Sexual Predator Law Faces Test

How likely is likely?

The answer to that question may determine whether serial rapist Patrick Ghilotti and other sexual predators are returned to the streets after successfully completing a state-mandated mental health program.

The California Supreme Court, in a Sacramento hearing today, will grapple with a 1996 state law that says sexual predators confined to a state hospital after their prison terms can be released only if experts determine they are no longer likely to offend again.

The predictability of recidivism is a question that has long tantalized mental health experts and social scientists. Study upon study has been performed to determine the percentage of sex offenders who will attack again after being returned to society.

But whether any individual sex offender will be among those who commit more crimes is extremely difficult to predict. The language of the law does not always translate in psychiatry, and vague legal standards often fail to reflect the realities of predicting future threats.

“It’s like weather forecasting,” said R. Karl Hanson, a Canadian government researcher who is a leader in the field of predicting sexual violence.

“You are predicting a probability, like a 30% chance of rain tomorrow. You can’t say it will or it won’t rain.”

California is one of at least 15 states with laws that allow sex offenders convicted of multiple crimes to be committed to state hospitals after completing their prison terms.

More than 1,200 offenders nationwide are behind bars because of those laws. Only a few convicted predators have been released across the country--too few to study recidivism rates.

Ghilotti, 45, was to be the first in California to graduate from hospital confinement under the state’s sexual predator law. After he spent four years at Atascadero State Hospital, three mental health experts licensed by the state concluded that he should no longer be confined.

Ghilotti was convicted of four rapes and admitted to six others. He served a 12-year prison term for his most recent rape.

Just as he was supposed to walk out of Atascadero, the California Supreme Court intervened. The court took his case on an accelerated schedule in December and squeezed Ghilotti’s hearing onto today’s calendar.

The state’s law has been interpreted to require the release of sexual predators from state hospitals if two independent mental health experts determine they are no longer dangerous. Three experts have said Ghilotti should be released.

But Gov. Gray Davis and Atty. Gen. Bill Lockyer contend that Ghilotti will probably attack again if returned to society, and the California Supreme Court will decide whether the law provides a vehicle for confining him longer.

The court’s ruling in People vs. Ghilotti, expected within 90 days of the oral arguments, will shape the future for hundreds of sex offenders now incarcerated in California.

One of the major issues before the court is the correct legal interpretation of the phrase “likely to engage in acts of sexual violence.”

If the court eventually comes up with a legal standard for those words, the mental health experts who evaluated Ghilotti or a judge may have to determine whether the experts’ findings complied with the legal language.

Legal scholars who specialize in mental health issues want the courts to devise standards based on numerical probabilities. Those would conform to what scientists are able to provide, the scholars say.

“We should at least know what ballpark we are in, whether we are talking 51% likelihood or 90% likelihood,” said Hastings law professor David Faigman, who teaches science in the law and constitutional law. “I think the Constitution demands that degree of certainty.”

But appellate panels instead tend to offer vague standards that are left to lower-court judges and juries to interpret.

“Courts never define ‘likely’ or ‘probable’ in quantitative terms,” said John T. Monahan, a psychologist who holds a chair in the law at the University of Virginia.

“There have been a number of studies of judges asking them what they meant by such terms as ‘likely’ and ‘probable.’ The results are all over the map.”

Prosecutors in the Ghilotti case said “likely” should be defined as a “significant chance, not minimal,” something less than “more likely than not” and more than “merely possible.”

But Faigman said a standard based on a “significant” danger is too vague. “Significant might be 25% or 45%,” the professor said.

Ghilotti’s lawyers argue that likely means more likely than not.

Monahan, however, said that standard may not make sense to the public. “That would mean that a court would have to discharge somebody with a 49% probability of committing a violent act,” he said.

Sentencing Reforms Created Problems

W. Lawrence Fitch, director of the Office of Forensic Services for the Maryland Mental Hygiene Administration, said new sexual predator laws around the nation stem from sentencing reforms that had unintended consequences.

Until about two decades ago, convicted sex criminals served indeterminate sentences. Most left prison on parole after about six years, but the especially dangerous convicts were imprisoned far longer, Fitch said.

When states decided to impose fixed sentences, they based the length of the prison terms on the average amount of time sex offenders had been serving, Fitch said.

That meant “the really bad guys” got out with the rest, he said.

Washington was the first state to pass a sexual predator law. It was approved amid public horror over a parolee who raped and sexually mutilated a 7-year-old boy six months after leaving prison in 1989.

Predator laws are continually being scrutinized by courts.

“The real objection to these laws is whether we have any business putting these people in psychiatric hospitals,” Fitch said, “or are we just using them to incapacitate criminals.”

Predator laws generally require a finding of a mental abnormality, a personality disorder or a diagnosed mental disorder before an offender can be committed to a state hospital. But legal criteria are not particularly based in psychiatry.

Mental abnormalities “can include all kinds of conditions that are nothing like mental illnesses that people would have to be hospitalized for,” Fitch said.

Sexual predators are driven to rape or molest not because of their sexual disorder, but largely because they are antisocial, a common trait among criminals, Fitch said.

“There are a lot of people who are pedophiles and would prefer children, but they don’t molest children. They get their kicks through pornography.”

Faigman said society has “selected sex offenses as a type of behavior we want to label madness.”

“There is no reason why you couldn’t take exactly the same doctrine and apply it to muggers and burglars,” he said.

“We have decided to label a particular danger that we find objectionable as a mental abnormality, which only has meanings in the law and has no meanings in psychiatry.”

Although sex offenders are less likely than other felons to offend again after their release, the rates of relapse are not reassuring.

During the first four years after release, 10% to 15% of the felons commit another sex offense, researchers say.

A study of sex offenders who were eligible for the sexual predator program in Washington but instead were freed found recidivism rates of about 20% within a few years after release, according to Eric Janus, a law professor at William Mitchell College of the Law in St. Paul, Minn.

The longer an offender is out, the more likely he is to commit another sex crime.

Hanson, the Canadian researcher, studied child molesters over 20 years. Nearly 40% of them molested again, he said.

Offenders Learn to Manage Impulses

Treatment for those offenders typically involves teaching them strategies to avoid situations that might prompt them to attack again and to empathize with victims.

The men are not cured of their sexual deviation, but they learn to manage impulses, researchers say.

“Our best guess at this point is that well-designed, effective treatment can lower recidivism rates by about 30% to 40%,” Hanson said.

Experts say these offenders should be closely monitored after they leave confinement.

If Ghilotti is released, he will not be required to do anything more than register as a sex offender.

He has said, however, that he will voluntarily take medication to reduce libido, wear a monitor to show his location and undergo therapy.

The U.S. Supreme Court has upheld the constitutionality of sexual predator laws, and the state high court has ruled that California’s law is constitutional.

To meet constitutional requirements, the laws must be aimed at treatment and cannot serve as a mere pretext to keep dangerous felons behind bars.

The U.S. Supreme Court ruled last month that the offenders cannot be locked up beyond their prison terms without proof that they have serious difficulty controlling their behavior.

“The court is clearly concerned about the difference between civil commitment because of the incapacity to control behavior in the future and the ordinary recidivism risk,” said J. Clark Kelso, a professor at McGeorge School of Law.

“The court wants to draw a distinction between that so you can’t use a sexually violent predator law simply to exact additional retribution.”

California’s predator law allows sex offenders who have committed at least two violent sex crimes to be committed to a mental hospital for two-year intervals if a court decides they are likely to commit another offense.

After the two years, the inmate can petition for release.

Reports by evaluators who found Ghilotti no longer met the requirements for commitment have not been made public.