Interesting Threat-of-Future-Bad-Conduct Case

In the Matter of the Detention of Danforth (Wash. Nov. 10, 2011) raises an interesting question about when someone with a history of sex crimes can be coercively incarcerated as a sexually violent predator based on his statement that he is worried that he’ll commit another crime. The facts: Danforth, “a 64-year-old, mildly retarded blind man,” has a long record of sex crimes:

In 1970, he was arrested for sexually abusing four boys between the ages of 7 and 13. Representative of his abuse of the other boys, Danforth put one boy on a bed, moved on top of him, kissed him, touched the boy’s private area, and rubbed the boy’s arm against Danforth’s private area. Danforth was prosecuted for these offenses, but the case was dismissed for a speedy trial violation.

In 1971, Danforth approached a group of young boys at a ballpark and asked them if they wanted to have “sex play.” Danforth was convicted of indecent liberties for this incident. The court ordered that he be sent for treatment at Western State Hospital. After a short time at Western State Hospital, Danforth was found to be not amenable to treatment and was sent to prison.

In August 1987, Danforth asked a 16-year-old boy and his friend to participate in sexual activity. For this incident, he was charged and convicted of two counts of communication with a minor for immoral purposes. The Court of Appeals later reversed the convictions because it held that former RCW 9.68A.090 (1986) was unconstitutionally vague. This court overruled that holding in State v. McNallie, 120 Wn.2d 925, 933, 846 P.2d 1358 (1993) and affirmed the constitutionality of the statute.

Finally, in the summer of 1987, Danforth hit a 12-year-old boy over the head with a rock, forcibly pulled down the boy’s pants and anally raped him, leaving the boy crying behind a theatre. For this, Danforth was convicted of second degree rape and served prison time. He was released in 1996.

From 1996 to 2006, Danforth had no convictions and apparently no arrests, but on several occasions he tried to get himself admitted to a mental hospital, explaining that he was worried that he’d reoffend, but was rebuffed. Then, in 2006,

Danforth went to the King County Sheriff’s Office and asked to speak to a detective. He told the detective that he had come to “turn himself in” because he “[felt] like re-offending.” Danforth then told the detective that he was sexually interested in young boys. Danforth said he needed to be in a facility permanently and told the detective that his desire was “dangerous.” The detective called mental health professionals (MHPs) to interview Danforth.

Danforth explained to the MHPs that he “desires, needs, wants to have sex with children.” Id. He told them, “I have impulses that I want to [have sex with children]. If I’m not locked up–I could reoffend.” Among other statements, Danforth said that he would walk to a bus stop with young boys (or wait for young boys to arrive) and then try to have sex with them. He also said he would go to a specific video arcade, find a boy playing a video game, and rub against the boy, saying, “[I]f they like it I might pursue more.” [The “would” seems to mean that this is what he thinks he may do if he weren’t locked up. -EV] ….

The next day, a detective took a recorded statement from Danforth. Danforth reiterated his prior statements and asked to be committed as a sex offender. After explicitly describing how he would have sexual intercourse with a young boy, Danforth said, “I feel I’d be a serious danger to society if I was turned loose,” and “if it wasn’t for the police that I can turn to, I’m about ready to offend.” …

At that point, the state petitioned to commit Danforth as a sexually violent predator, under a statute providing,

When it appears that … a person who at any time previously has been convicted of a sexually violent offense and has since been released from total confinement and has committed a recent overt act; and it appears that the person may be a sexually violent predator, the prosecuting attorney of the county where the person was convicted or charged … may file a petition alleging that the person is a “sexually violent predator” and stating sufficient facts to support such allegation.

[Another provision states:] “Recent overt act” means any act or threat that has either caused harm of a sexually violent nature or creates a reasonable apprehension of such harm in the mind of an objective person who knows of the history and mental condition of the person engaging in the act.

Danforth resisted, either because he had a change of heart or (I conjecture) because he had wanted to be committed under a less restrictive system than is likely to be used for sexually violent predators; he moved for summary judgment claiming that the facts were insufficient to justify a trial on whether he should be locked up. The trial court denied the motion, and the case eventually came to the Washington Supreme Court. (Danforth has been locked up pending the appeal, because after his summary judgment motion was denied, he stipulated to being covered by the law for purposes of the remaining proceedings, subject to having a right to withdraw the stipulation if the denial of summary judgment was reversed on appeal.) Here’s how the Justices voted:

1. Three Justices (let’s call this the “lead opinion”) took the view that the law is not a speech restriction at all, because it doesn’t impose punishment or liability for speech as such, but only uses the speech as evidence that the person poses a serious danger of committing a crime. No First Amendment analysis was therefore required, the three Justices said, and all that was necessary was a showing that Danforth’s speech was a “threat that … creates a reasonable apprehension of [harm of a sexually violent nature] in the mind of an objective person who knows of the history and mental condition of the person engaging in the act.” The three Justices would thus have held that Danforth should be committed, pursuant to his stipulation.

2. Two Justices (let’s call this the “concurrence in the judgment”) took the view that the law was a speech restriction, and was constitutional only if Danforth’s statement was seen as falling within the “true threats” exception to the First Amendment — i.e., if they were statements made “in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted … as a serious expression of intention to inflict bodily harm upon or to take the life of [another individual].” These Justices thought that the question whether these particular statements were true threats would normally have to go the jury; but given the stipulation in the trial court, and the fact that the denial of summary judgment wasn’t reversed, his stipulation and therefore his commitment stands.

3. Four Justices, in the dissent [link fixed] — which began with a quote from 1984 and concluded with a quote from Minority Report — took the view that the law was a speech restriction, and concluded that the statements could not be seen as true threats. To quote the paragraph that best summarizes, I think, the dissent’s long and detailed argument,

What is glaringly absent in this case is the slightest evidence that Danforth ever harbored the objective or purpose to perpetrate any sexually violent act. His plea for assistance is the antithesis of a threat. Danforth’s statements were not threats under the plain meaning of the word because he specifically intended not to harm anyone. He sought help in order to avoid harming others. Moreover, even the State’s own MHPs and psychologist thought Danforth’s statements were cries for help rather than threats. The MHPs did not consider Danforth dangerous and would not even commit him to a 72–hour psychiatric hold.

So six Justices thought the law was a speech restriction, and was constitutional only if limited to “true threats”; but of those six, two thought that the statements could be seen as true threats, and that — given Danforth’s stipulation that he was covered by the statute — Danforth should remain locked up. Those two, together with the three in the lead opinion, produced the result that Danforth does indeed remain locked up.

My tentative thinking: It seems to me that, given Danforth’s explicit statements about what he thought he would do if he weren’t locked up, it was indeed proper to view him as sexually dangerous and therefore commit him. But I would be much more troubled if such an action were taken based on less explicit statements, for instance framed as what he fantasized about doing or even about what he wanted to do. In any case, though, if you’re interested in the subject, read the opinions, which are very interesting and accessible.