(dissenting)—At the outset, I voice no quarrel with the prosecuting -attorney’s exercise of his discretion under RCW 71.06.0204 in failing or refusing to file a sexual psychopathic petition under the facts of this case. Neither do I quarrel with the majority’s outline of the sentencing judge’s authority in the area of probation and suspensible sentences. My sole departure from the view of the majority lies in its adoption of the sentencing court’s position that it had no jurisdiction at the post-conviction *171and sentencing stage to consider on the merits petitioner’s motion for a 90-day observation commitment to Western State Hospital, pursuant to the sexual psychopathic statute (RCW 71.06).
The majority vests the sole power to initiate sexual psychopathic proceedings in the hands of the prosecuting attorney. Yet the majority states that the sentencing judge may possibly suspend the sentence of a criminal offender, conditioning the suspension upon a defendant’s application and admission to the sexual psychopathic program. The majority also recognizes the power of the sentencing judge to condition probation upon a defendant’s application and admission to the sexual psychopathic program. I fail to see how the majority can interpret RCW 72.06.020 to allow the sentencing judge to condition probation or suspension of a sentence upon the defendant’s admission to the sexual psychopathic program and not allow the sentencing judge to sentence a defendant and initiate sexual psychopathic proceedings.
Sexual psychopathic proceedings are civil in nature, and they do not inquire into the guilt or innocence of an individual. See Thurmond v. Superior Court, 49 Cal. 2d 17, 20, 314 P.2d 6 (1957); People v. Bruckman, 33 Ill. 2d 150, 151, 210 N.E.2d 537 (1965); People v. Capoldi, 10 Ill. 2d 261, 266, 139 N.E.2d 776 (1957); LaMorre v. Superintendent of Bridge-water State Hosp., 347 Mass. 534, 538, 199 N.E.2d 204 (1964); People v. Piasecki, 333 Mich. 122, 142, 52 N.W.2d 626 (1952); State v. McDaniels, 307 S.W.2d 42, 44 (Mo. App. 1957). The proceedings seek to ascertain the mental condition of the individual, and any decision to classify a person a sexual psychopath is based primarily on medical evidence. People v. Capoldi, supra; Belanger v. Bussiere, 107 N.H. 157, 158, 218 A.2d 435 (1966); In re Craft, 99 N.H. 287, 288, 109 A.2d 853 (1954); In re Miller, 98 N.H. 107, 108, 95 A.2d 116 (1953). The goal of the sexual psychopathic program is to provide treatment for mentally ill sex offenders. State v. McDaniels, supra; Sevigny v. Burns, 108 N.H. 95, 96, 227 A.2d 775 (1967); State v. Newell, 126 Vt. 525, *172526, 236 A.2d 656 (1967); Huebner v. State, 33 Wis. 2d 505, 521, 147 N.W.2d 646 (1967). In order to carry out the goal of the program, the sentencing judge should possess the discretionary power to initiate a sexual psychopathic proceeding. People v. Griffes, 13 Mich. App. 299, 164 N.W.2d 426 (1968), recognizes this power of the sentencing judge. In Griffes, the state charged defendant with indecent exposure, and during the trial a prosecution psychiatrist gave testimony which indicated the defendant may fall within the sexual psychopath category. The prosecution, however, did not file a sexual psychopathic petition. The court stated at page 306:
“When it is found in the course of a criminal proceeding, at any time before sentence, that the accused is afflicted with such disorder, the legislative requirement is that he may not be treated as a criminal. Presumptively such finding is deemed to establish conclusively that the act for which the prosecution has been instituted was committed, if at all, by one of unsound mind who should be dealt with accordingly.” . . .
Even aside from the mandatory language just underscored, the question of whether sick people are to be treated for their illness or punished for it, is a question which touches the very heart of judicial consciousness of a civilized system of jurisprudence. If, perchance, the parties or counsel fail to raise the matter our courts cannot close their eyes to so important a matter. Under facts such as indicated in the present case, the trial judge should have initiated criminal sexual psychopath proceedings on his own motion once the defendant was convicted of the offense charged.
(Some italics mine.)
Thus, a sentencing judge does possess the discretionary power to initiate proceedings on his own motion in order to insure treatment for needy individuals. People v. Griffes, supra; cf. Belanger v. Bussiere, supra at 158-59. The overall legislative scheme of mental illness treatment and RCW 71.06, particularly RCW 71.06.020, do not convincingly evidence an intent to limit the power of a sentencing judge to consider and utilize properly all available resources in de*173termining the appropriate treatment or punishment to be meted out to a criminal offender.
The majority opinion outlines a specific procedure which it claims insures sexual psychopathic treatment for petitioner:
The offender may be sentenced with recommendation for transfer to an institution for the mentally ill and treatment. . . . Any need for treatment of the defendant’s sexual psychosis may be brought to the^ attention of the Board of Prison Terms and Paroles with the court’s report of the facts and information regarding the defendant. RCW 9.95.030-.032. This treatment may then be ordered by the Secretary of the Department of Social and Health Services, who is authorized to transfer any prisoner to another institution for treatment of mental illness. RCW 72.68.031; see RCW 72.68.032, .035.
In practice, this procedure does not even exist. In its 1974 Annual Report, the staff of the Sexual Offender Treatment Center concludes that:
(4) The use of the sexual psychopath statute is the only way the court can presently assure itself that an offender will receive treatment. The Department of Social and Health Services is not required by law to transfer treatable sexual offenders from prison to the hospital. In fact, the Department has not approved any transfers during the past year, and the Center agrees with this decision. Transferring men from prison who still remain under the jurisdiction of the adult correctional system and the Board of Prison Terms and Paroles causes too many additional problems of security, conflicting authority, and changes in treatment procedures for the hospital program.
State Dep’t of Social & Health Servs., Guided Self-Help—A New Approach to Treatment of Sexual Offenders 2 (1974).
Finally, RCW 71.05.0505 permits any person to apply voluntarily to the appropriate public agency for treatment of a mental disorder. The majority concedes that RCW 71.05.050 *174encompasses the sexual psychopathic program. In the present case, petitioner clearly made application for admission into the sexual psychopathic program. He understands the serious ramifications of being classified a “sexual psychopath” pursuant to RCW 71.06, yet he is willing and eager to enter the program. He is concerned about his past history of sexual deviation and his future life. In a letter dated June 16,1975, to the trial judge, the Western State Hospital staff specifically recommended sexual psychopathic treatment for the petitioner. The letter stated:
The result of our overall examination and clinical observation reveals that Mr. Osborn is currently suffering from reactive depression, accompanied by anxiety, superimposed on a basically schizoid type of personality with sexual deviation, in particular pedophilia. Mr. Osborn has a long history of sexual offenses and would seem to fit the category of a sexual psychopath.
In the course of our examination Mr. Osborn was at all times friendly, pleasant and cooperative. He was logical, coherent and appropriate. His thought process was organized. His ego boundaries were well preserved. He did not show any hallucinations or delusions and his memory was good for both recent and remote events. There was no indication of any psychotic symptomatology within his personality at this time. . . .
Due to the fact Mr. Osborn fits the category of sexual psychopathy and seems to be eager to obtain help in that area, is concerned about his future and about his sexual deviation, we would strongly recommend that he be committed to Western State Hospital for 90 days observation in the Sexual Psychopath Treatment Program. In our opinion this would be in the best interest of both Mr. Osborn and society.
I would therefore remand the case to give the sentencing judge an opportunity to exercise his discretion to pass upon the merits of petitioner’s motion.
Rosellini and Brachtenbach, JJ., concur with Hamilton, J.
‘Where any person is charged in the superior court in this state with a sex offense and it appears that such person is a sexual psychopath, the prosecuting attorney may file a petition in the criminal proceeding, alleging that the defendant is a sexual psychopath and stating sufficient facts to support such allegation. Such petition must be filed and served on the defendant or his attorney, at least ten days prior to hearing on the criminal charge.” RCW 71.06.020.
“Nothing in this chapter shall be construed to limit the right of any person to apply voluntarily to any public or private agency or practitioner for treatment of a mental disorder, either by direct application or by referral.” RCW 71.05.050.