The "Predatory" Qualifier in Evaluations Under "Sexually Violent Predator" Laws
by John Tennison, MD June 26, 2012
For those states which use the term "predatory" as a qualifier for the required condition, the word "predatory" is understood to refer only to specific types of sexual offenses. That is, the term "predatory" is generally understood to refer to a specific set of sexual offenses, rather than all offenses that might otherwise be considered "sexually dangerous."
Richard Rogers and Rebecca Jackson -- "Dangerousness alone is insufficient."
As Richard Rogers Rebecca Jackson wrote on page 524 in the American Journal of Psychiatry and Law in 2005 in their article, "Sexually Violent Predators: The Risky Enterprise of Risk Assessment:"
"Dangerousness alone is insufficient."
On page 524 of this same article Rogers and Jackson also write:
"The substantial risk of violence varies across jurisdictions. According to Lieb, most states require either sexual violence (Arizona, California, Florida, Illinois, Missouri, New Jersey, South Carolina, Virginia, and Wisconsin) or predatory sexual violence (Iowa, Kansas, Texas, and Washington). Surprisingly, two states require harmful (Minnesota) or predatory (North Dakota) conduct, but do not specify sexual violence. Contrary to the expressed intent of SVP commitment, Massachusetts apparently permits any sexual offense to satisfy commitment requirements. The level of risk for this sexual conduct also varies from 'likely' to 'substantially probably' and 'more likely than not.'"
Philip H. Witt and Mary Alice Conroy -- Being Aware of Definitions of "Predatory"
The fact that mental
health evaluators understand the word “predatory” (especially when statutorily
defined) to constrain the meaning of the statutorily-described condition to a
specific type of risk is corroborated by the methodology described by Philip H.
Witt, PhD, and Mary Alice Conroy, PhD, in their 2009 Oxford University Press
book, "Evaluation of Sexually Violent Predators." Specifically, in a
section on page 164-165 titled “Communicating Types of Risk,” where Witt and
“Reports should also make very clear the type of risk that is assessed. For example, the same individual may be at a different level of risk for sexual reoffending than for nonsexual violent offending. In some cases it may not be possible to distinguish the type of offense most probable with any reasonable degree of clinical certainty. Statements may need to use language such as the following: ‘For all of the reasons detailed here, in my opinion Mr. Jones is at very high risk for committing violence in the future; however, there is no way to determine the likelihood that his reoffending would be sexual in nature.”
“In considering types of risk, evaluators must also be aware of the jurisdiction’s definitions of ‘predatory.’ In some states (e.g. Missouri, Washington), predatory behavior is defined as acts in which the victim is a stranger, a very casual acquaintance, or someone with whom a relationship was established for the specific purpose of victimization. For Washington’s SVP statute (RCW 71.09.020) states: ‘Predatory means acts directed towards: (a) strangers; (b) individuals with whom a relationship has been established or promoted for the primary purpose of victimization; or (c) persons of casual acquaintance with whom no substantial personal relationship exists.’ This definition would eliminate a large number of intrafamilial offenses."
Dennis Doren -- The Issue of 'Predatory' Offending
Another authoritative source that corroborates the methodology of recognizing the restrictive meaning of the "predatory" qualifier is Dennis Doren's highly-influential 2002 text, "Evaluating Sex Offenders." Doren's text contains a section titled "The Issue of 'Predatory' Offending" in the very first chapter which addresses the restrictive meaning of the "predatory" qualifier. Quoted in full, here is what Doren writes about "The Issue of "Predatory" Offending" (page 22-23):
"Within the commitment criteria for six states (California, Iowa, Missouri, North Dakota, Texas, and Washington), is the term 'predatory.' (The Kansas law initially included this term, but legislation changed that.) In these six cases, the word 'predatory' is used as a qualifier to the type of sexual acts for which the person is a 'likely' (or 'more likely than not') risk. Five of the six jurisdictions define the term similarly, using words such as Missouri's 'acts directed towards strangers or individuals with whom relationships have been established or promoted for the primary purpose of victimization.' North Dakota's law being the exception among the six, employs the term within its definition of relevant sexual conduct rather than defining the term independently."
"The usual evaluator interpretation of the defining phrase for 'predatory' is that purely incestuous offenders are excluded from commitment eligibility. Also excluded are offenders who take sexual advantage of existing relationships (with children or adults), but whose relationships formed and continued to exist for reasons other than perpetration of a sexual crime. These people may be viewed as having the requisite mental condition and a risk for sexual reoffending beyond the statutory threshold, but still not be assessed as meeting commitment criteria due to the nature of the relationship in which the person's crime occur."
"The typical manner by which evaluators assess the 'predatory' component to subjects' risk is to view the subjects' past patterns of known sexual offending. This is because the 'predatory' nature of someone’s future sexual criminality is not something that has been researched directly. In general, we do know that people tend to repeat past patterns of behavior when enacting similar acts, though there can be variability (e.g. Hanson & Bussiere, 1998). Unless there is a pertinent reason in a specific case to think otherwise, this approach of looking at past behavior in assessing the concept of "predatory" appears to be the current examiner's standard."
"Also coupled with this approach is the use of research results from actuarial risk assessment instrumentation (discussed in Chapter 5). The research-based outcome from the use of those scales offers some guidance in this matter, to the extent that the types of crimes counted as recidivist matches a statutory definition of 'predatory' sexual offenses."
Operationalizing "Predatory Act"
Although some states, such as Texas, offer a broad general definition of "predatory act," ("an act directed toward individuals, including family members, for the primary purpose of victimization"),such broad definitions are generally not specific enough to serve as an operational definitions during actual evaluations to arrive at an opinion as to whether or not an evaluee qualifies for being at risk of committing a "predatory act."
Consequently, to operationalize the Texas definition of "predatory act", such sexual "predatory acts" can be more specifically understood by evaluators to be sexually-related behaviors which occur as the result of the intentional establishment or maintenance of interpersonal relationships on the part of the perpetrator for the purpose of having a sexual relationship with the other person in such a way that the perpetrator has prior or co-occurring knowledge that the perpetrator's sexually-related behavior would be considered sadistic to or coercive of the other person, or such that perpetrator's sexually-related behavior is illegal or would be considered inappropriate by society or by the average person.
This more specific operationalized description of what constitutes a "predatory act" is consistent with other broadly-accepted literature describing methodology for conducting evaluation under "Sexually Violent Predator" statutes.
Temporal Lobe Dysfunction in the Human Brain
Informative examples come from case studies of temporal lobe dysfunction in the human brain which can lead to pedophilic and other inappropriate behaviors involving sexual contact, but in most such instances, the inappropriate sexual behaviors appear to not be accompanied by a "predatory" mindset on the part of the perpetrator. Moreover, in some of these instances, the perpetrator has amnesia for having engaged in these sexually-inappropriate behaviors. Thus, even though there are instances of sexually dangerous behaviors resulting from volitional incapacity caused by an acquired or congenital condition, such behaviors can occur without "predatory" intent.