Diamond v. Kenley, Civ. A. No. 80-0005-R.
| Decision Date | 01 June 1981 |
| Docket Number | Civ. A. No. 80-0005-R. |
| Citation | 515 F. Supp. 1165 |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | Garry L. DIAMOND v. James B. KENLEY, M. D., et al. |
Malcolm Pitt Friddell, Richmond, Va., for plaintiff.
Paul A. Sinclair, Asst. Atty. Gen., Richmond, Va., for defendants.
At the trial of this action held on 6 April 1981, the Court requested the parties to file post-trial briefs on the issues which the Court considered to be seriously in dispute. The post-trial briefing has now been completed and this case is ripe for review.
The facts of this case may be briefly stated. On 31 January 1977 the Circuit Court of Prince William County convicted the plaintiff of abduction, rape, and sodomy. The plaintiff was thereupon sentenced to 25 years imprisonment, 10 years of which were suspended, and he was placed in the custody of the Virginia Department of Corrections.
On or about 5 January 1979, the plaintiff enrolled with 18 other inmates at the Virginia State Penitentiary in a rehabilitative training program entitled "Care and Transportation of the Sick and Injured." Testimony offered at trial showed that this rehabilitative training program was designed to prepare the participants to take any tests required for certification in and to obtain employment as Emergency Medical Technicians (EMT's). Dr. Loren G. Martin, who developed and supervised the training program, states in his de bene esse deposition that prior to offering the course to the inmates he personally contacted a representative of the Virginia State Department of Emergency Medical Services to discuss the requirements for certification as an EMT in the State of Virginia. Dr. Martin was informed at that time that as a requirement for certification the program would have to enlist the participation of State approved instructors. Qualified instructors from three Richmond area rescue squads thereafter participated in training the inmates.
After completing the training program, the plaintiff and the 18 other inmates applied to the National Registry of Emergency Medical Technicians for testing and national certification as EMT's. The National Registry approved all 19 applications from the inmates, and each inmate took and passed the required test for certification as an EMT. On 6 June 1979 the National Registry conferred on the plaintiff and the other 18 inmates provisional registration as nationally certified EMT's.
Only at the end of the training course did Dr. Martin become aware that certain rules adopted by the Board of Health of the Commonwealth of Virginia prohibited State certification as an EMT of any person who had at any time been "convicted of a felony involving any sexual crime." Section 5.01.01(f) of the Board's Rule and Regulations Governing Emergency Medical Services establishes as a general requirement for certification as an EMT that the person never have been convicted of a felony involving any sexual crime. Section A.6.(e) of the Procedures and Guidelines for Instructors in Emergency Medical Technician Programs further provides that persons convicted of a felony involving any sexual crime are not eligible to attend the basic EMT training course. Section 6.02.02 of the Rules and Regulations incorporates by reference the restriction on eligibility for training programs set forth in § A.6(e). The Board's regulations, however, permit persons in disqualified categories to apply for an exemption in accordance with the procedure set forth in § 7.03 of the Rules and Regulations Governing Emergency Medical Services.
On 5 September 1979, the plaintiff and the 18 other inmates applied to the Virginia Department of Health seeking conferral of Equivalent Reciprocal Training Certificates which would permit them to be certified as EMT's in the Commonwealth of Virginia. The plaintiff enclosed with his application a request for exemption from § 6.02.02 of the Rules and Regulations and § A.6(e).
On the basis of § A.6.(e), the defendant members of the State Board of Health voted to deny the plaintiff's requested exemption and also the requested exemption of seven other similarly situated inmates. This occurred on 22 October 1979. Eleven inmates who had not been convicted of a felony involving a sexual crime or a drug-related offense received their Equivalent Reciprocal Training Certificates, however.
The plaintiff now contends, on a number of grounds, that the denial of the training certification, which had the ultimate effect of denying certification as an EMT, violated his constitutional rights. The plaintiff suggests, first, that the challenged regulations are unconstitutionally over-inclusive in that they fail to differentiate between "rehabilitated" and "unrehabilitated" sex offenders. He includes himself within the class of rehabilitated sex offenders, and he argues that — assuming there is a valid reason for disqualifying certain sex offenders — there is no reason to disqualify him since he no longer poses a risk to society.
There was no evidence presented at trial from which the Court can conclude that the plaintiff is "rehabilitated." The plaintiff sought to obtain evidence to this effect from the counselor who supervised the plaintiff at the State Penitentiary. The counselor was sincerely convinced that his own efforts and those of the plaintiff had worked a transformation, so that the plaintiff could be declared to be rehabilitated. The Court could not permit the introduction of the counselor's conclusion, however, because the counselor had not been qualified to testify as an expert regarding the plaintiff's rehabilitation.
Indeed, there was no showing at trial that any sure predictive means exists for determining that a prisoner has been rehabilitated. The Court doubts that such a means does exist. A propensity to crime cannot be explained solely as detectable and correctable "errors of thinking," as the counselor proposed at trial. Man is not a machine which, when it malfunctions, can be tinkered with, repaired, and confidently put back into operation. While the Court hopes that the plaintiff has rehabilitated himself, that cannot be accepted as a proven — or provable — fact.1 The plaintiff's claim that the regulations are overinclusive will accordingly be dismissed.
The plaintiff next contends that the challenged regulations violate his rights under the Fourteenth Amendment Due Process Clause in that they impose a requirement for training and certification which has no rational connection with one's fitness or capacity to be an Emergency Medical Technician. In the presentation of evidence and in his argument to the Court at trial, the plaintiff stressed the deposition testimony of Richard K. Seely, Director of the Intensive Treatment Program for Sexual Aggressives at the Minnesota Security Hospital, and that of Dr. Seymour L. Halleck, Professor of Psychiatry at the University of North Carolina. Both Dr. Halleck and Mr. Seely stated that individuals who have previously been convicted of rape will not likely be stimulated to rape if required to perform the tasks of mouth-to-mouth resuscitation or cardiopulmonary resuscitation. Dr. Halleck stated that "in the majority of instances" a healthy and conscious female would be a more desirable target for a rapist than an incapacitated, unconscious, sick, or injured female. Mr. Seely concurred in this view, stating that "it would be extremely rare that a person would view an incapacitated, unconscious, sick or injured female as a potential victim of sexual assault." When asked whether he felt any aspect of the job as an EMT might render that job unsuitable for a former sex offender, Dr. Halleck responded:
If the former sex offender still has impulses to rape, any job which puts him in contact with other people may increase the likelihood of his committing a sex offense. I do not believe the medical technician role would be any more risky than other jobs such as salesperson which would put the ex sex offender in contact with possible victims.
The defendants did not introduce evidence to contradict the conclusions of Dr. Halleck and Mr. Seely recited above.
While it will accept all of Dr. Halleck's and Mr. Seely's conclusions as reliable and valid, as it must under the state of the facts, the Court finds that those conclusions do not demonstrate that the Commonwealth of Virginia has no good reason to disqualify sex offenders from serving as EMT's. Dr. Halleck's and Mr. Seely's conclusions are couched in cautionary phrases, such as "it is likely that ...," "in the majority of instances," and "it would be extremely rare for...." The Virginia Board of Health, however, cannot enact one set of regulations for "the majority of instances" and another for the "extremely rare" circumstance. In 1969, the Board was called upon to determine whether as a general rule sex offenders ought to be certified to perform the services of an EMT. The Board decided to prohibit certification of sex offenders, and the Court finds, on the basis of plaintiff's experts' testimony, that this decision is not without a rational basis.
As indicated above, at trial the plaintiff offered no ready means to distinguish between the sex offender who will rape again and the sex offender who will not. Dr. Halleck, in his deposition on the plaintiff's behalf, acknowledged that the sex offender who maintains his impulse to rape may pose a risk if his job brings him into contact with other people. Dr. Halleck obviously reasoned, however, that all, or nearly all, jobs involve contact with other people, so Dr. Halleck concluded that a sex offender's employment or voluntary service as an EMT would be "no more risky" than his employment as a salesman. This may be true, but it does not establish that when the State denies certification as an EMT it acts arbitrarily. On the contrary, the State is in no different position than the shop owner who decides that, all things considered,...
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