factors and analysis are as follows:
1. Demographics: Appellant’s age and gender put him at greater risk of reoffense because he is at the height of his sexual virility, he has no pattern of intimate relationships, and no employment history that would defuse this risk.
2. History of violent behavior: Appellant’s sexually abusive conduct has continued over a period of several years; he has used coercion to accomplish some of the offenses; the most serious offense took place in front of another child; and the severity of the incidents was escalating. The absence of offenses while appellant has been in custody may not be significant because his pool of weaker, more naive, or less sophisticated victims may not have been present at the juvenile center where he was incarcerated.
3. Base rate statistics: Actuarial models suggest a heightened risk of reoffense.
4. Sources of stress in his environment: Appellant has no job skills, has had no intimate relationships, has mental disorders that require vigilant medication, and has a fairly small support network. Appellant has some confusion about sexual identity issues, claiming to be both bisexual and heterosexual.
5. Similarity of present or future context to past context: Appellant had no plan to create a different social context and would likely continue to be around younger family members.
6. Success of sexual offender treatment: Appellant has a poor record with respect to sex-offender treatment and has not demonstrated that he has insight into his offense cycle, minimizes or denies his conduct, and fails to empathize with his victims. Appellant made no significant progress in anger management; his problems with impulsivity are closely tied to his moods, and his sexual offenses appear to be triggered by his moods.
Based on the experts’ opinions and the Linehan analysis, we conclude that there is sufficient evidence to sustain the district court’s finding that appellant is highly likely to reoffend. The district court’s findings are not clearly erroneous and there is a sufficient legal basis for its determination that appellant should be committed as an SDP.
Sexual Psychopathic Personality (SPP)
A person is a SPP if, because of (1) conditions of emotional instability; (2) impulsiveness of behavior; (3) lack of customary standards of good judgment; or (4) failure to appreciate the consequences of personal acts; or a combination of the above, the person “has evidenced, by a habitual course of misconduct in sexual matters, an utter lack of power to control [his or her] sexual impulses and, as a result, is dangerous to other persons.” Minn. Stat. § 253B.02, subd. 18b (2004).
Appellant disputes the district court’s finding that he meets the “dangerous to other persons” requirement of the statute. In the past, appellate courts have rejected a SPP determination where the offender’s conduct does not include elements of violence. See, e.g., In re Rickmyer, 519 N.W.2d 188, 189-90 (Minn. 1994) (finding no proof of dangerousness where offender spanked and fondled the buttocks of child victims; notes that sexual psychopathic personality includes element of violent sexual deviant condition); In re Robb, 622 N.W.2d 564, 571-72 (Minn. App. 2001), review denied (Apr. 17, 2001) (concluding that in order to commit as a SPP, proof that person is likely to commit violent sexual assaults is necessary; limited physical restraint is insufficient).
district court found that appellant’s conduct was “harmful,” but made no
finding that it involved the degree of violence that renders appellant
dangerous to others. Although this court
has concluded that the restraint of a young child involves the use of force,
stating that “[i]t would be absurd to hold that because less force was needed to
subdue an extremely young victim, the assault was non-violent,” the forceful
conduct in that case went far beyond that acknowledged by appellant. In re
Preston, 629 N.W.2d 104, 112-13 (
Because the evidence fails to establish the degree of violence required for civil commitment as a SSP, we reverse the district court’s order for commitment on those grounds but affirm the order for appellant’s commitment as a SDP.
Affirmed in part and reversed in part.
 This is an indication that elements of pedophilia are present, but that the diagnosis of pedophilia cannot yet be made.