Appeals judges split on detention of “sexually violent predator”

The decision made by the Missouri Court of Appeals Southern District on Aug. 8 to uphold the indefinite detention of a man designated by a jury to be a sexually violent predator drew a dissent from the chief judge.

In the majority opinion, Judges Jeffrey W. Bates and William W. Francis, Jr. concluded that, contrary to the offender’s arguments on appeal, the evidence against him was sufficient, the admission of that evidence was proper and the sexually violent-predator statute was constitutional.

Chief Judge Nancy Steffen Rahmeyer, however, disagreed on the sufficiency of evidence.

“I realize that it is not popular to defend someone who has been diagnosed by the Department of Mental Health as a pedophile,” Rahmeyer wrote. Nevertheless, she wrote, her dissent was necessary because “diagnosis as a pedophile alone does not warrant permanent commitment” to state custody. Prosecutors also must prove the offender can’t control his or her actions, and in the case of this offender, Aaron W. Sebastian, they had failed to do, Rahmeyer found.

According to the judges’ summaries of the facts, Sebastian’s childhood was marked by neglect, parental drug use, abandonment and abusive foster care. In 2011, when Sebastian was 18 and living again with his biological mother, he entered a room in which an 11-year-old girl connected to his family was sleeping. Sebastian unbuttoned the girl’s pants and put his hand below her waistband. She awoke, slapped his hand away, ran out of the room and told her mother and grandmother. Sebastian was charged for this offense. He pleaded guilty to first-degree attempted statutory sodomy.

While in prison, he underwent treatment in the Missouri Sex Offender Program. Before his release, prosecutors filed a petition to commit him to state custody as a sexually violent predator. In April 2016, the state presented its case to a jury.

The state was required by statute to prove that Sebastian had committed a sexually violent offense, that he suffers from a mental abnormality and that the abnormality makes him more likely than not to commit further such acts unless confined. Prosecutors made their case by calling two clinical psychologists to testify about Sebastian’s words and behavior during treatment.

After hearing these experts, the jury found for the state. Sebastian was committed, but he appealed.

Among other things, he argued that the evidence was insufficient because the state’s two experts never proved that he “presently” suffers from the mental abnormality of pedophilic disorder. That disorder is defined as an interest in prepubescent children, generally 13 years or younger, by a person who is at least 16.

Judges Bates and Francis pointed out that, to side with Sebastian, they would’ve had to find “a complete absence of probative facts supporting the judgment.” But probative facts were present, they decided. For example, the clinical psychologists had noted that Sebastian struggled to complete treatment, in which offenders learn coping tools. They noted that he had admitted to abusing other young girls years before the offense for which he was charged, and that he also had admitted that his fantasies of abusing girls persisted.

“Pedophilia is something that doesn’t go away,” one of the psychologists testified.

In her dissent, Judge Rahmeyer took issue with how the state witnesses came to their conclusions, calling their methods “troubling as a matter of law.”

While a diagnosis of pedophilia satisfies the statutory definition of “mental abnormality,” she wrote, Missouri case law requires something more: a showing that the offender suffers “serious difficulty controlling behavior.”

To prove he couldn’t control himself, the state’s psychologists pointed to his 2011 offense. But the 11-year-old victim, Rahmeyer pointed out, wasn’t prepubescent, and as soon as she resisted, he chose to stop touching her.

The state’s experts pointed to admissions he had made during treatment that as a 14- or 15-year-old, he had abused girls as young as 7. But, Rahmeyer argued, they “completely relied on the veracity and truthfulness of Sebastian while in treatment” yet cited no other evidence, and in any case they “agreed that a person’s juvenile record is not used to determine a mental abnormality.”

The state pointed to the 11 months it took Sebastian to complete his nine-month sex-offender treatment. Rahmeyer responded: “There are many reasons for a delay in completing a program and there is no evidence that Sebastian was delayed because he was resistant to training.”

The state’s experts noted that during treatment, he had serious difficulty controlling himself when the music video for the song “Chandelier” by the artist Sia came on the television in the treatment center’s common room. One of the psychologists noted that the video, in which a young girl dances, “is really, really close to child porn.”

Judge Rahmeyer rejected this characterization of events. She argued that Sebastian saw that video on network television, had no control over the channel showing on the television and looked at the ceiling when the video aired. The psychologist had stated that such an action was insufficient because Sebastian remained in the room, but also that if he had retreated to his bunk, that would have been considered isolating, which is “not recommended.”

“Sebastian was put in a lose-lose situation,” Rahmeyer wrote.

The state pointed to the fantasies to which Sebastian admitted during treatment. But, Rahmeyer countered, the whole point of that exercise was to discuss strategies for dealing with fantasies in the future.

“By complying with [the Missouri Sex Offender Program] and truly attempting to gain the needed skills to deal with future instances, he gained nothing more than having his compliance to the task in therapy used against him.”

Rahmeyer recognized, in her conclusion, that “this is an extremely rare case in that the expert testimonies do not meet the standard,” but she maintained that “the evidence is simply insufficient.”

Mary Compton, a spokesperson for the Missouri Attorney General’s office, wrote in an email: “We agree with the court’s ruling.”

Sebastian was represented by the Missouri State Public Defender System. His attorney did not respond to a request for comment.

Sebastian’s case already has taken one trip to the Missouri Supreme Court. The high court heard oral arguments in March 2017 involving a constitutional challenge to the state’s civil commitment process. A few months later, however, the court sent the case to the Southern District without issuing an opinion.

The case is In the matter of the care and treatment of Aaron Sebastian, SD35060.