Within the past few years, several weighty decisions, both legislative and judicial, have been made in regards to the legal and civil handling of rapists and molesters, especially repeat offenders.

In Kansas v. Hendricks, No. 95-1649 (1997), the United States Supreme Court ruled that involuntary confinement of a "sexually violent predator (SVP)" is legal. This federal decision reversed the Kansas Supreme Court's initial decision that the state's Sexually Violent Predator Act (1994), which establishes procedures for the civil commitment of persons with "mental abnormalities" or "personality disorders" who are likely to engage in "predatory" sexual actions, was unconstitutional.

In Doe v. Poritz (A-170/171-94), 1995, the New Jersey Supreme Court upheld the constitutionality of "Megan's Law", which requires released rapists who are "low to high risk" potential repeat offenders to register with local authorities and even legalizes community notification of the released person's whereabouts. Further, several states, including Georgia, Tennessee, Michigan, California, and Florida, have legalized chemical castration for repeat, even one-time, rapists.

The above legislative steps are indeed innovative, and obviously controversial, especially considering their apparent violation of the convicted offender's civil rights of 1) due-process¹, 2) autonomy from double jeopardy², and 3) autonomy from ex-post facto³ punishment.

We will examine the constitutionality of the above rape legislation, i.e. why the courts ruled in favor of the laws' legality, especially regarding the above clauses.

To understand the step toward more severe legislative and judicial resolutions regarding sexual offenders, we must examine the dangers that SVPs pose to society⁴. Bureau of Justice Statistics follow-up studies of sex offenders discharged from prison or sentenced to probation showed that they have a generally lower rate of re-arrest than other violent offenders but are substantially more likely than other violent offenders to be re-arrested for a new violent sex offense. Released rapists were found to be 10.5 times as likely as non-rapists to be re-arrested for rape.
Offenders who served time for sexual assault were 7.5 times as likely as those convicted of other crimes to be rearrested for a new sexual assault.

These statistical findings exhibit "a substantial and disproportionate amount of sexual offenses are committed against [people] by a relatively small number of multiple and repeat sex offenders." ⁵

Given such information, one can understand legislators' and judges' desire and civil responsibility to be tough on SVPs.

For the sake of simplicity, let us divide sexually violent predators into two distinct categories: 1) those with a "mental abnormality" or "personality disorder" (two presently ambiguous terms to be defined later in this article), and, 2) those without such conditions. We now look at how recent legislation has been passed regarding SVPs in the first category above.

In 1994, Kansas attempted to pass the Sexually Violent Predator Act, which instituted procedures for civil commitment of convicted rapists with a "mental abnormality" or "personality disorder," and were likely to commit "predatory acts of sexual violence," because of their mental condition. The Kansas legislature felt that existing civil commitment procedures were ineffective to solve the risks regarding SVPs: "The legislature further finds that [SVPs'] likelihood of engaging in repeat acts of predatory sexual violence is high. The existing involuntary commitment procedure is inadequate to address the risk [they] pose…"⁶

The legislature recognized a necessity for a civil commitment procedure for the long term care and treatment of the sexually violent predator.

Mr. Leroy Hendricks, a convicted rapist and pedophile⁷ whose release from confinement would obviously be delayed indefinitely by the Act, challenged its constitutionality. Hendricks challenged the Act on grounds that it violated due process, double jeopardy, and ex post facto clauses.

He asserted that civil commitment was a form of double jeopardy and ex post facto legislation, since the Act intended to increase and lengthen the punishment for his prior criminal offense for which he had already served a prison sentence. Hendricks further contended that this impeded, without due process, his right to life, liberty, and property.

The State Supreme Court in Kansas ruled in favor of Mr. Hendricks. Yet, the State of Kansas appealed this decision to the United States Supreme Court, asserting that its Sexually Violent Predator Act, indeed, deserved constitutional approval.

In a 5-4 decision, the federal Supreme Court ruled in favor of Kansas, thus reversing the prior decision of the Kansas' Court:

To begin, we shall examine the Court's decision as to why the Act was not in violation of due process, with regards to physical restraint and specifically, the proposed civil commitment enumerated by the Act.

A direct conflict between the rights of the soon to be released criminal and those of society would seem to arise: The SVP's right to life, liberty, and property upon completion of his sentence versus the public's right to safety.

Thus, the Jacobsen Court stated that an individual's constitutional protection from physical restraint can be overridden in certain civil contexts.

The Hendricks Court was convinced that the Act's intent was not simply to confine, but to confine because of the person's proven danger to other members of society.

The step to involuntarily confine beyond one's sentence is not connected with punishment resulting from the prior crime, but is, instead, carried out given two circumstances: 1) the person must have a past history of sexual violence, and 2) the person must be diagnosed with a mental condition that proves a likelihood that such conduct will be repeated.

Put simply, the Sexually Violent Predator Act "requires a finding of future dangerousness, and then links that finding to the existence of a 'mental abnormality' or 'personality disorder' that makes it difficult, if not impossible, for the person to control his dangerous behavior."⁹ Clearly, the legislative step of involuntary confinement is not arbitrary, or punitive in intent.

Hendricks further challenged the constitutionality of the Act on the grounds that it enacted double jeopardy and ex post facto legislation.

He claimed the Act sanctioned further and new punishment for a crime he had already committed, been convicted of, and served the resulting sentence in prison for.

Yet, the Court again ruled in favor of Kansas, convinced that the State intended to initiate "civil", rather than "criminal" proceedings.

As Justice Clarence Thomas explained, in writing for the majority: "Nothing on the face of the statute suggests that the legislature sought to create anything other than a civil commitment scheme designed to protect the public from harm."¹⁰

He further emphasizes that "…because none of the parties argues that people institutionalized under the Kansas general civil commitment are subject to punitive conditions, even though they may be involuntarily confined, it is difficult to conclude that persons confined under this Act are 'punished.'" ¹¹

It is complete absence of retributive or deterrent purposes in the Act that verifies lack of criminal proceedings. We must not forget that the purpose of confinement is retributive, deterrent, and rehabilitative. By civilly committing a SVP, the legislation wishes to fulfill the rehabilitative purpose of the Act, until the person is no longer a dangerous threat to others.

Yet, the Court disagreed as to the effectiveness of rehabilitation as outlined in the Sexually Predator Act. Justices Breyer, Stevens, Souter, and Ginsberg dissented, claiming that the ineffective treatment method during the initial incarceration inevitably extended the person's confinement. The dissenting Justices are convinced that the Act does not sincerely attempt to "cure" the "mental abnormality" or "personality disorder" in time for the person to be released upon completing his sentence. This is a justifiable claim shared by four of the justices, and thus additional review.

In the Kansas Supreme Court's decision in which the Act was found unconstitutional, it was concluded that, as of the time of Hendricks' commitment, the state had not funded treatment, it had not entered into treatment contracts, and it had little, if any, qualified treatment staff. ¹² One must question the Act's intended purpose of rehabilitation, given the above.

The Sexually Violent Predator Act allows the state to examine an incarcerated rapist 90 days before release. If the criminal is found to have a "mental abnormality" or "personality disorder" which would predispose a future act of sexual violence, then the person may be granted treatment.

The dissenting Justices viewed this delay in treatment as an intention to extend the person's confinement.

Further, several psychologists testified that this delay "leads to loss of memory and makes it more difficult for the offender to accept responsibility, and that time in prison leads to attitude hardening that engender[s] a distorted view of the precipitating offense." ¹³

Thus, a delay in treatment not only wastes valuable time that could have been spent in rehabilitation but also hinders the treatment, when finally begun.

A call for treatment to begin upon incarceration is made here, since "much of the treatment that Kansas offered here (called "ward milieu" and "group therapy") can be given at the same time as, and in the same place where, Hendricks serves his punishment." ¹⁴

Nevertheless, the Supreme Court was convinced that involuntary confinement in such cases of Mr. Hendricks does satisfy substantive due process. The Court concluded that this civil commitment is permitted for the "common good" -- the "common good" being safety to the members of society. Yet, the person(s) who stand to be confined must be proven dangerous to society: 1) being diagnosed with a "mental abnormality" or "personality disorder" that makes it difficult, if not impossible to control his behavior, and 2) given this condition, a likelihood exists that the person will commit violent sexual acts.

Yet, the Court disagrees as to terms for treating these persons. In the dissent, Justice Breyer voices the minority's objection to delay of treatment that could be administered to a known SVP upon incarceration. It should be noted that Kansas legislature has responded to this claim since the case and is in the process of re-organizing its terms of treatment.

New Jersey's Registration Law¹⁵ and Community Notification Law¹⁶, commonly referred together as "Megan's Law", and chemical castration are two methods designed to protect the public from repeat sex offenders. Megan's Law applies particularly to those persons who are not necessarily diagnosed with a "mental abnormality" or "personality disorder", therefore not susceptible to legislation such as Kansas' Sexually Violent Predator Act.

As Washington's preamble to its Sexual Psychopath Laws states: "The legislation finds that a small but extremely dangerous group of sexually violent predators exist who do not have a mental disease or defect that renders them appropriate for the existing involuntarily treatment act." Megan's Law intends to protect society from potential SVPs by 1) requiring convicted rapists who pose a risk to public safety to register with authorities in their area of residence (Registration Law), and 2) allowing authorities to notify citizens likely to encounter the newly released person(Notification Law).

Not surprisingly, Megan's Law has been challenged on many constitutional grounds, namely that it is a form of ex post facto legislation, cruel and unusual punishment, double jeopardy, and that it violates the released person's right to equal protection and his right to privacy. In Doe v. Poritz (A-170/171-94), 1995, the New Jersey Supreme Court ruled that the above Clauses were not violated. Let us examine why.

The main issue that the New Jersey Court had to face was the released person's right to privacy versus the public's right to safety. In this civil context, as in Kansas v. Hendricks, the Court prioritized the public's right to safety and self-defense. Justice C.J. Wilentz attempts to relate the Court's judgment in the introduction to his deposition: "The essence of our decision is that the Constitution does not prevent society from attempting to protect itself from convicted sex offenders…"

The court had to chose between societal vulnerability in the case of a convicted rapist's unconditional release with unlimited privacy, as opposed to the convicted rapist's loss of anonymity in the case of community notification. Obviously, it elected the latter situation and "chose to risk unfairness to the previously-convicted offenders rather than unfairness to the children and women who might suffer because of their ignorance."¹⁷ This decision was made in light of the recidivism statistics provided to the Court: the rate of overall recidivism was found to be as high as 35%; specifically, with young girls as the victim, 29%, and with young boys, 40%.¹⁸ Such a high risk of likelihood prioritized public safety over the potential sexual offender's loss of privacy and anonymity.

However, a potential "loophole" exists within Megan's Law. The law divides its applicability into three "tiers", in which Tier One outlines "protection strategy" for the lowest risk potential offender, while Tier Three is reserved for the highest risk potential offender. As one is "ranked" closer to Tier Three, Megan's Law is more intensely applicable to him.

For example, one classified as Tier One(designated "low-risk") is only required to register with local authorities, and may be periodically contacted. Yet, one classified in Tier Three (designated "high risk") must register with the authorities, and the prosecutor is required to notify all members of the public likely to come into contact with him. Thus, the lower the tier one is classified into, the more impediments to his privacy one may escape.

Potential offenders may conspire to achieve a lower "ranking", to escape more impediments to their privacy. The question arises, then: Who determines the risk of a person to the public?

Indeed, an important question. The cautious responsibility of the "risk expert" who decodes a potential offender's "risk" is vital to the public, since they do not want a potential offender "under-ranked," for fear of their safety being compromised. Conversely, the convicted criminal being released desires a lenient "risk expert", more compassionate toward his own plight, thus refraining from "over-ranking" him. What could result from such tension is a "battle of the experts"—a trial in which the plaintiff and defendant each bring in their respective experts to testify for the harsher or more lenient sentence.

The Court recognized such a potential complexity in the civil proceedings following a criminal's release: "In these proceedings the prosecutor, or someone depicted by the prosecutor shall, if offered as such, be promptly accepted by the court as an expert on the risk of reoffense."¹⁹

Justice Wilentz emphasizes further the opinion of the Court: "We grant to the court substantial power beyond that permitted or used in ordinary litigation, to allow, control, and limit expert testimony in order to render these proceedings absolutely effective, practical, and timely."²⁰

Many of the rapists under Megan's Law and New Jersey's Justice J. Stein, in his dissenting opinion, claim that the legislation will lead to discrimination and vigilantism among the townspeople within which the released offenders attempt to integrate themselves upon release from incarceration. Stein uses two cases as support for his hypothesis. In one case, "[a] father and son broke into [a past sexual offenders] Philipsburg row house looking for the released child molester who had been identified by police," obviously seeking to impose harm upon the man.²¹

Another case was mentioned in which a local Guardian Angel chapter organized a heated demonstration in a released rapist's resident town. Justice Wilentz responds that such public actions are far from the norm, and further, the public's conduct itself should not be discriminated against: "the court has no right to assume that the public will be punitive when the Legislature was not, and no right to assume the media will not act responsibly. The Attorney General has strongly warned against vigilantism."²² Wilentz further points out that legal and criminal action has been taken against such vigilantism and assured that such action would be taken in future similar circumstances, if any should arise.

Clearly, the basis of the New Jersey Court's decision in Doe rested on its desire to prioritized the public's right to self-defense and safety over the potential offender's right to privacy.

Further, the Court has guarded against possible abuse of the classification system that precludes one's "placement" into one of the three "Tiers" by explicitly outlining this method, and administering to the court over-sight as to its efficiency.

The final form of legal action regarding sexually violent predators to be discussed is chemical castration. This procedure is done by use of Depo-Provera, also called medroxyprogesterone acetate, which "lowers testosterone levels which in turn dampens sexual desire."²³ Thus, chemical castration can be a potentially useful treatment for SVPs who commit their acts of violence solely out of sexual desire. Yet, as Johns Hopkins' Dr. Fred S. Berlin points out, "it is not going to help where the primary problem with the sex offender is a lack of conscience and moral responsibility."²⁴ Depo-Provera, in such cases, must be coupled with intensive counseling, and, as in the case of all successful treatment, willful cooperation of the one being treated. Chemical castration seems a logical step for law enforcement officials, given the offender's acts are done out of pure sexual desire.

Any constitutional challenges to chemical castration on any grounds of the criminals rights being violated can be overturned in the same context as the two cases discussed earlier in this article, given the castration is a form of preventive treatment, intended to protect society.

The three forms of legislation discussed above seem to naturally split their application to three distinct sexually violent predators.

Involuntary confinement or civil commitment (logically comparable to Kansas' Sexually Violent Predator Act), coupled with adequate treatment, is designed for the rehabilitation of those with a "mental abnormality" or "personality disorder." Those potential repeat offenders without such mental or personality conditions can be further divided into two separate groups.

Those who commit (or have committed) their sexually violent crime out of sheer sexual urge and perversion compose the first sub-group. It seems logical that chemical castration would best serve this group, as Depo-Provera serves to combat these sexual desires.

Logically, the drug should be coupled with psychological and psychiatric treatment, with the patient's risk-free independence from the drug an end.

The second sub-group consists, finally, with those who commit (or have committed) their acts of sexual violence not out of utter sexual lust, but rather, a desire for power, control, or because of a moral deficiency.

It is these potential offenders to which Megan's Law applies. Depo-Provera would not deal with the non-sexual complexities listed just above.

America's vulnerability to repeat sexual offenders and molesters has been proven with endless statistics, plainly showing that recidivism rates of such convicted criminals is up to ten times higher than that of the average convict. Further, such cowardly lawbreakers choose weak, innocent women and children as their prey in a vast majority of their violent acts.

Due to such circumstances, society's right to self-defense and protection far outweighs the released criminals' right to privacy and anonymity, and desire to escape such rehabilitative measures as chemical castration.