Tilley v. United States

• Decision Date: 01 October 2020
• Docket Number: Nos. 15-CO-38 & 15-CO-240,s. 15-CO-38 & 15-CO-240
• Parties: Donnell TILLEY, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

238 A.3d 961

Donnell TILLEY, Appellant,

v.UNITED STATES, Appellee.

Nos. 15-CO-38 & 15-CO-240

District of Columbia Court of Appeals.

Argued September 27, 2017

Decided October 1, 2020

Adam G. Thompson, Public Defender Service, with whom Samia Fam, Public Defender Service, was on the brief, for appellant.

James A. Ewing, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney at the time the brief was filed, and Elizabeth Trosman and Colleen Kennedy, Assistant United States Attorneys, were on the brief, for appellee.

Before Blackburne-Rigsby, Chief Judge, and Glickman and Thompson, Associate Judges.

Dissenting opinion by Associate Judge Thompson at page 979.

Glickman, Associate Judge:

Donnell Tilley appeals an order of the Superior Court civilly committing him indefinitely to St. Elizabeths Hospital, a mental institution, under the District of Columbia's seventy-year-old Sexual Psychopath Act (the SPA).¹ Mr. Tilley contends that his commitment – which was not based on any finding of a dangerous mental illness, mental disorder, or other mental abnormality – must be vacated because the SPA is unconstitutional both on its face and as applied to him, and because the evidence did not support the finding that he is a "sexual psychopath" within the meaning of the SPA.

The SPA provides for the involuntary, indefinite civil confinement in a mental institution of persons who are "not insane" but are thought to be too dangerous to remain at large based on their "course of repeated misconduct in sexual matters."² The statute provides for confinement of such persons as "sexual psychopaths" without proof that they have any mental disorder or abnormality; instead, "not insane" has been construed to impose the condition that they not be mentally ill. For this and other reasons, the SPA's constitutionality has long been in doubt; fifty years ago, the United States Court of Appeals for the District of Columbia Circuit observed that the preventive-detention nature of the SPA posed "constitutional issues of the gravest magnitude."³ Until now, however, because of the rarity of commitment proceedings under the SPA, the question of its constitutionality did not come before this court. But the Supreme Court resolved the main issue two decades ago when it held that, to comport with substantive due process, civil commitment of dangerous sex offenders must be limited to those who suffer from a mental disease, mental disorder, or mental abnormality that makes it seriously difficult for them to control their dangerous behavior and be responsible for their sexual misconduct. Based on that precedent, we conclude that the SPA is unconstitutional on its face for the reason that it requires no finding in any case of a mental disease, disorder, or abnormality causing such serious impairment of sex offenders’ ability to control their behavior.

Because we agree that the SPA is unconstitutional on its face, we do not reach Mr. Tilley's other claims.

I.

On March 13, 2009, the United States charged Mr. Tilley by criminal complaint in Superior Court with one count of first-degree child sexual abuse⁴ of his daughter, V.W. After a court-ordered screening, the court found Mr. Tilley incompetent to stand trial and committed him to St. Elizabeths Hospital for treatment to "restore" him to competency. Seventeen months later, after Hospital psychiatrists concluded that Mr. Tilley was intellectually disabled and that further competency treatment would be futile, the court scheduled a Jackson hearing pursuant to D.C. Code § 24-531.06 (2012 Repl.).⁵ Had that hearing been held, and if the court had found that Mr. Tilley would be unlikely to attain competency in the foreseeable future, then § 24-531.06(c)(4) would have required the court to release him unless the government promptly petitioned for his civil commitment on grounds of dangerousness due to mental illness or intellectual disability pursuant to either the Hospitalization of Persons with Mental Illness Act (commonly referred to as the Ervin Act)⁶ or the Citizens with Intellectual Disabilities Act.⁷ Section 24-531.06 does not mention the SPA as providing an alternative civil commitment procedure the government may pursue when a criminal defendant is found to be incompetent.

Mr. Tilley's scheduled Jackson hearing was not held, however, and the court made no determination as to his continuing incompetency to stand trial. Instead, in February 2011, the government filed with the court a statement initiating a proceeding to commit Mr. Tilley under the SPA as a sexual psychopath.⁸ The filing of the statement automatically stayed the criminal proceeding against Mr. Tilley.⁹

The SPA defines a "sexual psychopath" as "a person, not insane, who by a course of repeated misconduct in sexual matters has evidenced such lack of power to control his or her sexual impulses as to be dangerous to other persons because he or she is likely to attack or otherwise inflict injury, loss, pain, or other evil on the objects of his or her desire."¹⁰ The term "sexual psychopath" is not itself a term with a recognized psychiatric or psychological meaning, and its statutory definition does not require a finding of any kind of mental disease, disorder, or abnormality. Rather, as discussed more fully below, the statutory "not insane" condition has been authoritatively construed to require, among other things, a finding that the person is "not mentally ill," with the understanding that "mental illness" is accorded "a liberal construction" coextensive with the scope of that term in the Ervin Act.¹¹ In other words, a person cannot be committed under the SPA if that person's dangerous "lack of power to control his or her sexual impulses" is attributable to mental illness (broadly defined). By its terms, the SPA predicates the "lack of control" finding solely on the "course of repeated misconduct in sexual matters" and not on any disabling mental condition.

The government's February 2011 statement alleged that Mr. Tilley had sexually abused his daughter V.W. on multiple occasions, including the March 2009 incident charged in the indictment. It further alleged that Mr. Tilley previously had abused two other young girls, A.T. and L.T., in 1996, and A.T. again in 1998.¹² In accordance with the procedures outlined in the SPA, the court appointed two psychiatrists to examine Mr. Tilley and evaluate "whether the patient is a sexual psychopath."¹³ In July 2012, the psychiatrists – Dr. Robert T.M. Phillips and Dr. Raymond Patterson – submitted reports concluding that Mr. Tilley was not insane and that he met the statutory criteria for being a sexual psychopath. Upon receiving these reports, the court scheduled an evidentiary hearing on the issue.¹⁴ Prior to the hearing, the government amended its statement to add a charge that Mr. Tilley had abused a young boy, M.C., between 2001 and 2003.

The SPA hearing began on February 22, 2013. Collectively, the four identified victims testified that Mr. Tilley had sexually assaulted them on multiple occasions between 1996 and 2009. Their testimony was corroborated by family members and other witnesses. Based on this evidence, the court found the following facts, which Mr. Tilley disputed below but does not dispute in this appeal. First, on an evening in 1996, Mr. Tilley sexually assaulted nine-year-old A.T. and her cousin, ten-year-old L.T. This incident occurred at their grandmother's house while the girls were sleeping; Mr. Tilley was a family friend whom the children referred to as a "cousin." Second, Mr. Tilley again sexually assaulted A.T. one or two years later. This incident also took place at the grandmother's residence. Third, on multiple occasions between 1997 and 2003, Mr. Tilley sexually assaulted M.C., who was born in 1994. During this period, Mr. Tilley was living with M.C. and his family. Fourth, Mr. Tilley raped his 14-year-old daughter, V.W., while she was visiting him in March 2009.

To establish that Mr. Tilley was a sexual psychopath based on this history of child molestation, the government presented the testimony of the two psychiatrists who had evaluated him.

Dr. Phillips opined that Mr. Tilley met the criteria for being a sexual psychopath because (1) he did not suffer from a psychosis

or other mental illness ("a diagnosis on Axis One"¹⁵ ) and therefore was "not insane" within the meaning of the SPA; and (2) the "pattern" of past sexually abusive behavior shown by the "four allegations" against Mr. Tilley "support[ed] the notion of repetition, compulsion and inability to control the impulse, and the subsequent risk ... to the individuals who are the subject of those actions."

Although Mr. Tilley's IQ testing showed him to have a "mild" intellectual disability, Dr. Phillips said he could not conclude that Mr. Tilley's sexually abusive behavior was a "byproduct" of that disability. Dr. Phillips noted that Mr. Tilley "accommodates very well" and his "functional capacities are certainly ... on the higher end of that diagnosis." Dr. Phillips also was not persuaded that Mr. Tilley met the criteria for a diagnosis of pedophilia, which he said was a personality disorder rather than an Axis I mental illness.¹⁶ But Dr. Phillips considered the "debate" about whether Mr. Tilley had a pedophilic disorder to be "irrelevant" to the issue at hand because the SPA "does not require a finding of pedophilia;" it "really is focused," he said, "on whether or not there's an Axis One diagnosis [which would preclude a sexual psychopathy finding], and whether or not this individual is engaged in repetitive behavior which cannot be controlled." In other words, Dr. Phillips found Mr. Tilley to be a sexual psychopath solely because Mr. Tilley does not suffer from what he considered to be a mental illness for SPA purposes and "his behaviors comport with the statutory scheme." As Dr. Phillips emphasized, "sexual psychopath" is "not a psychiatric diagnosis at all."

Dr. Patterson's testimony generally...