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In re Civil Commitment of Rubin9/24/2002
Rubin, or anybody else, may be just as impulsive, if not more so, than they were."
On the nature and frequency of the sexual assaults, the experts noted the large number and ages of the victims and the continuous nature of the assaults. On the relationship between Rubin and the victims, the experts concurred that Rubin took advantage of his positions as coach, daycare provider, lineman, and godfather, to control and manipulate vulnerable individuals. With regard to Rubin's attitude and mood, the experts noted that Rubin continued to reoffend during his Alpha House treatment from 1986 to 1992 and that he admitted that he tried to keep his victims compliant with presents. Rubin's "repetitive acting out in the face of severe consequences of which he was aware does appear to demonstrate a certain impulsiveness of behavior that was not tempered."
Rubin thinks that his risk of reoffending is low, but the experts disagree. Gilbertson stated that Rubin's dismissal of the Alpha House treatment is "alarming." Rubin "was involved in well over one hundred separate sessions that spanned at least four years." Nevertheless, he reoffended then and shows minimal insight now. His caseworker, Mr. Sobey, stated for the 60-day report that "Mr. Rubin has 'excellent management tools' for again creating an environment in which victims are easily available within a seemingly appropriate social context." See In re Pirkl, 531 N.W.2d 902, 907 (Minn. App. 1995)(noting refusal of treatment and lack of relapse prevention plan are indicative of lack of control), review denied (Minn. Aug. 30,1995).
Rubin, like other SPP and SDP defendants, argues that his "grooming behavior" is not consistent with a finding of lack of control because grooming involves planning his assaults. The case law is clear, however, that such behavior in a pedophile does not preclude a finding of utter lack of power to control sexual impulses. See In re Preston, 629 N.W.2d 104, 111 (Minn. App. 2001) (grooming did not indicate "control over impulses," where defendant did not plan out all offenses and had unpredictable sexual responses to certain external factors); In re Bieganowski, 520 N.W.2d 525, 530 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994). Where the grooming behavior itself is uncontrollable or habitual, the impulse is likewise not controllable. Preston, 629 N.W.2d at 111; Bieganowski, 520 N.W.2d at 530. In short, the evidence supports the court's finding that Rubin lacked control over his sexual impulses.
Nonviolent Sexual Behavior
Rubin contends that his particular pattern of sexual misconduct was not "so egregious that there was a substantial likelihood of serious physical and mental harm being inflicted on the victims so as to meet the 'dangerous to other persons' requirement for commitment as a psychopathic personality." He also argues that his nonviolent sexual behavior does not constitute a risk of serious danger to the public in the future.
Although neither the SPP nor the SDP statute expressly requires a finding of violence, under the SPP statute, the state must show "violent sexual assaults that create a substantial likelihood of serious physical or mental harm being inflicted on the person's victims." In re Robb, 622 N.W.2d 564, 571 (Minn. App. 2001). The SDP statute also requires conduct that creates "a substantial likelihood of serious physical or emotional harm to another." Minn. Stat. ยง 253B.02, subds. 7a, 18c (2000). The statutes and the case law tie a finding of violence to serious physical or mental harm suffered by the victims. See In re Preston, 629 N.W.2d 104, 112 (Minn. App. 2001) (serious psychological harm sufficient to meet violence requirement); In re Robb, 6
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