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In re Detention of Herrick

Supreme Court of Washington, En Banc

March 8, 2018

In re the Detention of Donald Herrick.

          YU, J.

         Petitioner Donald Herrick is an alleged sexually violent predator (SVP) awaiting trial after stipulating to probable cause and agreeing to be evaluated by the State's expert. At the request of the State's expert and pursuant to RCW 71.09.050(1), the trial court ordered Herrick to submit to penile plethysmograph (PPG) and polygraph tests. Herrick refused to comply with the court order, which resulted in a finding of contempt. Herrick brings a facial and as-applied challenge to the statute, and he also challenges the lawfulness of the, contempt order. The Court of Appeals affirmed the trial court. We affirm.


         Herrick pleaded guilty to first degree rape in October 1997 for breaking into a woman's home while she was sleeping, orally raping her, and beating her until she was unconscious. After serving a prison sentence, Herrick was released in 2006, and within three months, he stalked a teenage girl on her way home from a bus stop. Herrick pleaded guilty to voyeurism and was sentenced to 22 months in prison.

         Herrick's voyeurism sentence included a community supervision period, which required him to participate in sex offender treatment. His outpatient deviancy treatment with Northwest Treatment Associates (NTA) included PPG testing, which Herrick submitted to in 2009. An NTA provider explained that "[t]here were so many signs of manipulation and suppression that Mr. Herrick's test scores are actually considered inconclusive, " but noted that he showed arousal to scenarios involving rape of an adult female and, separately, rape of a female child. Clerk's Papers (CP) at 276.

         In 2010, Herrick was found guilty of violating the conditions of his community placement by stalking two different women. He received a sanction of 120 days' confinement. In anticipation of his release, the State hired Dr. Brian Judd to conduct an initial civil commitment evaluation. Dr. Judd diagnosed Herrick with paraphilia not otherwise specified (NOS) nonconsent, alcohol abuse, cannabis abuse, antisocial personality disorder, and a provisional diagnosis of voyeurism. The basis for the paraphilia NOS nonconsent diagnosis was Herrick's conviction for first degree rape and Dr. Judd's assessment that the 2009 PPG test showed clear arousal to rape.

         While Herrick was still confined, the State petitioned for his civil commitment as an SVP and included Dr. Judd's paraphilia NOS nonconsent diagnosis as evidence of his mental abnormality. Herrick stipulated that there was probable cause to find that he is an SVP, and, in accordance with RCW 71.09.040(4), the court ordered Herrick to submit to an evaluation and remain in custody pending his SVP trial. In 2012, Dr. Judd updated his evaluation and concluded that Herrick still suffered from paraphilia NOS nonconsent. Herrick retained Dr. Stephen Jensen, who reviewed the 2009 PPG results and concurred with the NTA evaluator that the results were '"inconclusive"' and added that "the data is non-interpretable and has no clinical or predictive value in this case." Id. at 693.

         Because the PPG test results were a critical element of his paraphilia NOS nonconsent diagnosis, Dr. Judd determined that updated physiological testing was necessary. He sought PPG testing to be followed immediately by an issue-specific polygraph examination to determine (1) the state of Herrick's current sexual arousal functioning and (2) whether Herrick used or attempted to use methods to invalidate or circumvent PPG testing. The State accordingly filed a motion to compel PPG testing pursuant to RCW 71.09.050(1).

         Over Herrick's objection, the court granted the State's motion and ordered Herrick to submit to PPG testing and an issue-specific polygraph examination. The court denied Herrick's motion to certify the issue to the Court of Appeals pursuant to RAP 2.3(b)(4), and Herrick then filed a notice of discretionary review to the Court of Appeals.

         While his notice of discretionary review was pending, Herrick refused to submit to the PPG test. The court held Herrick in contempt and, as a remedial sanction, determined that "the fact of refusal" was admissible at trial. Id. at 298, 1069. Herrick filed a notice of appeal to the Court of Appeals.

         The Court of Appeals accepted discretionary review of the order for PPG testing and affirmed in a unanimous published opinion. In re Det. of Herrick, 198 Wn.App. 439, 442, 393 P.3d 879 (2017). In a separate unpublished opinion, it also unanimously affirmed the trial court's contempt order. In re Det. of Herrick, No. 69993-8-1, slip op. at 2 (Wash.Ct.App. Apr. 3, 2017) (unpublished), We granted Herrick's petitions for review and consolidated the two cases.


         A. Is RCW 71.09.050(1)(c) unconstitutional on its face?

         B. Is RCW 71.09.050(1)(c) unconstitutional ...

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