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Opinions – 9/24/12: 4th U.S. Circuit Court of Appeals

Administrative Law

Civil commitment

BOTTOM LINE: District court erred in rejecting government’s petition to commit defendant as “sexually dangerous person” under civil commitment provision of child protection statute, because record contained substantial evidence showing that defendant still had intense and recurrent sexual fantasies about children, and district court’s conclusion that defendant did not still suffer from pedophilia was largely premised on its crediting of testimony of defendant’s expert witness, which was internally inconsistent if not implausible.

CASE: U.S. v. Wooden, No. 11-7226 (decided Sept. 6, 2012) (Judges Traxler, KING & Wynn). RecordFax No. 12-0906-60, 40 pages.

COUNSEL: Ian Samuel, United States Department of Justice, Washington, for Appellant. Eric Brignac, Office of the Federal Public Defender, Raleigh, NC, for Appellee.

FACTS: Approximately three months before Walter Wooden was to be released from federal prison, the government sought to have him committed as a “sexually dangerous person” pursuant to 18 U.S.C.A. §4248(a), under the civil-commitment provisions of the Adam Walsh Child Protection and Safety Act of 2006 (the “Act”). On two occasions in 1972, Wooden was adjudicated delinquent for sex crimes relating to a minor. A sentencing report prepared in connection with this offense indicated that Wooden had been arrested for sexual offenses against children at least six times since January of 1972.

In 1974, Wooden was charged as an adult and pleaded guilty to taking indecent liberties with a four-year-old child. He was sentenced to a period of imprisonment, but he was paroled in 1980. In 1984, after separate incidents involving minor children, Wooden was convicted of various charges, including sodomy, and was sentenced to 25 years’ imprisonment. He was paroled in 2000, but his parole was revoked in 2001.

On July 25, 2002, Wooden was again paroled, and he was ordered to undergo long-term sex-offender treatment and testing. Wooden began treatment with Dr. Ronald Weiner. In June of 2005, during a counseling session with Dr. Weiner, Wooden admitted to having inappropriate contact with a seven-year-old boy. Wooden told Dr. Weiner that the boy had followed him into the laundry room in his apartment building, and that he had pressed his penis against the boy’s bare buttocks but did not attempt penetration.

On June 7, 2005, Wooden, Dr. Weiner, and two probation officers met for an emergency meeting convened by Dr. Weiner. At the meeting, Dr. Weiner explained to the others that Wooden had admitted to molesting the boy, and Wooden agreed. During a polygraph test administered on June 20, 2005, Wooden admitted having deviant sexual thoughts about children in the past year and to being sexually aroused in the presence of children in the past year.

In July 2005, Wooden was charged with violating the terms of his parole by having contact with minors and by having sexual contact with the seven-year-old boy, and his parole was revoked.

Approximately three months before Wooden’s scheduled release date, the government initiated commitment proceedings by filing a certification that Wooden was a sexually dangerous person within the meaning of the Act. At the ensuing hearing, Wooden testified on his own behalf. The government’s experts, Dr. Malinek and Dr. Ross, both testified that Wooden met the criteria for commitment under the Act. Wooden’s expert, Dr. Terence Campbell, testified that Wooden did not meet the criteria for commitment under the Act.

Dr. Campbell’s determination was premised in large part on Wooden’s age, 55 at the time of the hearing. Dr. Campbell testified that research had shown that the prevalence and incidence of criminal behavior by adults decreases steadily with increasing age. Dr. Campbell testified that he had drawn no conclusion about whether Wooden actually molested the seven-year-old boy in 2005, but he agreed that civil commitment would be warranted if Wooden had molested the boy.

The district court rejected the government’s petition, finding that the government had failed to prove Wooden continued to suffer from pedophilia and that he would have serious difficulty refraining from re-offending.

The government appealed to the 4th Circuit, which reversed the district court’s order and remanded the case for reconsideration of the government’s petition on the existing record.

LAW: The Act authorizes the government to civilly commit “sexually dangerous” federal inmates after the expiration of their sentences. 18 U.S.C.A. §4248(a). An inmate is a “sexually dangerous person” if he has a prior act or attempted act of child molestation or sexually violent conduct and is “sexually dangerous to others. Id. §4247(a)(5). On appeal, the government challenged the district court’s determination that Wooden did not qualify as a “sexually dangerous person” under the Act.

Persuaded by the testimony of Dr. Campbell, the district court held that while Wooden might have suffered from pedophilia in the past, the government had not proven by clear and convincing evidence that Wooden, at the time of the hearing, continued to suffer from pedophilia. In fact, however, the record was replete with evidence showing that Wooden still suffered from pedophilia, a serious disorder characterized by recurrent, intense sexually arousing fantasies, sexual urges, or behaviors involving sexual activity with a prepubescent child or children. American Psychiatric Association, Diagnostic & Statistical Manual of Mental Disorders §302.2, at 572 (4th ed., Text Revision 2000) (“DSM”).

The record contained substantial evidence showing that Wooden was still having intense and recurrent sexually arousing fantasies and sexual urges about prepubescent children, including Wooden’s admission to Dr. Weiner that he was having sexual thoughts about being around children, his admissions in the 2005 polygraph examination that he had been having deviant sexual thoughts about children and had been sexually aroused while in the presence of children, and his acknowledgement during his deposition that he had been having sexual thoughts about children.

Moreover, Wooden’s testimony at his deposition and at the hearing was full of cognitive distortions or “thinking errors” common to sex offenders. For example, Wooden testified that the victims of his crimes wanted to have sex with him and that children who ask adults for money are really asking to have sex and will retaliate if rejected. The district court did not account for this evidence when considering whether Wooden was a pedophile.

Although the district court might not have been required to accept that the evidence recounted above proved Wooden’s ongoing pedophilia, the court was required to at least consider the evidence, and account for it, when concluding otherwise. See Miller v. Mercy Hosp., Inc., 720 F.2d 356, 361 (4th Cir. 1983). Moreover, while the district court explicitly credited Dr. Campbell’s testimony, Dr. Campbell’s opinion testimony was internally inconsistent, if not entirely implausible.

For these reasons, the district court’s conclusion that Wooden did not suffer from pedophilia and thus did not have a serious mental illness as required for commitment under the Act was reversed was clearly erroneous. Accordingly, the district court’s judgment dismissing the government’s petition seeking to commit Wooden was reversed, and the case remanded.