RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5233-16T5
IN THE MATTER OF THE CIVIL COMMITMENT OF R.E.B., SVP-367-04. _________________________________
Argued March 22, 2018 – Decided July 5, 2018
Before Judges Haas and Gooden Brown.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP- 364-04.
Joan D. Van Pelt, Designated Counsel, argued the cause for appellant R.E.B. (Joseph E. Krakora, Public Defender, attorney).
Stephen J. Slocum, Assistant Attorney General, argued the cause for respondent State of New Jersey (Gurbir S. Grewal, Attorney General, attorney).
PER CURIAM
R.E.B. appeals from the June 7, 2017 order of the Law Division
continuing his commitment to the Special Treatment Unit (STU), the
secure facility designated for the custody, care, and treatment
of sexually violent predators, pursuant to the Sexually Violent
Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. For the
reasons that follow, we affirm. We need not recount R.E.B.'s prior criminal history or the
events that followed his original admission to the STU in 2004.
They are recounted at length in our prior opinions, In re Civil
Commitment of R.Z.B.,1 392 N.J. Super. 22 (App. Div. 2007), In re
Civil Commitment of R.E.B., No. A-3270-12 (App. Div. Nov. 25,
2013), and In re Civil Commitment of R.E.B., No. A-1613-11 (App.
Div. May 20, 2014). Suffice it to say that R.E.B., born in October
1948, has an extensive criminal history in both state and federal
courts, including three separate instances of sexual offenses
against minors dating back to the early 1980s and spanning twelve
years. His convictions include sexual assault as well as the
production, possession, and sale of child pornography. His last
conviction occurred in 1995, and in 2005, he was committed to the
STU under the SVPA on parole violations following his release from
federal custody.
At the civil commitment review hearing before Judge James F.
Mulvihill on May 18 and May 31, 2017, the State presented expert
testimony from psychiatrist Michal Kunz, M.D., and psychologist
Debra L. Roquet, Psy. D. R.E.B. presented the expert testimony
of psychologist Gianni Pirelli, Ph. D. The experts' reports,
1 R.E.B. is referenced as "R.Z.B." in the 2007 appeal.
2 A-5233-16T5 various treatment notes, and other records were also admitted into
evidence.
After interviewing R.E.B. on May 4, 2017, and reviewing his
previous psychiatric evaluations, STU treatment records, prison
and police records, Dr. Kunz concluded that R.E.B. met the criteria
of a sexually violent predator and was highly likely to engage in
acts of sexual violence in the foreseeable future. Based on
R.E.B.'s sexual arousal from pre-, peri-, and post-pubescent males
between the ages of nine and eighteen, Dr. Kunz diagnosed R.E.B.
with "pedophilic disorder, sexually attracted to male[s], non-
exclusive"; "other specified paraphilic disorder with a focus on
teenagers, . . . sometimes referred to as hebephilia"; and
"other . . . specified personality disorder with antisocial and
narcissistic traits." According to Dr. Kunz, these disorders do
not spontaneously remit and affect R.E.B. "predominantly in
the . . . cognitive sphere of his ability to . . . recognize his
feelings," making him predisposed to sexually reoffend. Dr. Kunz
acknowledged that treatment could control the impulses these
disorders cause, but, in his opinion, R.E.B. had not had enough
treatment to adequately control his impulses if released at this
time.
Dr. Kunz noted that R.E.B.'s "sexual offending history"
showed an "escalation," beginning "with two boys whom he just
3 A-5233-16T5 encountered in the street," progressing to "him actually
bringing . . . victims into his home," and ultimately evolving
into "this elaborate well-organized effort to lure a number of
boys into the residence by a variety of activities . . . that
[were] likely to entice boys." Dr. Kunz observed that R.E.B.'s
offense history showed "a really strong sexually deviant
attraction to boys" that he maintained and acted on "despite
punishment." Dr. Kunz also noted that R.E.B.'s "deceitful" and
"sophisticated" manner of grooming and gaining access to the
victims was "consistent[] with his personality structure."
Although R.E.B.'s most recent PCL-R2 score was 24.2, which
was at the high end of the moderate range for psychopathic
deviance, given his prior higher scores, Dr. Kunz was still of the
opinion that R.E.B.'s history of antisocial behaviors corresponded
with his antisocial personality characteristics and was indicative
of psychopathic traits. Dr. Kunz noted that R.E.B. passed his
most recent Deviant Arousal Polygraph Examination, and that
2 According to Dr. Kunz, the PCL-R, or psychopathy checklist revised, provides a dimensional score that represents the extent to which an individual is judged to match the prototypical psychopath. Higher scores indicate a closer match and, presumably, a greater confidence that the individual is a psychopath. An individual who receives a score of thirty or above meets the diagnostic criteria for psychopathy. Previously, R.E.B. had scores of 29.5 and 30.5.
4 A-5233-16T5 despite reporting being aroused by teen and adult males, he showed
no arousal to any deviant or non-deviant stimuli during a 2016
penile plethysmograph (PPG).3 However, Dr. Kunz pointed out that
the test results were not valid because R.E.B. described the
"setup" as "creepy," resulting in the suppression of "whatever
sexual arousal there may have been."
As to his intellectual and educational background, R.E.B.'s
IQ score was in the superior range, and Dr. Kunz confirmed that
R.E.B. had a Bachelor's degree in Psychology from New York
University. As to substance abuse history, R.E.B. had "some
history of marijuana abuse," but Dr. Kunz did not "find a
persistent pattern" to make "it particularly significant."
Dr. Kunz gave R.E.B. a Static-99R4 score of three, indicating
an average risk for re-offense. However, in classifying R.E.B.'s
3 According to Dr. Kunz, a PPG is a test to determine a person's arousal whereby "a device is placed on a person's penis," and then the person is "exposed to . . . sexually arousing stimuli," and "the device measures the arousal by . . . measuring the changes in the . . . circumference of the penis." 4 "The Static-99 is an actuarial test used to estimate the probability of sexually violent recidivism in adult males previously convicted of sexually violent offenses." In re Civil Commitment of R.F., 217 N.J. 152, 164 n.9 (2014) (citing Andrew Harris et al., Static-99 Coding Rules Revised-2003 5 (2003)). Our Supreme Court "has explained that actuarial information, including the Static-99, is 'simply a factor to consider, weigh, or even reject, when engaging in the necessary factfinding under the SVPA.'" Ibid. (quoting In re Commitment of R.S., 173 N.J. 134, 137 (2002)).
5 A-5233-16T5 risk to sexually reoffend in the foreseeable future as "high," Dr.
Kunz considered other dynamic risk factors such as R.E.B.'s:
"[s]exual preference for children"; "psychopathy"; "lack of
concern for others"; "intimacy deficits"; "emotional
identification with children"; reliance on sex as a coping
mechanism; "attitudes tolerant of sexual assault"; "dropping out
of [past] sexual offender treatment"; "violation of [parole]"; and
"cooperation with supervision."
Dr. Kunz "consider[ed] mitigating factors in three areas,
namely age, disabling medical conditions and treatment." However,
inasmuch as R.E.B.'s offenses did not involve physical force, Dr.
Kunz did not believe that R.E.B.'s current age of sixty-eight
would "impede . . . his ability to access[,] . . . groom[,] or
manipulate his victims." In addition, Dr. Kunz found R.E.B. was
"fit and healthy in spite of the fact that he suffered a heart
attack" in 2011, which resulted in the placement of several stents.
Further, Dr. Kunz noted that while R.E.B. "has made progress in
treatment[,] . . . he still need[ed] to work more in treatment to
fully mitigate his risk."
Dr. Kunz recounted R.E.B.'s treatment prior to coming to the
STU as well as his treatment progress at the STU. Prior to
arriving at the STU, R.E.B. received sex offender treatment on
three different occasions. Despite receiving treatment, he
6 A-5233-16T5 continued to "pursue[] his deviant sexual interests," which Dr.
Kunz interpreted as a sign of "the strength of his sexual arousal
as well as the sort of resistance to interventions that could help
him reduce his risk to reoffend." Although R.E.B. had entered the
second half of the more advanced part of the core phase of
treatment at the STU and despite his intelligence and education
level, Dr. Kunz opined that R.E.B.'s treatment progress had been
hampered by "his personality traits" that "continue
to . . . create risk[s] for him" and "interfere with his treatment
and his ability to engage in treatment." As a result, the
treatment has not had "the desired effect."
Specifically, Dr. Kunz explained that repeated themes in the
treatment team reports showed that R.E.B. did not demonstrate a
full command over his sexual assault cycle, had "interpersonal
problems" with other residents, and became "defensive" when "given
feedback by his peers or by his treaters." Dr. Kunz found this
significant because R.E.B. would have to rely on his peers and
treaters once discharged and would therefore have to find a way
"to interact" without this "ongoing" antagonism. As to R.E.B.'s
understanding of his sexual assault cycle, Dr. Kunz explained
that, for a long time, R.E.B. would not "acknowledge" his "arousal
to underage individuals" and had "interpret[ed] his arousal to
teenagers as essentially stemming from his . . . internal conflict
7 A-5233-16T5 over his homosexuality." Dr. Kunz again attributed R.E.B.'s
resistance to "his personality traits," and to his "rigidity" or
"difficulty" recognizing his feelings.
Dr. Roquet, a member of the STU's Treatment Progress Review
Committee (TPRC), conducted an annual review of R.E.B.'s progress
in treatment by interviewing R.E.B. and reviewing the prior
treatment notes and reports. Dr. Roquet agreed with Dr. Kunz's
diagnosis and concluded that R.E.B. suffered from a mental
abnormality or personality disorder that predisposed him to
sexually reoffending. She characterized R.E.B. as "highly likely
to sexually reoffend" in the foreseeable future "without a high
level of external controls." Dr. Roquet opined that R.E.B.
required continued "confinement to the STU in order to mitigate
that risk."
Referring to R.E.B.'s PCL-R and Static99-R scores to which
Dr. Kunz had previously testified,5 Dr. Roquet elaborated that
"the primary concern" was R.E.B.'s "sexual pathology," which was
5 Dr. Roquet also administered the Stable-2007, a risk assessment instrument "developed to assess change in intermediate term risk status, [and] assessment needs, and [to] help predict recidivism in sexual offenders." R.E.B.'s Stable-2007 score was "[twelve] out of a possible [twenty-six] points," which was a "high" score for the presence of dynamic factors associated with recidivism. Together, the Stable-2007 and the Static-99R "provide [a] composite assessment of [R.E.B.'s] risk/needs," and "place[d] him in the [m]oderate-[h]igh category for supervision and intervention."
8 A-5233-16T5 "likely to continue to drive his behavior in the community,
and . . . would be further enhanced or supported by problematic
antisocial and psychopathic personality characteristics despite
his age." Dr. Roquet pointed out that R.E.B.'s sexual
preoccupation manifested itself in his continued reporting of
"ongoing pop-ups" and in his "strong arousal to young boys." Dr.
Roquet reconciled R.E.B.'s continuous sexual thoughts about minors
with passing the polygraph by explaining that the polygraph "has
to do with behavior, . . . specifically with masturbation," so
while R.E.B. "[may] not be engaging in the behavior," which was
"positive," it did not "mean that the thoughts [were] . . . not
present."
According to Dr. Roquet, while some of the "characteristics
associated with psychopathy and antisocial personality
disorder . . . start to diminish after age [forty]," there were
other characteristics still present in R.E.B. that would continue
to influence him. Dr. Roquet also testified that, although
R.E.B.'s last offense occurred in 1993 when he was forty-five
years old, the "length of time since the last offense" did "not
have much of an impact . . . on the risk assessment" because "he
[had] been confined for most of that time."
While other treatment team members believed R.E.B. was
"making some progress in addressing some of the dynamic risk
9 A-5233-16T5 factors," Dr. Roquet was of the opinion that, as long as R.E.B.
continued to resist "dealing head-on with the pedophilic arousal,"
he would not be able to "integrate" and "use the kind of arousal
management strategies and relapse prevention
strategies . . . necessary for him to be safe in the
community . . . and . . . not reoffend." Dr. Roquet was troubled
by treatment team reports that R.E.B. "distance[d] himself from
his deviant arousal," "present[ed] himself as more sexually benign
than his history indicate[d]," and "romanticize[d] his
relationship with underage males" by "refer[ing] to his victims
as friends" and "confounding sexual exploitation with helping."
Pointing to specific discrepancies between the official record and
R.E.B.'s account of his sexual offending history, Dr. Roquet
emphasized that R.E.B. needed "to shed light on his offense-related
arousal with no minimization of past or present arousal" in order
to make "substantial . . . progress in this problem area."
Dr. Pirelli conducted a forensic psychological evaluation of
R.E.B. at his attorney's request, which included two interviews
with R.E.B. Although Dr. Pirelli agreed with the diagnosis of the
State's experts and acknowledged that R.E.B.'s symptoms were "not
curable," he opined that the conditions did not impair R.E.B.'s
volitional capacity because "he [did] have control over his
behavior." Thus, Dr. Pirelli assessed R.E.B.'s risk of re-offense
10 A-5233-16T5 if released into the community as "less than highly likely" and
recommended a "structured . . . discharge and treatment plan" with
"external monitoring." While acknowledging that R.E.B. "has a
number of risk factors," Dr. Pirelli believed R.E.B. was "highly
likely to comply with the plan," was "much more equipped than his
peers," and, in many ways, had the "ability to actually be
successful in the community."
To support his opinion, Dr. Pirelli administered the Risk for
Sexual Violence Protocol (RSVP), "a structured professional
judgment" measure, which includes twenty-two "empirically
supported sexual violence risk factors across five domains":
sexual violence history, psychological adjustment, mental
disorder, social adjustment, and manageability. Dr. Pirelli
disagreed that R.E.B. was resistant to treatment and believed he
had made "significant treatment gains over the years" and would
not "benefit from being [at the STU] any longer." Dr. Pirelli
explained that the STU provided a "cognitive behavioral treatment"
program to effect behavioral change, rather than "personality
change." Thus, in Dr. Pirelli's opinion, R.E.B.'s personality
characteristics limited his amenability to further progress in
treatment there. Dr. Pirelli believed R.E.B. had achieved
behavioral change, and "the things that [were] getting him hung
up at this point" were not directly related to sexual violence
11 A-5233-16T5 risk. For example, Dr. Pirelli attributed R.E.B.'s interpersonal
conflicts to his superior intelligence and frustrations from
interacting with less intelligent peers and staff.
In an oral opinion rendered on June 7, 2017, Judge Mulvihill
found by "clear and convincing evidence" that R.E.B. was "convicted
of very serious sexually violent offenses"; suffers from
"pedophilia and other specified personality disorder, [and]
paraphilia in terms of . . . hebephilia," which "affect him
emotionally, cognitively, [and] volitionally"; has "serious
difficulty controlling his sexually violent behavior"; and was
"[h]ighly likely at this time to sexually reoffend" if released.
The judge found the State's experts "very credible" and made
findings consistent with their testimony and reports. Although
he also found Dr. Pirelli's testimony credible, he credited the
contrary opinion of the State's experts regarding R.E.B.'s current
risk to reoffend.
Judge Mulvihill recounted R.E.B.'s extensive criminal history
and acknowledged that the offenses occurred over twenty-four years
earlier, but found "[s]ignificance in [the] number of victims, the
age range, the persistence of offending, [and] the variety of
sexual activities." Additionally, the judge detailed R.E.B.'s
extensive treatment history and acknowledged that he had received
a "significant amount of treatment," had "completed all treatment
12 A-5233-16T5 modules," and "made a lot of progress," but this did "not mitigate
his risk completely" or lower it to "less than highly likely."
The judge explained that despite being active in treatment, having
superior intelligence, and understanding the concepts, R.E.B.
"still struggle[d] with his deviant arousal" and "[did] not have
full command of his sexual assault cycle." The judge stated that
R.E.B. had to work on ensuring that he understood that it was "not
okay in any way, shape or form to act upon his deviancy towards
underage boys." Judge Mulvihill entered a memorializing order
continuing R.E.B.'s commitment, and this appeal followed.
On appeal,6 R.E.B. argues Judge Mulvihill misapplied the
applicable principles in concluding that he continued to pose a
risk and was highly likely to reoffend sexually if released. In
support, R.E.B. points to his advanced age and medical condition,
and to the length of time he has spent at the STU with good
institutional behavior. He claims the judge ignored the lack of
recent evidence of sexual deviancy and only relied on evidence
from his dated convictions. We reject these arguments and affirm.
"The scope of appellate review of a commitment determination
is extremely narrow." R.F., 217 N.J. at 174 (quoting In re D.C.,
6 By agreement of the parties and with the permission of the court, the appeal was argued without briefs. We summarize the points raised by appellant based upon the presentation at oral argument.
13 A-5233-16T5 146 N.J. 31, 58 (1996)). "The judges who hear SVPA cases generally
are 'specialists' and 'their expertise in the subject' is entitled
to 'special deference.'" Ibid. (quoting In re Civil Commitment
of T.J.N., 390 N.J. Super. 218, 226 (App. Div. 2007)).
"The SVPA authorizes the involuntary commitment of an
individual believed to be a 'sexually violent predator' as defined
by the Act." In re Commitment of W.Z., 173 N.J. 109, 127 (2002)
(citing N.J.S.A. 30:4-27.28). "The definition of 'sexually
violent predator' requires proof of past sexually violent behavior
through its precondition of a 'sexually violent offense.'" Ibid.
It also requires that the person "suffer[] from a mental
abnormality or personality disorder that makes the person likely
to engage in acts of sexual violence if not confined in a secure
facility for control, care and treatment." Ibid. (quoting N.J.S.A.
30:4-27.26).
"[T]he mental condition must affect an individual's ability
to control his or her sexually harmful conduct." Ibid. "Inherent
in some diagnoses will be sexual compulsivity (i.e.,
paraphilia)[,] [b]ut, the diagnosis of each sexually violent
predator susceptible to civil commitment need not include a
diagnosis of 'sexual compulsion.'" Id. at 129.
The same standard that supports the initial involuntary
commitment of a sex offender under the Act applies to the annual
14 A-5233-16T5 review hearing. In re Civil Commitment of E.D., 183 N.J. 536, 551
(2005). In either case, "the State must prove by clear and
convincing evidence that the individual has serious difficulty
controlling his or her harmful sexual behavior such that it is
highly likely that the person will not control his or her sexually
violent behavior and will reoffend." Ibid. (quoting W.Z., 173
N.J. at 133-34).
As the fact finder, a "trial judge is 'not required to accept
all or any part of [an] expert opinion[].'" R.F., 217 N.J. at 174
(alterations in original) (quoting D.C., 146 N.J. at 61).
Furthermore, "an appellate court should not modify a trial court's
determination either to commit or release an individual unless
'the record reveals a clear mistake.'" Id. at 175 (quoting D.C.,
146 N.J. at 58).
We find no clear mistake on this record. We are satisfied
that the record amply supports Judge Mulvihill's finding that
R.E.B. suffers from pedophilia, other specified paraphilic
disorder, and other specified personality disorder, a necessary
predicate for continued commitment under the SVPA. See, e.g., In
re Civil Commitment of D.Y., 218 N.J. 359, 381 (2014). Based on
credible expert testimony, the judge determined that R.E.B.'s
disorders, past behavior and treatment progress demonstrated that
he was highly likely to engage in acts of sexual violence unless
15 A-5233-16T5 confined. The judge's determination, to which we owe the "utmost
deference" and may modify only where there is a clear abuse of
discretion, In re Commitment of J.P., 339 N.J. Super. 443, 459
(App. Div. 2001) (quoting State v. Fields, 77 N.J. 282,311 (1978)),
was proper.
Affirmed.
16 A-5233-16T5