In the Matter of the Civil Commitment of R.F. Svp 490-08 , 217 N.J. 152 ( 2014 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
In the matter of the Civil Commitment of R.F. SVP 490-08 (A-10-12) (070552)
Argued September 9, 2013 -- Decided March 19, 2014
ALBIN, J., writing for a majority of the Court.
In this appeal, the Court considers the proper scope of appellate review in commitment cases involving the
Sexually Violent Predator Act (SVPA or Act), N.J.S.A. 30:4-27.24 to -27.38.
In 2004, seventeen-year-old R.F. engaged in sexual conduct with two children, A.M. (twelve years old) and
J.W. (thirteen years old). He pled guilty in adult court to endangering the welfare of both children. The court
sentenced R.F. to a five-year term at the Adult Diagnostic and Treatment Center at Avenel (ADTC or Avenel).
Before R.F. completed his sentence, the State petitioned to have him civilly committed under the SVPA.
At R.F.’s commitment hearing, the Honorable Serena J. Perretti, J.S.C., reviewed a number of documents,
including expert reports, R.F.’s plea and sentencing transcripts, and statements from R.F., A.M., and J.W. Although
A.M. and J.W.’s statements described incidents of forcible sex, J.W.’s statement indicated that A.M. was in a
consensual relationship with R.F. The varying accounts about whether force was used were not reconcilable.
Judge Perretti also heard testimony from three expert witnesses, two for the State and one for R.F. The
State’s first expert diagnosed R.F. with pedophilia, ADHD, and antisocial personality disorder and placed R.F. in the
moderate- to high-risk category for sexually reoffending. The State’s second expert diagnosed R.F. with antisocial
personality disorder and believed that R.F.’s diagnostic scores placed him in the group with a thirty-six percent
likelihood of sexually reoffending within fifteen years. The second expert declined to diagnose pedophilia because
A.M. had admitted having a consensual relationship with R.F. and because the diagnostic manual (DSM-IV-TR)
explicitly says not to diagnose pedophilia in “an individual in late adolescence involved in an ongoing sexual
relationship with a 12- or 13-year-old.” R.F.’s expert also rejected the pedophilia diagnosis. Instead, she diagnosed
R.F. with conduct disorder and testified that he posed a “fairly low” risk of sexually reoffending. She further
rejected the diagnostic test (Static-99) that the State’s experts had used in assessing R.F.’s risk of sexually
reoffending, given R.F.’s cognitive limitations and the fact that the offenses were committed when he was a
juvenile.
After reviewing the evidence, Judge Perretti found that R.F. committed predicate sexual offenses that made
him eligible for commitment under the SVPA and that he suffered from a personality disorder. Nonetheless, Judge
Perretti denied the State’s petition for civil commitment because the State failed to establish that R.F. was highly
likely to sexually reoffend. In reaching that conclusion, Judge Perretti credited the opinion of R.F.’s expert that
R.F.’s risk of reoffending was “fairly low,” and that R.F. had learned that it is wrong to have sex with someone
under age. She took into account R.F.’s youth and cognitive limitations. Additionally, she gave weight to the fact
that R.F. disclosed his wrongdoing to the victims’ families, noting that the disclosures “indicate[] a resolution to
desist.” Judge Perretti further explained that the testimony of the State’s experts appeared to be based on “an
exaggeration or misunderstanding” of the record. Although Judge Perretti accepted that there was a reasonable
chance that R.F. would “get in trouble” if released into the community, she held that the State lacked clear and
convincing evidence that R.F. was “highly likely to commit a sexually violent offense in the foreseeable future.” In
denying the State’s petition for civil commitment, Judge Perretti made clear that R.F. is subject to parole supervision
for life. She also indicated that R.F. would “require many social services.” R.F. must also comply with a discharge
plan prepared by the Special Treatment Unit (STU).
In an unpublished per curiam opinion, the Appellate Division reversed the dismissal of the State’s SVPA
petition and directed that R.F. be civilly committed. The panel rejected Judge Perretti’s factual findings. The panel
found that R.F.’s “behavior was calculating and predatory” and that “[h]e sought out the girls with the intention of
1
engaging in sexual activity, with or without their assent.” The panel faulted Judge Perretti for “unduly discount[ing]
the testimony of the State’s expert witnesses,” stressing that their opinions were “well-supported by the record.”
Dismissing the opinion of R.F.’s expert, the panel determined that R.F. was “highly likely to re-offend,” and granted
the State’s petition for commitment. The Court granted R.F.’s petition for certification. 212 N.J. 288 (2012).
HELD: The trial court’s findings in a civil commitment hearing under the Sexually Violent Predator Act, N.J.S.A.
30:4-27.24 to -27.38, are entitled to deference, and a reviewing court may not overturn the commitment court’s
ruling based upon its determination that it would have come to a different conclusion had it sat as the trier of fact.
1. The SVPA permits the State to involuntarily commit “a person who has been convicted . . . of a sexually violent
offense” who “suffers from a mental abnormality or personality disorder that makes the person likely to engage in
acts of sexual violence if not confined in a secure facility for control, care and treatment.” N.J.S.A. 30:4-27.26. In
order to commit someone, the State must establish, by clear and convincing evidence, that (1) the individual has
been convicted of a sexually violent offense; (2) he suffers from a mental abnormality or personality disorder; and
(3) as a result of his psychiatric abnormality or disorder, it is highly likely that the individual will not control his or
her sexually violent behavior and will sexually reoffend. (pp. 27-28)
2. The decision whether a person previously convicted of a sexually violent offense is highly likely to sexually
reoffend “lies with the courts.” Although that determination “is guided by medical expert testimony,” the ultimate
determination is “a legal one, not a medical one,” and a trial judge is “not required to accept all or any part of [an]
expert opinion[].” Instead, a trial judge is required to exercise independent judgment in making findings that are
supported by the record. (pp. 29-33)
3. The judges who hear SVPA cases generally are “specialists” and “their expertise in the subject” is entitled to
“special deference.” The experienced judges assigned to hear these cases have the difficult task of assessing expert
testimony, making factfindings about events described from varying viewpoints, and predicting the probability of a
person’s future conduct. Consequently, “[t]he scope of appellate review of a commitment determination is
extremely narrow.” The trial courts have the “opportunity to hear and see the witnesses and to have the ‘feel’ of the
case,” and, accordingly, an appellate court should not modify a trial court’s determination either to commit or
release an individual unless “the record reveals a clear mistake.” Judge Perretti understood that many facts were in
dispute -- a point not fully grasped by the Appellate Division. Here, the panel overstepped the narrow scope of
appellate review because it assembled the pieces of the record that supported the State’s case, rather than analyzing
whether there was sufficient credible evidence to support the trial court’s factfindings. (pp. 29-35)
4. The trial court appropriately considered that R.F. is subject to a multiplicity of conditions and restrictions through
parole supervision for life, including conditions that “would reduce the likelihood of recurrence of criminal
behavior,” N.J.A.C. 10A:71-6.12(n). These sweeping supervision requirements are also accompanied by mandatory
registration requirements under Megan’s Law. N.J.S.A. 2C:7-2. (pp. 36-37)
5. The fact that an individual may need assistance in housing, in vocational training, in mental health counseling,
and in other life skills is not a reason for his continued commitment. Our civil commitment jurisprudence has
emphasized the importance of “provid[ing] the needed level of care in the least restrictive manner,” and not
infringing on an individual’s “liberty or autonomy any more than appears reasonably necessary to accomplish” the
State’s goals of public safety and effective treatment. When releasing an individual from the STU, the Department
of Human Services must prepare a discharge plan. The goal of a discharge plan is to “facilitate the person’s
adjustment and reintegration into the community.” The STU staff and the Department of Human Services are in the
best position to decide what services and counseling are required for R.F. to successfully navigate outside the
confines of a State institution. (pp. 37-39)
6. R.F. has been detained at the STU for over five years without any judicial review of his mental or behavioral
status. Without re-litigating Judge Perretti’s findings, the State is not foreclosed from re-petitioning for SVPA
commitment if there are changed circumstances or conditions that might have a bearing on whether R.F. is highly
likely to sexually reoffend. (p. 41)
2
The judgment of the Appellate Division is REVERSED, the judgment of the trial court is REINSTATED,
and the matter is REMANDED to the trial court for proceedings consistent with this opinion.
JUSTICE PATTERSON, DISSENTING, expresses the view that the Appellate Division was correct in
its determination that the State presented clear and convincing evidence that R.F. is a sexually violent predator who
is highly likely to engage in acts of sexual violence after his release, and that the trial court’s finding to the contrary
was a clear mistake.
CHIEF JUSTICE RABNER, JUSTICE LaVECCHIA, and JUDGES RODRÍGUEZ and CUFF (both
temporarily assigned) join in JUSTICE ALBIN’s opinion. JUSTICE PATTERSON filed a dissenting
opinion.
3
SUPREME COURT OF NEW JERSEY
A-10 September Term 2012
070552
IN THE MATTER OF
THE CIVIL COMMITMENT OF
R.F. SVP 490-08
Argued September 9, 2013 – Decided March 19, 2014
On certification to the Superior Court,
Appellate Division.
Nora R. Locke, Assistant Deputy Public
Defender, argued the cause for appellant
R.F. (Joseph E. Krakora, Public Defender,
Mental Health Advocacy, attorney).
Lisa A. Puglisi, Assistant Attorney General,
argued the cause for respondent State of New
Jersey (John J. Hoffman, Acting Attorney
General, attorney; Melissa H. Raksa,
Assistant Attorney General, of counsel; Ms.
Puglisi and Amy Beth Cohn, Deputy Attorney
General, on the letter briefs).
JUSTICE ALBIN delivered the opinion of the Court.
Before the State can deprive a person of his freedom,
either in a criminal trial or a civil commitment hearing, the
State must satisfy a high standard of proof. Under the New
Jersey Sexually Violent Predator Act (SVPA or Act), N.J.S.A.
30:4-27.24 to -27.38, a person previously convicted of a sexual
offense can be civilly committed only if the State can establish
by clear and convincing evidence that he suffers from a mental
abnormality or personality disorder that makes him highly likely
to commit a sexually violent offense. The experienced judges
assigned to hear these cases have the difficult task of
assessing expert testimony that often is in conflict, making
factfindings about events described from varying viewpoints, and
ultimately predicting the probability of a person’s future
conduct. In the balance, an individual’s right to liberty is
weighed against society’s interest in public safety.
In this case, R.F., when he was seventeen years old,
engaged in sexual conduct with two children, ages twelve and
thirteen. He pled guilty in adult court to endangering the
welfare of both children and was sentenced to a five-year term
at the Adult Diagnostic and Treatment Center at Avenel (ADTC or
Avenel). Before R.F. completed his sentence, the State
petitioned to have R.F. civilly committed under the SVPA.
At an SVPA commitment hearing, the Honorable Serena J.
Perretti, J.S.C., sifted through a ream of documentary evidence
and heard testimony from three expert witnesses, two for the
State and one for R.F. Although Judge Perretti found that R.F.
committed predicate sexual offenses and suffered from a
personality disorder, she concluded that the State had not
proven by clear and convincing evidence that R.F. was highly
likely to engage in sexually violent behavior if not civilly
2
committed. In coming to the decision that the State had not met
the evidentiary standard for SVPA commitment, Judge Perretti
made specific findings of fact and ultimately placed decisive
weight on R.F.’s expert. She also made clear that R.F. is
subject to parole supervision for life, N.J.S.A. 2C:43-6.4;
N.J.A.C. 10A:71-6.12. R.F., moreover, must also comply with a
discharge plan prepared by the Special Treatment Unit (STU)
where he has been civilly committed.
The Appellate Division reversed, determining that the
opinions of the State’s experts were “well-supported by the
record and amply substantiate the State’s petition for R.F.’s
commitment under the SVPA.” Selecting the facts it deemed more
credible, accepting the opinions it viewed more persuasive, and
drawing its own inferences from the record, the panel came to a
different conclusion than Judge Perretti.
The issue, however, is not whether members of the panel
would have decided the case differently had they heard the case.
Nor is the issue whether evidence in the record supports the
opinions of the State’s experts. Rather, the issue is whether
sufficient credible evidence in the record supports Judge
Perretti’s findings. Those findings are entitled to deference,
for Judge Perretti was not only intimately familiar with the
case file but also had the unique opportunity to hear the
3
witnesses, to judge their credibility, and to weigh their
testimony -- things that cannot be gleaned from the cold record.
Judge Perretti’s determination that the State did not
establish by clear and convincing evidence that R.F. was highly
likely to sexually reoffend unless institutionalized is
supported by sufficient credible evidence in the record. Her
findings are not clearly mistaken and are entitled to deference.
We therefore reverse the Appellate Division and remand for
proceedings consistent with this opinion.
In light of the passage of more than five years between
Judge Perretti’s decision and our resolution today, we will stay
the release of R.F. for thirty days to allow the State to file a
new petition if there are any changed circumstances or
conditions that would warrant civil commitment. On his release,
R.F. will be subject to a discharge plan and parole supervision
for life.
I.
R.F. was charged in two separate juvenile complaints with
committing, in May and July 2004, first-degree aggravated sexual
assaults against twelve-year-old A.M. and thirteen-year-old J.W.
and other related offenses. R.F. was seventeen years old when
the events that gave rise to the charges occurred. As part of a
plea agreement, the case was waived to adult court where R.F.
4
pled guilty to the lesser charges of third-degree endangering
the welfare of A.M. and J.W., N.J.S.A. 2C:24-4(a).1 The State
recommended that R.F. be sentenced to a five-year term at the
ADTC based on an evaluation that he was a repetitive and
compulsive offender.
In giving a factual basis to the charges, R.F. admitted
that, on separate occasions, he had “sex” with A.M. and J.W.
With each girl, he touched various parts of her body and placed
his “penis like in her butt,” but “it fell out.” R.F., however,
insisted that the sexual acts were consensual -- a position he
maintained in later interviews. During the plea colloquy, R.F.
stated: “I just did it because they wanted to have sex . . .
[.] I didn’t want to do it, but I cannot say no to a girl for
some stupid reason.” Nevertheless, he admitted that having sex
with a minor was “wrong” and that he felt “bad.”2
That R.F. was cognitively impaired was evident at the time
of the plea. Two of three psychiatrists who examined him
declared that he was not competent to participate in the
proceedings. Nevertheless, R.F. declared that he wished to
proceed.
1
R.F. waived his right to have the charges presented to a grand
jury and pled guilty to the endangering charges as presented in
an accusation. In accordance with the plea bargain, the State
dismissed the juvenile charges.
2
In statements given to the police, both A.M. and J.W. claimed
that their sexual encounters with R.F. were not consensual.
5
After that plea proceeding, at the correctional facility
where he was incarcerated, R.F. threw a box at a corrections
officer and then resisted several officers and spit on them.
That incident led to R.F. pleading guilty to fourth-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(5).
In July 2005, R.F. was sentenced on the endangering and
assault charges. An evaluation submitted by the ADTC to the
court indicated that, although R.F. was deemed a repetitive and
compulsive offender, he was considered amenable to treatment at
the program at Avenel. R.F. did not object to an Avenel
sentence. However, his attorney urged the court to find as a
mitigating factor that R.F. “did not contemplate that his
conduct would cause or threaten serious harm,” N.J.S.A. 2C:44-
1(b)(2). The defense attorney stressed that R.F. was “barely
competent to understand the proceedings” and that his conduct
was the result of his psychiatric disorder, his “lack of
education,” and “his inability to comprehend the consequences of
[his] actions.”
Although the prosecutor commented on the seriousness of
all three offenses, he acknowledged that R.F. had “a lot of
mental limitations” and that R.F. was “in severe need of” both
sex offender and mental health treatment. The defense and
prosecution agreed that the incident in the county jail was the
product of “frustration” on R.F.’s part.
6
In imposing sentence, the court found, as aggravating
factors, that R.F. had “acted out violently, or engaged in
threats of violence,” and that the two young victims were
“vulnerable” and “incapable of resisting his advances.” As
mitigating factors the court found that R.F. was diagnosed with
“mild mental retardation,” “deficits in his visual cognitive
processes,” and “attention deficit, hyperactivity disorder”
(ADHD), and that R.F. was classified as “neuro-psychiatrically
compromised.” The court also noted R.F.’s youth and expression
of remorse: “[H]e knew what he was doing was wrong, but he . .
. couldn’t resist the impulse to engage in the unlawful
activity.”
The court sentenced R.F. to concurrent five-year terms on
the endangering charges, to be served at the ADTC, and to a
concurrent nine-month term on the assault charge, and imposed
all requisite fines and penalties.3 The court also imposed
parole supervision for life, N.J.S.A. 2C:43-6.4, and noted that
R.F. was subject to sex offender registration under N.J.S.A.
2C:7-2.
In May 2008, before R.F. completed his sentence, the State
petitioned the Superior Court to have R.F. civilly committed
under the SVPA. Attached to the State’s petition were the
3
R.F. was given jail credit for 310 days served in the county
jail.
7
clinical certificates of two psychiatrists, each offering an
opinion that R.F. “has serious difficulty controlling his
sexually inappropriate impulses, and . . . is highly likely to
sexually reoffend.” Based on the petition and clinical
certificates, a Superior Court judge found probable cause to
believe that R.F. met the standards for commitment under the
SVPA. R.F. was temporarily committed to the STU, a secure
facility designated for sex offenders, pending an SVPA hearing.4
II.
Judge Perretti presided at the commitment hearing held in
December 2008. During the hearing, a number of documents were
presented to Judge Perretti, including statements that had been
given by A.M. and J.W. to the police. Those statements
described incidents of forcible sex, including the accusation by
A.M. that R.F. grabbed her by the throat and the accusation by
4
The Attorney General is empowered to initiate proceedings to
involuntarily commit persons who have been identified as
sexually violent predators. N.J.S.A. 30:4-27.28. If there is
probable cause to believe that a person is a sexually violent
predator, a court orders an initial commitment until a trial-
like hearing is conducted. N.J.S.A. 30:4-27.28(g). At the
plenary hearing, the State must demonstrate “by clear and
convincing evidence that the person needs continued involuntary
commitment as a sexually violent predator.” N.J.S.A. 30:4-
27.32.
8
J.W. that R.F. threatened her with a knife.5 J.W.’s statement,
however, indicated that R.F. and A.M. were in a consensual
relationship with each other. The documentary record revealed
that A.M. and J.W. were not strangers to R.F. but seemingly
within his circle of friends -- despite their significant age
differences.
R.F. self-reported his sexual encounters with the two young
girls. In late July 2004, R.F. told A.M.’s mother that he
attempted to have sexual intercourse with her daughter, and in
late August, he told J.W.’s brother that he had intercourse with
J.W. Eventually, the mothers of the two girls reported the
matters to the police. The varying accounts given by R.F.,
A.M., and J.W. about whether force was used are not
reconcilable.
At the hearing, the State called two expert witnesses, Dr.
Robert Harris, a psychiatrist, and Dr. Sean McCall, a
psychologist. R.F. called one expert witness, Dr. Vivian
Shnaidman, a psychiatrist.
A.
Dr. Harris testified that he interviewed R.F. three times,
for approximately five to six hours in all, and found him
cooperative but struggling, at times, to “maintain[] a line of
5
These statements were made part of the presentence report used
by the trial court in fixing R.F.’s sentence.
9
thought.” Illustrative of this point is that, according to Dr.
Harris, R.F. stated “that he was not attracted to younger kids,”
“that he wasn’t attracted to girls over the age of 13,” “that
some people are attracted to 17-year old girls and he doesn’t
think it’s right and he would . . . hurt those people,” and
then, finally, that “his arousal to the 10 and 13 year old
girls” is “not right.” Concerning R.F.’s mental capacity to
participate in his earlier criminal proceedings, Dr. Harris was
knowledgeable about the report of one psychiatrist who opined
that R.F. was competent to participate but not about the reports
of two other psychiatrists who opined that he was not.
Dr. Harris expressed his understanding that R.F. had
“befriended” twelve-year-old A.M. and thirteen-year-old J.W. At
the time, R.F. considered the girls to be his “peers.” R.F.
reported to him that he became “sexually interested” in A.M.
when she was nine or ten years old, which corresponded to when
R.F. was fourteen or fifteen years old. From his review of the
police reports and statements of A.M. and J.W. and his
interviews with R.F., Dr. Harris hypothesized that R.F. was
“targeting these two girls, creating an environment for them to
play in . . . and really going out of his way to groom [them].”
Dr. Harris noted that the assault of A.M. occurred when R.F.
entered the bathroom where she was concealing herself during a
game of hide-and-seek with friends, including R.F. In an
10
apparent reference to the assault on J.W., Dr. Harris stated
that R.F. had “created this kind of clubhouse in an area where
younger people would hang out.” (J.W.’s statement, however,
indicated that she and her friends built the clubhouse.) As
part of his grooming theory, Dr. Harris also emphasized that
R.F. bought A.M. food and a bicycle -- although the sources he
relied on indicate that these gifts followed the incident in the
bathroom.
Dr. Harris acknowledged that R.F. maintained that the
sexual encounters with A.M. and J.W. were consensual. In his
psychiatric analysis, Dr. Harris observed, on the one hand, that
R.F. -- who is in the “low average to borderline intellectual”
range -- “has this very reactive quality to him where . . . he
doesn’t think about what he’s doing. He acts in a way without
any kind of planning.” On the other hand, Dr. Harris found that
R.F.’s “sexual offenses were very well planned. He spent a
great deal of time grooming and creating an environment to which
he had access to these two girls.”
Dr. Harris diagnosed R.F. with pedophilia,6 ADHD,7 and
antisocial personality disorder.8 Dr. Harris concluded that
6
The Diagnostic and Statistical Manual of Mental Disorders
characterizes pedophilia in the following way:
The paraphilic focus of Pedophilia involves
sexual activity with a prepubescent child
(generally age 13 years or younger). The
11
R.F.’s pedophilia and antisocial personality placed him at a
high risk to reoffend if he were not committed to the STU for
sex offender treatment.
Because R.F. was “essentially 18 years old” at the time of
the offenses, Dr. Harris did not believe that R.F.’s youth
undermined the pedophilia diagnosis. He explained that R.F. had
been attracted to A.M. for several years. Dr. Harris, however,
did not elaborate on the point that R.F.’s attraction dated to a
time when he was fourteen or fifteen years old. Instead, he
individual with Pedophilia must be age 16
years or older and at least 5 years older
than the child. For individuals in late
adolescence with Pedophilia, no precise age
difference is specified, and clinical
judgment must be used; both the sexual
maturity of the child and the age difference
must be taken into account.
[American Psychiatric Association,
Diagnostic and Statistical Manual of Mental
Disorders 571 (4th ed. Text Revision 2000)
[hereinafter DSM-IV-TR].]
The latest edition of the DSM was published in 2013.
American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders (5th ed. 2013).
7
“The essential feature of [ADHD] is a persistent pattern of
inattention and/or hyperactivity-impulsivity that is more
frequently displayed and more severe than is typically observed
in individuals at a comparable level of development.” DSM-IV-
TR, supra, at 85.
8
Antisocial personality disorder is defined by “a pervasive
pattern of disregard for, and violation of, the rights of others
that begins in childhood or early adolescence and continues into
adulthood.” DSM-IV-TR, supra, at 701.
12
cited to a statement by R.F. that he still had arousal to
children. Dr. Harris stated that he did not know whether J.W.
was prepubescent and that R.F. was unable “to figure out if she
was [sexually] develop[ed].” (A pedophilia diagnosis requires
that the victim be prepubescent, according to the DSM-IV-TR,
supra, at 571.)
Dr. Harris diagnosed R.F. with antisocial personality
disorder because R.F. had a history of failing to control his
behavior and because, he believed, the treatment at the ADTC was
not successful. However, Dr. Harris agreed that R.F. had not
been cited for any infractions since his commitment to the STU.
Dr. Harris measured R.F.’s risk of sexually reoffending
with a diagnostic tool called the Static-99. R.F.’s scores of a
four and a five placed him in the moderate- to high-risk
category for sexually reoffending. Although Dr. Harris agreed
that the Static-99 “should be used with caution” in grading
juvenile offenders, he judged R.F. as an adult because he was
just shy of eighteen years at the time of the offenses.9
B.
9
The Static-99 is an actuarial test used to estimate the
probability of sexually violent recidivism in adult males
previously convicted of sexually violent offenses. See Andrew
Harris et al., Static-99 Coding Rules Revised-2003 5 (2003).
This Court has explained that actuarial information, including
the Static-99, is “simply a factor to consider, weigh, or even
reject, when engaging in the necessary factfinding under the
SVPA.” In re Commitment of R.S., 173 N.J. 134, 137 (2002).
13
Dr. McCall, a psychologist at the STU, testified that,
based on R.F.’s antisocial personality disorder, R.F. posed a
high risk of sexually reoffending if not committed. Unlike Dr.
Harris, Dr. McCall did not diagnose pedophilia because A.M.
admitted to J.W. that she had a consensual relationship with
R.F. He cited to the DSM-IV-TR, supra, at 572, which explicitly
says not to diagnose pedophilia in “an individual in late
adolescence involved in an ongoing sexual relationship with a
12- or 13-year-old.” Dr. McCall also could not substantiate
paraphilia10 as a diagnosis because it was uncertain how
“arousing” the events were to R.F. and because the activities
did not occur over a period of six months.11
Dr. McCall settled on a diagnosis of antisocial personality
disorder based on R.F.’s “fights in prison,” his “still breaking
the rules,” his “being self-centered [and] kind of impulsive,”
and his “willingness and interest in going after young girls.”
In the breaking-the-rules category, Dr. McCall also pointed out
that R.F. apparently had a consensual sexual encounter with
10
The DSM-IV-TR describes paraphilia as “recurrent, intense
sexually arousing fantasies, sexual urges, or behaviors
generally involving 1) nonhuman objects, 2) the suffering or
humiliation of oneself or one’s partner, or 3) children or other
nonconsenting persons that occur over a period of at least 6
months.” DSM-IV-TR, supra, at 566.
11
Dr. McCall initially believed that R.F. suffered from
pedophilia and paraphilia, but ultimately abandoned those
diagnoses on further consideration.
14
another inmate at the ADTC. Dr. McCall emphasized that R.F. was
on probation for a simple assault as a juvenile when he
committed the endangering offenses. He believed that R.F.’s
commission of those offenses while under probation supervision
for simple assault “was a robust predictor of [sexual offense]
recidivism.” Dr. McCall noted that R.F. tested in the “low
average range of intellectual functioning” and that, given his
Static-99 score of four, he fell within the group with a thirty-
six percent likelihood of sexually reoffending within fifteen
years.
Dr. McCall conceded that R.F. held firm that his sexual
encounters with A.M. and J.W. were consensual; that he never
admitted at any time to using force or a weapon; that neither
A.M. nor J.W. alleged that R.F. anally penetrated them; that
J.W. stated that she asked R.F. to build a fort in the woods
(J.W.’s statement, however, indicates that she and her friends
built the fort); that J.W., after having sex with R.F., believed
she was having her period because of bleeding (thus suggesting
that she was not prepubescent); that A.M. and J.W. admitted that
they “hung out” with R.F.; and that R.F. saw himself as a
“peer.” Dr. McCall also acknowledged that in R.F.’s statement
to the police he admitted that it was wrong for him to have sex
with A.M. and J.W. because of their age differences.
C.
15
Dr. Shnaidman, a psychiatrist who had been a consultant at
the ADTC for more than five years, determined that R.F. did not
fit the diagnostic profile for pedophilia or paraphilia. She
ruled out those diagnoses because R.F. did not have “a specific
arousal to prepubescent children” or nonconsensual sex. Dr.
Shnaidman, however, diagnosed R.F. with conduct disorder.12 She
also conceded that he met the definition for antisocial
personality disorder. She did not select the latter diagnosis
because, although he committed the county-jail assault and other
institutional infractions after he turned eighteen, R.F. did not
mentally become eighteen on the day of his eighteenth birthday.
Moreover, she did not weigh R.F.’s alleged consensual sexual
encounter with another resident as an increased risk factor
because the evidence did not suggest any “predatory or abusive”
relationship. As she explained, “our standard for sex offenders
somehow becomes much higher than the standards that we even hold
ourselves to.”
Dr. Shnaidman also rejected the Static-99 as an effective
diagnostic tool in assessing R.F.’s risk of sexually reoffending
due to his cognitive limitations and the fact that the offenses
were committed when he was a juvenile. The Static-99, in her
12
“The essential feature of Conduct Disorder is a repetitive and
persistent pattern of behavior in which the basic rights of
others or major age-appropriate societal norms or rules are
violated.” DSM-IV-TR, supra, at 93.
16
estimation, is a test primarily for adults, and even then, is
only “one piece of information.”
In Dr. Shnaidman’s opinion, R.F. posed a “fairly low” risk
of sexually reoffending. She could not say the risk was “zero”
but it was “not likely.” She came to that conclusion because,
as a result of his criminal conviction and the treatment at the
ADTC, R.F. knows that it is wrong to have sex with underage
girls and to force someone to have sex.
In explaining the conduct that led to R.F.’s convictions,
Dr. Shnaidman stressed R.F.’s cognitive limitations. She
diagnosed him with “borderline intellectual functioning,” noting
that at the age of twenty-two he had trouble reading The Cat in
the Hat. She recounted that when she interviewed R.F., he did
not “actually know” the charges to which he had pled guilty.
She explained that R.F. saw himself as part of the victims’ peer
group and considered his interactions to be consensual.
According to Dr. Shnaidman, the evidence, including R.F.’s
mental limitations, did not support the claim that R.F. was
“grooming” A.M. and J.W.
In light of the differing accounts given by A.M., J.W., and
R.F., Dr. Shnaidman acknowledged the difficulty in discerning
the true circumstances of the encounters, but she emphasized
that R.F. always denied using force and that A.M. told at least
17
one friend (J.W.) that the sexual activity with R.F. was
consensual.
In making her risk assessment, Dr. Shnaidman considered
that R.F. would be subject to parole supervision for life. In
her opinion, R.F. poses a low risk to reoffend and “seems to be
motivated not to re-offend,” but nevertheless she stressed that
providing structure and support for R.F. in the community would
further reduce the risk of recidivism. Dr. Shnaidman expressed
that anyone “involved in sex offender treatment should be
transitioned into the community with some kind of supervision
and some kind of services,” and in R.F.’s case vocational
training and counseling would serve as prevention therapy.
III.
Before rendering her decision, Judge Perretti not only
heard the testimony of the three expert witnesses, but also
reviewed the relevant documentary evidence, such as the victims’
and R.F.’s statements, R.F.’s plea and sentencing transcripts,
and the expert reports. She viewed the evidence through the
prism of the governing legal principles, keeping in mind that
the State had the burden of establishing by clear and convincing
evidence the elements required for SVPA commitment.
Judge Perretti first concluded that R.F. pled guilty to
predicate offenses that made him eligible for commitment under
18
the SVPA. She noted that the record revealed that R.F. had
penetrated thirteen-year-old J.W. and had sexual contact with
twelve-year-old A.M. Based on these circumstances, Judge
Perretti concluded that R.F.’s convictions for third-degree
endangering the welfare of those children were sexually violent
offenses under the Act.
Second, Judge Perretti concluded that, based on his conduct
in the community and in custody as well as the experts’
testimony, R.F. had juvenile conduct disorder. She determined
that Dr. Harris’s diagnosis of pedophilia did “not squarely fit
the criteria of the DSM IV.” In that regard, Judge Perretti
observed that “there may have been an ongoing relationship
between [R.F.] and A.M.” and that it is not known whether she
was prepubescent. She also noted that both Dr. McCall and Dr.
Shnaidman rejected the diagnosis of pedophilia. Judge Perretti,
moreover, did not find paraphilia as an appropriate diagnosis
based on Dr. Shnaidman’s testimony. In support of the juvenile
conduct disorder diagnosis, Judge Perretti mentioned that R.F.
had been “assigned to the mental health program at [the] ADTC
and reportedly had bouts of anger which resulted in his getting
into trouble.” Referencing his therapist’s report, she stated
that R.F. had “demonstrated distorted thinking and had only a
limited understanding of his crime”; that he “had deficits in
intellectual functioning, social skills, communication skills
19
and developing relationships”; that he “had poor impulse control
which resulted in [his] acting out behaviors within the [ADTC]”;
and that he “had made only limited progress in treatment.” She
also observed that R.F. received a number of disciplinary
citations at the ADTC, including an incident in which R.F. was
found in a portable bathroom with another inmate “under
suspicious circumstances.”
Despite the predicate-offense and personality-disorder
findings, Judge Perretti held that the State did not establish
by clear and convincing evidence that R.F. was “highly likely to
commit a sexually violent offense.” In reaching this
conclusion, Judge Perretti placed great weight on Dr.
Shnaidman’s opinion that R.F.’s risk to reoffend was “‘fairly
low’” and that R.F. had learned that it is wrong to have sex
with someone under age. She also gave weight to the fact that
R.F. disclosed his wrongdoing to the victims’ families: “It
would seem that [R.F.] was conscious at the time that he made
his disclosures of the wrongness of his acts” and that the
disclosures “indicate[] a resolution to desist.” Further, Judge
Perretti highlighted that R.F. would be subject to parole
supervision for life, “which affords some protection to the
public and may act as a deterrent.”
Judge Perretti also observed that some of the testimony of
the State’s experts “appears [to be] based upon an exaggeration
20
or misunderstanding of the circumstances which led to their
conclusions.” For example, Dr. Harris diagnosed R.F. with
pedophilia partly based on the assumption that R.F. had engaged
in grooming behavior. Yet, as Judge Perretti pointed out, the
documentary evidence revealed that R.F. had not -- as believed
by Dr. Harris -- built the fort that Dr. Harris saw as a way of
luring children. Judge Perretti, moreover, noted that the
“gifts” from R.F. to A.M. “followed the sex incident”13 and
supposedly were “offered and received to keep her quiet.” To
her mind, the State did not demonstrate that A.M. or J.W. had
“any ongoing fear of [R.F.] who continued to be part of the
circle of friends.”
Judge Perretti further explained that Dr. Harris’s opinions
“depend[ed] greatly upon [R.F.’s] self-disclosures” during his
interviews with R.F. However, some of R.F.’s statements
referenced by Dr. Harris, in the judge’s view, were
“incomprehensible,” “babbling,” and showed “a seeming confusion
as to time and persons.”
In addition, Judge Perretti maintained that Dr. McCall’s
initial paraphilia diagnosis was based on an unfounded
assumption. Dr. McCall assumed that J.W. sustained injuries
during her sexual encounter with R.F. based on the presence of
13
Judge Perretti mistakenly referred to J.W. here instead of
A.M.
21
bloodstains. J.W., however, stated to the police that she
believed the blood was a result of “her monthly period.”
Judge Perretti also noted that the prosecutor’s office did
not pursue aggravated sexual assault charges but rather allowed
R.F. to plead guilty to third-degree endangering charges with a
five-year maximum exposure. Yet, the State’s petition for civil
commitment, if granted, “in this case is tantamount to life in
custody.” That raised in her mind issues of proportionality.
Judge Perretti found both Dr. Harris and Dr. Shnaidman
“equally well-qualified” and that the difference of opinions
between these “highly respected” experts was “itself a matter
generating doubt.” To Judge Perretti, there was a distinction
between a reasonable prediction that R.F. would “get in trouble
if released now into the community” -- a proposition she
accepted -- and a finding by clear and convincing evidence that
R.F. was “highly likely to commit a sexually violent offense in
the foreseeable future” -- a proposition she did not accept.
Last, Judge Perretti had little doubt that R.F. would
“require many social services if he is to peacefully negotiate
life in the community.” She maintained, however, that the
“State must step up to the plate now and cannot simply hide
[R.F.] in the Special Treatment Unit.” Judge Perretti dismissed
the State’s SVPA petition but stayed her order pending appeal.
22
IV.
In an unpublished per curiam opinion, the Appellate
Division reversed the dismissal of the State’s petition, thereby
directing that R.F. be civilly committed. The panel concluded
“that the record does not support the trial court’s
determination that R.F. does not qualify for [SVPA] commitment.”
Although the panel acknowledged that “[t]he scope of appellate
review of the trial court’s findings is extremely narrow,”
citing In re Civil Commitment of V.A., 357 N.J. Super. 55, 63
(App. Div.), certif. denied, 177 N.J. 490 (2003), the panel made
its own findings of fact and rejected those made by Judge
Perretti.
The panel deemed it error for the trial court to consider
that R.F. -- with his limited cognitive ability -- viewed
himself as the girls’ peer. It found that R.F.’s “behavior was
calculating and predatory” and that “[h]e sought out the girls
with the intention of engaging in sexual activity, with or
without their assent.” Thus, accepting in full the victims’
accounts, it determined that R.F. “violently sexually assaulted”
A.M. in a locked bathroom and lured J.W. to “a secluded area
[and] then forcibly sexually assaulted her at knife point.” The
panel maintained that R.F.’s “denial or minimization of the harm
he caused his victims . . . reveal[ed] his distorted and
23
pathological perception that he was acting in an age-appropriate
manner when he assaulted the girls.”
The panel faulted the trial court for “unduly discount[ing]
the testimony of the State’s expert witnesses,” stressing that
their opinions were “well-supported by the record.” It was
dismissive of Dr. Shnaidman’s opinion for failing to reckon “the
danger posed to the community at large by the precipitous
release” of R.F. Last, the panel determined that, based on his
history of noncompliance with treatment, R.F. was “highly likely
to re-offend if released under the conditions suggested by Dr.
Shnaidman.”
We granted R.F.’s petition for certification. In re Civil
Commitment of R.F., 212 N.J. 288 (2012).
V.
A.
R.F. submits that the Appellate Division failed to adhere
to the limited scope of its review when it disregarded the trial
court’s findings. According to R.F., the trial court heard
extensive testimony from three different experts, considered
voluminous documentary materials, and then reached a decision
fully supported by the evidence. R.F. argues that the trial
court did not have to credit the ultimate opinions of the
State’s experts or to reject the opinion offered by Dr.
24
Shnaidman. Rather, the court had to exercise its own
independent judgment in making findings of fact and determining
whether R.F. was highly likely to sexually reoffend. The panel,
R.F. maintains, did not give Judge Perretti’s findings the
utmost deference and merely substituted its own findings. Last,
R.F. believes that the SVPA allows the court to place conditions
on R.F.’s release from the STU or to make recommendations in
regard to parole supervision for life.
B.
The State urges this Court to affirm the Appellate
Division, reasoning that the trial court’s determination was a
“manifestly mistaken exercise of discretion.” The State argues
that Judge Perretti “abused her discretion when she rejected the
diagnosis of pedophilia” because “there was ample evidence in
the record to support a diagnosis of pedophilia.” It submits
that Judge Perretti speculated in suggesting that R.F.’s
disclosures to Dr. Harris may have been unreliable and that J.W.
may not have been prepubescent.
The State also declares that the evidence “overwhelmingly
established that R.F. is ‘likely to engage in acts of sexual
violence if not confined’” to the STU, quoting N.J.S.A. 30:4-
27.26. The State questioned the trial court’s finding that R.F.
could be released subject to parole supervision for life without
25
endangering the public, given that he had “sexually assaulted
the victims while on supervised probation.”
Last, the State professes that this Court has no
jurisdiction to place conditions on R.F.’s discharge in the
event that it reinstates Judge Perretti’s decision. Based on
its reading of N.J.S.A. 30:4-27.32(b), the State suggests that
court-imposed conditions can only be implemented and enforced if
R.F. is committed under the SVPA and later found by the
commitment court no longer to be a sexually violent predator.
VI.
The preeminent issue in this case concerns the scope of
appellate review in commitment cases involving the Sexually
Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38. Trial
judges who handle SVPA commitment hearings generally possess
expertise and experience in highly complex matters where
credibility decisions must be made, expert psychiatric testimony
assessed, future conduct predicted, and individual liberty
weighed against public safety. The level of deference that is
accorded to trial court decisions in SVPA cases is at the heart
of the conflict between R.F. and the State. Resolving that
issue requires an understanding of the SVPA, to which we turn
now.
A.
26
The SVPA permits the State to involuntarily commit “a
person who has been convicted . . . of a sexually violent
offense” who “suffers from a mental abnormality or personality
disorder that makes the person likely to engage in acts of
sexual violence if not confined in a secure facility for
control, care and treatment.” N.J.S.A. 30:4-27.26. At the
commitment hearing, the State must establish three elements:
(1) that the individual has been convicted of a sexually violent
offense, ibid.; (2) that he suffers from a mental abnormality or
personality disorder, ibid.; and (3) that as a result of his
psychiatric abnormality or disorder, “it is highly likely that
the individual will not control his or her sexually violent
behavior and will reoffend,” In re Commitment of W.Z., 173 N.J.
109, 130 (2002). Although the first two elements derive
directly from the statute, to comport with substantive due
process concerns, this Court interpreted the third statutory
element as requiring the State to show that a person is “highly
likely,” not just “likely,” to sexually reoffend. Ibid.
The State bears the burden of proving all three elements by
clear and convincing evidence. N.J.S.A. 30:4-32(a). Clear and
convincing evidence is evidence that produces “a firm belief or
conviction” that the allegations are true; it is evidence that
is “so clear, direct and weighty and convincing” that the
factfinder can “come to a clear conviction” of the truth without
27
hesitancy. In re Jobes, 108 N.J. 394, 407 (1987) (quoting State
v. Hodge, 95 N.J. 369, 376 (1984)). The terms of the statute
must be strictly met. The State cannot confine a person because
it is reasonably likely that he will not be able to abide by all
of society’s laws or norms. SVPA commitment is limited to those
who are highly likely to sexually reoffend. Cf. Kansas v.
Crane, 534 U.S. 407, 412, 122 S. Ct. 867, 870, 151 L. Ed. 2d
856, 862 (2002) (noting “the constitutional importance of
distinguishing a dangerous sexual offender subject to civil
commitment ‘from other dangerous persons who are perhaps more
properly dealt with exclusively through criminal proceedings’”
(quoting Kansas v. Hendricks, 521 U.S. 346, 360, 117 S. Ct.
2072, 2081, 138 L. Ed. 2d 501, 514 (1997))).
At issue in this case is not whether R.F. committed a
predicate sexual offense under the SVPA or even whether he
suffers from a personality disorder or mental abnormality --
although the nature of the disorder or abnormality is contested.
The key dispute is whether based on the sexual offenses
committed, the disorder or abnormality, and his juvenile history
and institutional infractions, R.F. is highly likely to commit
another sexual offense.
We now turn to the standard governing appellate review.
B.
28
“The scope of appellate review of a commitment
determination is extremely narrow.” In re D.C., 146 N.J. 31, 58
(1996) (citing State v. Fields, 77 N.J. 282, 311 (1978)). The
judges who hear SVPA cases generally are “specialists” and
“their expertise in the subject” is entitled to “special
deference.” See In re Civil Commitment of T.J.N., 390 N.J.
Super. 218, 226 (App. Div. 2007). The final decision whether a
person previously convicted of a sexually violent offense is
highly likely to sexually reoffend “lies with the courts, not
the expertise of psychiatrists and psychologists. Courts must
balance society’s interest in protection from harmful conduct
against the individual’s interest in personal liberty and
autonomy.” See D.C., supra, 146 N.J. at 59 (stating principles
that apply in ordinary civil commitment hearings). A trial
judge is “not required to accept all or any part of [an] expert
opinion[].” Id. at 61. The ultimate determination is “a legal
one, not a medical one, even though it is guided by medical
expert testimony.” Id. at 59.
We give deference to the findings of our trial judges
because they have the “opportunity to hear and see the witnesses
and to have the ‘feel’ of the case, which a reviewing court
cannot enjoy.” State v. Johnson, 42 N.J. 146, 161 (1964). An
appellate court should not overturn a trial court’s findings
because it “might have reached a different conclusion were it
29
the trial tribunal” or because “the trial court decided all
evidence or inference conflicts in favor of one side” in a close
case. Id. at 162.
Accordingly, an appellate court should not modify a trial
court’s determination either to commit or release an individual
unless “the record reveals a clear mistake.” D.C., supra, 146
N.J. at 58 (citing Fields, supra, 77 N.J. at 311); see Johnson,
supra, 42 N.J. at 162 (stating that trial court’s findings
should be disturbed only if so clearly mistaken “that the
interests of justice demand intervention” and only then should
appellate court “appraise the record as if it were deciding the
matter at inception and make its own findings and conclusions”).
So long as the trial court’s findings are supported by
“sufficient credible evidence present in the record,” those
findings should not be disturbed. Johnson, supra, 42 N.J. at
162; see In re Civil Commitment of J.M.B., 197 N.J. 563, 597
(stating that appellate courts must defer where there is
“substantial, credible evidence to support the court’s
findings”), cert. denied, 558 U.S. 999, 130 S. Ct. 509, 175 L.
Ed. 2d 361 (2009).
VII.
In light of these governing standards, we now must
determine whether the Appellate Division had a proper basis to
30
overthrow the findings of the trial court. In the end, we
conclude that the panel overstepped the narrow scope of
appellate review applicable in this case. The major flaw in the
panel’s analysis is that instead of surveying the record to see
whether there was sufficient credible evidence to support Judge
Perretti’s factfindings, the panel assembled bits and pieces of
the record that supported the State’s case. The issue was not,
as the panel stated, whether the opinions of the State’s experts
were “well-supported by the record” and thus “amply
substantiate[d] the State’s petition.” That the Appellate
Division would have come to a different conclusion had it sat as
the trier of fact is not a basis for overturning the trial
court’s decision.
The State bore the burden of proving by clear and
convincing evidence each of the elements for commitment under
the SVPA. Judge Perretti found that the State satisfied the
first two elements. She found, however, that the State did not
present clear and convincing evidence of the third and decisive
element -- that R.F. was highly likely to sexually reoffend. In
reaching that conclusion, Judge Perretti stated her reasons for
rejecting the ultimate opinions of the State’s two experts and
accepting the opinion of Dr. Shnaidman. Sufficient credible
evidence is present in the record to support Judge Perretti’s
decision.
31
A.
Judge Perretti found that R.F.’s plea of guilty to
endangering the welfare of twelve-year-old A.M. and thirteen-
year-old J.W. in 2004, when R.F. was seventeen years old,
constituted prior “sexually violent offenses” under the catch-
all provision of the SVPA, N.J.S.A. 30:4-27.26(b).14 No one
disputes that finding.
Judge Perretti also found that R.F. suffered from a
personality disorder -- the second element necessary for
commitment under the SVPA. That finding is not contested.
Nevertheless, the State argues that Judge Perretti abused her
discretion in rejecting Dr. Harris’s pedophilia diagnosis. Yet,
the State’s own expert, Dr. McCall, as well as Dr. Shnaidman,
did not believe that pedophilia was substantiated -- and,
according to Judge Perretti, a pedophilia diagnosis did “not
squarely fit the criteria of the DSM IV.” Moreover, we cannot
14
N.J.S.A. 30:4-27.26(a) specifically designates such offenses
as aggravated sexual assault and sexual assault as sexually
violent offenses. The offenses classified in subsection (a),
however, are not an exhaustive list. N.J.S.A. 30:4-27.26(b)
expands sexually violent offenses to include “any offense for
which the court makes a specific finding on the record that,
based on the circumstances of the case, the person’s offense
should be considered a sexually violent offense.” A finding of
a sexually violent offense under subsection (b) “requires
substantially equivalent conduct to the conduct captured by the
offenses listed in subsection (a).” J.M.B., supra, 197 N.J. at
595. Here, although R.F. pled guilty to endangering the welfare
of a child, the substantially equivalent conduct would be sexual
assault against J.W., N.J.S.A. 2C:14-2(c)(4), and sexual assault
against A.M., N.J.S.A. 2C:14-2(b).
32
say that Judge Perretti clearly erred by accepting the opinion
of Dr. Shnaidman who found that a paraphilia diagnosis was
inappropriate because R.F. did not have “a specific arousal to
prepubescent children.” Judge Perretti was not bound to adopt
the State’s opinions; she was required to exercise her
independent judgment in making findings that, as here, were
supported by the record. See D.C., supra, 146 N.J. at 59.
B.
The critical finding of Judge Perretti was that the State
failed to show by clear and convincing evidence that R.F., if
released from confinement, was highly likely to commit another
violent sexual offense. In coming to that conclusion, Judge
Perretti took into account R.F.’s youth, the cognitive
limitations that led him to perceive himself as a peer of
twelve- and thirteen-year old girls, and his self-reporting of
his sexual encounters to the mother of A.M. and the brother of
J.W. She also placed great weight on Dr. Shnaidman’s opinion
that R.F. had learned that having sexual relations with someone
under age is wrong and that his risk of sexually reoffending was
“fairly low.”
Judge Perretti understood that many facts were in dispute -
- a point not fully grasped by the Appellate Division. The
experts disagreed about whether the evidence established that
the girls were prepubescent, an important factor in assessing
33
the nature of R.F.’s disorder; whether, given R.F.’s cognitive
limitations and age, the Static-99 was an appropriate diagnostic
tool for measuring his risk of sexually reoffending; and whether
R.F.’s viewing the girls as his peers increased or decreased the
risk that he would sexually reoffend. Additionally, there were
conflicting accounts about whether violence was used during the
sexual encounters and misunderstandings about whether R.F. built
a fort and then used it to lure children. Before the SVPA
commitment hearing, no trial ever resolved these disputed facts
and issues. That difficult task was left to Judge Perretti.
She sifted through the documentary evidence, heard the testimony
of the experts, and came to her factual findings and legal
conclusions.
Judge Perretti had a full understanding of the factual
limitations in the record, and that led her to have doubt about
whether the State had carried its burden. In its opinion, the
Appellate Division exceeded its scope of review because it did
not canvass the record for credible evidence to support Judge
Perretti’s factfindings. Instead, it drew its own inferences
from the record and made its own factfindings -- different from
those of Judge Perretti -- that R.F. acted in a “predatory”
manner, violently sexually assaulted the girls, and minimized
the harm he caused the victims. However, a mere disagreement
with the trial court’s factfindings cannot be the basis for
34
substituted factfindings by an appellate court. Judge Perretti,
moreover, was authorized to discount an expert opinion that she
believed was at odds with the record and not as well grounded as
another expert opinion.
In this case, a judge who sat regularly on SVPA cases and
who was a specialist in the area came to a reasoned conclusion
based on sufficient credible evidence in the record. She judged
a cognitively impaired young man who was convicted of having
sexual relations with underage minors and who had a prior
juvenile record and a history of institutional infractions.
Judge Perretti did not look at the case through rose-colored
glasses. She knew that the raw truth sometimes is not easily
discernible. She did what we expect of judges -- she viewed
difficult facts against the applicable law.
Judge Perretti understood that a reasonable prediction
could be made that, given his disorder and background, without
help, R.F. would “get in trouble if released now into the
community.” But the SVPA only permits for the civil commitment
of those who are highly likely to commit a sexually violent
offense if released. See W.Z., supra, 173 N.J. at 129-30; cf.
Crane, supra, 534 U.S. at 412, 122 S. Ct. at 870, 151 L. Ed. 2d
at 862. That she could not find by clear and convincing
evidence.
35
Judge Perretti also considered that R.F. is subject to a
multiplicity of conditions and restrictions through parole
supervision for life, which will minimize any potential threat
to public safety. See N.J.S.A. 2C:43-6.4; N.J.A.C. 10A:71-
6.12(b). The sweeping supervision to which R.F. will be subject
after his release requires R.F. to: live in an approved
residence, N.J.A.C. 10A:71-6.12(d)(5)-(6); receive permission to
leave the state, N.J.A.C. 10A:71-6.12(d)(7); refrain from
possessing weapons, N.J.A.C. 10A:71-6.12(d)(8)-(9), and from
possessing or using controlled dangerous substances, N.J.A.C.
10A:71-6.12(d)(10); submit to drug and alcohol testing, N.J.A.C.
10A:71-6.12(d)(13), and psychological testing, N.J.A.C. 10A:71-
6.12(d)(11); complete appropriate counseling or treatment,
N.J.A.C. 10A:71-6.12(d)(12), including any therapy specified by
the staff at the ADTC, N.J.A.C. 10A:71-6.12(g); obtain
permission before accepting employment, N.J.A.C. 10A:71-
6.12(d)(14); notify his parole officer if he becomes unemployed,
N.J.A.C. 10A:71-6.12(d)(15); avoid any contact with A.M. or
J.W., N.J.A.C. 10A:71-6.12(d)(16); comply with any curfew,
N.J.A.C. 10A:71-6.12(d)(17); and submit to warrantless searches
by his parole officer, N.J.A.C. 10A:71-6.12(d)(21).
The terms of R.F.’s supervised release also require that he
generally not contact or attempt to contact a minor, N.J.A.C.
36
10A:71-6.12(e)(1)-(2), and not live with a minor without
permission, N.J.A.C. 10A:71-6.12(e)(3).
What is more, “special conditions” can be imposed on R.F.
if “such conditions would reduce the likelihood of recurrence of
criminal behavior.” N.J.A.C. 10A:71-6.12(n). These supervision
requirements are also accompanied by mandatory registration
requirements under Megan’s Law. N.J.S.A. 2C:7-2. It was
appropriate for Judge Perretti to consider these conditions in
reaching her decision.
VIII.
A.
Judge Perretti acknowledged that R.F., who at the time had
been confined for over four years, first at the county jail,
then at the ADTC, and later at the STU, would “require many
social services if he is to peacefully negotiate life in the
community.” That, in the free world, an individual may need
assistance in housing, in vocational training, in mental health
counseling, and in other life skills is not a reason for his
continued commitment in the STU. That is what Judge Perretti
meant when she stated: “The State must step up to the plate now
and cannot simply hide [R.F.] in the Special Treatment Unit.”
Upholding Judge Perretti’s decision means that R.F. must be
released with an appropriate discharge plan prepared by the STU
37
staff. See N.J.S.A. 30:4-27.37 (“A person discharged by the
court shall have a discharge plan prepared by the treatment team
at the facility designated for the custody, care and treatment
of sexually violent predators . . . .”); N.J.S.A. 30:4-27.32(b)
(stating that person found not to be sexually violent offender
must be released with “discharge plan”). That discharge plan,
crafted by staff of the STU, presumably will provide for the
services and counseling necessary for R.F.’s successful
reintegration into the community.
The Department of Human Services, which operates the STU,
must decide whether to provide the services necessary for former
committees, such as R.F., to live successfully in the free
world. Surely, the Department will want to maximize the
likelihood of R.F.’s reintegration into the community and
minimize the risk of recidivism. Our civil commitment
jurisprudence has emphasized the importance of “provid[ing] the
needed level of care in the least restrictive manner,” In re
S.L., 94 N.J. 128, 141 (1983), and not infringing on an
individual’s “liberty or autonomy any more than appears
reasonably necessary to accomplish” the State’s goals of public
safety and effective treatment, State v. Krol, 68 N.J. 236, 261-
62 (1975).
Significantly, the SVPA provides for a “conditional
discharge” of a committee when the Department of Human Services
38
so recommends and “the court finds that the person will not be
likely to engage in acts of sexual violence because the person
is amenable to and highly likely to comply with a plan to
facilitate the person’s adjustment and reintegration into the
community.” N.J.S.A. 30:4-27.32(c)(1). The goal of a discharge
plan for an individual who is conditionally discharged is to
“render involuntary commitment as a sexually violent predator
unnecessary for that person.” Ibid. Although R.F.’s release
follows from a different provision of the SVPA, the goal of his
discharge plan prepared by the STU should also be to facilitate
his “adjustment and reintegration into the community.” See
ibid.
R.F. has lived over nine years -- his entire adult life --
in the custody of the State. The record is clear that R.F. is a
cognitively impaired young man who requires assistance when he
is released into the community. Clearly, the STU staff and the
Department of Human Services will be in the best position to
decide what services and counseling R.F. will require to
successfully navigate outside the confines of a State
institution. Accordingly, we remand to the civil commitment
court to allow the “treatment team” at the STU to formulate an
appropriate discharge plan.
B.
39
Our difference with the dissent is that it pays lip service
to the standard of review by ignoring evidence and testimony
that supports the findings of Judge Perretti and by cherry-
picking facts that would support the State’s petition. In
addition, the dissent has a mistaken understanding of some
portions of the record. For example, the dissent does not take
into account that Dr. Shnaidman found and Judge Perretti
accepted that R.F. -- having served his prison term --
understands that it is wrong to have sexual relations with
underage individuals.
The dissent also misapprehends our citation to the
subsection of the SVPA that references a “conditional
discharge,” N.J.S.A. 30:4-27.32(c)(1). We know that R.F. is not
a candidate for conditional discharge under that statute. Our
only point is that whether a discharge plan is crafted under
N.J.S.A. 30:4-27.32(c)(1) or under N.J.S.A. 30:4-27.32(b), when
the court finds a person, such as R.F., should be released, the
goal is “to facilitate the person’s adjustment and reintegration
into the community so as to render involuntary commitment”
unnecessary, N.J.S.A. 30:4-27.32(c)(1).
The complex and difficult judgment calls to be made after
hearing the testimony of the experts and sifting through the
evidence was for the trial judge, and we must not second-guess
40
those calls unless they are clearly mistaken and unsupported by
the evidence. It is here where we part ways with the dissent.
C.
R.F. has been detained at the STU for over five years
without any judicial review of his mental or behavioral status.
This Court has not been informed of R.F.’s current status or of
his progress at the STU over the lengthy history of this appeal.
We cannot foreclose the possibility that circumstances or
conditions that might have a bearing on whether R.F. is highly
likely to sexually reoffend have changed since Judge Perretti’s
ruling. Our decision does not deprive the State of the right to
re-petition for SVPA commitment based on changed circumstances
and conditions.15 Nevertheless, if there is a basis to re-
petition, it may not be used as an occasion to re-litigate or
collaterally attack Judge Perretti’s findings. Those findings
are not to be revisited.
In light of the unusual posture of this appeal, we will
stay the discharge of R.F. for thirty days. During that period,
a discharge plan shall be prepared and the State can decide
whether there is any ground to re-petition based on changed
circumstances and conditions since Judge Perretti’s decision.
If the State chooses to re-petition, the civil commitment court
15
N.J.S.A. 30:4-27.28 describes the procedures by which the
Attorney General may initiate involuntary commitment proceedings
under the SVPA.
41
shall provide R.F. with a prompt probable-cause determination,
see N.J.S.A. 30:4-27.28(f), and hearing, see N.J.S.A. 30:4-
27.29(a) (requiring hearing “within 20 days from the date of the
temporary commitment order”).
IX.
For the reasons expressed, we reverse the judgment of the
Appellate Division and reinstate the decision rendered by the
trial court, subject to the modifications set forth in this
opinion. We remand to the trial court for proceedings
consistent with this opinion.
CHIEF JUSTICE RABNER, JUSTICE LaVECCHIA, and JUDGES
RODRÍGUEZ and CUFF (both temporarily assigned) join in JUSTICE
ALBIN’s opinion. JUSTICE PATTERSON filed a separate, dissenting
opinion.
42
SUPREME COURT OF NEW JERSEY
A-10 September Term 2012
070552
IN THE MATTER OF
THE CIVIL COMMITMENT OF
R.F. SVP 490-08
JUSTICE PATTERSON, dissenting.
When it enacted the Sexually Violent Predator Act (SVPA),
N.J.S.A. 30:4-27.24 to -27.38, the Legislature sought to protect
potential victims from harm while also safeguarding the due
process rights of sexual offenders. Given the deprivation of
liberty that follows civil commitment under the statute, the
SVPA authorizes courts to civilly commit an individual only if
the State proves by clear and convincing evidence that the
individual is a “sexually violent predator” who, if released
into the community, would be “highly likely” to sexually
reoffend. N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32(a); In re
Civil Commitment of W.Z., 173 N.J. 109, 132 (2002). The trial
court’s determination “should be modified only if the record
reveals a clear mistake.” In re D.C., 146 N.J. 31, 58 (1996).
In my view, as in the opinion of the Appellate Division
panel, the record of this case reveals a clear mistake. With
due respect for the seasoned judge who presided over the
commitment hearing, the testimony presented to her simply does
1
not support her conclusion that R.F. is not a sexually violent
predator. Even if we disregard the compelling testimony of the
State’s expert witnesses that R.F. poses a significant risk to
the public, and R.F.’s self-described “deviant arousal” for
preteen girls and the sight of blood, the testimony of R.F.’s
own expert establishes the risk imposed by R.F.’s impending
release. R.F.’s expert conceded that R.F. has a psychiatric
condition that meets the clinical definition of antisocial
personality disorder. R.F.’s expert opined that by virtue of a
cognitive impairment, R.F. considered himself a peer of the
twelve- and thirteen-year-old victims of his offenses --
prompting him to perceive sexual contact with a child to be
tantamount to adult dating behavior, rather than criminal
assault. R.F.’s expert provided no assurance that R.F. can
successfully navigate an independent existence in the community,
and strongly suggested that he cannot. Nonetheless, the trial
court ordered his release.
I respectfully submit that, notwithstanding the deferential
standard to which the trial court’s factual findings are
entitled, the court’s ruling in this case should not survive
appellate review. The Appellate Division panel did not
substitute its judgment for that of the trial judge, but did
what an appellate court is intended to do: provide a careful
review of the evidence in accordance with the statutory mandate
2
and the compelling public safety interest at stake. The panel
tested the trial court’s determination against the record before
it, and unanimously found that determination to be contrary to
the evidence.
I would affirm the panel’s judgment, and would authorize
the continued civil commitment of R.F., subject to annual review
as required by N.J.S.A. 30:4-27.35. I respectfully dissent.
I.
The record before the trial court should be viewed in the
context of the Legislature’s purpose when it enacted the SVPA.
The Legislature recognized that violent sexual offenders “suffer
from mental abnormalities or personality disorders which make
them likely to engage in repeat acts of predatory sexual
violence if not treated for their mental conditions.” N.J.S.A.
30:4-27.25(a). As this Court has noted, “[t]he Legislature
enacted the SVPA to protect other members of society from the
danger posed by sexually violent predators.” In re Civil
Commitment of J.M.B., 197 N.J. 563, 570-71, cert. denied, 558
U.S. 999, 30 S. Ct. 509, 175 L. Ed. 2d 361 (2009); see also
W.Z., supra, 173 N.J. at 132 (stating that “[t]o be committed
under the SVPA an individual must be proven to be a threat to
the health and safety of others because of the likelihood of his
or her engaging in sexually violent acts”). The Legislature
foresaw the risks posed by sexually violent predators and the
3
shortcomings of the existing procedure for involuntary
commitment to address those risks. J.M.B., supra, 197 N.J. at
571.
In that setting, the Legislature “broaden[ed] the reach of
New Jersey law to afford protection to society from those
sexually violent predators who pose a danger as a result of a
mental abnormality or personality disorder which makes them
likely to engage in repeated acts of predatory sexual violence.”
In re Civil Commitment of E.D., 353 N.J. Super. 450, 456 (App.
Div. 2002); see N.J.S.A. 30:4-27.25(b)-(c) (stating that in
light of shortcomings in existing involuntary commitment
procedures, “it [was] necessary to modify the involuntary civil
commitment process in recognition of the need for commitment of
those sexually violent predators who pose a danger to others
should they be returned to society”).
To be involuntarily committed under the SVPA, an individual
must be adjudged a “sexually violent predator,” defined as “a
person who has been convicted . . . of a sexually violent
offense” and who “suffers from a mental abnormality or
personality disorder that makes the person likely to engage in
acts of sexual violence if not confined in a secure facility for
control, care and treatment.” N.J.S.A. 30:4-27.26; N.J.S.A.
30:4-27.32(a). The Legislature defined “[l]ikely to engage in
acts of sexual violence” to mean “the propensity of a person to
4
commit acts of sexual violence is of such a degree as to pose a
threat to the health and safety of others.” N.J.S.A. 30:4-
27.26.
As the majority notes, at an SVPA civil commitment hearing,
the State is required to prove by clear and convincing evidence
three elements derived from the SVPA and case law. Ante at ___
(slip op. at 27). First, the State must prove that the
individual has been convicted of one or more of the sexually
violent offenses enumerated in the statute, or “any offense for
which the court makes a specific finding on the record that,
based on the circumstances of the case, the person’s offense
should be considered a sexually violent offense.” N.J.S.A.
30:4-27.26; see W.Z., supra, 173 N.J. at 127.
Second, the State must prove that the individual “suffers
from a mental abnormality or personality disorder that makes the
person likely to engage in acts of sexual violence” unless he or
she is confined. N.J.S.A. 30:4-27.26; W.Z., supra, 173 N.J. at
130. “A finding of mental abnormality that results in an
impaired but not a total loss of ability to control sexually
dangerous behavior” may suffice; the State need not demonstrate
“a total lack of capacity to control such dangerous behavior.”
W.Z., supra, 173 N.J. at 126-27.
Finally, the State must prove that the individual poses a
threat to the health and safety of others, which is established
5
upon proof by clear and convincing evidence that he or she has
“serious difficulty in controlling his or her harmful behavior
such that it is highly likely that [he or she] will not control
his or her sexually violent behavior and will reoffend.” Id. at
130. This Court has explained that the court’s findings
regarding the threat of recidivism:
incorporate a temporal sense that will
require an assessment of the reasonably
foreseeable future. No more specific
finding concerning precisely when an
individual will recidivate need be made by
the trial court. Commitment is based on the
individual’s danger to self and others
because of his or her present serious
difficulty with control over dangerous
sexual behavior.
[Id. at 132-33.]
That determination requires the court to carefully
scrutinize the testimony of the expert witnesses presented by
the State and the individual who is the subject of the hearing.
Prior to the enactment of the SVPA, this Court noted that in the
context of a commitment hearing, the determination of a violent
sex offender’s dangerousness is “a legal one, not a medical one,
even though it is guided by medical expert testimony.” D.C.,
supra, 146 N.J. at 38, 59. In making that determination, the
court must carefully balance the safety of the public against
the individual’s liberty interests. Id. at 59.
6
Civil commitment under the SVPA is not indefinite. Rather,
the reviewing court holds an annual hearing to determine whether
the “involuntary commitment of a sexually violent predator shall
be continued,” imposing on the State the burden of proving the
statutory elements by clear and convincing evidence. N.J.S.A.
30:4-27.35. A trial court’s denial of the State’s motion for
civil commitment pursuant to the SVPA has immediate consequences
for that individual and for the public. Under the terms of the
SVPA, the individual must be released “within 48 hours . . . or
by the end of the next working day, whichever is longer,”
N.J.S.A. 30:4-27.32(b), with a discharge plan prepared under
N.J.S.A. 30:4-27.37, and notice to law enforcement and victims
to the extent required by N.J.S.A. 30:4-27.38.
Charged with protecting the public from violent sexual
predators, and safeguarding the due process rights of the
individual under review, the judiciary plays a crucial role in
the application of the SVPA. A critical component of that role
is a thorough and rigorous appellate review. Our appellate
courts recognize the specialized expertise of the commitment
court, and will reverse that court’s determination only upon “an
abuse of discretion or a lack of evidence to support it.” In re
Civil Commitment of T.J.N., 390 N.J. Super. 218, 225-26 (App.
Div. 2007); accord In re Civil Commitment of R.Z.B., 392 N.J.
Super. 22, 35-36 (App. Div. 2007). “‘The appropriate inquiry is
7
to canvass the . . . expert testimony in the record and
determine whether the [commitment judge’s] findings were clearly
erroneous.’” R.Z.B., supra, 392 N.J. Super. at 36 (alteration
in original) (quoting D.C., supra, 146 N.J. at 58-59).
Nonetheless, appellate review of an SVPA determination entails
scrutiny of the evidence before the trial judge, and a
determination of whether the judge’s findings are supported by
that evidence. See Curtis v. Finneran, 83 N.J. 563, 570 (1980)
(stating in context of nonjury civil action, “the trial court
must state clearly its factual findings and correlate them with
the relevant legal conclusions”); In re Civil Commitment of
J.P., 393 N.J. Super. 7, 17 (App. Div. 2007) (stating in context
of trial court’s determination that defendant’s underlying
sexual conduct constituted predicate sexual offense under SVPA,
“[t]rial judges must understand that the requirement to
articulate specific findings . . . is essential to meaningful
review of the record”). In short, given the competing interests
at stake, appellate review of an SVPA determination must be
conducted with precision and care.
II.
In my view, the Appellate Division panel properly
identified this case as the rare instance in which the trial
court’s findings lack a firm foundation in the record,
warranting reversal.
8
The trial court’s task was to determine three issues: (1)
whether R.F. had been convicted of a sexually violent offense;
(2) whether R.F. suffered from a mental abnormality or
personality disorder; and (3) whether as a result of that
abnormality or disorder, it is highly likely that R.F. will not
control his sexually violent behavior, and that he will
reoffend. N.J.S.A. 30:4-27.26; W.Z., supra, 173 N.J. at 127-33.
The trial court found that the State had proven by clear and
convincing evidence the first and second elements -- that R.F.
had been convicted of a predicate offense as defined by the
SVPA, and that he suffered from a mental abnormality or
personality disorder within the meaning of N.J.S.A. 30:4-27.26.
Accordingly, the trial court’s denial of the State’s application
for civil commitment was premised on a single determination:
that the State had failed to meet its burden of proving by clear
and convincing evidence that by virtue of his recognized mental
abnormality or personality disorder, R.F. is highly likely to
reoffend.
Like the Appellate Division panel, I am persuaded that the
State presented clear and convincing evidence -- indeed,
overwhelming evidence -- that R.F. is a sexually violent
predator who is highly likely to engage in acts of sexual
violence after his release. My conclusion is not premised upon
the differences between the opinions offered by the various
9
experts, but upon their common ground. While it diverged to
some extent from the expert opinions offered by the State, the
testimony of R.F.’s expert witness confirmed the State’s
evidence in significant respects, and in my view supported
R.F.’s continued confinement, not his release. I respectfully
submit that the trial court’s conclusion that the State had
failed to meet its burden under the SVPA is contrary to the
evidence, and is premised upon reasoning that is simply
irrelevant to the SVPA.
As the majority recounts, the State’s expert psychiatrist,
Dr. Robert Harris, diagnosed R.F. with pedophilia, attention-
deficit hyperactivity disorder (ADHD) and antisocial personality
disorder. The expert’s diagnoses were premised in part upon his
interviews with R.F. In those interviews, R.F. admitted that he
began to be attracted to one victim when she was ten years old.
R.F. also told the expert on multiple occasions that he had a
“deviant arousal” for girls aged between ten and thirteen, and
that he was also aroused by images of blood. Dr. Harris
testified that the combination of pedophilia and anti-social
personality disorder greatly exacerbated R.F.’s risk of
reoffense. Acknowledging that the Static-99 diagnostic tool
should be used with caution to assess juvenile offenders, Dr.
Harris nevertheless relied upon it, given that R.F. was almost
eighteen years old at the time of his offense. By Dr. Harris’s
10
assessment, R.F.’s Static-99 scores of four and five meant that
he presents a moderate to high risk of sexually reoffending.
Dr. Harris noted that R.F. may identify himself with young
children or perceive them to be his peers. He considered this
factor to heighten, rather than mitigate, R.F.’s risk of
reoffending if released from civil commitment. The expert was
further concerned by R.F.’s sexual activity during his
confinement, finding that this denoted R.F.’s inability to
comply with rules and regulations. Ultimately, Dr. Harris
concluded that R.F. presented a high risk of reoffense.
The State’s second expert witness, psychologist Dr. Sean
McCall, did not concur with Dr. Harris’s definitive diagnosis of
pedophilia in R.F. Instead, Dr. McCall adopted a provisional
diagnosis of “rule out pedophilia,” as well as a diagnosis of
antisocial personality disorder. Dr. McCall opined that R.F.
had admitted that he was sexually aroused by young girls, and
noted R.F.’s willingness to “act upon” that arousal. Dr. McCall
described R.F.’s escalating sexual violence and deviance, noting
his use of force against the first victim and his use of a
weapon against the second. Like Dr. Harris, Dr. McCall relied
upon the Static-99 test given R.F.’s near-adult status at the
time of his offenses and the nature of those offenses. The
expert determined R.F.’s Static-99 score to be a four, which he
equated to a thirty-six percent chance of being reconvicted for
11
a sexual offense within fifteen years. Dr. McCall shared Dr.
Harris’s concern that R.F.’s continued inability to refrain from
sexual activity while confined indicated that he could not
comport himself to the restrictive standards of commitment, much
less the standards of society. Dr. McCall found that R.F.’s
diagnosis of antisocial personality disorder predisposed him to
reoffend. Dr. McCall concluded that R.F. was at a high risk to
sexually reoffend if not committed. During his cross-
examination, Dr. McCall expressed the same concern as Dr. Harris
regarding R.F.’s emotional identification with children,
concluding that it increased the risk of R.F. reoffending
sexually.
Dr. Vivian Schnaidman, an expert in psychiatry, testified
on behalf of R.F. Dr. Shnaidman diagnosed R.F. with conduct
disorder. She initially characterized his condition as a
juvenile manifestation of antisocial personality disorder, but
conceded under questioning from the trial judge that R.F.’s
mental condition met the Diagnostic and Statistical Manual of
Mental Disorders criteria1 for antisocial personality disorder.
She stated that because R.F. had conduct disorder, “there is
definitely psychopathology, I just don’t want it to be sexual
psychopathology.” Dr. Shnaidman rejected the use of the Static-
1
American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders 706 (4th ed. Text Revision 2000)
(DSM-IV-TR).
12
99 diagnostic test because of R.F.’s age and cognitive
limitations, and opined that despite his mental conditions, R.F.
is at a low risk to reoffend.
Dr. Shnaidman emphasized R.F.’s belief that his young
victims, who had accepted him as someone with whom they could
play “hide-and-seek,” were in fact his peers. She testified
that in concert with R.F.’s cognitive impairment, this belief
caused him to equate his sexual assaults on his twelve and
thirteen year old victims to adult dating behavior. Although
she conceded that children of these victims’ ages may not, as a
matter of law, consent to sexual activity, Dr. Shnaidman
suggested that R.F. believed that the victims were his
contemporaries, and therefore were capable of giving consent.
Dr. Shnaidman acknowledged R.F.’s interaction with the victims
prior to the assaults, which had been characterized by the
State’s experts as R.F.’s “grooming” of the victims. She
minimized the significance of those interactions, observing that
if such contact took place between adult men and adult women, it
would be called “dating.” Dr. Shnaidman testified that in
R.F.’s mind, his sexual encounters with his young victims
constituted “dating.”
Dr. Shnaidman testified regarding R.F.’s plea bargain,
pursuant to which R.F. had pled guilty to two charges of third-
degree endangering the welfare of a minor, N.J.S.A. 2C:24-4(a),
13
rather than the more serious charges pending against him, two
counts of first-degree aggravated sexual assault N.J.S.A. 2C:14-
2(a)(4). To Dr. Shnaidman, the State’s decision to enter into
the plea bargain indicated that R.F.’s conduct, contrary to
statements from his victims indicating R.F.’s use of force and
weapons, fell somewhere on the spectrum between consensual
sexual activity and sexual activity conducted through the use of
force. Dr. Shnaidman opined that R.F. had learned from his
mistakes and now understood that he would not be protected from
prosecution because he was not yet eighteen when these offenses
were committed.
Thus, while the expert witnesses who testified before the
trial court disagreed on significant points, there was
substantial consensus among them. All of the experts agreed
that R.F.’s mental condition met the DSM-IV-TR criteria for
antisocial personality disorder. All of the experts agreed that
R.F. misidentified children as his peers and that he has had
sexual encounters with minors. All of the experts recognized
that R.F. had likely been sexually active, in violation of
facility rules, while confined.2 None of the experts remotely
2
Dr. Shnaidman testified that she asked R.F. whether he continued
to be sexually active while in confinement but that he denied it
and informed her that he was uncomfortable discussing anything
sexual with her. Dr. Shnaidman agreed that R.F. was likely
sexually active while confined, but stated that “the fact that
14
suggested that following his offenses, R.F. gained the ability
to control the arousal that is prompted by his contact with
children. Indeed, the very explanation that Dr. Shnaidman
offers in R.F.’s defense -- that R.F.’s mental condition
rendered him incapable of understanding that he is not the
contemporary of a pubescent girl, or of distinguishing between
the sexual assault of a child and adult dating behavior --
itself raises serious concerns.3
In my view, the trial court’s analysis of the record fails
to support its conclusion. The court cited factors that would
tend to exacerbate, not reduce, the risk of recidivism: R.F.’s
disciplinary record and lack of significant progress while
confined, his poor impulse control, his limited ability to
comprehend that he had committed sexual offenses and what the
trial judge described as his “bizarre” statements about being
aroused by young girls and blood. The trial judge noted
discrepancies between R.F.’s narrative of the two incidents that
he may have had sexual activity with one or two peers in this
facility, it’s not -- for me it’s not a deal breaker.”
3
I am not reassured, as is the majority, by R.F.’s purported
understanding “that it is wrong to have sexual relations with
underage individuals.” Ante at ___ (slip op. at 40). During
cross-examination, R.F.’s expert Dr. Shnaidman explained that
while R.F. believed that his victims consented to sexual
activity and that one of his victims was in fact his girlfriend,
he still felt remorse because he was criminally charged and
convicted. She testified that, “[t]he details of exactly how
and why it was wrong may still remain muddled in his mind, but
he knows that it was wrong and he would take it back if he could
because he feels bad that he did something bad.”
15
led to his conviction for endangering the welfare of a child and
the official record. She observed that R.F. had received
numerous disciplinary citations while confined, including one
involving suspected sexual activity with another resident of the
facility, that he claimed to have another personality that he
termed “Goliath,” that he reported experiencing blackouts, that
he demonstrated what the court termed “distorted thinking,” and
that “he had only a limited understanding of his crime.” The
judge found evidence in the expert testimony and in R.F.’s
treatment records that R.F. is significantly cognitively
impaired. She noted that R.F. made only limited progress in
treatment, that he had been diagnosed with attention deficit
hyperactivity disorder and bipolar disorder and that he suffered
from juvenile conduct disorder. The trial judge stated that
based upon R.F.’s past conduct, it could be reasonably predicted
that “he will get in trouble if released now into the
community.”
Nonetheless, the trial judge stated that she was “not so
clearly convinced” that R.F. was “highly likely to commit a
sexually violent offense in the foreseeable future.” That
conclusion was not based upon any expert testimony indicating
that R.F. has made progress with treatment and time. Instead,
the trial judge focused upon a factor recognized nowhere in the
SVPA or in the case law applying it: the terms of defendant’s
16
plea bargain. The trial judge conjectured that the prosecutor’s
decision to permit R.F. to plead guilty to a lesser included
offense, rather than to try him for first-degree aggravated
sexual assault, revealed that the State had doubts about the
underlying offenses. She stated:
The Sussex County Prosecutor’s Office and
the sentencing Judge are those more closely
connected to [R.F.’s] sexual offending
behavior and most capable of making an
evaluation of appropriate sanctions punitive
and remedial. Rather than pursue child rape
convictions possible here with a presumptive
30-year sentence, the two offenses were pled
out as third-degree endangering charges . .
. with concurrent sentences of five years at
[the Adult Diagnostic and Treatment Center].
The State’s petition now seeks civil
commitment to [the] Special Treatment Unit
with an indeterminate time which in this
case is tantamount to life in custody. This
disproportion itself raises doubts in this
Court’s mind.
In fact, the record reveals nothing whatsoever about the reason
why the State entered into a plea agreement with R.F.; like any
other plea bargain, the agreement in this case may have been
influenced by a range of factors. Further, the trial judge’s
suggestion that R.F.’s civil commitment is akin to a life
sentence is belied by the statute’s requirement that R.F.’s
commitment be reviewed annually, pursuant to N.J.S.A. 30:4-
27.35. I respectfully submit that the trial court’s reliance
upon speculation about R.F.’s plea bargain and erroneous
17
assumptions regarding his term of commitment constituted
significant errors, and led the court to the wrong decision.
The Appellate Division panel did not, as the majority
suggests, substitute its judgment for that of the trial court in
drawing inferences from a debatable record. Instead, the panel
properly concluded that the trial court’s analysis lacked
support in the evidence, and that it accordingly could not
withstand even a deferential appellate review. In my view, the
panel furthered the Legislature’s goals that violent sexual
offenders be ensured due process and provided treatment, and
that public safety -- in this case the safety of children -- be
preserved.
I do not share the majority’s confidence that R.F.’s
release with a discharge plan, with the restrictions imposed by
community supervision for life (CSL) under N.J.S.A. 2C:43-6.4,
will protect the community.4 The restrictions of CSL cited by
the majority -- requiring R.F. to seek authorization regarding
his residence and employment, to contact his parole officer for
4
The “conditional discharge” cited by the majority, ante at ___
(slip op. at 38-39), is unavailable in this case. Such a
discharge is authorized by the SVPA only “[i]f the Department of
Human Services recommends conditional discharge of the person
and the court finds that the person will not be likely to engage
in acts of sexual violence because the person is amenable to and
highly likely to comply with a plan to facilitate the person’s
adjustment and reintegration into the community so as to render
involuntary commitment as a sexually violent predator
unnecessary for that person.” N.J.S.A. 30:4-27.32(c)(1). No
such finding has been made with respect to R.F.
18
various reasons, to submit to drug, alcohol and psychological
testing and to complete treatment -- can provide effective
protection to the public and adequate supervision for certain
offenders released from SVPA confinement. I submit, however,
that R.F. is not such an offender, and this is not such a case.
Given R.F.’s previous failure to make progress in treatment, his
violation of rules regarding sexual activity even while
confined, his documented inability to control his sexual
impulses and his history of violence, the restrictions imposed
as part of CSL provide scant protection to potential victims,
especially children whom R.F. may encounter. Particularly in
light of R.F.’s own expert’s opinion that his identification
with children led him to confuse sexual activity with minors
with adult dating, there is no assurance that he would comply
with a ban on contact with his victims or other minors, and a
strong suggestion that he would not. In my view, CSL
restrictions are simply inadequate to protect the community from
the risk that R.F. will reoffend.
I respectfully submit that a substantial error was made
when the trial court denied the State’s motion to civilly commit
R.F. under N.J.S.A. 30:4-27.32(a). I would affirm the Appellate
Division’s determination, and I respectfully dissent.
19
SUPREME COURT OF NEW JERSEY
NO. A-10 SEPTEMBER TERM 2012
ON CERTIFICATION TO Appellate Division, Superior Court
IN THE MATTER OF
THE CIVIL COMMITMENT OF
R.F. SVP 490-08
DECIDED March 19, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice Albin
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY Justice Patterson
REVERSE/
CHECKLIST REINSTATE/ AFFIRM
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 5 1
1