This position statement by the Association for the Treatment of Sexual Abusers on civil commitment was approved in October 2015.
Civil commitment is the process of involuntarily committing someone into an institution for the treatment of a mental health issue. Civil commitment of sexually violent persons provides a legal mechanism for the confinement of individuals convicted of sexual crimes in a secure treatment facility after incarceration if a court determines the individual is likely to engage in future acts of sexual violence. To meet the criteria for commitment, the individual must have committed a qualifying sexual offense and suffer from a qualifying mental disorder, and the mental disorder must create a high probability that the individual will commit acts of sexual violence in the future. Definitions of qualifying crimes and mental health disorders vary among jurisdictions.
Twenty states (Arizona, California, Florida, Illinois, Iowa, Kansas, Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New York, North Dakota, Pennsylvania, South Carolina, Texas, Virginia, Washington, and Wisconsin) and the District of Columbia have enacted laws permitting the civil commitment of sexual offenders. In addition, the Adam Walsh Child Protection and Safety Act of 2006 authorized the federal government to institute a civil commitment program for federal sex offenders (42 USC 16971). These laws provide a legal mechanism for the confinement of adults (and, in some cases, juveniles) in a secure treatment facility after incarceration when a court determines they are likely to engage in future acts of sexual violence.
The use of civil commitment for sexual offenders has generated considerable debate in the legal and legislative communities, and the practice continues to be debated among professionals who work with and conduct research on sexual offenders.
Proponents argue that such provisions offer an important community safeguard by incapacitating a high-risk subgroup of sex offenders. In addition, civil commitment can provide opportunities for these individuals to receive treatment interventions that may reduce their potential to recidivate upon release to the community, particularly offenders for whom specialized treatment was not available in the prison setting.
Objections to civil commitment generally are threefold:
- The legal mechanism by which offenders are detained when civilly committed depends on clinical criteria created or defined primarily by legislative bodies rather than by scientific or mental health communities.
- There is concern about the legitimacy of detaining someone as a mentally ill person when there is some doubt about the accessibility of effective treatment.
- Questions exist about the diversion of mental health resources away from individuals diagnosed with severe, persistent, and debilitating mental health difficulties to serve a limited population of sexual predators who tend not to have such diagnoses and for whom correctional resources may be more prudent.
Although a number of constitutional challenges — typically involving due process, ex-post facto, and double jeopardy clauses — have been raised regarding the civil commitment of sexually violent predators or those with similar designations, the United States Supreme Court has upheld the constitutionality of civil commitment statutes three times (in Kansas v. Hendricks, 1997; Kansas v. Crane, 2002; and United States v. Comstock, 2010).
The Association for the Treatment of Sexual Abusers (ATSA) does not take a position either in favor of or opposed to the use of civil commitment for individuals who have committed sexual offenses. However, ATSA believes that jurisdictions choosing to implement such legislation should do so in a careful manner consistent with relevant research and best practices in assessing, treating, and managing sexual offenders.
For a small group of chronic, violent, or predatory offenders, confinement and treatment may be appropriate and necessary to safeguard the community and provide an opportunity for treatment in a secure setting. However, ATSA suggests that, if a state cannot meet the following recommendations, then the state should not institute laws providing for the civil commitment of individuals who have committed sexual offenses:
- Sexual offender assessments should be conducted using empirically validated risk assessment instruments, measures, and methods.
- Civil commitment should be reserved for sexual offenders who are found to pose the highest threat to public safety, and should be viewed as only one part of a comprehensive continuum of responses to sexually offending behavior.
- States should provide contemporary, properly designed, and evidence-based treatment programs to enable sexual offenders to receive treatment that promotes risk-reduction and successful community reintegration. Treatment should be consistent with current research and professional standards and guidelines, and should reflect each individual’s qualifying mental disorder(s), relative risk, and criminogenic needs. Individualized treatment plans should be established that provide for systematic measurements of sex offenders’ progress in treatment.