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Designation As A Sexually Violent Predator ("SVP")

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There is not a presumption that one is a sexually violent predator.

By Attorney Elisabeth K.H. Pasqualini, Megan's Law and Adam Walsh Act Attorney, Harrisburg, PA

The Courts of Pennsylvania have held that the sexually violent predator law violates procedural due process, to the extent that it requires an offender to rebut a presumption of SVP ("sexually violent predator") status.  This article discusses what factors a court will use to make a determination, the role of the Sexual Offender Assessment Board ("SOAB") and the hearing that must be held.

What Factors Does a Court Use to Make a Decision?

The factors to be considered in determining whether to designate a person a sexually violent predator include the facts of the offense, including whether the offense involved multiple victims, whether the individual exceeded the means necessary to achieve the offense, the nature of the sexual contact with the victim, the relationship of the individual to the victim, the age of the victim, whether the offense included a display of unusual cruelty by the individual during the commission of the crime, and the mental capacity of the victim.

The offender's prior offense history should also be considered, including the individual's prior criminal record, whether the individual completed any prior sentences, and whether the individual participated in available programs for sexual offenders.

Additionally, characteristics of the individual should be considered, including the age of the individual, the use of illegal drugs by the individual, any mental illness, mental disability or mental abnormality, and behavioral characteristics that contribute to the individual's conduct.  Factors that are supported in a sexual offender assessment field as criteria reasonably related to the risk of reoffense should also be considered.

Who Provides Guidance to the Court in Making the Decision?

The Pennsylvania Sexual Offenders Assessment Board provides a report to the court to assist it in making a determination.

A written report by the Board must be submitted as prescribed, and a summary of the offense including information as to whether the victim was a minor, the manner of force or weapon employed or threatened, and whether there were other aggravating factors such as an unauthorized entry into a room or vehicle occupied by the victim, or whether the offense was part of a pattern of conduct involving multiple incidents or victims.

The Court must conduct a Hearing

A hearing must be held as provided to determine whether the individual is a sexually violent predator.  The offender and district attorney must be given notice of the hearing and an opportunity to be heard, the right to call witnesses, the right to call expert witnesses and the right to cross-examine witnesses. In addition, the offender has the right to counsel and to have a lawyer appointed to represent him if he cannot afford one. If the individual requests another expert assessment, the individual must provide a copy of the expert assessment to the district attorney prior to the hearing.  The right to assistance includes the right to a court-appointed psychological expert for an indigent defendant.  The determination as to whether the individual is a sexually violent predator must be made by clear and convincing evidence.  In order to carry its burden of proving that a sex offender is a sexually violent predator the commonwealth is not obliged to provide a clinical diagnosis by a licensed psychiatrist or psychologist that the offender suffers from a personality disorder or mental abnormality (see link to my article about mis-diagnosing mental abnormalities) that makes the offender likely to engage in predatory sexually violent offenses; the opinion of a qualifying criminal justice expert suffices.  However, the salient inquiry in determining sexually violent predator status is the identification of the impetus behind the commission of the offense.

If you have been charged or are facing an investigation into any sexual offenses involving children or an adult, you need counsel that is familiar with both Megan's Law and the Adam Walsh Act.  Do not trust your freedom to any lawyer, it's too important.  You may call Shaffer & Engle Law Offices, LLC toll free or email us today.

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