By Daniel Wiessner
ALBANY, N.Y., Oct 31 (Reuters) - New York state may civilly
confine a repeated sex offender for an indefinite period despite
a contested diagnosis of mental illness, a sharply divided Court
of Appeals has ruled.
In a 4-3 decision, the court ruled on Tuesday that the state
had provided sufficient evidence that Shannon S., who spent most
of his 20s and 30s in prison for four separate instances of
sexual abuse against teenage girls, had a "mental abnormality"
and should be confined in a civil institution.
He had argued that his diagnosis of hebephilia -- an
attraction to pubescent girls -- by state doctors was not
scientifically sound and should not have formed the basis of his
The Court of Appeals' majority disagreed, writing that
Shannon S.'s "recurrent engagement in sexual conduct with
pubescent females ... coupled with his impulsive sexual behavior
amply demonstrated ... that (he) suffers from a mental
Under the 2007 Sex Offender Management and Treatment Act, or
SOMTA, the state may commit a sex offender to civil confinement
if it can prove he or she has a "mental abnormality" that
"predisposes" that person to commit sex offenses.
The offenders are either held in state-run mental health
facilities for an indefinite period or put under strict and
intensive supervision and treatment.
In a dissent in the Shannon S. case, Judge Robert Smith said
he was concerned about the potential for the state to use SOMTA
to strip defendants of their constitutional rights. Some people
may agree with indefinitely locking up sex offenders, Smith
said, "but it is a very bad idea."
"If the present sentences for sex offenders are too short,
the legislature should make them longer, but it should not, and
constitutionally cannot, simply substitute civil for criminal
proceedings as a means of keeping dangerous criminals off the
streets," Smith wrote, joined by Chief Judge Jonathan Lippman
and Judge Eugene Pigott.
In 2005, Shannon S., of rural Chautauqua County, was
convicted of statutory rape and sentenced to two to four years
after impregnating a 16-year-old girl. It was his fourth
conviction for a sexual offense since 1992, when he was 19, the
Near the end of Shannon S.'s sentence, two state
psychologists diagnosed him with paraphilia NOS, or paraphilia
not otherwise specified, as well as hebephilia, a specific form
of paraphilia. The doctors defined paraphilia NOS as "recurrent
and intense sexual fantasies, urges or behaviors which involve
the physical or psychological suffering ... of oneself or one's
partner or other nonconsenting partners."
Hebephilia is not listed in the Diagnostic and Statistical
Manual of Mental Disorders, the definitive guide used by mental
health professionals to diagnose patients, the court said.
Paraphilia NOS is listed in the manual, the court said, but
includes an array of different disorders.
The state in 2009 moved to confine Shannon S., claiming that
his hebephilia would drive him to commit new offenses if he was
released from prison.
A doctor who testified on behalf of Shannon S. told the
trial court that the psychiatric community was divided as to
whether hebephilia truly exists, and said that Shannon S. had
not displayed the pattern of deviant behavior necessary to
justify civil confinement, according to the ruling.
A state judge in 2010 granted the state's petition, finding
it had sufficiently proven that Shannon S. had a mental
abnormality under Article 10 of the Mental Hygiene Law. The
Appellate Division, Fourth Department, last year unanimously
upheld the decision.
The high court on Tuesday agreed that Shannon S. should be
"Any professional debate over the viability and reliability
of (a diagnosis) is subject to the adversarial process which, by
vigorous cross-examination, would expose the strengths and
weaknesses of the professional medical opinions offered," Judge
Theodore Jones wrote.
Judges Carmen Ciparick, Victoria Graffeo and Susan Read
The Attorney General's office did not return a request for
Shannon S.'s attorney, Mark Davison, said he is planning to
appeal the decision to the U.S. Supreme Court. He said there
have been at least a dozen cases in New York in which men
diagnosed with paraphilia NOS have been civilly confined.
The state has confined 266 sex offenders since SOMTA was
enacted five years ago, according to the state Division of
Criminal Justice Services, and 24 of them have been released or
have died. The identities of confined individuals are not
available to the public.
The case is the Matter of the State of New York v. Shannon
S., New York State Court of Appeals, No. 172.
For the state: Kathleen Treasure of the state Attorney
For Shannon S.: Mark Davison.
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