IN THE MATTER OF CIVIL COMMITMENT OF E.Z.G.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A- 1073-03T21073-03T2

IN THE MATTER OF CIVIL

COMMITMENT OF E.Z.G.

_______________________________

 

Argued November 10, 2005 - Decided

Before Judges Conley and Weissbard.

On appeal from Superior Court of New Jersey, Law Division, Essex County, SVP-170-01.

Patrick Madden, Assistant Deputy Public Defender, argued the cause for appellant E.Z.G. (Yvonne Smith Segars, Public Defender, attorney; Mr. Madden, of counsel and on the brief).

Mary Beth Wood, Deputy Attorney General, argued the cause for respondent State of New Jersey (Peter C. Harvey, Attorney General, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Ms. Wood, on the brief).

PER CURIAM

Following a third review hearing, E.Z.G.'s commitment to the Special Treatment Unit (STU) pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, was continued by order entered September 8, 2003, with a review date of August 24, 2004. The appeal was originally listed for the special argument calendar on April 14, 2005. After argument, we removed the matter from that calendar. We requested counsel to address the following issues:

1. Whether the SVPA requires a demonstration of dangerousness;

2. If so, what constitutes such dangerousness; and

3. Whether E.Z.G. is dangerous.

These questions were raised because E.Z.G.'s primary contention is that while he is an "exhibitionist," that behavior does not pose a danger to society. Of course, current dangerousness is a constitutionally required element that must be shown clearly and convincingly to justify involuntary commitment under the SVPA. But here we need not determine whether mere exhibitionism (i.e., flashing) would warrant commitment. E.Z.G.'s behavior, the product of mental and/or psychological abnormalities, coupled with current inability to control the behavior, and the resulting high risk of reoccurrence if released, as found by the trial judge, clearly and convincingly renders him presently a danger to his potential victims, i.e., children and young adults. We, therefore, affirm.

E.Z.G. has a long self-reported history of sexually deviant behavior beginning at age ten. He was first convicted in 1980 of two counts of debauching the morals of a child. E.Z.G. had exposed himself and masturbated in the presence of two girls, ages 6 and 7. Prior to sentencing on those charges, he was evaluated at the Adult Diagnostic and Treatment Center (ADTC) on April 24, 1980, by Dr. Charles Gnassi who, among other things, found E.Z.G. to have "tremendous anxiety when confronted with sexual or aggressive situations and . . . difficulty establishing satisfying personal relationships." E.Z.G. was sentenced to a suspended one to three year term and placed on five years probation with special conditions of out-patient therapy and drug treatment.

E.Z.G. was next arrested in 1981, while still under supervision for his earlier convictions. That arrest led to two convictions of sexual assault. The victims were two young girls, D.V. and T.P., aged six and seven, respectively. D.V. reported to police that E.Z.G., while unclothed, told her and T.P. that they could make his penis "longer and bigger and see it squirt by squeezing it." He directed the girls to rub oil on his penis and stroke it. Simply put, he caused them to masturbate him. E.Z.G. admitted to this, and admitted to engaging in similar conduct with T.P. on three or four prior occasions. E.Z.G. also admitted that he "groomed" T.P. by taking her to dinner, roller skating and to the movies on a number of occasions.

While admitting to the sexual assaults, E.Z.G. stated, at the time, that "in his heart" he did not believe himself to be a sex offender. In giving his police statement, he asserted the assaults were "not . . . violent act[s] and that he is not a violent person." Rather, he merely "exploited the natural curiosity" of the children. E.Z.G. reported that sex is not important to him and that it was his lack of self-esteem that led to his "doing stupid things." He characterized himself as "a bit of an exhibitionist and a child molester that did not utilize force." But he admitted that he "needed the children for his own sexual gratification." He further, told the police that "utilizing little children to satisfy his sexual impulses and needs [was] a basic drive within himself that need[ed] to be fulfilled." He explained that he and his girlfriend had a "normal sexual relationship" but that their sexual relationship was not fulfilling because his girlfriend "disliked performing fellatio." At the time, E.Z.G. claimed that he was not a criminal, had lots of friends, and that he had to build up his personality in order to clear himself of his carnal attraction to little girls. For these sexual offenses, E.Z.G. was sentenced to a fourteen-year term at the ADTC. He was paroled on November 12, 1985, and given a max date of May 18, 1990.

A little over a year after his max date, on September 18, 1991, E.Z.G. was arrested and charged with five counts of criminal sexual contact and five counts of endangering the welfare of a child. On January 29, 1992, he pled guilty to five counts of criminal sexual contact. The convictions stemmed from behavior that occurred on various dates from 1989 to August 1991. The victims were five girls, all between the ages of thirteen and sixteen. On at least ten occasions, the girls visited E.Z.G.'s house and were given alcohol and cigarettes by E.Z.G. Some of the girls were offered marijuana and shopping trips. E.Z.G. would then walk around naked, show the girls pornographic video tapes and masturbate in their presence. On his arrest, E.Z.G. admitted that he was naked in front of the girls on a regular basis and that he did it for his own sexual gratification. E.Z.G. claimed that he thought there was a mutual attraction between himself and each of the victims. For these offenses, E.Z.G. received a term of imprisonment of eighteen months on each count.

E.Z.G.'s predicate convictions occurred on May 22, 1996, when he pled guilty to two counts of second-degree sexual assault. As described in an August 13, 2002, report by Dr. Reeves who testified for the State at the second review hearing:

The offenses occurred in two separate incidents. In the first incident, [E.Z.G.] stood naked in front of his window and exposed himself to two girls (11 and 13 years-old) walking [E.Z.G.'s] dog. Two days later, again in his home, [E.Z.G.] masturbated in the presence of the above-mentioned 11 year-old girl. The girl had arrived to again [play with E.Z.G.'s] dog. [E.Z.G.] told the girl he was going to take a shower. He appeared in a towel and, as he read a magazine, exposed his penis and began to masturbate in the girl's presence.

These offenses occurred while E.Z.G. was attending out-patient counseling and after having attended mandatory counseling at ADTC. He was sentenced to two concurrent eight-year terms with a five-year disqualifier to be served at ADTC. Prior to E.Z.G.'s scheduled release on these sentences, the State filed an SVPA petition leading to his involuntary commitment.

E.Z.G. has been involuntarily committed to the STU since June 2001. Treatment records during the course of his commitment reveal that while he attends treatment groups, he "often sidetracks the group by maneuvering discussion to issues of interest solely to [E.Z.G.] . . . this behavior of [E.Z.G.'s] reveals his broader selfishness and lack of respect for the wishes of others, including presumably his victims." Another treater noted that E.Z.G. tends to be inconsistent in his statements, continues to minimize his sexual offenses, and has a "compulsive need to expose himself and masturbate in the vicinity or presence of children." He has admitted that stress causes an increase in his desire to expose his genitals to his victims. While relationships with adult women were identified as a "primary stress" that increased his aberrant behavior, providing an "escape" for him, he has also admitted that his excitement in exposing himself to children "derives from what he hopes is the excitement the girls will experience in seeing a man's body naked." He has expressed the view that exposing himself to young girls is an "open invitation" for the girls to masturbate him. To him, the only thing wrong with this behavior is that it teaches these children that sexuality is the first thing in a relationship. While he claims that he does not have a current desire to engage in his sexual misconduct with children, he acknowledges that he would be tempted to do so if released to the community.

Dr. Reeves diagnosed E.Z.G. in August 2002 with exhibitionism, pedophilia, cocaine abuse, and marijuana abuse. As to the diagnosis of pedophilia, the doctor wrote in his report:

Pedophilia is sexual attraction to children. According to DSM-IV, the diagnostic criteria for Pedophilia are: A. Over a period of at least 6 months, recurrent, intense sexually arousing fantasies, sexual urges, or behaviors involving sexual activity with a prepubescent child or children (generally age 13 or younger); B. The fantasies, sexual urges, or behaviors cause clinically significant distress of impairment in social, occupational, or other important areas of functioning; C. The person is at least 16 years and at least 5 years older than the child or children in Criterion A.

[E.Z.G.] has four convictions over nearly 25 years for sexual offenses involving females ages 13 or younger. In one of these offenses, he enticed two pre-pubescent girls to masturbate him. . . . For [E.Z.G.] to say that he is not sexually attracted to female children is ludicrous. The offenses themselves explicitly demonstrate his sexual attraction. Perhaps, to give [E.Z.G.] credit, he is trying to say that he has no desire to have sexual intercourse with pre-pubescent children. Indeed he has no documented history of having sexual intercourse with children. On the other hand, I am skeptical that a man who allows children to masturbate him does not also entertain thoughts of having sexual intercourse with them. In any case, [E.Z.G.] fulfills criterion A of Pedophilia.

[E.Z.G.'s] behaviors cause him anxiety as he acknowledges that his actions are illegal and reprehensible. Of course, his offenses have also resulted in his incarceration. Thus, [E.Z.G.] fulfills criterion B of Pedophilia.

[E.Z.G.] was an adult when he committed his four sexual offenses, and was more than five years older than his victims. Thus he fulfills criterion C of Pedophilia.

Dr. Reeves opined:

[E.Z.G.] is a pedophile. He is sexually attracted to pre-pubescent girls. He is also an exhibitionist. More precisely, his pedophilia is expressed primarily through his exposing himself to girls. In addition, he has one contact offense 20 years ago in which he had girls masturbate him. [E.Z.G.], by describing his ambivalence over his offenses, describes a compulsive quality to his pedophilia. That is, he feels driven to the pedophilic acts, despite trying to stop. His Pedophilia and Exhibitionism, by definition, place him at risk for acts of sexual violence.

What is the level of risk? The level of risk is grounded in the actuarial assessments of risk for sexual recidivism. These assessments consider mainly static risk factors as they - by virtue of their unchanging nature - are more predictive of long-term recidivism. The result of the MnSOST-R assigns [E.Z.G.] to a group of offenders who exhibit a 54% - 70% probability of arrest for a sexual offense within six years of release. His score on the Static-99 places him in a group of offenders who exhibit a 39% and 45% probability of conviction for a sexual offense within five and ten years of release. These two probabilities are consistent with one another. The probabilities are also consistent with the general literature on sexual recidivism, which suggests that treated exhibitionists re-offend at a higher rate than persons with any other paraphilia. Since many sexual offenses are unreported, one may reasonably speculate that the risk an individual with the above score poses of actually committing a sexual offense (regardless of whether he is charged or convicted) is higher than the above number. Indeed [E.Z.G.] himself has previously admitted that he committed offenses for which he was not charged.

In addition to the static risk factors described in the above-mentioned actuarial assessments, there are numerous dynamic (i.e., changeable) risk factors for sexual recidivism. The literatures suggest the most important dynamic factor in the prediction of sexual recidivism is general self-control. [E.Z.G.] has shown relatively good self-control in prison and at the NRU. He does, however, presently display insufficient consideration for others (i.e., insufficient empathy.). When he was in the community, his self control (apart from the sexual offenses themselves) was even less salutary. While he did maintain consistent employment, he abused marijuana and cocaine and was unable to sustain adult heterosexual relationships. He might have chosen dysfunctional adult partners, which choice may have motivated his offending. He also describes how he overworked in an attempt to avoid the problems in his adult relationships.

Drug abuse itself apart from what it says about general self-control raises the risk of recidivism. [E.Z.G.] abused cocaine and marijuana during the times of his three most recent offenses. More precisely, his 1981 contact offense was directly influenced by his intoxication on marijuana. His marijuana and cocaine abuse were also likely to have both directly and indirectly contributed to his 1991 and 1995 offenses. Yet to this day, [E.Z.G.] does not appreciate the contribution of his substance abuse to his offenses.

Successful sex offender treatment lowers risk. However, [E.Z.G.] twice re-offended after having supposedly successfully completed treatment. He also presently minimizes his sexual attraction to girls, and the lengths he went to entice his victims to participate in his offense.

Advancing age (i.e., elderliness) is associated with diminishing risk of recidivism. Most men who are violent offenders (sexually and otherwise) are young, and recidivate at a lower frequency as they age. Less is known about the association between age and sexual offenses. A recent study found that 10% of extra-familial child molesters released between the ages of 50 and 59 recidivated after an average of seven years follow-up (Hanson, R.K., "Age and Sexual Recidivism: A Comparison of Rapists and Child Molesters," from Canada's Solicitor General's website: [www.sgc.gc.ca/res/cor/sum/cprs200105_1-en.asp]. The sample size in this study was small. The study needs to be replicated with a larger sample size before one may confidently use the results.

In sum, the only credible evidence that suggests [E.Z.G.] is not likely to sexual recidivate if he were released, is his age. Age alone - especially given the preliminary nature of the evidence - is a risky criterion upon which to base such a weighty opinion. There is likely to be a wide range of risk exhibited by individuals grouped by age alone. [E.Z.G.] himself most recently offended when he was 45-years old - an age well beyond the average age of most sex offenders.

The actuarial measurements (which measure mostly static risk factors) will always place [E.Z.G.] at high risk to recidivate. However, [E.Z.G.] also continues to exhibit dynamic risk factors for recidivism. That is, he exhibited inadequate general self-control in the community, abused substances and continues to miss the probable link between his substance abuse and sexual offenses, and has twice re-offended after having completed sex offender treatment. The totality of the evidence thus demonstrates that [E.Z.G.'s] Pedophilia and Exhibitionism together make [E.Z.G.] likely to engage in acts of sexual violence if he is not confined in a secure facility for control, care and treatment.

As to the fact that E.Z.G.'s prior sexual misconduct involved only one "contact" offense, Dr. Reeves offered the following:

Finally, I offer a caveat. I wish to be clear what I mean when I mimic the statutory language and opine that [E.Z.G.] is at risk to "engage in acts of sexual violence." [E.Z.G.], if he were presently released, is likely to again exhibit himself to children. Given that he has only once been convicted of a contact offense - and that in 1981 - he is unlikely to again engage in contact offense. This is not to say he presents no risk of a contact offense. Indeed he obviously is at much higher risk of a contact offense with children than he is the average 52 year-old man. In my opinion, his high risk of exhibitionism - as it does cause psychological injury to his victims - along with his moderate risk of a contact offense is sufficient to justify his continuing commitment as a Sexually Violent Predator.

[Emphasis added.]

At the commitment review hearing on September 8, 2003, the hearing which is the subject of the present appeal, the State represented the testimony of two psychiatrists - Dr. Michael McAllister and Dr. Charles Gnassi. E.Z.G. presented the testimony of Timothy Foley, Ph.D., a psychologist. Part of that hearing concerned whether E.Z.G. should be treated with an anti-androgen (depo-lupron) to reduce the risk of reoffense. After considering the views of the various doctors, and noting that two psychiatrists had recommended against use of the drug because the risks outweighed the benefits and the outcome was uncertain, the trial judge held that she was "not going to step into the medical debate. I'm satisfied that the medical debate is being handled in a highly professional manner. Possibly, E.Z.G. may wish to be a guinea pig. The medical staff here are reluctant to use him as such." As E.Z.G.'s argument before us is that the conduct he is at a risk of repeating is not dangerous, we do not set forth the evidence concerning his treatment or further discourse upon it.

Dr. McAllister interviewed E.Z.G., reviewed police reports, court documents, STU treatment notes, along with a number of medical reports, including Dr. Reeves and Dr. Gnassi's reports, and considered E.Z.G.'s own statements offered during the course of his treatment at the STU regarding his sexually deviant thoughts and behavior.

During the hearing, Dr. McAllister testified that E.Z.G. was "an individual who has a sexual perversion with a number of [] manifestations." He diagnosed pedophilia, paraphilia NOS, exhibitionism, and personality disorder NOS with psychopathic features. He also noted a history of impulse control disorder NOS, depressive disorder, marijuana abuse and cocaine dependence. It was the doctor's firm opinion that while E.Z.G. attempts to persuade his treaters and evaluators that his perversion is primarily or exclusively exhibitionism, that claim is not supported by his behavior. In this respect, we set forth the following testimony by the doctor on direct examination:

Q And Doctor, you - you did diagnose exhibitionism, but in addition you diagnosed pedophilia. Can you -

A Yeah.

Q -- explain why you diagnosed the pedophilia, please?

A [E.Z.G.] has a history of engaging in multiple sexual acts with prepubertal girls. That's involved in one of his offenses. And then on another offense had also masturbated in front of two girls. Again, prepubertal.

Additionally, when - he was at the Adult Diagnostic and Treatment Center [E.Z.G.] told his treaters there that his long time sexual fantasy was not merely to masturbate in front of . . . girls, but to get them to masturbate him. So the - the - the admitted and reported long time sexual fantasy was one involving contact, at least in part, with the prepubertal girls.

Q Now, Doctor, have there been - in addition to the ex - the exhibitionist type of charges, had there - had there also been at least one contact offense concerning [E.Z.G.]?

A Certainly.

Q And -

A Mr. -

Q -- when was that?

A In 1981. Additionally, as previously mentioned, [E.Z.G.] admitted that he had entertained fantasies of that nature since adolescence. And that he continued to - to address such fantasies through his treatment which lasted over four years at the Adult Diagnostic and Treatment Center.

. . . .

Q But Doctor, how does the pedophilia work with the exhibitionism? And how does that impact [E.Z.G.'s] risk to reoffend?

A Okay. What - let me also mention here that [E.Z.G.] engaged in considerable grooming behavior with the girls in the 1981 offense. Taking them places and - or taking at least one of them places and - and doing typical grooming sorts of - of things. Such behavior, of course, is not consistent or highly - it's not highly typical of an exhibitionist.

It should be - again, as [E.Z.G.] described or had described to his treaters at the Adult Diagnostic and Treatment Center, he had the fantasy of exposing himself and then having girls, including prepubertal and post pubertal girls, masturbate him. The typical fantasy of an exhibitionist is considerably different.

The typical fantasy of an exhibitionist is that if he exposes himself, the individual - typically an adult female - will be shocked and the more - the - the grosser the shock, the more outstanding, loud the shock of the individual, the - the more the typical exhibitionist is satisfied. The objective there is for the individual to show his penis and the shock of the woman to indicate her acknowledgement that he has a penis and is a - is a man.

That sort of fantasy in the typical exhibitionist is markedly different than the fantasy that [E.Z.G.] had reported during his treatment at the Adult Diagnostic and Treatment Center.

The exhibitionism, of course, is that he does admit, beginning from approximately age 10 and continuing for in various reports up to age 13 and then resuming in his acts at age 26 or so, but also continuing in his fantasies in the time period in between, is a behavior that is typically frequent.

In this case, however, it's also been associated with not merely the grooming of the two girls - of at least one of the girls in the 1981 offense, but also the sort of - the behaviors to bring in the adolescents in the 19 - oh, golly, that - the next to the last offense where he provided alcohol, cigarettes, marijuana, videotapes.

Again, behaviors that are not at all considered typical of an exhibitionist, but which would be considered typical of somebody who was attempting to engage in sexual behaviors with adolescents. So the exhibitionism in - in one way is a behavior that is more frequent, but it's also a way that tends to lend itself to stimulation of further fantasies and act - acting out behaviors.

Q And those behaviors - the focus of those behaviors tends to be what age group, Doctor?

A In Mr. - in [E.Z.G.'s] case, they have included both prepubescent and post pubescent girls.

With regard to E.Z.G.'s current risk, Dr. McAllister observed that E.Z.G. had had numerous treatment interventions in the past and was able to mimic positive treatment, but "has not been able to sustain the benefits of treatment on multiple previous occasions." Dr. McAllister did not see much progress in treatment during this review period. E.Z.G. continues to present himself as an exhibitionist only and attempts to minimize or deny sexual contact with his victims. During the interview with Dr. McAllister, E.Z.G. described the offenses as if the children were the initiators and as if he himself had a much less active role. He omitted much of his grooming behavior and much of the enticing behavior with the teenaged victims in recounting the prior offenses. The doctor did not believe that E.Z.G. was ready or willing to be fully open in the treatment to date. Thus, in his view, continued in-patient sexual offender and substance abuse treatment remain necessary. Within a reasonable degree of medical certainty, E.Z.G. currently suffers from a mental abnormality or personality disorder that makes him likely to engage in acts of sexual violence if released. The risk is high.

Dr. Foley, E.Z.G.'s psychiatrist, did not disagree. He admitted that E.Z.G. told him that he had an "attraction to prepubescent children and that that was indicative of Pedophilia. He admitted that E.Z.G.'s history provides "strong indications of multiple paraphilias including pedophilia complicated by polysubstance abuse." According to Dr. Foley, E.Z.G. "agreed with the diagnosis of pedophilia, as well as exhibitionism." He characterized E.Z.G. as having a history of pedophlic arousal that spans forty-four years. Dr. Foley also noted E.Z.G.'s score on the Static-99, an actuarial instrument, correlating that with individuals in the high-risk range for reoffense. He did not think E.Z.G's age would serve as a protective factor with respect to his risk given that he committed his most recent offense at the age of forty-five. He noted that E.Z.G. has had problems controlling his sexual thoughts and his sexual behaviors "for an awfully long time." According to Dr. Foley, most sex offenders do not reoffend after they are charged. The mere fact of being arrested, sanctioned and embarrassed will change most people's behavior. E.Z.G. "has not responded to that. His behavior has not been altered that way." Dr. Foley concluded that E.Z.G.'s pedophilia and exhibitionism continue to impair his volitional controls, particularly in light of his history of sexual offense recidivism and treatment failure. Dr. Foley concluded that E.Z.G. remained highly likely to pose a threat if released and that only if E.Z.G. was approved for and "successfully treated with an appropriate antiandrogen," would he "entertain a less than highly likely" assessment of E.Z.G.'s risk. But he could not recommend any type of release to the community for E.Z.G. at this time.

Not surprisingly, the trial judge concluded:

Everyone is in agreement that the respondent continues to suffer from adverse abnormal mental conditions and personality disorders. That because of their influence of his cognitive, emotional and volitional abilities, cause him to be predisposed to commit sexually violent acts. Everyone agrees to that.

The respondent is predisposed. He has increasers to the risk that the mere predisposition creates the personality disorder that makes it feasible. That sort of lends to the poor relationships which precipitates these acts. The substance abuse which increases the risk by diminishing the judgment and interfering with the normal interpersonal relationships.

Thus, it's established that the respondent is highly likely to recidivate. There is clearly problems with control. The respondent, despite prolonged, repeated treatment, has not been able to control himself.

She found the evidence clear and convincing.

Our scope of review is narrow. In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We can modify an order for commitment "only where the record reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). This is not the case here. The record, along with the commitment judge's acceptance of the State's witnesses, fully supports her findings of facts and conclusions of law. Furthermore, the evidence, and the findings and conclusions, satisfy the constitutional strictures imposed upon involuntary commitment under the SVPA.

The SVPA requires that the State show by "clear and convincing evidence that the person needs continued involuntary commitment as a sexually violent predator . . . ." N.J.S.A. 30:4-27.32a. It defines a sexually violent predator as "a person who has been convicted . . . of a sexually violent offense . . . and suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment." N.J.S.A. 30:4-27.26. A sexually violent offense includes aggravated sexual assaults, sexual assaults, aggravated criminal sexual contact and criminal sexual contact. Ibid. A person is likely to engage in acts of sexual violence if he or she possesses "the propensity . . . to commit acts of sexual violence [to] such a degree as to pose a threat to the health and safety of others." Ibid.

The constitutionality of the SVPA was addressed by the court in In re Commitment of W.Z., 173 N.J. 109 (2002). In doing so, the Court first observed:

"[C]ivil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection." Addington v. Texas, 441 U.S. 418, 425, 99 S. Ct. 1804, 1809, 60 L. Ed. 2d 323, 330-31 (1979). In an involuntary commitment proceeding an individual's interest in his or her liberty is balanced against well-recognized state interests. A state's legitimate interests and authority in this area arise from two sources: its police power to protect the community at large, and its parens patriae power to provide care to its citizens who are unable to care for themselves because of their emotional disorders. Id. at 426, 99 S. Ct. at 1809, 60 L. Ed. 2d at 331; In re D.C., 146 N.J. 31, 47-48 (1996); In re S.L., 94 N.J. 128, 136 (1983). However, because of the significant restraint on the liberty of a committee, the commitment process is bounded by constitutional procedural guarantees and the scope of commitment is limited. Id. at 137-38.

In this matter we confront an expansion of the scope of commitment by the Legislature's enactment of the SVPA. The question is whether the Legislature defined the Act's terms in a manner consistent with substantive due process limitations on civil commitment's permissible reach.

[Id. at 125-26.]

The Court then noted:

Our SVPA is essentially the same as the Kansas statute examined in Hendricks in that it "requires evidence of past sexually violent behavior and a present mental condition that creates a likelihood of such conduct in the future if the person is not incapacitated." [Kansas v.] Hendricks, 521 U.S. [346,] 357, 117 S. Ct. [2072,] 2080, 138 L. Ed 2d [501,] 512 [(1997)]. The SVPA authorizes the involuntary commitment of an individual believed to be a "sexually violent predator" as defined by the Act. N.J.S.A. 30:4-27.28. The definition of "sexually violent predator" requires proof of past sexually violent behavior through its precondition of a "sexually violent offense" . . . . including the expanded definitions of the terms in the phrase "suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment." N.J.S.A. 30:4-27.26. We note that the nomenclature of "mental abnormality" or "personality disorder" is not dispositive. What is important is that, like the Kansas statute, the mental condition must affect an individual's ability to control his or her sexually harmful conduct.

As noted, the Act elaborates on key terms within the definition of "sexually violent predator." "Mental abnormality" is "a mental condition that affects a person's emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of sexual violence." Ibid. And, the phrase "likely to engage in acts of sexual violence" is defined to mean that the "propensity of a person to commit acts of sexual violence is of such a degree as to pose a threat to the health and safety of others." Ibid.

[Id. at 127 (emphasis added).]

As to the element of dangerousness, the Court said:

In addition, to be within the class of persons who may be committed under the SVPA, one must be "likely to engage in acts of sexual violence." That aspect of the "dangerousness" prong of the Act is explained to mean that "the propensity of a person to commit acts of sexual violence is of such a degree as to pose a threat to the health and safety of others." One's likelihood to commit such acts obviously relates to the control determination that the trial court must make. Although the "likelihood" requirement is not defined further in the Act, we import into that analysis the "serious difficulty" standard. An individual may be considered to pose a threat to the health and safety of others if he or she were found, by clear and convincing evidence, to have serious difficulty in controlling his or her harmful behavior such that it is highly likely that the individual will not control his or her sexually violent behavior and will reoffend.

[Id. 129-30 (emphasis added).]

It is, then, the committee's present sexual dangerousness and the risk of that dangerousness occurring if released that is the focus of the determination. Id. at 131-32. See In re Commitment of E.D., 183 N.J. 536, 550-51 (2005); State v. Bellamy, 178 N.J. 127, 136 (2003); In re Commitment of P.C., 349 N.J. Super. 569, 582 (App. Div. 2002). The dangerousness, i.e., threat to health and safety of a committee's potential victims, is not limited to physical harm. In re Commitment of A.A., 252 N.J. Super. 170, 179 (App. Div. 1991). It is determined by clear and convincing proof that the committee presently continues to suffer from a mental or personality abnormality which is not yet controlled such that there is a high risk of recurrence upon release of sexual acts that pose a threat of harm to the committee's potential victims.

Of particular threat of harm here is E.Z.G.'s risk of reoffense against children, regardless of whether E.Z.G. does no more than masturbate in front of the child victim. We reject E.Z.G.'s contention that the State failed to establish this harm at his third review hearing and that to do so, the State should have provided testimony from child victims and/or an expert on the harm caused to children subject to E.Z.G.'s type of sexual offenses. To begin with, evidence of such harm was offered by way of Dr. Reeves' report which we have previously quoted. But more to the point, our Supreme Court has accepted the view that sexual offenses take a heavy toll on child victims. Doe v. Poritz, 142 N.J. 1, 16 (1995). The psycho-social problems specifically noted by the Court as resulting from sexual attacks on children include,

chronic depression and anxiety, isolation and poor social adjustment, substance abuse, suicidal behavior, and involvement in physically or sexually abusive relationships as either aggressor or victim -- are more common among adults molested as children than among those with no such childhood experiences. Victims of sexual abuse can suffer an impaired ability to critically evaluate the motives and behavior of others, making them more vulnerable to revictimization.

[Doe v. Poritz, supra, 142 N.J. at 16 (quoting from "Brief for the United States at 5-8").]

There is no question here but that E.Z.G. remains a sexually violent predator in need of continued involuntary commitment. The trial judge's findings, based upon the evidence before her, with regard to E.Z.G.'s continuing dangerousness, i.e., that "[e]veryone is in agreement" that his diagnosed conditions continue to predispose him to commit acts of sexual violence, and that he remains highly likely to recidivate, are unassailable. So too her conclusion that he "clearly" has "problems with control," as demonstrated by the fact that prior prolonged, repeated treatment did not prevent recurrence. Equally clear and equally agreed upon is that E.Z.G. continues to suffer from a mental and/or personality abnormality that predisposes him to sexually aberrant behavior that clearly poses a threat of harm to his potential young victims.

 
Affirmed.

E.Z.G. agreed to a stay of the scheduled review hearing pending disposition of this appeal.

E.Z.G. reported that when he was ten, his female cousin saw him naked in the hospital and smiled. Upon his discharge from the hospital, E.Z.G. began to expose himself to neighborhood children.

The Center for Sex Offender Management, a project of the United States Department of Justice, defines grooming as "[t]he process of manipulations often utilized by child molesters, intended to reduce a victim's or potential victim's resistance to sexual abuse. Typical grooming activities include gaining the child victim's trust or gradually escalating boundary violations of the child's body in order to desensitize the victim to further abuse."

(continued)

(continued)

26

A-1073-03T2

RECORD IMPOUNDED

November 29, 2005