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 confinement.

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 abnormality."

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.

FOURTH CONVICTION

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 court said.

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 civilly confined.

"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 concurred.

The Attorney General's office did not return a request for comment.

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 General's Office.

For Shannon S.: Mark Davison.

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