In re the Detention of Donald Herrick.
DONALD HERRICK, Petitioner. STATE OF WASHINGTON, Respondent,
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.
AND PROCEDURAL BACKGROUND
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.
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)
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.
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.
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
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.
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.
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),
http://www.courts.wa.gov/opinions/pdf/699938.pdf. We granted
Herrick's petitions for review and consolidated the two
RCW 71.09.050(1)(c) unconstitutional on its face?
RCW 71.09.050(1)(c) unconstitutional ...