Present: All the Justices
RAHMATOLLAH SHIVAEE
v. Record No. 041954
COMMONWEALTH OF VIRGINIA∗
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Everett A. Martin, Jr., Judge
OPINION BY JUSTICE DONALD W. LEMONS
JUNE 9, 2005
ORLANDO LAWARREN BUTLER
v. Record No. 041945
COMMONWEALTH OF VIRGINIA**
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Norman Olitsky, Judge
In these two appeals we consider the constitutionality of
Virginia's Sexually Violent Predators Act ("SVPA"), Code
§§ 37.1-70.1 through -70.19, and whether the evidence
introduced by the Commonwealth was sufficient, by a clear and
convincing standard, to support a finding that Rahmatollah
Shivaee ("Shivaee") is a sexually violent predator. For the
∗
In the trial court this case was styled "Jerry W.
Kilgore, Attorney General of Virginia, ex rel. Commonwealth of
Virginia v. Rahmatollah Shivaee." We have amended the style of
the case to reflect that the Commonwealth is the direct party
in interest, not a relator.
**
In the trial court this case was styled "Jerry W.
Kilgore, Attorney General of Virginia, ex rel. Commonwealth of
Virginia v. Orlando Lawarren Butler." We have amended the
style of the case to reflect that the Commonwealth is the
direct party in interest, not a relator.
reasons discussed below, we will affirm the judgment of the
trial court in both cases.
I. Facts and Proceedings Below
A. Shivaee v. Commonwealth
In 1996, Shivaee was convicted of four counts of
aggravated sexual battery, in violation of Code § 18.2-67.3,
and one count of indecent liberties, in violation of Code
§ 18.2-370.1. His victims were three girls, each less than 13
years old. He was sentenced to serve seven years of
incarceration on each of the four aggravated sexual battery
charges, with five years on each charge suspended, and two
years on the indecent liberties charge, with one year
suspended. In 1997, Shivaee was convicted of one count of
forcible sodomy, in violation of Code § 18.2-67.1, based on an
incident that occurred prior to his 1996 conviction. His
victim was a boy less than 13 years old. He was sentenced to
ten years of incarceration, with eight years suspended.
Pursuant to the SVPA, the Attorney General ("Commonwealth")
filed a petition seeking Shivaee's civil commitment in lieu of
his release on September 17, 2003.
Pursuant to Code § 37.1-70.7, the trial court found
probable cause existed that Shivaee is a sexually violent
predator as defined in the SVPA and set the matter for trial.
Prior to trial, Shivaee filed a motion to dismiss the petition
2
for civil commitment on the grounds that the SVPA violates
both the Fourteenth Amendment to the Constitution of the
United States and Article I, section 11 of the Constitution of
Virginia. The trial court denied his motion. Pursuant to
Code § 37.1-70.9(B), Shivaee was tried without a jury.
At trial, Sherry Lawrence testified that Shivaee was the
father of her sister's child, who was conceived when Shivaee
was 57 years old and Lawrence's sister was 14 years old.
Robert H. Steele, III, Shivaee's social worker in the Sex
Offender Residential Treatment ("SORT") Program while Shivaee
was incarcerated, testified that Shivaee did not complete the
SORT Program, only "admitted to some inappropriate touching,"
and remained in denial as to most of his illegal interactions
with children.
Evan S. Nelson, Ph.D. ("Dr. Nelson"), testified as an
expert witness on behalf of the Commonwealth. Dr. Nelson
stated that Shivaee has a pattern of deviant interest in
children, based on four female victims – including the teenage
girl he statutorily raped and impregnated – and one male
victim, and diagnosed Shivaee with the mental abnormality of
pedophilia. Dr. Nelson testified that the mental abnormality
of pedophilia creates a risk to re-offend, and opined that
inpatient treatment was more suitable for Shivaee than
outpatient treatment, especially in light of Shivaee's lack of
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progress in the SORT program. Dr. Nelson testified that
inpatient treatment was "the right venue to help Mr. Shivaee
as well as to protect the public."
Shivaee called one witness on his behalf, John A. Hunter,
Jr., Ph.D. ("Dr. Hunter"). Dr. Hunter agreed that Shivaee
suffered from pedophilia and that there is a risk of
recidivism with all pedophiles. However, Dr. Hunter testified
that Shivaee would be able to control his behavior with
outpatient treatment.
Upon consideration of the evidence, the trial court found
by clear and convincing evidence that Shivaee was a sexually
violent predator and ordered his civil commitment. Shivaee
filed a timely petition for appeal, which we granted. He
assigns three errors to the judgment of the trial court: (1)
that the SVPA violates both the Fourteenth Amendment to the
Constitution of the United States and Article I, Sections 8,
9, and 11 of the Constitution of Virginia; (2) that the trial
court erred in ordering his civil commitment absent proof that
he "had serious difficulty controlling his behavior"; and (3)
that the evidence failed to satisfy the "clear and convincing"
evidentiary standard.
B. Butler v. Commonwealth
Orlando Lawarren Butler ("Butler") was convicted of
aggravated sexual battery on April 12, 2001 and was sentenced
4
by the Circuit Court of the City of Chesapeake to serve ten
years of incarceration with seven years suspended. Pursuant
to the SVPA, the Attorney General filed a petition seeking
Butler's civil commitment in lieu of his release on August 22,
2003.
Pursuant to Code § 37.1-70.7, the trial court found
probable cause existed that Butler is a sexually violent
predator under the SVPA and set the matter for trial before a
jury. Prior to trial, Butler filed a motion to dismiss the
case on the grounds that the SVPA violates both the Fourteenth
Amendment to the Constitution of the United States and Article
I, Section 11 of the Constitution of Virginia. The trial
court denied Butler's motion to dismiss and Butler properly
noted his objection.
On March 11, 2004, a jury unanimously found by clear and
convincing evidence that Butler was a sexually violent
predator. On April 6, the trial court held a hearing to
determine whether Butler should be civilly committed or
conditionally released, and, on May 21, entered its final
order that Butler be civilly committed.
Butler filed a timely petition for appeal, which we
granted. Butler's only assignment of error is that the SVPA
is unconstitutional. Butler advances four arguments in
support of this contention: (1) the SVPA "fails to require an
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independent finding of a serious difficulty in controlling
behavior and thus violates substantive due process"; (2) the
SVPA "fails to meet the threshold standard required for the
minimum degree of difficulty required by substantive due
process with respect to lack of control as [a] symptom of the
mental abnormality or personality disorder for which the
subject individual is diagnosed"; (3) the SVPA "is not
definite and precise in its meaning and can be interpreted and
applied in different ways and therefore it is void for
vagueness"; and (4) the SVPA "fails to comport with the
notions of due process as it does not meet the requirements of
[Kansas v. Crane, 534 U.S. 407 (2002)], it is not a civil
confinement statute and therefore is void as unconstitutional
under the doctrines of ex post facto and double jeopardy."
II. Analysis
A. Standard of Review
On appeal, the constitutional arguments are questions of
law that we review de novo. Wilby v. Gostel, 265 Va. 437,
440, 578 S.E.2d 796, 798 (2003); Eure v. Norfolk Shipbuilding
& Drydock Corp., 263 Va. 624, 631, 561 S.E.2d 663, 667 (2002).
Because the due process protections afforded under the
Constitution of Virginia are co-extensive with those of the
federal constitution, the same analysis will apply to both.
Morrisette v. Commonwealth, 264 Va. 386, 394, 569 S.E.2d 47,
6
53 (2002); Willis v. Mullett, 263 Va. 653, 657, 561 S.E.2d
705, 708 (2002). We review Shivaee's evidentiary challenge to
determine if the judgment of the trial court was plainly wrong
or without evidence to support it. Code § 8.01-680.
B. Constitutionality of the SVPA
In Addington v. Texas, 441 U.S. 418, 426 (1979), the
Supreme Court held: "The state has a legitimate interest under
its parens patriae powers in providing care to its citizens
who are unable because of emotional disorders to care for
themselves; the state also has authority under its police
power to protect the community from the dangerous tendencies
of some who are mentally ill." The Supreme Court has reviewed
civil commitment statutes very similar to the SVPA on three
occasions. See Kansas v. Crane, 534 U.S. 407 (2002); Seling
v. Young, 531 U.S. 250 (2001); Kansas v. Hendricks, 521 U.S.
346 (1997). In each of these three cases, the Supreme Court
upheld the constitutionality of the statutes in question.
In Hendricks, the Supreme Court held that the definition
of "mental abnormality" in the Kansas Sexually Violent
Predator Act satisfied substantive due process requirements.
521 U.S. at 356. The Court recognized that freedom from
restraint is not absolute, and that a State may "in certain
narrow circumstances provide[] for the forcible civil
detainment of people who are unable to control their behavior
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and who thereby pose a danger to the public health and
safety," so long as the confinement "takes place pursuant to
proper procedures and evidentiary safeguards." Id. at 357.
The Court considered the level of dangerousness necessary to
justify indefinite involuntary civil commitment, compared the
Kansas Act to other civil commitment statutes previously
reviewed by the Court, and concluded:
The Kansas Act is plainly of a kind with these
other civil commitment statutes: It requires a
finding of future dangerousness, and then links
that finding to the existence of a "mental
abnormality" or "personality disorder" that
makes it difficult, if not impossible, for the
person to control his dangerous behavior.
Id. at 358.
The Supreme Court also reviewed Hendricks's claim that
the Kansas Act violated the Constitution's double jeopardy
prohibition and its ban on ex post facto laws. Because the
Kansas Act was a civil statute and was "nonpunitive," the
Court held that the Kansas Act did not violate double jeopardy
prohibitions and was not an ex post facto enactment. Id. at
360-71.
In Seling, Andre Brigham Young ("Young") was civilly
committed pursuant to the Washington Community Protection Act
of 1990, Wash. Rev. Code § 71.09.010 et seq. (1992). Seling,
531 U.S. at 253. After unsuccessful challenges to his civil
commitment in state court, Young brought a habeas action under
8
28 U.S.C. § 2254 contending that the Washington Act was
unconstitutional and that his confinement was illegal. 531
U.S. at 258. The district court granted the writ, "concluding
that the Act violated substantive due process, that the Act
was criminal rather than civil, and that it violated the
double jeopardy and ex post facto guarantees of the
Constitution." Id. While the case was on appeal, the Supreme
Court decided Hendricks and the United States Court of Appeals
for the Ninth Circuit remanded the case for reconsideration in
light of Hendricks. 531 U.S. at 258.
On remand, the district court denied Young's petition.
The Court of Appeals affirmed in part, reversed in part, and
remanded in part. Id. at 258-59. In reversing the district
court, the Court of Appeals held that the Washington Act was
punitive "as applied" and therefore violated the double
jeopardy and ex post facto guarantees. Id. at 258-60. The
Supreme Court then reversed the Court of Appeals, and held
that an act, "found to be civil, cannot be deemed punitive 'as
applied' to a single individual in violation of the Double
Jeopardy and Ex Post Facto Clauses and provide cause for
release." Id. at 267.
In Crane, Michael Crane was determined to be a sexually
violent predator and was civilly committed by a Kansas state
court. 534 U.S. at 411. The Supreme Court of Kansas reversed
9
and held that Hendricks required a state to demonstrate a
person has a complete lack of control in order to be civilly
committed. Id. The Supreme Court reversed the Supreme Court
of Kansas and clarified its language from Hendricks regarding
the proof of lack of control required to determine that a
person is a sexually violent predator. The Court began by re-
affirming the constitutionality of civil commitment statutes
where: (1) "the confinement takes place pursuant to proper
procedures and evidentiary standards;" (2) there is a finding
of "dangerousness either to one's self or to others;" and (3)
proof of dangerousness is "coupled . . . with the proof of
some additional factor, such as a 'mental illness' or 'mental
abnormality.'" Crane, 534 U.S. at 409-10 (citing Hendricks,
521 U.S. at 357-58). Further, the Court emphasized the
requirement stated in Hendricks that "links" a finding of
dangerousness "to the existence of a 'mental abnormality' or
'personality disorder' that makes it difficult, if not
impossible, for the person to control his dangerous behavior."
Crane, 534 U.S. at 410 (quoting Hendricks, 521 U.S. at 358).
In clarifying the lack of control element required, the
Court stated:
[W]e recognize that in cases where lack of
control is at issue, "inability to control
behavior" will not be demonstrable with
mathematical precision. It is enough to say
that there must be proof of serious difficulty
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in controlling behavior. And this, when viewed
in light of such features of the case as the
nature of the psychiatric diagnosis, and the
severity of the mental abnormality itself, must
be sufficient to distinguish the dangerous
sexual offender whose serious mental illness,
abnormality, or disorder subjects him to civil
commitment from the dangerous but typical
recidivist convicted in an ordinary criminal
case.
Crane, 534 U.S. at 413. First, Crane restated the
requirements from Hendricks that civil commitment must be
attended by procedural safeguards, there must be a finding of
dangerousness to one's self or others, and there must be a
link from the finding of dangerousness to a mental abnormality
or illness that makes it difficult for the person to control
his dangerous behavior. Second, Crane clarified the
evidentiary burden that must be satisfied in order to show the
requisite nexus between a person's condition and his lack of
control and consequent dangerousness. Crane, 534 U.S. at 413.
We recently reviewed in detail the procedural aspects and
evidentiary requirements of the SVPA, see Townes v.
Commonwealth, 269 Va. 234, 609 S.E.2d 1 (2005); McCloud v.
Commonwealth, 269 Va. 242, 609 S.E.2d 16 (2005); and
Commonwealth v. Allen, 269 Va. 262, 609 S.E.2d 4 (2005), and
will not do so again for purposes of this opinion. A brief
summary in light of the requirements of Crane will suffice.
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Pursuant to Code § 37.1-70.9, "[t]he [trial] court or
jury shall determine whether, by clear and convincing
evidence, the person who is the subject of the petition is a
sexually violent predator." A "sexually violent predator" is
[A]ny person who (i) has been convicted of a
sexually violent offense or has been charged
with a sexually violent offense and is
unrestorably incompetent to stand trial
pursuant to § 19.2-169.3 and (ii) because of a
mental abnormality or personality disorder,
finds it difficult to control his predatory
behavior which makes him likely to engage in
sexually violent acts.
Code § 37.1-70.1. A "mental abnormality" or "personality
disorder" is defined as "a congenital or acquired condition
that affects a person's emotional or volitional capacity and
renders the person so likely to commit sexually violent
offenses that he constitutes a menace to the health and safety
of others." Id.
The SVPA survives constitutional scrutiny because it
satisfies the criteria most recently stated by the Supreme
Court in Crane. First, there are proper procedures and
evidentiary safeguards. See, e.g., Code §§ 37.1-70.2, -70.5,
-70.6, -70.7, -70.8, and -70.9; see also McCloud, 269 Va. at
252-56, 609 S.E.2d at 21-23 (reviewing the procedures which
must be followed by the Commonwealth in order to have a person
who has been convicted of a sexually violent offense declared
to be a sexually violent predator and to have that person
12
involuntarily committed to a secure mental health facility
upon his release from prison).
Second, the SVPA satisfies the requirement that there be
a finding of dangerousness either to one's self or to others.
Under the SVPA, a finding that a person is a sexually violent
predator includes the finding that the person has a mental
abnormality or personality disorder, which is further defined
as "a congenital or acquired condition that affects a person's
emotional or volitional capacity and renders the person so
likely to commit sexually violent offenses that he constitutes
a menace to the health and safety of others." Code § 37.1-
70.1 (emphasis added).
Finally, proof of dangerousness and lack of control is
linked to the condition of the person. For a person to be
found to be a "sexually violent predator," the Commonwealth
must show that "because of a mental abnormality or personality
disorder, [the person] finds it difficult to control his
predatory behavior which makes him likely to engage in
sexually violent acts." Code § 37.1-70.1.
Both Shivaee and Butler contend the SVPA is
constitutionally infirm because the statute only requires
proof that a person "finds it difficult" to control his
behavior and fails to require "serious difficulty," a term
used in Crane. They are correct that the Supreme Court used
13
the phrase "serious difficulty in controlling behavior." See
Crane, 534 U.S. at 413. But the Supreme Court also used the
phrases "special and serious lack of ability to control
behavior," id., and "particularly difficult to control their
behavior." Id. at 414. The use of various phrases
underscores the Supreme Court's clear direction that "the
States retain considerable leeway in defining the mental
abnormalities and personality disorders that make an
individual eligible for commitment." Crane, 534 U.S. at 413
(citing Hendricks, 521 U.S. at 359). The Court expressly
stated, "we recognize that in cases where lack of control is
at issue, 'inability to control behavior' will not be
demonstrable with mathematical precision." Crane, 534 U.S. at
413. The object of the definitions and proof requirements is
"to distinguish the dangerous sexual offender whose serious
mental illness, abnormality, or disorder subjects him to civil
commitment from the dangerous but typical recidivist convicted
in an ordinary criminal case." Id. We are convinced that the
SVPA in its definitions and proof requirements accomplishes
this objective.
In addition to the arguments discussed above, Butler
advances the argument that the SVPA is "void for vagueness."
He maintains that the language is indefinite and that people
of "ordinary intelligence" must guess at its meaning. His
14
argument is predicated upon a strained attempt to find
multiple meanings in the portion of the definition of a
sexually violent predator that recites "because of a mental
abnormality or personality disorder, finds it difficult to
control his predatory behavior which makes him likely to
engage in sexually violent acts." Apparently Butler finds
multiple interpretations of this language, primarily because
he focuses only on the text of that portion of the definition
and fails to consider the language in context of other
definitions.
The definition of sexually violent predator in Code
§ 37.1-70.1 makes specific reference to "mental abnormality"
or "personality disorder," a term also defined in that
section. When the language is considered in context, its
meaning is quite clear. A "mental abnormality" or
"personality disorder" is defined as "a congenital or acquired
condition that affects a person’s emotional or volitional
capacity and renders the person so likely to commit sexually
violent offenses that he constitutes a menace to the health
and safety of others." Such a definition includes a causal
link between the condition and the potential consequences of
the condition, namely, lack of control and dangerousness.
Importantly, the definition is personalized because it focuses
upon "the person" whose commitment is at issue. Because a
15
finding that the person is a sexually violent predator
includes the predicate finding of a "mental abnormality" or
"personality disorder," a fortiori, the determination
requires, first, the finding of a condition affecting
emotional or volitional capacity and, second, the finding that
the particular person subject to commitment is rendered by
that condition "so likely to commit sexually violent offenses"
that he is dangerous. While the additional language in the
definition of sexually violent predator ("finds it difficult
to control his predatory behavior which makes him likely to
engage in sexually violent acts") may be redundant, its
meaning in context of other definitions in the SVPA is not
unclear.
Significantly, even under the multiple and strained
interpretations Butler tries to give the statute, he does not
argue that his conduct fails to be reached. As such, Butler
argues hypothetically. In Commonwealth v. Hicks, 267 Va. 573,
596 S.E.2d 74 (2004), we observed:
A plaintiff who engages in some conduct that is
clearly proscribed cannot complain of the
vagueness of the law as applied to the conduct
of others. A court should therefore examine
the complainant’s conduct before analyzing
other hypothetical applications of the law.
Id. at 580-81, 596 S.E.2d at 78 (quoting Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95 (1982)).
16
C. Double Jeopardy and Ex Post Facto
For many of the same reasons enumerated by the Supreme
Court in Hendricks, we hold that the SVPA does not violate the
double jeopardy prohibition or the ban on ex post facto laws.
The SVPA was codified by the General Assembly as a civil
statute, as indicated by its placement in Title 37. Nothing
in the SVPA "suggests that the legislature sought to create
anything other than a civil commitment scheme designed to
protect the public from harm." Hendricks, 521 U.S. at 361.
The SVPA, like the statutory scheme examined in
Hendricks, "does not implicate either of the two primary
objectives of criminal punishment: retribution or
deterrence." 521 U.S. at 361-62. Pursuant to Code § 37.1-
70.10(A), if a person is found to be a sexually violent
predator, he is civilly committed "for control, care and
treatment until such time as the person's mental abnormality
or personality disorder has so changed that the person will
not present an undue risk to public safety." The General
Assembly, through the SVPA, "may take measures to restrict the
freedom of the dangerously mentally ill." Hendricks, 521 U.S.
at 363. That the General Assembly chose to afford the
procedural protections provided in the SVPA, see, e.g., Code
§§ 37.1-70.2, -70.5, -70.6, -70.7, -70.8, -70.9, "does not
transform a civil commitment proceeding into a criminal
17
prosecution." Hendricks, 521 U.S. at 364-65. Thus, the SVPA
is a non-punitive, civil commitment statute and as such does
not violate the guarantees against double jeopardy or ex post
facto lawmaking.
D. Clear and Convincing Evidentiary Standard
The Supreme Court of the United States clearly stated
that the "clear and convincing" evidentiary standard is the
minimum standard that may be used in a civil commitment
proceeding. Addington, 441 U.S. at 432-33. An "individual's
interest in the outcome of a civil commitment proceeding is of
such weight and gravity that due process requires the state to
justify confinement by proof more substantial than a mere
preponderance of the evidence." Id. at 427. The "beyond a
reasonable doubt" standard "is inappropriate in civil
commitment proceedings because, given the uncertainties of
psychiatric diagnosis, it may impose a burden the state cannot
meet and thereby erect an unreasonable barrier to needed
medical treatment." Id. at 432. Thus, the "clear and
convincing" standard "strikes a fair balance between the
rights of the individual and the legitimate concerns of the
state." Id. at 431.
Whether to adopt a standard greater than clear and
convincing "is a matter of state law," id. at 433, for "[t]he
essence of federalism is that states must be free to develop a
18
variety of solutions to problems and not be forced into a
common, uniform mold." Id. at 431. We recognize that some
other jurisdictions have adopted the "beyond a reasonable
doubt" standard for their sexually violent civil commitment
statutes. See, e.g., Ariz. Rev. Stat. 36-3707(A) (2004); Cal.
Welf. & Inst. Code § 6604 (2005); 725 Ill. Comp. Stat.
205/3.01 (2005). However, for the Commonwealth of Virginia,
the General Assembly adopted the clear and convincing
evidentiary standard. Code § 37.1-70.9(C). It is settled
that this standard meets the demands of due process and that
the decision to adopt this standard has been left to the
states. See Addington, 441 U.S. at 432-33. We hold that the
use of the clear and convincing evidentiary standard for
purposes of the SVPA satisfies constitutional requirements of
due process.
E. Sufficiency of Evidence in Shivaee Case
Shivaee was found to be a sexually violent predator at
the conclusion of a bench trial. In accordance with
established principles of appellate review, we view the facts
in the light most favorable to the Commonwealth, the
prevailing party below. We also accord the Commonwealth the
benefit of all inferences fairly deducible from the evidence.
Stanley v. Webber, 260 Va. 90, 95, 531 S.E.2d 311, 314 (2000);
19
Evaluation Research Corp. v. Alequin, 247 Va. 143, 147, 439
S.E.2d 387, 390 (1994).
On appeal, Shivaee concedes that he has been convicted of
and is incarcerated for a sexually violent offense. Shivaee
argues there was not sufficient evidence that he suffered from
a mental abnormality as defined by the SVPA and that there was
no evidence he was likely to engage in sexually violent acts.
A review of the evidence adduced at trial refutes his
contentions.
Shivaee was convicted of four sexually violent offenses
against four separate victims, three girls and one boy, in
less than a five-year period. Shivaee also statutorily raped
and impregnated another girl and attempted to hide this
information from the SORT Program, Dr. Nelson, and Dr. Hunter.
Shivaee continued to deny or minimize his offenses despite
treatment in the SORT Program, and he never completed the SORT
Program. Shivaee offended against both sexes, was not related
to any of his victims, and planned the enticement and
seduction of each of his victims.
In light of this evidence, both experts agreed that
Shivaee is a pedophile and is a risk to re-offend. Dr. Nelson
stated, "The diagnosis of which I can express professional
certainty is that he meets criteria for pedophilia." He
stated that Shivaee's behavior "is indicative of a more
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predatory pattern of sex offender," and that Shivaee "has a
likelihood of having another sex offense, specifically a
sexually violent offense as defined here." In summarizing his
testimony regarding Shivaee's diagnosis of pedophilia and
related predatory behavior, the following exchange occurred
between the attorney for the Commonwealth and Dr. Nelson:
Q. And, again, to a reasonable degree of
psychological certainty do you hold
an opinion as to whether [Shivaee]
has difficulty controlling that
[predatory] behavior?
A. Yes.
Q. And what is your opinion?
A. He absolutely has difficulty in my
opinion.
Dr. Hunter also diagnosed Shivaee as a pedophile, but opined
that Shivaee "is not likely to commit a new sexual offense."
The experts disagreed as to the course of treatment. Dr.
Nelson said Shivaee "is not going to make, in my opinion,
adequate progress on an outpatient basis. Look how little
progress he has made in two years of being in an inpatient
program thus far." Because of his diagnosis as a pedophile,
and his lack of progress in the SORT Program, Dr. Nelson
recommended inpatient treatment based on his belief that
Shivaee is a threat to the public. Dr. Hunter stated that
Shivaee "is amenable to community-based [outpatient]
21
treatment." He based this conclusion on his belief that
Shivaee could control his behavior.
In light of this evidence, we cannot say that the
judgment of the trial court was plainly wrong or without
evidence to support it. Shivaee did not dispute that he was
incarcerated upon a conviction for a sexually violent offense.
Shivaee was clearly diagnosed with the mental abnormality of
pedophilia by both experts and there was clear and convincing
evidence that because of this mental abnormality Shivaee
"finds it difficult to control his predatory behavior, which
makes it likely that he will engage in sexually violent acts."
III. Conclusion
We hold that the SVPA comports with all constitutional
requirements of due process and is not unconstitutional. The
judgment of the trial court concerning the sufficiency of the
evidence with respect to Shivaee was not plainly wrong or
without evidence to support it. The judgment of the trial
court will be affirmed in both Shivaee v. Commonwealth and
Butler v. Commonwealth.
Record No. 041954 – Affirmed.
Record No. 041945 – Affirmed.
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