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In re Civil Commitment of Rubin9/24/2002
22 N.W.2d at 571-72 (concluding no violence where no serious physical or mental harm).
Under the SPP statute, the court must consider the types of assaults and consequent harms suffered by the victims to determine whether the requisite violence exists. An assault is considered violent when the "physical and mental harm likely to be caused by [the defendant's behavior] was greater than the physical and mental harm likely to be caused by sexual assaults that involve some physical force." In re Robb, 622 N.W.2d. at 572. The statute does not require actual harm, but only "likely" harm. Minn. Stat. §á253B.02, subds. 7a, 18c. Serious harm results from acts that are "highly likely to have a serious, lasting effect on the victim's sense of security and to cause a continuing sense of fear." In re Robb, 622 N.W.2d at 572; cf. In re Rickmyer, 519 N.W.2d 188, 190 (Minn. 1994) (concluding that conduct of primarily touching and spanking young boys in buttocks was not likely to cause serious harm).
Dr. Gilbertson noted that the harm inflicted by Rubin "arises primarily from the vulnerability of his victims, the multiplicity of his assaults upon certain victims and that such violations occurred within the context of his being in a trusted and authoritative position." He also stated that the presence of force or threats produces greater harm. It is also not uncommon to have the effects or harm emerge long after the actual assault. These themes run throughout Rubin's record. Rubin admitted that he chose younger victims because they were "the easiest to control." Assaults occurred where children should have felt safe: daycare, public places, or a trusted person's home, cabin, or car. Threats, some violent, some not, accompanied the assaults, and several assaults involved some form of penetration. Victims of even the milder assaults did not like the tickling and touching, and Rubin admitted that he did not believe that they liked it. While the actual harm to some of the young victims might not yet be fully realized, those who testified clearly expressed the various levels of serious lasting insecurities and fears that constitute serious harm.
Appellant argues that the Linehan factors "in predicting serious danger to the public" do not support a finding of violence. See Linehan, 518 N.W.2d at 614. The court has held that none of the factors is more important than the others. In re Linehan, 557 N.W.2d 171, 189 (Minn. 1996). The factors are: (1) relevant demographic characteristics; (2) history of violent behavior; (3) base rate statistics for violent behavior; (4) sources of stress in the environment; (5) similarity of present and future contexts to past contexts in which violence was used, and (6) record with regard to sex therapy programs. Linehan, 518 N.W.2d at 614.
Rubin's assaults on his child victims were violent due to the multiple assaults, many involving penetration, coupled with threats. Furthermore, the experts opined that the demographic characteristics, environmental stresses, and base rate statistics also placed Rubin at a high risk to reoffend. Consequently, the evidence was sufficient to support the court's findings of violence and serious harm satisfying both the SDP and SPP statutes.
Least Restrictive Alternative and Treatment Plan Under chapter 253B, the court shall commit the patient to a secure treatment facility unless the patient establishes by clear and convincing evidence that a less restrictive treatment program is available that is consistent with the patient's treatment needs and the requirements of public safety. Minn. Stat. § 253B.185, subd. 1 (2000).
The experts opined that Rubin needed a secure facility to get the necessary treatmen
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