Mental Health Evaluations and Sentencing for Sex Offenders

Facing an arrest and charges for a sex offense can be humiliating and frightening. A conviction of sex crime in Virginia can lead to harsh consequences, including mental health evaluation. Although the Virginia legal system considers suspects innocent until proven guilty, sex crime defendants can attest that they seem guilty when they become suspects.

Still, understand that just because you have been accused of a sex offense doesn’t mean you’re guilty. The legal justice system allows you to prove your innocence, and once you win, you won’t face the consequences. To increase your chances of a successful defense, hire a skilled sex crimes lawyer. Contact us, the Virginia Criminal Attorney, if you face charges in Fairfax, VA, and Northern Virginia. We will build a solid defense that may help you evade harsh consequences.

Sentencing for Sex Offenders

There are several different sentencing options you can be subject to after the judge finds you guilty of a sex crime, including:

Rape
Forcible sodomy
Carnal knowledge of certain minors
Carnal knowledge of a child between 13 and 15 years
sexual battery
Aggravated sexual battery
Infected sexual battery
Taking indecent liberties with a child
Repeated sexual assault and violent sexual assault
Attempted sexual crimes
Object sexual penetration
Indecent exposure

The sentencing options start from a possible long incarceration period for serious felony sex crimes to no time in jail/prison and a minimal fine for less severe misdemeanor offenses.

Essentially, incarceration in jail or prison, probation, the requirement to register as a sex offender, including the Sexually Violent Predator Registry, and special terms and conditions like mental health evaluations and classes may be imposed as the result of a sex offense conviction.

Mental Health Evaluations in Detail

Mental health evaluations refer to examinations of a defendant’s mental capacity and state conducted by a qualified expert. Sometimes, judges may order that mental evaluation be performed on defendants accused of crimes relating to sexual abnormality.

The purpose of mentally evaluating sex offenders is to determine their current risk for reoffending and amenability for treatment. Evaluations also direct and guide specific recommendations for the accused’s conditions of supervision and treatment, provide info that’ll help identify the best setting, intensity of intervention, and supervision level. They also assess the possible dangerousness of the accused.

In Virginia, Va. Code 19.2-301 is the code that sets forth the mental health evaluation requirement for sex offenders. It provides that after being charged, the judge may order that you be assessed by at least one clinical psychologist or psychiatrist who is qualified through experience and specialized training to conduct these kinds of evaluations.

If the court finds that a clinical psychologist or psychiatrist isn’t available to evaluate you, it may select a state-licensed clinical social worker to conduct the evaluation. The clinical social worker ought to be approved by the state as a sexual offender treatment provider per Va. Code 54.1-3600. He/she must also be qualified by both experience and specialized training endorsed by the Commissioner of Behavioral Health and Development Services to carry out these kinds of examinations.

The evaluation will take place in jail or at a mental health facility on an outpatient basis. But should the judge find that outpatient evaluation services aren’t available, he/she may direct that you be hospitalized in a hospital chosen by the Commissioner of Behavioral Health and Developmental Services as ideal for evaluation of people convicted of offenses.

The same applies if the outpatient examination results show that your hospitalization for further assessment is necessary. You will then remain in that hospital for a period that the hospital director believes is needed to conduct an adequate evaluation. However, the period you must stay in the hospital shouldn’t exceed thirty days. The thirty days are counted from the day of admission.

After completing the evaluation, the examiner will write a report of his/her findings plus conclusions and provide you with a copy. He/she will give another copy to your lawyer and the state’s lawyer, at the minimum, five days before sentencing. The examiner must also provide the judge with a copy of the report before the sentencing hearing.

Every party that receives the examiner’s report must always keep it confidential except if it’s required for the defense or prosecution of any crime. The report will be filed together with other records of your case, and your copy will be taken back to court after the sentencing hearing.

The filed report will be sealed after the court enters the sentencing order and will be availed only through a court order. However, the following would be able to obtain the report at any given time and without a court order:

The Attorney General’s office for assessment to see if a civil commitment is necessary per Va. Code 37.2-900.
Any agency where the court or parole and probation services refers you for treatment
Any criminal justice agency of Virginia, another state, or the U.S per VA Code 9.1-101
Attorney for any individual that has been charged jointly with you for the same felony offense

Your lawyer would also be able to obtain the report without a court order if you’re accused of a felony crime during the period the report is being prepared.

What Mental Health Evaluation Involves

Like many other forensic assessments, the evaluation of sex offenders involves conducting a detailed psychiatric evaluation, reaching out to available sources of info to verify the information you as the defendant provide, and reviewing available criminal history and police reports. Additionally, the accurate evaluation of persons involved in sex offenses requires careful assessment of deviant sexual attraction and arousal patterns and comprehensive sexual history.

Sexual evaluation questionnaires are usually used as a guide to help in the clinical evaluation of behavioral patterns and sexual history. Common sexual evaluation scales are the Multiphasic Sex Inventory and Derogatis Sexual Functioning Inventory. Any area of deviant sexual interests included on the questionnaires is then regularly assessed in the subsequent evaluations.

Apart from obtaining your self-report on sexual interests and arousal patterns, the psychiatrist/psychologist incorporates objective means to measure your sexual preferences.

Manipulating true sexual arousal patterns includes evaluating a sex offender and leads to inaccurate risk assessment decisions. Considering the evident motivation to hide true sexual arousal patterns when a person commits a sex crime, psychiatrists progressively turn towards objective sexual arousal measures to enhance the accuracy of sexual arousal evaluation. Common physiologic evaluation techniques used to assess sexual arousal are polygraph, penile plethysmography, and visual reaction time.

Polygraph Assessments

Persons charged and found guilty of sexual crimes have little inducement to give truthful info concerning their misconduct or adherence to required treatment programs. The polygraph test has progressively been used to verify the information sex offenders provide concerning the details of the supposed crime, conduct, and prior sexual history. The polygraph is also used to study the accuracy of reports on a convicted sex offender’s adherence to probation terms or treatment plans.

Research has shown that polygraph assessment is an effective way to obtain a detailed sexual crime history and increase the information offenders disclose. Polygraph results highly depend on the psychologist’s or psychiatrist’s skill. Like any other psychological measure, polygraph assessment is usually criticized for lacking generalizability and standardization of the test results.

Visual Reaction Time

The amount of viewing time spent looking at a particular object is what’s called visual reaction time. Visual reaction time has been theorized as a non-intrusive technique of determining the level of sexual interest. Here, psychiatrists and psychologists use a mechanism known as the Abel Assessment for sexual attraction, which is based on the notion that visual reaction time is a sign of sustained sexual interest. This mechanism consists of both objective and subjective components meant to measure sexual interests by gender and age.

The subjective part is that you are given a questionnaire designed to gather information regarding your sexual behaviors and preferences, the self-reported capability of controlling your sexual behaviors, and legal history. The questionnaire is also meant to assess whether you’re faking test results, have mental distortions about engaging in sexual intercourse with children, or fit a statistical profile of persons (known offenders) who have sexually abused minors.

The objective part involves measuring visual reaction time beyond your awareness while viewing 160 slides portraying clothed teens, adults, and children. During this test, you’re also required to rate your level of sexual arousal to the visual stimuli.

Penile Plethysmography

Penile plethysmography is currently the only objective way of evaluating pedophilic sexual interests. It involves directly measuring penile erections in response to auditory, emotional, or visual cues. This technique is utilized to measure alterations in penile arousal in response to given stimulations. The two kinds of penile plethysmography that psychologists or psychiatrists widely use measure alterations in either penile circumference or volume.

Penile plethysmography test results are usually used to establish deviant sexual attraction and arousal patterns, monitor how effective the treatment is, and develop treatment plans.

But this test is criticized because it lacks scoring techniques and susceptibility to purposeful changes of test results. Faking test measures by initiating erections or suppressing arousal to normal sexual stimuli could be difficult. Manipulating true sexual arousal patterns compromises the assessment of a sexual offender and may lead to inaccurate risk evaluation decisions. There are also ethical concerns related to the intrusiveness of utilizing this test in adolescents and having offenders view pornographic stimuli. But regardless of its limitations, the penile plethysmography test is generally deemed the most accurate to measure sexual arousal.

A Sex Offender Mental Health Evaluation Can be Beneficial to You

A sex offender mental health evaluation can help you in several ways. For instance, it can help you if you’ve been accused falsely of sexual abuse in a divorce case by disclosing possible red flags or the lack thereof. Mental health evaluation can also help you if you want your name to be struck out from the sex offender registry after your treatment and continued periods of not committing any offense.

During presentencing or post-conviction, an evaluation could help recommend appropriate treatment levels to reduce recidivism (the tendency to re-offend) and include treatment-related research.

A sex offender evaluation is meant to gauge a sex offender’s or supposed sex offender’s sexual characteristics. The evaluation assesses:

Deviant sexual conduct patterns,
The risk level for non-sexual and sexual recidivism,
Specific changeable criminogenic needs or risk factors required to be targeted via interventions
Protective factors and strengths relative to you as the defendant and those who exist within peer, family, and other community support systems
Amenability to intervention
Whether you have a mental health disorder

Sex offender mental health evaluations don’t determine guilt, whether you are or are not a sexual offender, or whether you meet a sexual offender profile or not. There isn’t a specific profile for persons who offend someone else sexually.

A sex offender evaluation is conducted during presentence to help the judge and any other interested party make well-informed decisions regarding sentencing disposition. Your lawyer doesn’t have to wait for the court to order a mental health evaluation. Evaluations comprise a sexual inventory, personality, inventory, and clinical interview.

Civil Commitment of Sexually Violent Predators After Mental Health Evaluations

In 1999, Virginia developed a procedure for admitting people found guilty of sexually violent crimes and those who the court found to be highly likely to re-offend for treatment on an inpatient basis. And as we mentioned, one of the purposes of mental health evaluations is to determine the sex offenders’ risk of reoffending. Thus, if your offense was sexually violent, and the report concludes that your risk of reoffending is high and you are a potential danger to society, you may be civilly committed.

The purpose of civil commitment is to remove habitual sex offenders from society for extended, at times, indefinite periods. You can be civilly committed after you have already served the ordered sentence for your offense and without having broken any other laws.

Rather than punishing previous offenses, this kind of involuntary confinement is based on the likelihood that a person may commit sex crimes in the future.

The civil commitment process is presided over by the Department of Behavioral Health and Developmental Services (DBHDS) Office of Sexually Violent Predator Services. And, as we mentioned above, it’s triggered by mental health evaluations conducted by licensed psychiatrists and psychologists or licensed clinical social workers. The ultimate responsibility to determine whether you should be civilly committed for sexual offender treatment lies with the circuit courts.

The SVP Act (Civil Commitment of Sexually Violent Predators Act) is set forth under Va. Code 37.2-900 et seq. This Act will apply to you if:

You’re a prisoner in the DOC (Department of Corrections) who has been incarcerated for committing a sexually violent offense and are nearing your release date.
You’ve been accused of a sexually violent crime, and the court has determined that you’re unfit to undergo prosecution.

The DOC will first screen you using an evidence-based protocol it and the DBHDS would have approved. Depending on the screening results, you will be referred to undergo another psychological evaluation if you’re considered likely to re-offend. The assessment is performed by a certified psychiatrist or clinical social psychologist while the interagency committee conducts a more intensive review and screening. This committee comprises representatives from DBHDS, DOC, and the Attorney General’s office. When the committee completes its review, it will write a recommendation stating whether the state should bring a petition before one of the state’s circuit courts seeking civil commitment.

In case the petition is filed, the circuit court in which the petition was filed will hold a probable cause hearing within ninety days. If the court establishes probable cause to trust that you’re a sexually violent offender, it will conduct a trial within a hundred and twenty days. If the jury/judge establishes that you are a sexually violent offender, it will then decide whether to release you under given conditions or civilly commit you for inpatient treatment.

During all trials and hearings, you’re afforded particular protections and rights, including the entitlement to:

Be adequately notified of the proceedings,
Court-appointed lawyer
To testify or remain silent.
Attend the trial or hearing.
Cross-examine the witnesses
Present proof

Additionally, you have the right to a qualified court-appointed psychiatrist or psychologist to help at trial.

If you’re civilly committed, you’re placed in an intensive, secure, inpatient sexual offender treatment course at one of the facilities managed by DBHDS. You have the right to a yearly review hearing each year for the first five years and every two years after that. During every review, the judge has to decide whether you’re still a sexually violent offender and whether you still need supervised inpatient treatment. You have the right to the help of an expert appointed by the court for the yearly review hearings.

Discharge from the Facility

In case the court finds that you’re no longer a threat to society, you could be conditionally discharged from the treatment program. What happens is you are monitored according to a conditional discharge plan devised by the DBHDS and court-approved. Supervision includes using a GPS-enabled. You can also be directly supervised by a parole and probation officer who report your compliance and behavior to the court every six months at the minimum.

But first, before your discharge, a petition has to be filed in court explaining that you are capable of going back to society. In most cases, a hearing is conducted to establish whether you can be allowed to return to the community or not. If the judge rules that you are not a sexual threat to others anymore, you’ll be released right away.

If you violate the conditional release laid down terms, you may be rearrested, your conditional release canceled, and be committed to a DBHDS facility.

The Newly-Proposed Bill Seeks to End Civil Commitment of Sex Offenders

Virginia law on civilly committing sexually violent predators has existed for 22 years but is bound to be done away with if the new proposed bill is signed into law. Virginia legislators Del. Patrick Hope and Senator Joe Morrissey are co-sponsoring a bill that seeks to have the civil commitment law repealed. Critics argue that the civil commitment law is fundamentally unfair and violates the legal prohibition against punishing a person twice for the same offense. On the other hand, supporters say that the law protects society from habitual offenders incapable of controlling their behavior.

Should the bill sail through and be signed into law, sex offenders won’t have to be held at psychiatric facilities anymore for extended periods or indefinitely if they’re considered sexually violent predators.

Find a Competent Sex Crimes Attorney Near Me

Undergoing mental health evaluation can be disturbing even if you are 100% sure you are in a good mental state. Unfortunately, if the judge has directed that you undergo the assessment, there are no two ways about it. However, the requirement to undergo mental health evaluation can be prevented if you have a competent defense lawyer when facing a sexual offense allegation.

If you face charges in Fairfax or Northern Virginia, reach out to the Virginia Criminal Attorney for legal counsel. Our lawyers will review the facts surrounding your case and build a solid defense strategy so you won’t have to be subjected to mental health evaluation.

And if it comes to it, we’ll also represent you at involuntary civil commitment hearing within circuit courts. The involuntary commitment process isn’t like a criminal proceeding. It has a different standard of proof and looks at various pieces of evidence. We know what the legal standards and burdens of proof are for these hearings. Call us at 703-718-5533 and let us work on achieving the best possible outcome for your case.

Mental Health Evaluations and Sentencing for Sex Offenders

Sentencing for Sex Offenders

Mental Health Evaluations in Detail