PUNISHMENT WITHOUT CRIME (long unedited version)

By Philip Fornaci and Roger Lancaster

In a few weeks, the Circuit Court in liberal Arlington County, Virginia will be the scene of an
aggressive morality play, with prosecutors seeking lifelong incarceration for a young gay man
who has already paid an extraordinary price for youthful, nonviolent sexual indiscretions. With
the support of a compliant judiciary, the Commonwealth of Virginia has repeatedly set aside
legal, scientific, and commonsensical norms to target him for lifetime punishment as a violent
sexual predator.
Virginia, like 19 other states and the federal government, has a Sexually Violent
Predators Act (SVPA). Under these laws, people who have completed their criminal sentences
under any of a large number of sex-related offenses can be detained in a high-security facility—
until the state determines that they no longer present a risk, typically never.
Civil libertarians have always objected to such practices. They smack of double jeopardy,
of ex post facto punishment, and of a glaring form of Catch-22: The defendant is deemed
mentally fit to stand trial but is mentally unfit for release. The US Supreme Court has swatted
aside such objections, ruling that civil commitment is not punitive as long as psychiatric
treatment is provided.
SVPA laws and practices refer to “mental abnormalities,” which sounds scientific. But
the American Psychiatric Association has opposed such laws, citing their abuse of civil liberties
and the use of unscientific “disorders” as the basis for punishment. In practice, designation as a
sexually violent predator (SVP) is not based on substantial scientific research and the therapy
received by detainees in “treatment facilities” is based more on passing fads than on careful
scholarship.
So how rigorous is the legal process that goes into the definition and punishment of the
so-called SVP? Not very, as a case currently unfolding in Virginia demonstrates.
At the age of 20, Galen Baughman pled guilty to two charges of illegal sexual
misconduct: the first “offense” occurred ten days after his 14th birthday (he was charged as an
adult six years later) and the second when he was 19. Neither charge involved any violence or
deception; neither “victim” supported his prosecution. As a consequence of an unwise plea
agreement, he served 6.5 years in prison, much of the time in solitary confinement.

Then, before Galen could begin his probation term, he was further detained for two-and-
a-half more years pending a civil trial as an alleged predator under the Virginia SVPA.

Despite efforts by the Commonwealth Attorney General, Republican Ken Cuccinelli, to
paint Galen as a dangerous sexual criminal, an Arlington County jury of his peers refused to find
Galen a SVP. And so in 2012, he was released on probation.

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After his release, Galen became a professional advocate for himself and others victimized
by SVPA laws. He held a Soros Justice Fellowship, writing numerous articles and speaking on
the topic in prestigious forums around the country and internationally, and producing a popular
TEDx talk. Much of his work was focused on the Virginia law under which he had been so
abused.
But the Commonwealth was not finished with him.
In 2017, Arlington Circuit Court Judge Daniel S. Fiore II revoked Galen’s probation for
the non-crime of exchanging nonsexual text messages with a 16-year-old family friend. In fact,
court records show that his probation officer had given knowing prior consent to these
communications. But prosecutors had other ideas about what might constitute a probation
violation and Judge Fiore went along, sentencing Galen to a year in jail for the text messages.
Such a minor technical violation would normally not result in any jail time.
Fiore asserted that a “tragedy” had been narrowly averted, insisting that the text messages
were not innocent conversations but rather were pernicious efforts to recruit a heterosexual youth
(who was above the age of consent in his state of residence) into consensual gay sex. But there
was no suggestion of sexual enticement in any of these communications.
Despite the tenuousness of these claims, the Commonwealth has seized on Galen’s
second incarceration—on a technical, not criminal, probation violation—to initiate a second
attempt to have Galen labeled a SVP.
As a standard part of the SVPA process, state officials hired a psychologist to determine
whether Galen was a sexual predator. After interviewing Galen, psychologist Ilona Gravers
found Galen was not the predator the Commonwealth had alleged him to be and recommended
his release.
Unsatisfied with this opinion, the Commonwealth Attorney General, now Democrat Mark
Herring, ignored Virginia law and hired a second psychologist, Michelle Sjolinder. With the first
report in hand, she gave the state what they wanted and found that Galen was a SVP in need of
potentially lifelong commitment. She did not allege any change in Galen’s mental health since
his previous SVP trial in 2012, effectively rejecting the 2012 jury decision.
Galen is now scheduled for a second SVPA jury trial in Arlington at the end of this
month, facing the possibility of indefinite detention despite having never committed any violent
offense.
This new civil trial will be played out with few of the legal formalities assured criminal
defendants. Virginia’s SVPA allows the defense to introduce psychiatric testimony by qualified
practitioners. But Judge Fiore has barred Galen’s attorneys from presenting the first psychologist
as a witness, or from even introducing her report into evidence. Nor can any mention be made of
the first SVPA trial and that jury’s findings.

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If this teenager’s offenses had involved noncoercive, nonviolent conduct with a young
woman under the age of consent, it is unlikely that Virginia would have prosecuted him under
SVP laws. The “scientific” instrument Virginia uses to screen for SVP traits, known as the Static
99, is simply a checklist of supposedly relevant factors, including age (penalizing those under
35), the offender’s lack of a long-term intimate relationship, and a male “victim.” Because he is
young, has no “significant other,” pleaded to two offenses and is gay, Galen thus accumulated
four points, qualifying as “high-risk.”
It is impossible to call any of this “scientific” or fair. Homophobic bias is built into the
process.
The SVPA also vests extraordinary power in the courts and prosecutors to impose
potential life imprisonment. Prosecutors unilaterally decide which of those individuals
previously convicted and punished for sex-related offenses (typically fewer than 17 percent) will
be later tried again for lifelong civil commitment.
And if a jury rejects the state’s assessment, the process can be repeated under a variety of
pretexts a second (or third) time until the state achieves its goal. And as seen in this case,
prosecutors are free to shop, literally, for “experts” whose paid assessments match that goal.
Even the thin veneer of scientific assessment, along with due process and common sense,
have been discarded by prosecutors and the court in pursuit of phantom monsters.
Civil commitment is expensive, unscientific, and capricious. Its conception of risk
punishes people less for what they have done in the past than for what it is imagined that they
might do in the future. It is a breeding-ground for human rights violations.
Galen’s case stretches legal practices and commonsensical definitions to their breaking
points, but it is not altogether exceptional. Others who have never committed a violent crime
have been civilly committed. Minors have been subjected to indefinite detention, as have senior
citizens in debilitated condition.
Indeed, our civil containment practices for sex offenders are so extreme that high courts
in the UK and Canada have deemed that they violate international human rights protocols and
have blocked defendants’ extradition back the US.
Virginia is currently expanding its 28-acre Nottoway County treatment facility by 258
beds at a cost of $110 million, or $426,000 per bed. It expects to run out of beds in 2022 as the
state zealously expands SVPA prosecutions.
A few states are rethinking their statutes in the face of successful legal challenges to
portions of their SVP laws and practices. Still, the system is expanding. Nationwide, some 6,400
people are currently being held in civil commitment gulags.

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Galen’s case is a prime example of why Virginia and other states should scrap the SVPA:
it corrupts science and the legal system, and it erodes citizens’ basic rights and protections
against punishment without a crime.


Philip Fornaci is a civil rights attorney based in Washington, D.C.
Roger Lancaster is Professor of Anthropology and Cultural Studies at George Mason University
and author of Sex Panic and the Punitive State.

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