Expands the definition of "mental abnormality", for purposes of sex offender civil commitment or supervision, to include antisocial or borderline personality disorder, and psychopathy

1 Co-sponsor

• Catharine Young

Title of bill

An act to amend the mental hygiene law, in relation to the department of "mental abnormality" for purposes of civil commitment or supervision of sex offenders

Purpose of the bill

To strengthen the state's civil confinement statute related to the mental abnormality of a defendant

Summary of specific provisions

Section 1 of this bill amends section 10.03(i) of the Mental Hygiene Law to expand the definition of mental abnormality to include a diagnosis of antisocial personality disorder, borderline personality disorder and psychopathy.

Section 2 of the bill states that this Act shall take effect immediately.

Justification

On October 28, 2014, the NY Court of Appeals held in a divided 4-3 opinion that a sex offender's diagnosis of antisocial personality disorder (ASPD) is not a relevant diagnosis in determining whether a sex offender should be civilly confined after serving a sentence of imprisonment. State of New York v. Donald DD, 24 NY3d 174 (NY 2014). The court's holding caused the release from civil confinement of a sex offender who served 6 months imprisonment for rape in the second degree, attempted rape in the second degree, and endangering the welfare of a child. Upon his initial release from incarceration, the sex offender then committed sexual abuse in the second degree.

Based on this court decision, the Office of Mental Health has been forced to release from confinement at least 13 sex offenders diagnosed with APSD, who are now a threat to society.

The court's holding contradicts the opinions of mental health experts and law enforcement officials who believe that in certain cases, sex offenders diagnosed with ASPD have a propensity for sexual misconduct. In fact, courts in other states have repeatedly recognized a diagnosis of ASPD as constitutional grounds for civil confinement of a sex offender. See e.g. Commonwealth v. Mazzarino, 81 Mass. App. Ct. 358, 369-70 (Mass. 2012); In re Detention of Bernard Thorell, 149 Wn.2d 724 (Sup Ct Wash. 2003).

The state of New York must be vigilant in keeping dangerous sex offenders away from the public. Moreover, keeping these sex offenders in civil confinement will ensure that they continue to receive the mental health treatment they need before re-entering society.

Prior legislative history

New bill

Fiscal implications

None

Effective date

Immediately