Member Submission: Sex Offenders: A Glimmer of Hope

Born and raised in Florida, I know a thing a thing or two about that state.  With two loved ones serving sentences in prison for sex crimes there, I know a thing or two about the sex offense laws in that state as well.  And for personal reasons, I know a thing or two about Florida’s involuntary civil commitment law.

One of the things I happen to know about sex offense laws in the United States is that it seems as if things only get worse with every legislative session.  Every year the penalties for sex offenses increase, and the life-long liberty restrictions placed on sex offenders after release grow more and more onerous.  The clouds always seem to darken and spread.  I am fully aware that it seems as if things are never going to get better.

However, on that last point I would respectfully disagree.  There exist reasons to hope.  The rest of the world shakes its collective head at the runaway train that is the American sex offender policy and are beginning to speak up.  Allow me to demonstrate why I know this to be true.  (And forgive my use of the European citation system.)

Roger Alan Giese was charged in California with various sex crimes.  After posting bail, he fled to England.   Thanks to an “anonymous” tip, California located Mr. Giese and requested his extradition to face trial on the charges. [i]  Mr. Giese objected to extradition on the ground, among others, that if he were returned to California and convicted of the crimes, he would be subject to California’s involuntary civil commitment law which, he argued, stood in conflict with his human rights as defined by European law.[ii]  Allow me to explain his reasoning.

Article 5(1) of the European Convention for Human Rights (ECHR) provides, in pertinent part, that “No one should be deprived of his liberty save in the following cases, and in accordance with a procedure prescribed by law:

(e) the lawful detention of persons of unsound mind.”

Mr. Giese claimed that the California law stepped far beyond the accepted European definition of unsound mind, and permitted the detention of persons with only minor, questionable diagnosis.

The English court considering the extradition request held an extensive evidentiary hearing at which experts on American civil commitment laws gave testimony.[iii]  In a lengthy written finding issued after the hearing, the English court noted that in order for the detention of someone of unsound mind to be justified under European law, that mental disorder would have to be (1) “serious”, (2) established by qualified medical experts, and (3) be based on the person’s current and actual state of mind, and not solely on past events.[iv]

The court noted that under California’s law, there is a specific requirement of the person having been convicted of a sexually violent offense in the past.  The court then quoted the relevant portion of the California law which states that “[d]anger to the health and safety of others does not require proof of a recent overt act while the offender is in custody”.[v]  In other words, California law allows for someone to be deemed mentally disordered strictly on past behavior, without consideration of the person’s current mental state and without consideration of whether the diagnosis was “serious”.  The court accepted the testimony of one expert who opined that certain mental health diagnosis (such as “Antisocial Personality Disorder” or “Other Specified Paraphilic Disorder”) are made based strictly on past events and are considered life-long disorders (since there is no way to erase those past events).[vi]

Because California’s law permits the civil detention of any person convicted of a sex offense when a qualified expert assigns any diagnosis to that person regardless of the person’s current and actual state of mind, the English court concluded that “…the net is cast widely, and those with a mental diagnosis which falls far short of ‘unsound mind’ are likely to be committed”.[vii]  She explained that Article 5(1) (e) “cannot be used to permit the detention of a person simply because his views or behavior deviate from the norms prevailing in a particular society”.[viii]  If I may be permitted to paraphrase the court’s lengthy summary, it feared that California was using the fact that someone was a convicted child molester in the past in order to claim that the person is mentally disordered in the present, and then use that excuse to indefinitely confine someone who has already satisfied the court-imposed punishment for that crime.

In the end, the English court found California’s civil commitment law to be a “flagrant breach” of the basic human right to liberty as recognized under Article 5 of the ECHR.[ix]  For that reason, it refused to permit the extradition of Mr. Giese to California.

Of course, the American government would not return home to lick its wounds in defeat.  The United States appealed on two grounds.  First, it challenged the finding that the civil commitment law violates human rights.  Second, it offered assurances that civil commitment proceedings would not be initiated against Mr. Giese if he were returned to California.  Contrary to the hopes of the Americans, the English appellate court upheld the finding that the law violated human rights.[x]  However, the appellate court accepted the assurances that it would not initiate civil commitment proceedings and so finally approved the extradition.[xi]

I hasten to add that this was the third time that a European court condemned civil commitment of sex offender laws.  Consider also the condemnation of Minnesota’s civil commitment law in Sullivan v. Government of USA [2012] EWHC 1680 (Admin); and New York’s civil commitment law in Government of USA v. Bowen [2015] EWHC 1873 (Admin).

The importance of these decisions cannot be overstated.  The United States enjoys no stronger international relationship than its alliance with Great Britain.  For its closest ally to publicly condemn a key facet of its sex offender policy as a violation of human rights, the United States should stop and take notice now.  I have good reason to suspect that the three extradition cases cited above are not going to stand alone as anomalies as more foreign courts are compelled to examine America’s sex offender policies in light of international criminal law and human rights standards.

I offer this case to you as a glimmer of hope.  There are modern, civilized democracies in this world which recognize the human rights violations being committed against American citizens in the name of protecting society, in general, and children, specifically.  It may take years, but the wheels of international justice are turning.  I am studying the law here in Europe to make certain that they continue to turn.

[i] The Government of the United States of America v Roger Alan Giese [2015] EWHC 2733 (Admin), par. 5

[ii] Id, par. 8

[iii] Id, par. 17

[iv] Id, par. 48

[v] Id, par. 50

[vi] Id, par. 51, 52

[vii] Id, par. 55

[viii] Id, par. 48

[ix] Id, par. 62

[x] Roger Alan Giese v The Government of the United States of America [2018] EWHC 1480 (Admin), par. 10

[xi] Id, par. 55