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Due Process Clause of the Fifth

In this Criminal case, the Mental Hygiene Law article 10 as applied to persons such as respondent who were convicted of certain designated felonies that were sexually motivated and were committed before the effective date of article 10 (§ 10.03[f], [g] [4] ). Because sexual motivation was not an element of the underlying designated felonies, article 10 requires that the sexual motivation be established at the civil commitment trial (§ 10.07[c] ), where the standard of proof is clear and convincing evidence. Respondent contends that the application of the clear and convincing standard instead of the reasonable doubt standard to the determination of the issue of sexual motivation violates his constitutional rights to due process of law and equal protection of the laws.

A New York Criminal attorney said that, the New York Legislature enacted the Sex Offender Management and Treatment Act. Section 10.01 of the Mental Hygiene Law, entitled “Legislative findings,” states that the Legislature finds “[t]hat recidivistic sex crimes offenders pose a danger to society that should be addressed through comprehensive programs of treatment and management. Civil and criminal processes have distinct but overlapping goals, and both should be part of an integrated approach that is based on evolving scientific understanding, flexible enough to respond to current needs of individual offenders, and sufficient to provide meaningful treatment and to protect the public.”

The specified goals of the legislation were “to protect the public, reduce recidivism and ensure offenders have access to proper treatment”, and the Legislature recognized “[t]hat sex offenders in need of civil commitment are a different population from traditional mental health patients, who have different treatment needs and particular vulnerabilities”.

Pursuant to Mental Hygiene Law § 10.07, a detained sex crimes offender may be civilly committed if it is determined by clear and convincing evidence after a trial that the offender suffers from a mental abnormality, and the court thereafter concludes that the offender is a dangerous sex offender requiring confinement. “A ‘[d]etained sex offender’ means a person who is in the care, custody, control, or supervision of an agency with jurisdiction, with respect to a sex offense or designated felony,” including individuals who have been convicted of a sex offense as defined in section 10.03(p), and those convicted of a designated felony that was sexually motivated and committed prior to the effective date of article 10. A sex crime as defined in section 10.03(p)(1) includes an act or acts that constitute any felony defined in article 130 of the Penal Law, and a designated felony includes burglary in the second degree. “[A] ‘[d]angerous sex offender requiring confinement’ means a person who is a detained sex offender suffering from a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the person is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility”.

At the same time that the Legislature enacted article 10, it created a new crime under article 130 of the Penal Law, entitled sexually motivated felony. That legislation also became effective on April 13, 2007, and subdivision (1) of section 130.91 provides that “[a] person commits a sexually motivated felony when he or she commits [any of the designated felonies set forth in section 10.03(f) ] for the purpose, in whole or substantial part, of his or her own direct sexual gratification.” Those individuals who commit any of the designated felonies after the effective date of article 10 will be included in the scope of article 10 only if they were convicted of the newly enacted sexually motivated felony. For those individuals, the element of sexual motivation, as with any element of a criminal offense, will have to be established beyond a reasonable doubt. With respect to those individuals who committed designated felonies before the effective date of article 10, however, the element of sexual motivation will have to be established at the civil commitment trial, where the applicable standard of proof is the lower clear and convincing standard.

To Be


Sex crimes should not be tolerated since these causes trauma to the victims. Here in Stephen Bilkis and Associates, our New York Sex Crimes lawyers are always ready to hear your dilemma and give their instant advice for your concerns. For other matters, you can also consult our New York Criminal attorneys now, we are very willing to help you in your problems.

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