In re W.W.

• Citation: 246 A.3d 219,245 N.J. 438
• Decision Date: 11 March 2021
• Docket Number: 083890,A-63 September Term 2019
• Parties: In the MATTER OF the Civil COMMITMENT OF W.W., SVP-86-00.
• Court: United States State Supreme Court (New Jersey)

245 N.J. 438

246 A.3d 219

In the MATTER OF the Civil COMMITMENT OF W.W., SVP-86-00.

A-63 September Term 2019

083890

Supreme Court of New Jersey.

Argued November 9, 2020

Decided March 11, 2021

Susan Remis Silver, Assistant Deputy Public Defender, argued the cause for appellant W.W. (Joseph E. Krakora, Public Defender, attorney; Susan Remis Silver, on the briefs).

Stephen Slocum, Deputy Attorney General, argued the cause for respondent State of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel, and Stephen Slocum, on the brief).

Tess Borden argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey Foundation, attorneys; Tess Borden, Alexander Shalom, Newark, and Jeanne LoCicero, on the brief).

JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.

The New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, requires an annual review hearing to assess the continuing need for the involuntary commitment of a convicted sexually violent offender. The statute directs that a psychiatrist "shall testify at the hearing to the clinical basis for the need for involuntary commitment as a sexually violent predator." N.J.S.A. 30:4-27.30(b). The issue in this appeal is whether the State must present such testimony in order to support commitment, or whether the State can nevertheless meet its burden to show the need for continued commitment despite producing a psychiatrist who does not support commitment.

Here, the State produced a psychiatrist who recommended conditional discharge rather than commitment. Based on testimony by the State's other expert, a psychologist, the trial court ordered the continued commitment of W.W. The Appellate Division affirmed, finding that the trial court was not required to accept the psychiatrist's opinion because commitment decisions are legal ones, not medical ones.

We disagree with the Appellate Division's findings. We conclude that the plain language of N.J.S.A. 30:4-27.30(b) requires the State to produce psychiatric testimony in support of commitment, and such a reading is supported by the legislative history and statutory scheme of the SVPA.

Therefore, we reverse the judgment of the Appellate Division and remand for a rehearing.

I.

A.

We begin by summarizing the pertinent facts and procedural history. In 1994, W.W. was arrested and charged with sexual assault and aggravated sexual assault for events that occurred over a period of four months in 1993. W.W. admitted to sexually assaulting a five-year-old girl who lived at his mother's house, touching her breasts and vaginal area, performing cunnilingus on her, and masturbating in his pants.

W.W. pled guilty to sexual assault and was sentenced to seven years’ imprisonment. An evaluation found that W.W. met the requirements of the New Jersey Sex Offender Act, and that he was eligible for treatment at the Adult and Diagnostic Treatment Center, where he served five years of his seven-year sentence.

On May 30, 2000, the State petitioned to civilly commit W.W. under the SVPA. On October 27, 2000, W.W. was committed to a Special Treatment Unit (STU), where he has been for approximately twenty years. At the time W.W. was evaluated by the experts in this case, he was seventy-one years old.

While committed, W.W. "disclosed a longstanding history of exhibitionism, voyeurism, and stalking behavior." He reported driving around naked and described a "long-standing sexual fantasy of driving in his car naked and picking up a small female child to molest." He also reported a fantasy in which he would kill his victim to avoid being caught, although his treatment team reported that he has since downplayed that statement.

W.W. also revealed three other previously unreported victims in incidents that occurred when W.W. was nineteen, twenty-seven, and forty-three-years-old, respectively. The first victim was a five-year-old girl W.W.’s mother was babysitting. W.W. reported bouncing her on his knee, being aroused, and masturbating that night. The second was his neighbor's daughter, who was between five and eight years old. W.W. disclosed that he had her come to his house and "lay down on the living room floor with her back toward him," while he masturbated. W.W. wanted the girl to touch him, but stopped when her siblings knocked on the door. The third was a five- to eight-year-old girl who sat on W.W.’s knee at church while he fondled her chest. W.W. reported that he then masturbated while thinking of her that night.

In June 2011, his treatment team recommended W.W. begin furloughs. However, shortly after they began, he failed a polygraph examination. W.W. admitted he had been masturbating to thoughts of a young girl he had seen in a mall. He added that he had been fantasizing about seeing a young girl and sexualizing her for years. Following those admissions, W.W.’s furloughs were terminated. He acknowledged to his treatment team that he chose not to use the relapse prevention techniques he was taught.

B.

W.W.’s review hearing required by the SVPA was conducted on January 10 and 23, 2019. The State proposed to present expert testimony from psychiatrist Dr. Marta Scott and psychologist Dr. Jamie Canataro. W.W. did not present any witnesses, nor did he testify.

On the first day of the hearing, the State recognized that its two experts were going to present conflicting opinions on W.W.’s risk of reoffending and whether he should remain committed. Dr. Scott recommended conditional discharge, while Dr. Canataro concluded further commitment was appropriate. As a result of that conflict and Dr. Scott's adverse testimony, the State informed the trial court that Dr. Scott would not be the State's witness. The trial court rejected the State's attempt, telling the State that "[i]t's your obligation under the statute to produce psychiatric testimony. ... If you don't do that, you can't possibly prevail."

The State then called Dr. Scott, the psychiatrist who recommended that W.W. be conditionally discharged. Dr. Scott's testimony centered around her opinion that W.W.’s "tendency to say things that he doesn't mean when angry," cognitive difficulties, and "low average" IQ all led to a number of confusing reports, including about whether and under what circumstances W.W. experiences arousal and whether he felt he could refrain from reoffending.

Dr. Scott testified that W.W. "demonstrates a great deal of confusion" in describing his arousal or lack thereof. She referred to a roleplay where W.W. did not experience an erection, yet, after the group purported to observe his sexual interest, W.W. acknowledged that he was aroused. She also testified about a period in which W.W. was placed on probation as a result of stating that he was not able to refrain from reoffending and that he was glad that he would not be discharged from the STU. Dr. Scott questioned the validity of those statements.

In her conclusion, Dr. Scott diagnosed W.W. with pedophilic disorder and borderline intellectual functioning. Regarding his risk to sexually reoffend, Dr. Scott found that "the likelihood of him committing another contact offense does not meet the threshold of highly likely," and recommended conditional discharge. Dr. Scott testified that the most important factor in her analysis was W.W.’s age, which resulted in his "declining sexual drive, increased self-control, and decreased access to victims." Dr. Scott also testified that W.W. took a combination of Prozac

and Proscar or Finasteride, which reportedly "significantly decreased his sexual urges."

On the second day of the hearing, the State presented a psychologist, Dr. Canataro, who testified in support of commitment. Dr. Canataro's testimony centered around W.W.’s strong arousal, inability or unwillingness to use intervention techniques, and obsessiveness over victims he never made contact with, all despite twenty years of treatment. Dr. Canataro emphasized W.W.’s "longstanding arousal pattern" with victims exclusively between the ages of five and eight. She testified that this arousal remains strong even in W.W.’s advanced age and after years of treatment. For example, Dr. Canataro testified to stopping a discussion about a female child because "[W.W.] became so sexually aroused that it interfered with the interview." She also detailed a time during a roleplay in which W.W.’s arousal was so strong that he chose not to implement the intervention techniques he had learned.

In response to Dr. Scott's recommendation of conditional discharge, Dr. Canataro pointed out that the same conditions were available when W.W. was on furlough in 2008. She emphasized that, even under those conditions, W.W. reported masturbating on multiple occasions to a young girl he saw for only an instant at the mall. Dr. Canataro testified that it was important for her to inform the court that W.W.’s only intervention technique is abstinence. She testified that "[h]e cannot refrain. We're basically asking him to extinguish, give up his total sexual identity," which is not a reasonable long-term solution.

In support of her recommendation, Dr. Canataro testified that if W.W. is not recommitted to the STU, his risk to sexually reoffend is high. She diagnosed W.W. with pedophilic disorder, voyeuristic disorder, sexual masochistic disorder, and borderline intellectual functioning.

The trial court issued its oral decision on January 28, 2019, finding the need to continue W.W.’s commitment. It concluded that neither the State nor the court was bound by the testimony of the State's psychiatrist. Unpersuaded by Dr. Scott's reliance on W.W.’s age and conditions to reduce his risk, the trial court credited Dr. Canataro's testimony.

The Appellate Division affirmed. Specifically addressing W.W.’s argument that the State failed to meet its burden because its psychiatrist did not support commitment, the Appellate Division reasoned that "the trial...