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In re Detention of Herrick

Court of Appeals of Washington, Division 1

April 3, 2017

In re the Detention of Donald Herrick


          Verellen, C.J.

         Donald Herrick appeals a pretrial order compelling penile plethysmograph (PPG) and polygraph testing as part of a sexually violent predator (SVP) civil commitment evaluation. He argues that the statute granting trial courts discretion to compel PPG testing is unconstitutional on its face and particularly as applied to him. Herrick fails to meet his burden of proving that RCW 71.09.050(1) is unconstitutional beyond a reasonable doubt. Herrick also argues that RCW 71.09.050(1) was unconstitutionally amended in 2012 to permit the court to compel PPG testing in violation of the single subject rule of article II, section 19 of the Washington Constitution. But the title of Senate Bill 6493 is general, and rational unity among the matters within the bill exist, including SVP experts and testing.[1] Therefore, we affirm.


         The underlying facts are not in dispute. In 1997, Herrick was convicted of rape in the first degree. He was released from incarceration for that offense in September 2006. Three months after his release, Herrick stalked a 16-year-old. He pleaded guilty to voyeurism and was sentenced to 22 months. Following his release, Herrick entered outpatient sexual deviancy treatment with Northwest Treatment Associates. In March 2009, as part of his treatment, he participated in PPG testing.

         In February and June 2010, Herrick violated his conditions of community placement by engaging in stalking. He was ordered to serve 120 days' confinement for the violations.

         In November 2010, in anticipation of Herrick's release, the State petitioned to civilly commit him as an SVP under chapter 71.09 RCW. The petition identified Herrick's prior sexually violent offenses and alleged that he suffers from a mental abnormality and/or personality disorder that makes him likely to engage in predatory acts of sexual violence if not confined in a secure facility. Prior to filing the petition, the State's expert, psychologist Dr. Brian Judd, completed a clinical evaluation record review. Dr. Judd opined that Herrick met the diagnostic criteria for paraphilia not otherwise specified (nonconsent), alcohol abuse, cannabis abuse, voyeurism (provisional), and antisocial personality disorder. Of these disorders, Dr. Judd determined that paraphilia not otherwise specified (nonconsent) met the criteria for abnormality as defined in chapter 71.09 RCW. His opinion was based on the predicate offenses, the 2009 PPG testing, which demonstrated a preference for coercive sexuality, and actuarial testing, which predicted a high risk of recidivism.

         In January 2011, Herrick stipulated to the existence of probable cause and agreed to undergo an evaluation by the State's expert.[2] He was ordered to be held at the Special Commitment Center for custodial detention and evaluation.

         Dr. Judd completed an updated clinical evaluation, including an interview of Herrick and a records review. In April 2012, Dr. Judd provided an addendum, again opining that Herrick met the definition of an SVP, relying in part on the results of the 2009 PPG, which he characterized as detecting a clear arousal to humiliation rape of an adult female and rape of a female minor, despite apparent attempts to suppress arousal.

         In May 2012, defense expert Stephen Jensen, M.A., criticized Dr. Judd's report as it related to the 2009 PPG. Mr. Jensen concurred with the Northwest Treatment Associates evaluator, who found the PPG inconclusive:

The [PPG] assessment was conducted appropriately and followed ... standards. The conclusions by the evaluators appear to accurately reflect the assessment data. The data was correctly assessed as "inconclusive, " which indicates it is not clinically predictive. Dr. Judd incorrectly concluded that this data reflected a preference for aberrant sexual behavior, while in reality no preference was clear to any form of sexual behavior J[3]'

         In December 2012, the State moved for an order requiring Herrick to submit to a PPG and a specific-issue polygraph as part of the evaluation in anticipation of trial. Dr. Judd requested the PPG and a follow-up interview to provide the most current information possible:

Mr. Herrick has a history of apparently attempting to manipulate and suppress his arousal when assessed on the PPG and has previously made efforts to obtain information on how to dissimulate on the PPG. As such, I believe that independent verification of Mr. Herrick's participation in the PPG consistent with the examiner's instructions is necessary to ensure that Mr. Herrick does not use countermeasures to minimize deviant arousal during the PPG. This can be assessed through a post-PPG specific-issue polygraph administered immediately following the PPG.[4]

         Dr. Judd's statement about Herrick's previous "efforts to obtain information on how to dissimulate on the PPG" referred to an August 2010 recorded jail phone call in which Herrick asked his girlfriend to research ways to "beat, " "cheat, " or "win" the PPG.[5]

         On January 22, 2013, the trial court granted the State's motion to compel PPG and specific-issue polygraph testing. Herrick moved for discretionary review of the order. A court commissioner initially denied review, but a panel from this court granted Herrick's motion to modify the ruling.


         Herrick challenges the constitutionality of RCW 71.09.050(1). Constitutional challenges are questions of law that are reviewed de novo.[6] "A statute is presumed constitutional, and the party challenging it bears the burden of proving it is unconstitutional beyond a reasonable doubt."[7]

         RCW 71.09.050(1) Is Constitutional On Its Face

         Herrick argues that RCW 71.09.050(1) is unconstitutional on its face because it violates the precommitment detainee's substantive due process right to privacy. We disagree.

         The Washington Constitution places greater emphasis on privacy than the federal constitution, but the State can reasonably regulate privacy rights to protect the public.[8] Sex offenders have reduced privacy interests because they threaten public safety.[9] In comparison, the public has "[g]rave public safety interests" that outweigh the "truncated" privacy interests of sex offenders.[10] The State's compelling interest in "both treating sex predators and protecting society from their actions, " therefore, is "irrefutable."[11] Herrick recognizes that "pre-commitment detainees retain a limited right to privacy and due process."[12]

         Herrick claims that "RCW 71.09.050(1) is unconstitutional on its face because it provides for compulsory testing simply upon request" by the State and "the statute does not require a heightened level of scrutiny."[13] Herrick misreads the statute.

         RCW 71.09.050(1) provides:

Within forty-five days after the completion of any hearing held pursuant to RCW 71.09.040, the court shall conduct a trial to determine whether the person is a sexually violent predator.... The prosecuting agency shall have a right to a current evaluation of the person by experts chosen by the state. The judge may require the person to complete any or all of the following procedures or tests if requested by the evaluator.... (c) plethysmograph testing; and (d) polygraph testing.[14]

         Contrary to Herrick's assertions, this statute does not allow PPG testing whenever requested by the State. The statute applies only in the context of determining whether the person named in the SVP petition is an SVP. Significantly, this statutory evaluative process occurs after the completion of the probable cause hearing held pursuant to RCW 71.09.040 and a finding of probable cause. Also, PPG and polygraph testing must be "requested by the evaluator, " who must:

(1) Have demonstrated expertise in conducting evaluations of sex offenders, including diagnosis and assessment of reoffense risk;
(2) Have demonstrated expertise in providing expert testimony related to sex offenders or other forensic topics; and
(3) Provide documentation of such qualification.[15]

         Finally, the court, not the State, makes the decision to allow PPG testing, and its decision is discretionary: "The judge may require the person to complete any or all of the following procedures or tests."[16] Thus, the statue does ...

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