Attorney Richard L. Lougee Writing on a Document


Richard L. Lougee Aug. 18, 2017

In what can only be deemed Orwellian in nature, the Arizona laws permit the state to petition the Court to send sex offenders to a mental hospital following the conclusion of their prison sentence. (The federal statutes have similar provisions.) In ARS Sec. 36-3701(7)(a) of the Arizona Revised Statutes entitled “Sexually Violent Persons", the legislature has defined a sexually violent person as someone who:

(a) Has ever been convicted of or found guilty but insane of a sexually violent offense or was charged with a sexually violent offense and was determined incompetent to stand trial;


(b) Has a mental disorder that makes the person likely to engage in acts of sexual violence.

“Mental disorder” is defined in such a vague and general manner that virtually any individual found guilty of a sexual offense and sentenced to prison can be subjected to an examination by a psychologist selected by the state and committed for an indeterminate period to a mental facility following a judicial hearing. This means the individual who completes a prison sentence can be detained and if deemed to have the requisite “mental disorder” can be transferred to a mental facility theoretically for the rest of his life.

Since the 1990's, 29 states have passed laws similar to Arizona's permitting confinement through civil commitment. In the federal courts, the law is named after Adam Walsh, the 7-year-old boy who was kidnapped and decapitated and whose father hosted “America's Most Wanted”. While crimes such as this one are horrible, they are also extremely rare. According to a study by the Bureau of Justice, the re-arrest rate for individuals sentenced as sex offenders is lower than that for any other group of criminals, except those convicted of murder. However, the notion that sex offenders repeatedly offend has been repeated so frequently that it has become an accepted fact. Caught up in the hysteria created by Adam Walsh's father and others, the United States Supreme Court in 1997 ruled that Sexually Violent Predator laws are constitutional because they are essentially civil in nature and do not violate any constitutional provisions applicable to criminal proceedings.

The upshot of these laws is that no competent defense attorney will permit his client convicted of a sexual offense to participate in any counseling or therapy programs in the prison setting since all information generated in the name of treatment can and will be provided to the prosecutor who can use this information to file a petition for commitment under the Violent Sexual Predator Statute