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In re Civil Commitment of Rubin9/24/2002
mitment as a SPP/SDP. An order committing Rubin to the Minnesota Sex Offender Program for an indeterminate period was filed on February 14, 2002. This appeal followed.
ANALYSIS
In reviewing a mental health commitment, this court accepts the trial court's factual findings unless clearly erroneous. In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986). Whether the trial court's factual findings justify commitment, on the other hand, is a question of law subject to de novo review. In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994).
1. Utter Lack of Control Requirement
A sexual psychopathic personality is defined as the existence in any person of such conditions of emotional instability, or impulsiveness of behavior, or lack of customary standards of good judgment, or failure to appreciate the consequences of personal acts, or a combination of any of these conditions, which render the person irresponsible for personal conduct with respect to sexual matters, if the person has evidenced, by a habitual course of misconduct in sexual matters, an utter lack of power to control the person's sexual impulses and, as a result, is dangerous to other persons. Minn. Stat. § 253B.02, subd. 18b (2000) (emphasis added).
Although the statute defining a "sexually dangerous person" does not require an inability to control sexual impulses, Minn. Stat. § 253B.02, subd. 18c(b) (2000), recent case law imposes this requirement for civil commitments of the mentally ill and dangerous. See Kansas v. Crane, 534 U.S. ___, 122 S. Ct. 870, 867 (2002) (holding that finding of lack of control is prerequisite to civil commitment); In re Linehan (Linehan IV), 594 N.W.2d 867, 876 (Minn. 1999) (adopting "lack of adequate control" standard for commitment as sexually dangerous person).
Appellant argues that the state did not meet its burden to show utter lack of control because (1) there was no offense history for the nine years preceding the civil commitment; and (2) the conduct was nonviolent, nonspontaneous, and nonimpulsive.
The analysis for determining a person's inability to control sexually assaultive behavior includes consideration of: (a) the nature and frequency of the sexual assaults; (b)áthe degree of violence involved; (c) the relationship of the offender with the victim; (d)áthe offender's attitude and mood; (e) the offender's medical and family history; (f) the results of psychological and psychiatric testing and evaluation; and (g) other relevant factors. In re Blodgett 510 N.W.2d 910, 915 (Minn. 1994). Both of appellant's examiners opined that many factors indicate that Rubin lacked control, and the court ultimately concluded that Rubin had an utter lack of power to control his sexual impulses.
The nine-year period in which Rubin has no offense history, from 1992 to 2001, consists of the time he served for criminal sexual conduct offenses against children. As indicated by the many factors involved in making the determination concerning control, a period of non-offense alone does not preclude a finding of utter lack of control. See In re Linehan, 518 N.W.2d 609, 614 (Minn. 1994) (listing factors to be considered, "particularly where, as here, there is a large gap of time" between petition and last sexual misconduct); In re Bobo, 376 N.W.2d 429, 432 (Minn. App. 1985) (holding that good behavior while hospitalized is not good indicator of continuing dangerousness). In fact, Rubin's period of non-offense did not persuade the experts that Rubin had control of his sexual impulses. Dr. Nelsen concluded that Rubin would continue to reoffend "because he did it for 10 or 15 years, and he continued to do it in treatment." When returned to the community "Mr.
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