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Civil Commitment of Two Sex Offenders Reversed—In One Case the Proof the Offender Had “Serious Difficulty In Controlling” His Sexual Conduct Within the Meaning of Article 10 of the Mental Hygiene Law Was Legally Insufficient—In the Other Case, Proof the Offender Suffered from Anti-Social Personality Disorder (ASPC) Alone Did Not Meet the Definition of “Mental Abnormality” in Article 10 of the Mental Hygiene Law

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a partial dissent, reversed the civil commitment of two sex offenders, finding the proof required by Article 10 of the Mental Hygiene Law lacking. In the case of Kenneth T, the state claimed Kenneth suffered from “paraphilia not otherwise specified” (paraphilia NOS) and “antisocial personality disorder” (ASPD).  In the case of Donald DD, the state claimed Donald suffered from ASPD alone.  The Court of Appeals, with respect to Kenneth T, seriously questioned, but did not decide, whether the proof of paraphilia NOS and ASPD sufficiently demonstrated a “mental abnormality” under Article 10 of the Mental Hygiene Law.  The court suggested that a Frye hearing to test the scientific soundness of the opinion evidence in this regard would be a good idea. Sidestepping that issue on stare decisis grounds, the court reversed Kenneth's civil commitment because the proof Kenneth had “serious difficulty in controlling” his sexual conduct within the meaning of section 10.03 (i) was not clear and convincing.  With respect to Donald DD, the court unambiguously ruled that proof of ASPD alone is never sufficient proof of a mental abnormality within the meaning of section 10.03 (i):

We do not decide on this occasion from what sources sufficient evidence of a serious difficulty controlling sex-offending conduct may arise, but they cannot consist of such meager material as that a sex offender did not make efforts to avoid arrest and reincarceration. A detailed psychological portrait of a sex offender would doubtless allow an expert to determine the level of control the offender has over his sexual conduct. However, … testimony that Kenneth T. lacked “internal controls such as a conscience that might curb his impulses” is not a basis from which serious difficulty in controlling sexual conduct may be rationally inferred. * * *

Donald DD.'s appeal presents us with an opportunity to decide a question left open in Matter of State of New York v John S. (23 NY3d 326 [2014]), namely whether a civil commitment under Mental Hygiene Law article 10 may be based solely on a diagnosis of ASPD, together with evidence of sexual crimes … . We hold that it cannot. Matter of State of New York v Donald DD, 2014 NY Slip Op 07295, CtApp 10-28-14

 

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