Suhr v. Maedche

KAPSNER, Justice,

dissenting.

[¶ 27] I respectfully dissent.

[¶ 28] In 1986 in Allen v. Illinois, 478 U.S. 364, 106 S.Ct. 2988, 92 L.Ed.2d 296 (1986), the United States Supreme Court held the Illinois commitment procedures were not “criminal” for purposes of the Fifth Amendment’s guaranty against compulsory self-incrimination. Statements used to commit Allen were used for treatment, but could not be used in any subsequent criminal proceeding. But, the Court cautioned:

[T]he civil label is not always dispositive. Where a defendant has provided “the clearest proof’ that “the statutory scheme [is] so punitive either in purpose or effect as to negate [the State’s] intention” that the proceeding be civil, it must be considered criminal and the privilege against self-incrimination must be applied. [United States v. Ward], 448 U.S. [242] at 248-249 [100 S.Ct. 2636, 65 L.Ed.2d 742 (1980) ].

Allen, 478 U.S. at 369, 106 S.Ct. 2988.

[¶ 29] Similarly, this Court in 1999 held the commitment laws of this state are civil in nature, based upon express legislative intent to provide treatment. Interest of M.D., 1999 ND 160, ¶¶ 27-31, 598 N.W.2d 799.

[¶ 30] Over ten years of experience with our commitment laws has taught that treatment is illusory and that confinement as a preventive measure is problematic when measured against the punishment prescribed for the same acts under the criminal law. For these reasons, our sexual predator commitment law has to be regarded as punitive in nature, and we must provide the usual protections afforded a criminal defendant. This record will demonstrate why.

[¶ 31] Maedche was compelled, as a condition of his probation, to take a polygraph examination. As part of that examination, he met, not with a therapist, but with BCI Agent Maixner who conducted an examination of Maedche’s sexual activities and fantasies going back to his childhood. If Maedche failed to respond, the conditions of his probation were violated and he could lose his liberty, presumably for the time to which he could originally have been sentenced. N.D.C.C. § 12.1-32-07(6). Because he did comply with the conditions of his probation, he has lost his liberty for an indefinite period of time. The trial court said nothing about the context in which Maedche gave his statement, but merely concluded that because civil *339commitment proceedings are civil in nature, the Fifth Amendment protection against compulsory self-incrimination does not apply. But see Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984).

[¶ 32] As a result of his compliance, Maedche disclosed the only act he engaged in as an adult which qualifies as sexually predatory conduct, as acknowledged by the district court.

[D]uring the evaluation, T.M. admitted that in 2002 he molested an eight year old girl on two occasions. He admitted that while the girl was on his lap, he rubbed her vaginal area against his erect penis while both were clothed. He was an adult at the time and the girl was a minor under the age of 15. These admissions, which were the subject of T.M.’s motion in limine which was denied by the Court, satisfy the definition of sexually predatory conduct under N.D.C.C. § 25-03.3-01(9).

Prior to Agent Maixner’s interview with Maedche, this act was unknown to law enforcement. The act was a sexual assault on an eight-year-old victim, committed when Maedche was nineteen or twenty years old. Maedche could not have been compelled to give his testimony in a criminal prosecution for the conduct. However, his compelled disclosure is used to take his liberty for an indefinite period of time.

[¶ 33] There are, of course, other sexual incidents in Maedche’s record, including the charge of indecent exposure for which Maedche was on probation. In the opinion of Dr. Lincoln Coombs, a forensic psychologist at the North Dakota State Hospital, his known sexual history, prior to the disclosure of the 2002 sexual assault, was insufficient to commit Maedche. Thus, it was the compelled disclosure that was the necessary finding for the commitment.

[¶ 34] None of the prior history is irrelevant, but we should acknowledge the level of sexual activity sufficient to deprive a person of liberty for an indefinite period of time. As an adult, Maedche has exposed himself to young children on two known occasions and was prosecuted for one. These acts do not qualify as sexually predatory conduct under our civil commitment statute.

[¶ 35] As a juvenile in 1994 and 1995, when Maedche was himself twelve and thirteen years old, he had victims who were also minors whom he touched. This was all known to Dr. Coombs who indicated that without an adult act, “it is unlikely that Mr. [Maedche] would be considered to be ‘likely to engage’ in future sexually predatory conduct.”

[¶ 36] As the hearing transcript discloses, Maedche’s conduct in 1994 and 1995, when he was between twelve and fourteen years old, figured into the scores used on his MnSOST-R and Static-99, actuarial tests used to predict whether he will offend again, as they had been for Dr. Coombs. The trial court relied upon these actuarial measures to determine that Maedche should be committed. Given the history, the actuarial tests used by the state’s witness, tell us there is between a 49 and 54% chance that sometime within six to fifteen years, Maedche will offend again.

[¶ 37] I have previously stated my concerns with self-incriminating statements made in the course of treatment during commitment and the dilemma it presents to the sexual offender with a desire to make use of the treatment. See Matter of G.R.H., 2008 ND 222, ¶¶ 23-25, 758 N.W.2d 719 (Kapsner, J., concurring). These facts present a situation further removed from such treatment. Officer Weigel testified that Maedche was on probation and required to undergo the poly*340graph examination as a condition of his probation, part of his criminal sentence.

[¶ 38] BCI Agent Maixner is not a therapist. The record is also instructive from the perspective of those qualified therapeutic professionals who interviewed Maedche. The psychological evaluation of Robert D. Lisota, Ph.D., the state’s psychologist who submitted an evaluation on behalf of petitioner, contains the following:

Mr. Maedche was informed that he had the right to refuse interviews and that this would not prejudice his evaluation. He was informed he had the right to refuse to answer any individual question in interview and this would not prejudice his evaluation. He was informed an evaluation would be completed in any event. He was encouraged to speak with his attorney prior to deciding whether to interview with the undersigned, which he did.1

However, the underlying data supporting the commitment is based upon a compelled and uncounseled polygraph examination.

[¶ 39] I would therefore hold that Maedche was committed in violation of his rights against self-incrimination, and dissent.

[¶ 40] CAROL RONNING KAPSNER

. See Ethical Principles of Psychologists and Code of Conduct Standard 3.10 Informed Consent; Standard 9.03 Informed Consent in Assessments; Standard 10.01 Informed Consent to Therapy (Am. Psychological Ass’n 2010).