Sex Offender Who Has Difficulty Controlling Sexual Urges, As Opposed to a Sex Offender Who Is Unable to Control Sexual Urges, Should Be Placed Under Strict and Intensive Supervision, Not Confined

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that respondent sex offender should not be confined in a mental health facility after serving his prison sentence, but rather should be placed under “strict and intensive supervision.”  After finding the “least restrictive alternative doctrine” does not apply to Article 10 (Mental Hygiene Law) proceedings, the Court of Appeals determined the evidence did not support the conclusion respondent was a “dangerous sex offender requiring confinement.”  The evidence demonstrated respondent had, with difficultly, been able to control his sexual urges, but did not demonstrate that he was unable to control them (the requirement for confinement):

The Mental Hygiene Law defines “mental abnormality” as “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 or her to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct” (MHL § 10.03 [i] [emphasis added]). By contrast, a “dangerous sex offender requiring confinement” is defined in the Mental Hygiene Law as “a person who is a detained sex offender suffering from a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the person is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility” (MHL § 10.03 [e] [emphasis added]). The statute — which goes on to describe a “sex offender requiring strict and intensive supervision” as a “detained sex offender who suffers from a mental abnormality but is not a dangerous sex offender requiring confinement” (MHL § 10.03 [r]) — clearly envisages a distinction between sex offenders who have difficulty controlling their sexual conduct and those who are unable to control it. The former are to be supervised and treated as “outpatients” and only the latter may be confined. Matter of State of New York v Michael M, 2014 NY Slip Op 08789, CtApp 12-17-14