Opinion
No. 92-0209
July, 1996
INTRODUCTION
An evidentiary hearing was held on June 24-25, 1996, pursuant to M.G.L. 123A, s. 9, on a petition for discharge from the treatment center. After a hearing during which the petitioner was represented by counsel, the Court concludes beyond a reasonable doubt that the petitioner, Carlos Diaz, remains a committable Sexually Dangerous Person (SDP) as defined by M.G.L. 123A(1). It is therefore ORDERED that the Petition for Discharge be DENIED.
THE INSTANT COMMITMENT
In February 1979, Mr. Diaz entered guilty pleas in the Worcester Superior Court to counts of rape of a child and received a state prison sentence of 3 to 10 years. On March 13, 1984, he was adjudicated a Sexually Dangerous Person and was committed for an indefinite term to the treatment center where he remains to this day.
The governing offense, which occurred in 1978, was a forcible sexual assault of his seven year old niece involving molestation and forcing the child to perform oral sex upon him. At the time of this 1978 offense, Mr. Diaz had already served in full a four year New York penitentiary sentence for the 1971 forcible sexual assault of a five year old boy, the son of a neighbor. This anal rape was committed with force, and the young victim required corrective surgery to repair the lining of his colon. Mr. Diaz pled guilty to this New York offense.
Following his commitment to the state prison, Mr. Diaz was admitted to the treatment center for a 60 day evaluation to ascertain whether he was committable as a Sexually Dangerous Person. Two psychologists at the treatment center deemed Mr. Diaz to be Not Sexually Dangerous. It appears that neither evaluator had been aware of the earlier New York sexual offense.
On or about August 1980, the treatment center received information regarding Mr. Diaz's 1971 sexual offense, and requested that he be admitted for a second 60 day evaluation. Accordingly, Mr. Diaz was readmitted to the treatment center in May 1981. After an evaluation he was found to be a Sexually Dangerous Person as defined by M.G.L. 123A(1). This determination initiated the process resulting in Mr. Diaz's March 1984 commitment to the treatment center.
PETITIONER'S PSYCHOLOGICAL HISTORY
Psychological evaluations reveal that Mr. Diaz was brought up in a severely chaotic and dysfunctional family. Throughout his youth and adolescence in Puerto Rico, he received physical, psychological and verbal abuse from his alcoholic and violent parents. Mr. Diaz's family did not establish appropriate sexual boundaries, and Mr. Diaz frequently witnessed violent and abusive sex between his parents. His mother, who attempted suicide on three occasions, eventually abandoned the family. His father subsequently remarried approximately six times, once to a girl 12 years of age. When Mr. Diaz was 11 years old, his father (who had been drinking) crashed the car in which the family was riding. Mr. Diaz was seriously injured in the accident, and his brother and stepmother were killed.
Mr. Diaz reports that he became sexually active at an early age. His first sexual experience occurred at the age of thirteen with a female peer whom he met in a movie theater. His second sexual experience occurred when he was fourteen or fifteen with a nineteen year old girl. He also reports that he married for the first time in 1974, when he was approximately 22 years old. Within the course of the next three years, he married again, this time to a 16 year-old girl who suffered 10 miscarriages over the course of their marriage. Due to the trauma of these miscarriages, this second marriage failed.
PETITIONER'S HISTORY AT THE TREATMENT CENTER
Mr. Diaz admits to a long history of drug dealing and substance abuse which included alcohol, valium, heroin, speed, marijuana and cocaine. While at the treatment center, Mr. Diaz has admitted that he used drugs at the time of the 1971 and 1978 offenses, and has acknowledged the possibility that he may have "blacked-out" during these offenses.
The course of Mr. Diaz's treatment at the treatment center involves participation in several classes which, inter alia, are intended to assist him in managing his anger, understanding his emotions, and avoiding relapse. Mr. Diaz has attended many of these classes, and is reported to have made certain gains in controlling his anger. He has also held jobs in the treatment center's carpentry shop and property room. However, his treating therapists and psychologists maintain that Mr. Diaz's advances in treatment are limited, and that his class attendance and employment are therefore not sufficient to warrant his release into either a community access program or the community at large. Mr. Diaz has occasionally acted aggressively and violently toward other treatment center residents during sporting matches and in everyday interactions. He has also displayed suspiciousness, accusing clinical workers of being "informants" for the D.A.'s office. Similarly, on or about 1991-92, Mr. Diaz reportedly sodomized another resident. While this sexual involvement began consensually, the other party asked Mr. Diaz to stop after initial penetration. Mr. Diaz did not stop, however, and continued to force himself on the other resident.
Throughout his period at the treatment center, Mr. Diaz has denied that he committed the sexual offenses of 1971 and 1978. While he acknowledges that he used disinhibiting drugs during the period of his offenses, he denies having committed either offense. He maintains that the governing offense of 1978 was fabricated by the victim's father, who was angry about a drug deal (involving Mr. Diaz) which went wrong. He similarly maintains that the 1971 rape was in fact committed by his younger brother, and that he (Mr. Diaz) falsely accepted responsibility in order to afford his brother greater opportunities of education and employment.
EXPERT OPINION OF PETITIONER'S PROGRESS
The two court-appointed qualified examiners and a treating psychologist (whose written reports and oral testimony were admitted during these proceedings) concur that acknowledgement of guilt for the offenses is a "sine qua non" for accomplishing the requisite treatment plan. Mr. Diaz, however, denies having committed either of the sexual offenses of 1971 or 1978. Experts concur that this continued denial suggests, inter alia, a failure to empathize with a potential victim, an inability to differentiate between sexually acceptable conduct and sexually deviant conduct, and an inability to control impulsiveness and anger. These experts also expressed concern that Mr. Diaz has failed to discuss and come to terms with possible "cognitive distortions," or factors which may have allowed him to suppress any memories regarding the sexual offenses. In short, until Mr. Diaz acknowledges involvement in the sexual offenses of 1971 and 1978, he remains (in the experts' unanimous opinion) "at high risk to commit sex crimes against children, and therefore . . . a Sexually Dangerous Person."
RULINGS OF LAW
The purpose of a Section 9 proceeding is to provide periodic redeterminations as to whether a person who has been deemed Sexually Dangerous remains so, and if not, to ensure their early release. Trimmer, Petitioner 375 Mass. 588, 591 (1978). A Sexually Dangerous Person, by definition, is a person whose misconduct in sexual matters indicates a general inability to control sexual impulses, as evidenced by repetitive or impulsive sexual misconduct, by either violence against any victim or aggression against any victim under the age of 16 years, and who, as a result, is likely to attack such victims because of his/her uncontrolled desires. M.G.L. 123A(1); see also, Page v. Commonwealth, 13 Mass. App. 384, 387 (1982). Under the Massachusetts General Laws, the Commonwealth must prove beyond a reasonable doubt that a petitioner remains Sexually Dangerous and that they should continue to be held in custody. Andrews, Petitioner, 368 Mass. 468, 487 (1975); M.G.L. 123(A)(1).
In the present case, the Commonwealth has presented compelling evidence that Mr. Diaz remains a Sexually Dangerous Person. See Commonwealth v. Tucker, 23 Mass. App. 391, 396-97 (1987) (past criminal record and expert opinion regarding treatment provide sufficient basis for adjudication). This Court concurs with the experts' opinion that the past is a valid predictor of future behavior, and is thus concerned not only with the separate offenses against the two children, but also with the more recent aggressive and forceful sexual behavior which Mr. Diaz has demonstrated towards other residents of the treatment center. See Commonwealth v. Denham, 8 Mass. App. 724, 731 (court may adopt conclusions of qualified experts in Section 9 adjudication). This Court also concurs with the opinion of experts who have testified that acknowledgment of involvement in sexual offenses is a crucial element of treatment. Mr. Diaz's denying involvement in the sexual offenses of 1971 and 1978 is complemented by his failure to even entertain the possibility that he may have been involved in these offenses. Furthermore, his behavior at the treatment center indicates that his treatment has not yet resulted in significant progress. Until such progress becomes evident, Mr. Diaz does not appear to be a viable candidate for release from the treatment center.
This ruling should not be construed as absolutely endorsing the opinion of mental health professionals that releases should only be allowed to those residents who admit to their involvement in sexual offenses. To make such admission a pre-condition of release would mark a significant shift from other forms of involuntary commitment such as penal incarceration where release is contingent (among other things) on time served or good behavior. The mental health and penal systems should avoid placing their residents in "catch-22" situations. For instance, a treatment center resident whose governing offense is under appeal would be hard-pressed to make inculpatory statements in the course of treatment. It similarly seems contrary to common sense that a resident who accepts responsibility for the offense and is sincerely willing to express empathy for his victim and work on treatment goals should be denied a release simply because (due to an actual memory block), they cannot honestly acknowledge their involvement in an offense.
A primary role of the court is to protect the public against future dangerous behavior by a Sexually Dangerous Person while simultaneously ensuring that the Commonwealth is doing all that can be done to rehabilitate him. Commonwealth v. Rodriguez, 376 Mass. 632, 646 (1978). While the court recognizes that Mr. Diaz's 12 year commitment to the treatment center has exceeded his initial 3-10 year criminal sentence, it is nevertheless necessary that public safety and the requirements of rehabilitation prevail and that he remain committed. See Andrews, Petitioner, supra, at 478-80 (petitioner's due process not violated by indefinite commitment to treatment center until rehabilitated).
ORDER
For the foregoing reasons, it is ORDERED that the Petitioner's petition for discharge be DENIED.
Paul A. Chernoff Justice of the Superior Court
Dated: July, 1996