By Mary-Ann R. Burkhart1

Sexually Violent Predator Statutes were again the topic of argument before the Supreme Court in the recently decided Kansas v. Crane.2 The issue for the Court was whether the Kansas civil commitment scheme requires proof of a volitional impairment to the extent that the offender is completely unable to control his behavior. The Court held that proof of complete inability to control behavior is not required. However, the Court determined that proof of some volitional impairment is required for substantive due process purposes. Interpreting exactly what the decision of the Supreme Court means is complicated by the facts of the Crane case, discussed below.

Some commentators have interpreted the Supreme Court’s decision as saying the Due Process Clause requires proof of “serious difficulty” controlling behavior before one can be committed. That is not, however, the only way to interpret the Court’s decision.

Background

It isn’t possible to analyze this case in a vacuum. One must look to the history of Sexually Violent Predator (hereinafter “SVP”) legislation in general and the statute in Kansas3 in particular in light of the Supreme Court’s decision in Kansas v. Hendricks.4

Kansas adopted its SVP statute in 1994. It is modeled primarily after the SVP statute from Washington State.5 The statute allows for the civil commitment of persons who, due to a “mental abnormality” or “personality disorder” are likely to engage in future acts of sexual violence. The term “mental abnormality” is further defined in the statute as “a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others”. The term “personality disorder” is not further defined by the legislature. Hence, the instant case of Kansas v. Crane.

Respondent Michael T. Crane was convicted in the trial court of lewd and lascivious behavior and aggravated sexual battery stemming from a one-day incident involving two victims. On January 6, 1993, Crane exposed himself to a tanning salon attendant; approximately 30 minutes later, he entered a video store, waited until he was the only customer in the store, and proceeded, with his genitals exposed, to grab the clerk from behind. Pushing her from behind and squeezing her neck, he three times ordered the clerk to perform oral sex. He suddenly stopped and ran from the store, ending the attack.

At the trial court level, there were multiple experts testifying on behalf of the state. The first psychologist evaluated Crane in 1994 and concluded that Crane suffers from antisocial personality disorder and exhibitionism, both disorders found in the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (hereinafter “DSM-IV”). This expert gave the opinion that Crane is a sexual predator due to this combination of personality disorders.

A second psychiatrist testified that Crane suffers from antisocial personality disorder, again a mental disorder found in the DSM-IV.

Neither expert could testify that Crane is unable to control his dangerous behavior. Kansas sought to commit Crane because he had both a paraphilia (exhibitionism) and a personality disorder. The jury was not instructed to find that Crane suffered from a volitional impairment. In fact, there is no jury instruction in Kansas for cases involving the personality-disordered offender.

Based upon the testimony presented, Crane was found to be a sexually violent predator and civilly committed pursuant to the Kansas statute. The Kansas Supreme Court reversed.6 The Kansas Supreme Court held that commitment under the SVP Act was “unconstitutional absent a finding that appellant could not control his dangerous behavior. Because evidence showed that appellant suffered from a ‘personality disorder,’ which by definition did not include a volitional impairment, and because the jury was not instructed to find that appellant suffered from a volitional impairment”7, the court held that appellant was entitled to a new trial. In the United States Supreme Court, Kansas argued that the Kansas Supreme Court wrongly read Hendricks as requiring the State always prove that a dangerous individual is completely unable to control his behavior. That reading, says Kansas, is far too rigid. The United States Supreme Court agreed.

The Court’s Ruling

The Supreme Court vacated the decision of the Kansas Supreme Court and remanded for further proceedings. It was stated that, even under the Hendricks decision, the SVP Act is one “requiring an abnormality or disorder that makes it difficult, if not impossible, for the [dangerous] person to control his dangerous behavior”.8 The court further reasoned that the word “difficult” would indicate that the lack of control was not absolute, but rather, it should be enough to say that there must be proof of serious difficulty in controlling behavior.

The Court further states that the Hendricks decision sets forth no requirement for total or complete lack of control, but the Constitution does not permit commitment of the type of dangerous sexual offender considered in Hendricks without any lack-of-control determination. In other words, the Supreme Court disagreed with the Kansas Supreme Court as far as the degree of difficulty in controlling behavior is concerned only; not that there is no need to show any sort of degree of difficulty.

It would appear that the Supreme Court was simply saying that the Kansas scheme was deficient in personality-disordered cases because there was nothing to distinguish them from the ordinary and typically dangerous personality disordered offender in Kansas. Due process was satisfied in Hendricks because of the “affecting” and “predisposition” requirements found in the mental abnormality definition which by their nature include some volitional impairment.

Practical Implications

The battleground in SVP litigation has primarily revolved around risk assessment. This case raises new issues and new battlegrounds revolving around the mental conditional component, most notably in cases where commitment is sought for those without an identified paraphilia. In these cases, some courts may require proof of “serious difficulty” controlling behavior, depending upon the statutory scheme being utilized.

For those states with SVP Statutes which do not separate the terms “mental abnormality” and “personality disorder”, Crane should be distinguishable, as it is the fact that the jury was not required to make a finding of behavior control that seems to violate substantive due process in the Court’s view.

For States like Kansas, those which follow Washington State’s statutory scheme of parceling out the term “personality disorder”, the water perhaps became a bit muddier. The Court’s ruling would indicate that the state now needs to show proof of serious difficulty in controlling behavior in order to constitutionally commit a sexually violent predator. This finding of lack of control will be required whether the state’s expert finds the respondent suffers from either a mental abnormality or a personality disorder. Additionally, the jury instructions should reflect such a finding requirement. Whether the States can continue to civilly commit individuals solely displaying a “personality disorder” remains to be seen. For as Justice Breyer stated in the majority opinion for the Court, “40% - 60% of the male prison population is diagnosable with Antisocial Personality Disorder”.9

Arizona Further Interprets Crane

The Superior Court of Arizona, Maricopa County, has already had occasion to interpret the Crane decision in In Re Russell E. Walters, CV 2001-013588. In In Re Walters, the Respondent filed a Motion to Dismiss based, in part, upon the Supreme Court’s decision in Crane. In trying to reconcile Crane with its previous decision in Leon G.,10 the Arizona Superior Court stated that “Crane does not stand for the proposition that a ‘volitional abnormality’ which impairs a person’s ability to control his behavior is the sole basis on which civil commitment can constitutionally occur”, and then goes on to state that Arizona’s statute passes constitutional muster because “commitment under Arizona’s SVP statute can be based on evidence of a ‘volitional impairment’, psychosis, delusions, hallucinations, compulsive disorder or other mental disorder. Whatever label is applied, be it ‘volitional impairment’, lack of behavior control or some other term, so long as it causes a high probability that the person will engage in the prohibited conduct, a behavior control element is part of the Arizona statute.”

The Court concluded that “neither the Arizona Supreme Court nor the United States Supreme Court has limited confinement to only those with a volitional impairment.”

What the States now do with the U. S. Supreme Court’s decision is going to depend upon the case facts and the particular jurisdiction’s statutory scheme. If Crane is narrowed to the particular scheme and facts at issue, it should have little, if any, effect on current civil commitment cases.

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1 Senior Attorney, APRI’s National Center for Prosecution of Child Abuse. The author wishes to thank Thomas J. Fallon, Assistant Attorney General, Madison, Wisconsin, for his insight and multiple consultations during the preparation of this article.
2 No. 00957. Argued October 30, 2001; Decided January 22, 2002.
3 Kan.Stat.Ann.§59-29a01 et seq.
4 521 U.S. 346, 138 L.Ed.2d 501, 117 S.Ct. 2072 (1997).
5 Wash.Rev.Code Ann. § 71.09.020 et seq.
6 In Re Crane, 269 Kan. 578; 7 P.3d 285 (2000).
7 Id.
8 Kansas v. Hendricks, supra, at 358 (emphasis added).
9 Moran, the Epidemiology of Antisocial Personality Disorder, 34 Social Psychiatry & Psychiatric Epidemiology 231, 234 (1999).
10 200 Ariz. 298, 26 P.3d. 481, 353 Ariz.Adv.Rep. 3 (S.Ct. 2001).