North Dakota Supreme Court Extends Civil Commitment of Gay Man Over Strong Dissent

A decision by the North Dakota Supreme Court to prolong the civil commitment of a gay man whose past includes a sexual interest in adolescent males drew a strong dissenting opinion from a member of the court, who argued that the man, identified in the opinion as M.D., was being improperly deprived of his liberty because he engaged in a constitutionally protected relationship with "young-looking" adult. In the Matter of M.D., 2008 Westlaw 4925902 (Nov. 19, 2008).

The opinion for the court by Justice Dale Sandstrom is short on details. Apparently, M.D., whose age is not stated by the court, was determined to be a "sexually dangerous individual" because of his sexual activities with teenage boys. He was civilly committed to a treatment facility in 1998. After almost a decade of treatment, he petitioned for the first time to be released in 2007.

The trial court appointed an expert evaluator, Dr. Riedel, to examine the case, and the state assigned its own expert, Dr. Sullivan, to make a similar evaluation. Dr. Riedel interviewed M.D., reviewed his records, and administered a series of actuarial evaluations. He concluded that M.D. was no longer likely to "engage in further acts of sexually predatory conduct," and thus should not be classified as a sexually dangerous individual. Dr. Sullivan disagreed, finding that M.D.’s records showed disturbing comments about his continuing sexual interests. Sullivan also focused on the allegation that M.D. showed great interest in two very young looking men in his treatment group, and had – in violation of the rules of the facility – carried on an 18-month romantic affair with another young-looking resident. All of these young-looking men, by the way, were adults, not teenagers.

The trial court, confronted with conflicting expert testimony, decided that M.D. "continues to be a sexually dangerous individual," and denied his petition for discharge. He appealed the denial to the Supreme Court.

M.D. alleged on appeal that the state failed to prove that he was likely to commit further sexually predatory acts. The court took the position that it should uphold the trial court’s decision unless "it is not supported by clear and convincing evidence." Like the trial court, the Supreme Court decided to resolve the conflicting expert testimony in favor of the state.

Justice Sandstrom observed that M.D. had not "completed sex offender treatment," because his occasional disruptive comments had caused him to be excluded from participating in group treatment, where he was relegated to the role of note-taker. Dr. Sullivan had concluded that M.D.’s attraction to younger-looking men meant that he "continues to show symptoms of attraction to adolescent males" since the men to whom he was attracted looked like teenagers, even though they were not. Sandstrom also asserted that the records showed M.D. still had problems controlling his behavior, for which his relationship with another resident was evidence.

Dissenting, Justice Carol Ronning Kapsner found the trial court’s decision to be "clearly erroneous." She pointed out that the burden was on the state to prove that M.D. was likely to reoffend, and she found that the case had not been made. Most significantly, she invoked the Supreme Court’s decision in Lawrence v. Texas to support her argument that M.D. was suffering an improper restriction on his liberty for engaging in conduct – a consensual affair with another adult male – that is constitutionally protected.

"In Lawrence," she wrote, "the actions took place in a private residence, while in the present case, the actions took place in a treatment facility, and the actions were against treatment rules. Even so, M.D. is being confined civilly for actions for which, according to this State’s criminal code, and United States Supreme Court precedent, he cannot be punished criminally. It was clearly erroneous for the district court to rely on the fact that M.D. was involved in a homosexual relationship as sufficient to deny M.D.’s petition for discharge. Facts for which the individual cannot be criminally prosecuted can be considered but add little, if anything, to establish that the individual remains a sexually dangerous individual."

Justice Kapsner disputed Dr. Sullivan’s conclusion that M.D.’s attraction to a "young looking" adult should be considered evidence that he remained sexually interested in adolescents. She argued that "reliance on such a fact as meeting the statutory criteria" for being sexually dangerous "is clearly erroneous."

She also pointed out that M.D. had been civilly committed for ten years. "Requiring an adult, regardless of his or her sexual orientation, to be celibate for ten years seems to be such an unrealistic expectation, that one wonders how it can contribute to, rather than frustrate, the individual’s therapy." She was also sarcastic about a treatment program that had run for ten years without achieving any success. When all this was taken together with Dr. Reidel’s testimony based on the actuarial tests, she asserted that the statutory requirement of proof of continued dangerousness had not been met in M.D.’s case.

Comments

[Kind]

You just wait.
The state will use the precedents set in all these sex offender cases to run roughshod over the rights of more and more American's who are convicted and later even accused of erring.

[John Pack Lambert]

The state has an obligation to protect adolescents from sexual predators. If the state has compelling reasons to believe the person would be a danger if released, they should not be released.

[ALeonard]

True enough, but the decision should be based on evidence that somebody remains a danger to the vulnerable. In this case, a neutral expert thoroughly tested the inmate and concluded he presented little risk of re-offending; another expert asserted that his relationship and sexual interest in younger-looking adults was a basis of concern. But, of course, a sexual relationship with an adult is constitutionally protected under Lawrence. So the question is raised by the dissent as to whether this kind of evidence should be held against the inmate, who has been confined for ten years in this program.

[choti]

If it is a crime to be sexually attracted to young-looking adults, most middle-aged men would be incarcerated. If he is considered dangerous because it is men he is attracted to that is illegal and unconstitutional. Pedophiles and rapists are released sooner than 10 years' imprisonment. Pedophiles can be registered and monitored for life if necessary. Why not this man? Seems his sexual orientation is more dangerous to the system than his prior assault.