A Fairfax County, Virginia, man who was placed in indefinite civil detention in 2005 must remain locked up even though mental health professionals who examined him were not willing to say he was likely to commit a sex crime if he were released, the Virginia Supreme Court recently ruled. The decision affects Virginia residents who may be sent to the state's so-called Civil Commitment of Sexually Violent Predators program, which can involve indefinite detention even after the defendant's prison sentence has ended.

The defendant in this particular case pleaded guilty to rape in 1989. In 2005, after he was released from prison, prosecutors asked the court to commit him to the sex offender treatment program. During the proceeding, both prosecutors and the defendant's attorney called psychologists as expert witnesses. Both expert witnesses had interviewed the defendant before their testimony.

The psychologists agreed that there was a risk the defendant might commit another sexual offense. But based on their understanding of the defendant's psyche, neither expert would testify that he was likely to do so. Despite the pair of expert opinions, the judge committed the defendant to the civil treatment program.

The defendant challenged his detention and the case reached the Virginia Supreme Court. Writing for the majority, the high court ruled that it is not legally necessary that experts find the defendant is likely to reoffend before he or she can be forcibly committed. Instead, courts should examine the "totality of the record," the majority decision said. Looking at that record, the defendant needs to stay in civil commitment, the court held.

Source: Washington Examiner, "Court: Consider 'record as a whole" in confinement of sexual predators," Emily Babay, Jan. 15, 2012