Evaluating volitional control in sexually violent predator civil commitment trials

Abstract

Many states allow individuals to be civilly committed as “sexually violent predators” (SVPs) after they have served their prison sentence. In order to be committed, there must be evidence of certain criteria, including evidence that the person would have difficulty controlling their behavior (volitional control). Although psychologists and psychiatrists are typically called upon to provide expert opinion in these cases, there is little research regarding how such experts think about these issues, conduct their evaluations, and communicate their findings to the court. This study was designed to examine these issues. This study employed qualitative methodology to analyze testimony presented by experts during federal SVP trials (n=109), interviews with licensed psychologists who have conducted SVP evaluations (n=14), and expert reports submitted to the courts in SVP cases (n=11). Results revealed three essential themes. One, evaluators in federal SVP trials typically discuss volitional impairment in court, and often it is discussed separate and apart from other SVP criteria such as diagnosis or risk. However, practice appears to be more varied in individual states, and whether an expert considers volition separately from other criteria appears to largely depend on the particular state statute and the legal/political context within which the expert is testifying. Two, although there does not appear to be a consensus regarding how volition is defined or conceptualized, the concept often is operationalized in behavioral terms. For example, experts typically referenced past offending behavior in their reports, testimony, and their interviews. Three, when experts do assess volition, they usually consider the following factors: nature of past offending behavior, testing results (particularly from actuarial measures), diagnosis, and treatment progress/amenability. These results suggest that future research involving case law or trial transcripts may be helpful in elucidating SVP evaluation practice in specific states. Empirical research to assess how expert analysis of volition impacts factfinders also is recommended. From a clinical and legal standpoint, this study’s findings suggest the development of clearer and more uniform internal guidance for practitioners may be helpful. Recommendations about modifying statutory definitions or criteria also may be needed and welcome.