¶34 (dissenting) — I respectfully dissent.
Chambers, J.As incarceration of persons is the most common and one of the most feared instruments of state oppression and state indifference, we ought to acknowledge at the outset that freedom from this restraint is essential to the basic definition of liberty in the Fifth and Fourteenth Amendments of the Constitution.
Foucha v. Louisiana, 504 U.S. 71, 90, 112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992) (Kennedy, J., dissenting). It is our solemn duty to ensure that the State’s power to incarcerate is exercised only under the most stringent of standards. This is just as important for civil confinement as for criminal confinement.
¶35 It is bedrock law that a person must be currently dangerous to be civilly committed. In re Pers. Restraint of Young, 122 Wn.2d 1, 40, 857 P.2d 989 (1993); see also Foucha, 504 U.S. at 80. This is not merely a matter of statutory grace; a substantial showing of current dangerousness is required to satisfy due process of law. See In re Harris, 98 Wn.2d 276, 284, 654 P.2d 109 (1982).
¶36 Current dangerousness is best established by proving actual recent conduct, rather than through the arcana of propensity evaluations. See In re Det. of Albrecht, 147 *165Wn.2d 1, 11, 51 P.3d 73 (2002); Harris, 98 Wn.2d at 284. Thus, as a matter of due process, the State must prove a recent overt act of violence before a man or woman may be civilly committed. Harris, 98 Wn.2d at 284; see also RCW 71.09.060(1); Albrecht, 147 Wn.2d at 11.
¶37 We have, however, relieved the State of the obligation to prove a recent overt act when it seeks to civilly commit as a sex predator a person currently incarcerated and not recently released into the community. In re Det. of Henrickson, 140 Wn.2d 686, 697, 2 P.3d 473 (2000); Young, 122 Wn.2d at 41. This is because our court once decided that those in prison have had less opportunity to engage in recent acts of predatory violence. Young, 122 Wn.2d at 41; see also RCW 71.09.020(15).
¶38 Because Raymond Marshall was confined the day the civil commitment petition was filed against him, the State contends its burden of proof is reduced. It no longer has to prove, the State contends, that Marshall committed a recent overt act tending to show he is currently dangerous. Because he was not incarcerated for a crime that is statutorily defined as a sexually violent act, Marshall contends the State was required to prove he was actually incarcerated for a sexually violent offense.
¶39 I agree with Marshall. Due process requires its due, and that means Marshall has a right to demand the State meaningfully prove to a jury that he is currently dangerous. Thus, whether his prior crime was actually a sexually violent offense (or recent overt act) should be decided by the trier of fact as a matter of fact, not by a judge as a matter of law.
¶40 Our legislature seems to have been mindful of due process requirements when it drafted the sexually violent predators act, chapter 71.09 RCW. That is why, I suspect, it has required proof beyond a reasonable doubt that the person is a sexually violent predator and why it requires a jury to be unanimous. RCW 71.09.060(1).
¶41 A conviction for rape in the third degree, RCW 9A-.44.060, the crime for which Marshall was incarcerated, *166certainly could be a conviction for a sexually violent act. But it is not a “sexually violent offense” enumerated in RCW 71-.09.020(15). Whether it can still provide the predicate for civil confinement will turn on whether it was an act that “either caused harm of a sexually violent nature or creates a reasonable apprehension of such harm in the mind of an objective person who knows of the history and mental condition of the person engaging in the act.” RCW 71-.09.020(10). This is properly a question for the finder of fact, and, again, Marshall was entitled to ask a jury to make the decision.
f42 The issue before this court is not whether Marshall’s 1996 conviction for third degree rape could be the functional equivalent of a “recent overt act” as defined in RCW 71-.09.020(10). I have no doubt a rational trier of fact could so find. The question before this court is who should be asked to so find and how. The answer to this question, I believe, is that the State must go through the exercise of pleading and proving its case before committing a man, even a bad man, to total confinement for what is likely to be the rest of his life. See generally Humphrey v. Cady, 405 U.S. 504, 509, 92 S. Ct. 1048, 31 L. Ed. 2d 394 (1972) (civil commitment is “a massive curtailment of liberty”); Specht v. Patterson, 386 U.S. 605, 608, 87 S. Ct. 1209, 18 L. Ed. 2d 326 (1967) (requiring states to observe due process protections before civilly committing sex offenders). In my view, it should.
¶43 The statutes do not dictate the majority’s conclusion, and given the very real fact that Marshall could spend the rest of his life confined to the special commitment center based in part on the resolution of this question, we should err on the side of giving generous due process and on the side of entrusting juries to make the call.
¶44 The fact Marshall chose a bench trial does not change the fact he was denied the opportunity to ask the trier of fact to decide a critical question beyond a reasonable doubt.
¶45 Facts found by a neutral fact finder, weighing the arguments of equally motivated opponents with equal op*167portunity to prove and contest facts, are far more reliable than facts asserted by charging documents. An adversarial process promotes reliable outcomes and assures a fair procedure for those for whom conclusions of fact are of life-altering importance. It also gives due weight to the gravity of the questions that must be answered. A jury should be available to decide whether a man is to be totally confined or whether society should be subjected to the risk of another sexual predator walking among us.
¶46 Without our constant vigilance, sexually violent predator proceedings risk becoming, as one of my brethren once observed, “an Orwellian ‘dangerousness court/ ” Young, 122 Wn.2d at 60 (C. Johnson, J., dissenting). It is our solemn duty to protect “our system of ordered liberty guaranteed by the constitution,” id., even or especially when it is the most despised among us at risk. “History has proven the grave error in creating special classes of individuals for whom constitutional rights are diminished.” Id. When the State has created such special classes, we should be especially vigilant to guard the constitution. We are, almost always, literally its last guardians.
¶47 I would reverse and remand to give both parties an opportunity to meaningfully contest the facts underlying the alleged current dangerousness of Marshall before a jury, using the best evidence we have: the actual conduct of the person the State seeks to incarcerate.
¶48 I respectfully dissent.
Sanders, J., concurs with Chambers, J.