New rules proposed in Massachusetts would dramatically impact convicted sex offenders post-release. As the rules currently stand, once a sex offender is about to be released, the state can request proceedings to determine if the offender is a sexually dangerous person. If found to be sexually dangerous, the offender will not be released at the end of his or sentence, but will be civilly committed to receive treatment. The major change that is being considered entails procedural issues prior to the actual trial to gauge an offender's status.

If an offender receives notice that the state is going to seek to have him or her committed, current rules allow the offender the option of waiving a jury trial and having a judge decide if the offender is sexually dangerous. The new change in the rules would permit the state to also have the ability to request a jury trial. This would potentially take the decision out of a judge's hands, and allow a jury to decide whether or not an offender will be forced to remain detained after a prison sentence ends.

Commitment of Sexually Dangerous Offenders

The state is most concerned with sex offenders that it feels are a danger to society, in that they are likely to reoffend unless they are placed in a secure facility. Being convicted of a specific sex crime could get the sexually dangerous person process started, but it cannot be the only reason. The likelihood of reoffending is most important, which can lead to considerable difficulty for the offender. The rules require the state to predict an offender's future behavior based on prior events, and is very difficult for an offender to refute.

Once the prosecution petitions the court requesting that a specific offender not be released, the court needs to have a probable cause hearing to determine if the matter will proceed. If the judge feels there is the potential that an offender could be sexually dangerous, there will be a period of examination by two qualified examiners. The offender may also select to have his own qualified examiner conduct an evaluation. After the examination period, the state may request a trial which would determine an offender's status.

The sexually dangerous commitment proceedings are civil matters, not criminal. While this would usually require a lower burden of proof, the statutes have provided a significant number of due process protections to offenders. They have the right to have the case decided beyond a reasonable doubt, as well as the right to counsel, the right to call experts and the right to a jury verdict. The jury verdict does not have to be unanimous.

According to the statute, to be classified as a sexually dangerous person, one of three requirements must be met. The offender must be:

• Convicted as a youthful offender, and suffering from a mental abnormality or personality disorder, or
• Incompentent to stand trial after being charged with a sex offense and suffering from a mental abnormality or personality disorder, or
• Unable to control sexual impulses, resulting in violent sexual misconduct, which could be mental or physical injuries, and likely to reoffend if released.

The confinement period can last from one day to the rest of a person's life. There is no limit placed on the length of time an offender may be held as a sexually dangerous person. Each person that is confined has the opportunity to request a hearing contesting this status once a year, and if the state feels a person is no longer a danger, they may request a hearing at any time. The commitment is not designed as a punitive measure. The main purpose is to treat and rehabilitate the sexually dangerous person, in an effort to take positive steps toward curing the offender. Despite this classification, the state is not required to show that their training is actually working.

Impact on Convicted Sex Offenders

If the legislation is implemented, it will be an additional hurdle that sex offenders will need to overcome before they are released. Not only will they be forced to register as a sex offender, but they will also have to prove that they are not a sexually dangerous person in order to gain their freedom. They may no longer have to convince a judge that they will not reoffend, but the very members of a community that they are looking to rejoin. Communities are already skeptical of any sex offenders within their area, and may be reluctant to release sex offenders who have been labeled as some of the worst of the worst. To learn more about the effects of this law, contact an experienced criminal defense attorney.