Virginia’s civil commitment statute, Va. Code § 37.2-910, governs the review and continued commitment of sexually violent predators. This law, crafted to protect the public, sets in motion a process that can confine you indefinitely under the pretext of treatment. At the heart of this system lies the continuation of a secure inpatient treatment hearing, a proceeding that determines whether you remain in state custody.

This designation carries severe consequences, restricting your freedom and shaping how society perceives you. The statute raises fundamental concerns about balancing public safety and individual rights, forcing courts to navigate a complex intersection of psychological assessments and legal arguments. The hearing becomes a battleground where the state’s authority collides with your future, demanding aggressive representation.

If you face this legal challenge, you need experienced attorneys who understand the intricacies of Virginia’s civil commitment laws. We at Virginia Criminal Attorney can provide the aggressive defense and strategic advocacy necessary to challenge the state’s case. We will help protect your rights and fight for your future. This guide explains civil commitment, the hearing process, and your rights.

A History of Civil Commitment in Virginia

Over time, Virginia has developed a history of civil commitment options available to sex offenders. This history begins in the early twentieth century with the “sex psychopath” laws, when lawmakers first attempted to confine individuals believed to be sexually dangerous, not in a criminal sense but rather a civil one. In the 1930s and 1940s, some states already had these laws. Virginia later passed similar laws. The state allowed the confinement of someone labeled as a “sexual psychopath” in a mental institution rather than a prison. In the past, the system emphasized confinement, and now, it has elements of treatment through legislation. The language was vague and allowed indefinite confinement with little chance of treatment.

By the late 1900s, crime rates and panic over violent sex crimes made lawmakers reassess civil commitment laws. According to legal scholar John Q. La Fond, traditional measures of criminal justice did not keep one group of offenders from reoffending, which then led to sexually violent predator (SVP) laws being enacted (La Fond, 2005). In Virginia, this statute led to the codification of SVP statutes under Virginia Code § 37.2-900 et seq. Compared to prior wide-ranging legislations, the SVP legislation targeted a smaller cadre of individuals, which were those diagnosed with mental abnormalities or personality disorders. This shift showed a clearer legal and psychiatric approach that separated SVPs from ordinary offenders.

Landmark court rulings further shaped this transition. In Kansas v. Hendricks (1997), the U.S. Supreme Court upheld the constitutionality of SVP laws. Virginia’s SVP laws mandate confinement, periodic reviews, and requisite treatment. Today, SVP laws require containment plus therapy. The Virginia Center for Behavioral Rehabilitation is an example of a facility of this kind. The increase in sexual crime cases in the 1980s and 1990s, along with public pressure, strengthened the argument for a process that confined the most dangerous offenders who could not be handled through parole or imprisonment alone.

Virginia's SVP laws, particularly § 37.2-910, are quite different today. Earlier laws for 'sex psychopaths' were arbitrary, but current ones use clear evidence and have continuation hearings and a periodic review by the court. These guarantees ensure that the defendant receives their day in court. Furthermore, they highlight the function of the law in getting treatment for the offender. The changes in civil commitment in Virginia show that they put a lot of thought into balancing justice and public safety and using the laws to address sexual violence and rehabilitation.

Virginia's Sexually Violent Predator Laws

Virginia’s Sexually Violent Predator (SVP) laws, outlined in Va. Code § 37.2-900, offer a legal means of identifying and managing individuals who are likely to re-offend sexually due to mental illness. If you fulfill the criteria outlined in this statute, the state could subject you to civil commitment. In other words, the state could confine you to protect the public and provide you with treatment. The law is designed for offenders with a history and diagnosis of mental illness, which results in the likelihood of future sexual violence. As a result, only the most dangerous offenders face indefinite confinement and treatment.

To be regarded as a sexually violent predator in Virginia, you must meet two necessary conditions.

  1. Qualifying Criminal History

You must have either:

  • A conviction for a sexually violent offense
  • Been charged with a sexually violent offense but found incompetent to stand trial

According to Virginia law, a sexually violent offense is any one of the following:

  • Rape (Va. Code § 18.2-61)
  • Forcible sodomy (Va. Code § 18.2-67.1)
  • The use of an object for sexual penetration (Va. Code § 18.2-67.2)
  • Aggravated sexual battery (Va. Code § 18.2-67.3)

The violent act is harassment and coercing someone to have your way. Further, a violent act that uses intimidating tactics.

  1. A Mental Abnormality or Personality Disorder

You must have a mental disorder that weakens or renders ineffective your ability to control your sexually violent behavior. This classification targets disorders that affect volitional control, such as:

  • Antisocial personality disorder
  • Paraphilic disorders, for example, pedophilic disorder

The courts will rely on psychological assessments to see if your condition poses a continuing risk for you. In Kansas v. Hendricks (1997), the U.S. Supreme Court upheld SD laws, ruling that these laws apply to anyone whose condition prevents them from controlling their future behavior. Experts emphasize that evaluators assess whether the patient engages in a pattern of predatory behavior rather than impulsive acts that prevent them from controlling their future behavior. Experts underline that evaluators evaluate whether the patient participates in a pattern of predatory behavior rather than impulsive acts.

The purpose of the SVP designation is not simply punishment, as it also protects the public and allows for rehabilitation if the state commits you under Va. Code § 37.2-910. If the state sends you to a facility, you will go to a secured facility, like the Virginia Center for Behavioral Rehabilitation. While you would be incarcerated differently, you would have to participate in therapy to address the underlying risks and lower your reoffending.

If you are deemed an SVP and ordered to civil commitment, this SVP designation will last indefinitely but will be subject to periodic review. The courts check if confinement is necessary and if due process protections are in place. These cases are evaluated much like those of individuals facing an involuntary civil commitment, which is done periodically.

The Process of Evaluating and Committing Sexually Violent Predators in Virginia - Virginia Code Title 37.2, Chapter 9

In Virginia, if you are facing possible commitment as a sexually violent predator, you will go through a structured process that is governed by Va. Code § 37.2-900 et seq. This system ensures only those who have a high risk of reoffending based on their history and any mental abnormalities stay locked up to receive treatment. There are procedure phases, from the Department of Corrections (DOC) screens to the court determination.

DOC Registry and Initial Screening

As you are near release from incarceration, the DOC will review your history to determine whether you are an SVP. The DOC keeps a list of people who were found guilty of sexually violent crimes like rape, forcible sodomy and aggravated sexual battery.

Before your release, you will be screened using the Rapid Risk Assessment for Sexual Offender Recidivism (RRASOR) test. This test evaluates static risk factors. These include:

  • Your past sexual offenses and their frequencies
  • Your age at the time of the assessment
  • Your victim’s characteristics, including their gender and age
  • Your relationship with the offender

The RRASOR provides an individual with a risk score from 0 to 6, which indicates a probability of recidivism over 10 years. The RRASOR determines comparative risk but not as a comprehensive evaluation of all factors relevant to predicting sexual reoffending.

The Department of Corrections' sexual predator registry undergoes continuous review. Offenders identified with an RRASOR score (or similar instrument rating) of four or higher are scheduled for release within ten months. The department prepares all the files, along with the offenders’ file and projected release date, which are then sent to the Commitment Review Committee.

The RRASOR merely supplies one piece of the puzzle of risk for re-offending, and it does not include treatment progress or changes in mental health. Because of this, a high RRASOR score serves as a signal, which may lead to further, more comprehensive evaluations and possible civil commitment hearings.

Referral to the Commitment Review Committee

If your case is selected for further review, it goes before the Commitment Review Committee (CRC). This committee comprises mental health professionals and lawyers who conduct a deeper evaluation. This stage involves:

  • A full review of your criminal and institutional records
  • Psychological assessments by qualified evaluators

The purpose of the interview is to decide whether you suffer from a mental abnormality or personality disorder so severe that you lack the ability to control your sexually violent behavior.

The CRC helps identify which people are SVPs and which ones are not. This means they assess not just your past crimes but also your current mental state and behavioral tendencies. The CRC will refer your case to the AG’s Office if they determine you meet the SVP definition.

Attorney General’s Decision

After the referral from the Commitment Review Committee, the Office of the Attorney General (OAG) begins a 90-day review period to assess the suggested individual for possible civil commitment as a sexually violent predator. This is per § 19.2-169.3. During this period, the OAG can assess and use various evidentiary materials to make a determination, which may include prosecution documents, post-sentence investigations, and victim impact statements.

This decision depends on multiple factors, including:

  • The severity and nature of your past offenses
  • The strength of the mental health diagnosis supporting the SVP status
  • The chances of committing another sexual crime
  • The availability of treatment resources

If the OAG determines that civil commitment is not warranted, they must inform the Department of Corrections Director and the DMHMRSAS Commissioner. If the attorney general decides you meet the SVP criteria, they will file a petition in circuit court to have you civilly committed.

Court Process and Final Determination

After the attorney general files a petition, the court will hold a probable cause hearing to determine whether there is enough evidence to go to trial. If the judge finds probable cause, the case will go to trial. At that trial, the state must prove through clear and convincing evidence that you meet the SVP criteria. This is a higher standard of proof than the “preponderance of evidence” standard used in most civilian cases. However, it is a lower standard of proof than “beyond a reasonable doubt,” which is necessary for a criminal conviction. The trial's evidence will consist of:

  • Your criminal past
  • A mental illness diagnosis
  • Expert risk evaluations

The judge’s decision to order a civil commitment must be based upon well-grounded evidence.

The court can reach one of three outcomes:

  • Civil commitment — If the court determines that you present a continuing threat, you will undergo confinement at the Virginia Center for Behavioral Rehabilitation (VCBR) and be subject to mandatory treatment. You will receive structured therapy to help you manage your mental disorder and not re-offend.
  • Conditional release — If the court finds you to present a lesser risk, you could be placed under strict conditions in the community, with mandatory treatment and monitoring.
  • Full release — If the state does not prove its case against you, you will be released without restrictions.

Virginia’s SVP process combines legal evaluation and clinical assessment to ensure the confinement of only individuals with a continuing threat.

The objective is to ensure public safety and provide treatment that will prevent future offending. If you are committed, you will have chances to show progress through therapy and yearly evaluations to eventually get out. However, you will remain civilly committed until you no longer meet the SVP requirements, with ongoing treatment and monitoring efforts.

Constitutional Rights in the Process

Virginia’s civil commitment process seeks to balance public safety and the civil liberties of persons labelled as Sexually Violent Predators (S.V.P.s). The law grants important rights and protections to ensure fairness and due process at the various stages of the proceedings, including during the probable cause hearing, trial, and continuation review. These rights include:

Right to an Attorney

The right to legal representation is very important. A knowledgeable lawyer will help you navigate the complexities of these SVP cases. From the filing of the petitions and through the often-contentious recommitment hearings, an attorney helps fight against potential confinement.

If you cannot afford a lawyer, you can request that the court appoint one. The court usually appoints a public defender after the Attorney General files a petition. The process begins with a financial assessment to see if you qualify, thus making sure you have access to an attorney who will fight the state’s case.

Right to Be Notified of the Proceedings

You also have the right to be promptly notified of the proceeding. You should obtain written notice at least thirty days before the continuation hearing of the date, time, place, and purpose, per Va. Code § 37.2-906. This also applies to the initial hearing so that you will be adequately informed and have adequate time to consult counsel and prepare the defense.

Right to Silence

The right against self-incrimination under the Fifth Amendment applies in SVP proceedings even though it is civil. Knowing this information can impact the commitment decision, you can remain silent. It is important to have counsel before engaging with state evaluators about mental state.

Right to Attend the Hearing

You have the right to be present at all hearings in person, or by video link ensures that a person can attend and participate in any decision affecting their liberty. While Va. According to Code § 37.2-910,  you could join from secure facilities like the Virginia Center for Behavioral Rehabilitation (VCBR). However, security may restrict you from attending in person. Nevertheless, being part of the meeting allows me to hear and respond to the state.

Right to Present Evidence and Cross-Examine Witnesses

You have a right to present evidence and cross-examine witnesses. This right allows the introduction of treatment records or expert testimony to refute the state’s assertion. Having the opportunity to cross-examine state witnesses like psychologists will help you challenge the validity of the assessment.

Right to a Jury Trial

Furthermore, you can request a jury trial according to § 37.2-908, transferring the decision-making authority from a judge to a jury. Although a jury could be sympathetic and decide to release you, jurors can be unpredictable. This unpredictability must be weighed against the legal expertise of a judge. Your attorney will advise you on a jury trial's possible upsides and downsides.

Right to Appeal

They have the right to appeal an adverse ruling. You can appeal to a higher court if there is a commitment after the hearing or trial. The commitment process starts with filing a notice of appeal within 30 days to check for legal errors and whether the evidence was sufficient.

Continuation Hearings - Va. Code § 37.2-910

Virginia’s SVP framework, as outlined in Va. Code § 37.2-900 et seq. (2021), is not limited to initial commitment but furthers an ongoing review and release process to ensure confinement is justified and offers avenues to release.

Hearings on continuation evaluate whether secure inpatient treatment at the Virginia Center for Behavioral Rehabilitation (VCBR) is still necessary, as well as conditional release and full discharge options. This evaluation determines whether the SVP still needs inpatient treatment. They help avoid indefinite confinement. These hearings occur once a year during the first five years post-commitment, then once every two years. The process involves the following:

  • Commissioner’s review submission — The Commissioner of the Department of Behavioral Health and Developmental Services (DBHDS) submits a report to the circuit court. The review includes VCBR evaluations concerning the SVP's mental health, treatment progress, and risk of recidivism.
  • Commonwealth’s burden of proof — It is the responsibility of the Commonwealth to prove by clear and convincing evidence that the individual is still a sexually violent predator (SVP). In other words, the state must demonstrate that the individual possesses a mental abnormality and that the individual is still a continuing danger to the community.
  • Independent evaluation option — Defendants can ask for an independent evaluation from an independent evaluator. This allows the defendant to contest the VCBR's findings, which could alter the outcome.

VCBR reports, produced annually or every two years, must document the person’s participation in therapy and changes in behavior. This report is the primary evidence presented to the court. If VCBR reports indicate an ongoing risk but an independent assessment shows progress, the court could reconsider continued confinement. This dual-input system ensures a fair and thorough review.

Conditional Release for Sexually Violent Predators in Virginia

You could seek conditional release at your first SVP hearing or during recommitment hearings. Va. Code § 37.2-912 offers a supervised move out of VCBR confinement. For the individual to receive conditional release, services like therapy or monitoring must be available in the community. Moreover, the person must prove they will follow the rules and pose no undue threat to the public. Some important considerations are housing stability (preferably not near schools or parks), jobs, and community support.

After being released, supervision is intense and could involve GPS tracking, polygraph tests, and frequent check-ins. If you violate these conditions, like missing your therapy sessions, you could receive an emergency custody order to take you back to VCBR. Regular assessments check on compliance with the rules so that there is a balance between individual freedom and community safety.

Petitioning for Full Release from SVP Designation

If granted, as an SVP, you can petition the court to offer a full release from your designation. If there is evidence that you no longer meet the SVP criteria, the DBHDS Commissioner may petition for conditional or complete discharge. Moreover, during the intervals between recommitment hearings, you can make an annual petition, providing flexibility beyond the five-yearly and subsequent biennial reviews. This process requires proof of sustained improvement, typically documented in VCBR reports or independent evaluations, showing that the mental abnormality no longer poses a predatory risk.

Find a Criminal Defense Attorney Near Me

Navigating a review of the continuation of secure inpatient treatment hearing under Virginia Code § 37.2-910 can be overwhelming without a lawyer. Your secure inpatient treatment will be continued if you win the hearing, which could affect your freedom. Because of the legal and medical complexities involved, it is hard to advocate for yourself.

A lawyer will present your case more strongly through crucial evidence, cross-examine the witnesses in court, and ensure your rights are protected.

At Virginia Criminal Attorney, we know the risks and are fully committed to achieving your best possible outcome. We will fight to ensure you are treated fairly and given the least restrictive option. Contact us today at 703-718-5533 for experienced legal representation and guidance through the process.