Criminal Lawyers in New Jersey

SVPA is the acronym for the New Jersey Sexually Violent Predator Act. It became effective on August 12, 1999. Its statutory provisions begin at N.J.S. 30:4-27.24.

New Jersey's legislature justified creation of the SVPA by declaring existence of persons with mental abnormalities who, unless “treated,” are likely to commit offenses characterized by repeated acts of “predatory sexual violence”. Statutory provisions for involuntary commitment of persons deemed mentally ill already existed. But the persons “likely to engage in repeat acts of predatory sexual violence” unless treated did not fit within New Jersey's preexisting definition of persons deemed mentally ill. Accordingly, New Jersey's legislature enacted the SVPA to enable institutionalization of persons deemed to be within that category. In fact, persons covered by the SVPA are deemed to be so dangerous to others that they are housed in facilities separate from persons with traditional mental illness.

To become subjected to New Jersey's SVPA, a person must be found to have committed a sexually violent offense. This finding must be made by evidence that is “clear and convincing.” “Sexually violent offense” is defined as any of the following:

• Aggravated sexual assault;
   
• Sexual assault;
   
• Aggravated criminal sexual contact;
   
• Kidnaping, where the victim is a minor and any of various sexually-related crimes, or crimes involving child pornography, are perpetrated. (The specific statutory reference is subparagraph (b) of paragraph (2) of subsection c. of N.J.S. 2C:13-1);
   
• Criminal sexual contact;
   
• Felony murder if the underlying crime is sexual assault;
   
• An attempt to commit any of these enumerated offenses;
   
• Any criminal offense having substantially the same elements as any offense listed above under the laws of the United States or any other state;
   
• Any offense for which the court finds that the person's offense should be considered a sexually violent offense.
   

Federal courts in New Jersey, and the United States Court of Appeals for the Third Circuit have interpreted the SVPA to be a civil proceding, and not punitive. As a result, these courts have ruled that various constitutional protections available to defendants in criminal proceedings are not available to SVPA defendants. Rights not available to SVPA defendants are the following:

• Trial by jury;
   
• Miranda warnings;
   
• Not being subjected to ex post facto laws.
   

However, N.J.S. 30:4-27.31 recognizes a few rights for persons accused of being a sexually violent predator. They are:

• The right to be represented by counsel or, if indigent, by appointed counsel;
   
• The right to be present at the court hearing unless the court determines that because of the person's conduct at the court hearing the proceeding cannot reasonably continue while the person is present;
   
• The right to present evidence;
   
• The right to cross-examine witnesses;
   
• The right to a court review every twelve months or sooner, to determine whether involuntary commitment is to be continued; and
   
• The right to to have the public excluded from the proceedings (hearing in camera).

New Jersey Attorney James Maynard explains the process whereby someone becomes subject to the SVPA:

The screening procedures employed by the New Jersey Attorney General's office to identify inmates with sex offenses who are maxing out, and for whom, the AG's Office should seek temporary orders of commitment as an SVP, are a bit of a black box. There are no published regulations governing the process. What we do know is that anyone convicted of a sex offense enumerated in the Sexually Violent Predator act, who is within six months of release from incarceration, is screened by a staff psychologist at the DOC facility where they are being housed. The evaluation typically includes administration of a risk assessment scale, such as the Static 99R, a review of treatment records for the inmate, and history of disciplinary infractions, as well as the results of an interview of the inmate by the psychologist. The resulting evaluative report is submitted to the AG’s office which then makes a determination as to whether to have the inmate formally screened by at least two state psychiatrists to determine if the inmate satisfies the statutory definition of SVP. If the two psychiatrists agree that the inmate is an SVP, the AG petitions the Superior Court for a temporary order of commitment which the inmate can seek to oppose (however, such a challenge almost never succeeds). If the two psychiatrists agree the inmate is not an SVP, then that usually ends the matter, although on a few rare occasions that we’re aware of, the AG has the inmate evaluated again by another 2 psychiatrists. If the two psychiatrists disagree as to whether the inmate is an SVP, the AG will have the inmate evaluated by a third psychiatrist as a tie breaker. How the AG decides who should be screened by the two psychiatrists is unknown at this time.

Persons committed pursuant to SVPA are entitled to treatment. The treatment plan must be individualized to meet their specific needs. The treatment team can recommend discharge from involuntary commitment status any time the team determines that the person is not likely to engage in acts of sexual violence if released. The treatment team can also recommend, and the court may impose, requirements for ongoing treatment following release.

Allan Marain has been representing persons charged with sexual offenses in New Jersey for over forty-five years. He knows his way around. He is available to amass evidence supporting termination of SVPA status and, for that matter, to prevent persons from being subjected to the horrors of SVPA in the first place.

Call him!