Proof of Inability to Control Sexual Behavior (Over and Above Proof of Antisocial Personality Disorder [ASPD]), Deemed Sufficient to Justify Confinement as a Dangerous Sex Offender

After the Court of Appeals determined that Antisocial Personality Disorder (ASPD) was not a sufficient ground for a finding of a “mental abnormality” requiring confinement pursuant to the Mental Hygiene Law, Supreme Court vacated its prior adjudication that respondent was a dangerous sex offender requiring confinement. The Third Department, in a full-fledged opinion by Justice Devine, over a two-justice dissent, reversed Supreme Court and reinstated the confinement. The majority concluded there was sufficient evidence of mental disorders (over and above ASPD) which rendered respondent unable to control his sexual behavior. The dissenters found the evidence insufficient. Both the majority and the dissent went through the evidence in detail. The majority explained the general analytical criteria:

In order “[t]o demonstrate that respondent is a dangerous sex offender requiring civil confinement, petitioner was required to prove ‘by clear and convincing evidence that . . . respondent has a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control [his] behavior, that [he] is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility'” … . Respondent takes issue with the finding that he suffered from a mental abnormality, i.e., “a congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him . . . to the commission of conduct constituting a sex offense and that results in [his] having serious difficulty in controlling such conduct” (Mental Hygiene Law § 10.03 [i]…).

Substantive due process requires that evidence of a mental abnormality reflect a “serious difficulty in controlling behavior” that, “when viewed in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, . . . [is] sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him [or her] to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case” … . As such, “the New York statutory structure does not run afoul of substantive due process because it requires [petitioner] to prove that the individual is dangerous, and the dangerousness must be coupled with a mental abnormality, which — by definition — incorporates the additional requirement that the offender have serious difficulty with behavioral control” … . The Court of Appeals has determined that a diagnosis of ASPD, without more, does not meet that requirement, as it “establishes only a general tendency toward criminality, and has no necessary relationship to a difficulty in controlling one’s sexual behavior” … . Matter of State of New York v Richard TT., 2015 NY Slip Op 06557, 3rd Dept 8-13-15