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. Therefore, we affirm.
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
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.
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.
January 2011, Herrick stipulated to the existence of probable
cause and agreed to undergo an evaluation by the State's
expert. He was ordered to be held at the Special
Commitment Center for custodial detention and evaluation.
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.
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'
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
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.
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"
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.
challenges the constitutionality of RCW 71.09.050(1).
Constitutional challenges are questions of law that are
reviewed de novo. "A statute is presumed
constitutional, and the party challenging it bears the burden
of proving it is unconstitutional beyond a reasonable
71.09.050(1) Is Constitutional On Its Face
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.
Washington Constitution places greater emphasis on privacy
than the federal constitution, but the State can reasonably
regulate privacy rights to protect the public. Sex
offenders have reduced privacy interests because they
threaten public safety. In comparison, the public has
"[g]rave public safety interests" that outweigh the
"truncated" privacy interests of sex
offenders. The State's compelling
interest in "both treating sex predators and protecting
society from their actions, " therefore, is
"irrefutable." Herrick recognizes that
"pre-commitment detainees retain a limited right to
privacy and due process."
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." Herrick
misreads the statute.
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.
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
(2) Have demonstrated expertise in providing expert testimony
related to sex offenders or other forensic topics; and
(3) Provide documentation of such qualification.
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." Thus, the statue does