Incarceration for those convicted of certain sex offenses does not automatically end at the expiration of the prison sentence. The law governing federal proceedings, Virginia, and other states enables the respective governments to seek continued incarceration of such convicts under so-called “civil commitment” laws. In 2006, the federal Adam Walsh Act encouraged such state-level civil commitments of so-called sexually dangerous persons by providing funding to states establishing programs for such civil commitments. Roberts at 675.

Consequently, in settlement negotiations for related sexual felony cases, the criminal defense lawyer needs to advise his or her client of the civil commitment laws, and should seek any plea agreement to include an agreement for the government and prosecution not to seek further incarceration under civil commitment laws.

Last week, the Virginia Supreme Court signaled trial judges to err on the side of giving leeway to what is considered admissible relevant evidence for such civil commitment trials. Virginia v. Proffitt, ___ Va. ___ (Oct. 30, 2016).

Brady Arnold Proffitt, Jr., was convicted in 2012 for a rape committed that same year. In 2014, the Commonwealth/prosecution, sought his further incarceration/commitment, civilly, under the Sexually Violent Predators Act (“SVPA”), Code §§ 37.2-900 et seq.

At issue in Proffitt’s appeal to Virginia’s Supreme Court was the prosecution’s challenge to the SVPA jury trial judge’s excluding the testimony of the rape victim in Proffitt’s 2012 conviction, and his alleged 2007 rape victim in a case that ended up getting entered nolle prosequi/dismissed.

The trial court excluded the testimony of both the 2007 and 2012 rape case witnesses after Proffitt’s lawyer aptly pointed out that the jury already had Proffitt’s 2012 rape conviction record, the 2007 case was dismissed, and the prosecutor’s expert psychiatric witness had already testified to Proffitt’s future sexual dangerousness and had not relied on the 2007 dismissed case in reaching her opinion. Proffitt’s lawyer argued that allowing the complaining witnesses to testify would add fuel to the fire against Proffitt with his jury.

Wisely, the trial prosecutor proferred what the two complaining witnesses would have testified to on the witness stand. The proffer presented similar modus operandi and threatening words from Proffitt in both the 2012 convicted and 2007 dismissed rape cases.

Proffitt beat his civil commitment jury trial.

On appeal, the prosecution argued that the similarity of the actions and words of Proffitt in both instances was relevant and may have led the prosecution’s psychiatric expert to give weight to the 2007 rape case after all.

In considering the law of evidence, the Virginia Supreme Court balanced the relevance of the two complaining witnesses’ testimony against the prejudice to Proffitt of allowing it, and determined that the balance weighed in favor of the prosecution, including when considering the similarity in Proffitt’s alleged actions and words both in the 2007 and 2012 rape prosecutions. The Court determined that:

The Court concluded: “The excluded testimony, however, was highly probative of Proffitt’s predatory behavior and likelihood of committing sexually violent offenses upon release.”

Rape sentences in Virginia tend to be firm in the first place. So-called “civil” commitment raises the stakes all the more for those convicted of relevant sex felonies.