In 1990, Washington State was the first in the United States to adopt sexual civil commitment – allowing for indeterminate post-sentence commitment for people with certain sexual charges. This innovation followed a rash of high profile and horrifying offenses by individuals released from prison but who did not qualify for RCW 71.05 civil commitment. For more background see SOPB Report: RCW 71.09: Changes to Discharge Planning and Less Restrictive Alternative Placements in the Community.

RCW 71.09 refers to clients as Sexually Violent Predators (SVPs), but research has shown that term alone can bias legal determinations.¹ Criminal defense attorneys can be proactive in protecting current clients from future RCW 71.09 petitions.

Who May be Targeted for RCW 71.09 Commitment?

People nearing release from the Juvenile Rehabilitation Administration (JRA), the Department of Corrections (DOC), state hospitals, or even local jails may be targeted for RCW 71.09 commitment if they have previously been charged with a prior Sexually Violent Offense (SVO). Similarly, people in the community—especially if on DOC or misdemeanor probation or engaged in sex offender treatment—can find themselves referred for evaluation if they have a prior SVO and subsequently commit a Recent Overt Act (ROA).

The criteria for civil commitment is:

• The person has committed a sexually violent offense;²
• The person suffers from a mental abnormality (MA) or personality disorder (PD) that causes serious difficulty controlling sexually violent behavior;
• The person is likely (>50%) to commit a future act of predatory sexual violence if not confined to a secure facility;
• If the person was not in custody at the time of filing, the person committed an ROA.³

What Counts as a Sexually Violent Offense (SVO)?

This is not intuitive because the RCW 71.09 definition of SVO does not track criminal definitions of sex or violent crimes. RCW 71.09.020(18) provides its own definition:

• Listed crimes: Rape 1, Rape 2 if by forcible compulsion, Rape of Child 1 or 2, Statutory Rape 1 or 2, Indecent Liberties if by forcible compulsion or against a child under 14, Incest against a child under 14, Child Molestation 1 or 2.
• Comparable crimes: Offenses committed before July 1990 or in other jurisdictions.
• Crimes that can become an SVO with sexual motivation: Murder 1 or 2, Assault 1 or 2, Assault of Child 1 or 2, Kidnapping 1 or 2, Burglary 1, Residential Burglary, or Unlawful Imprisonment—even without original findings of sexual motivation.

The Process: How SVP Commitments Begin

Referrals for SVP evaluation may come from:

• DOC, JRA, state hospitals
• Community supervision officers
• Police, housing providers, SOTPs, neighbors

After a referral, the state assigns a psychologist or psychiatrist for evaluation. Individuals nearing the end of a sentence may be interviewed without understanding the implications. If the expert opines they meet criteria, they are usually held until their max date, then transferred to county jail. A probable cause hearing occurs within 72 hours, though trial prep may take a year (despite a statutory 45-day speedy trial clock).

The Trial: Civil-Criminal Hybrid

• Respondents are treated as parties in a civil case.
• No right to bail—individuals often remain at SCC on McNeil Island pre-trial.
• No right to silence or confrontation—respondents are often deposed and testify against themselves.
• ER 403 and hearsay evidence is common; experts may rely on unverified claims (ER 703).
• Any party (respondent, state, judge) may demand a jury.
• Despite being civil, trials require unanimous verdicts and proof beyond a reasonable doubt.

How Defenders Can Make a Difference

1. Negotiate Strategically

• Avoid pleas to SVOs when possible.
• Be cautious of non-sex crime pleas in sex cases—ensure they aren't on the SVO list.
• Limit or remove findings of sexual motivation.
• Use precise language in plea agreements to avoid reinterpretation.
• Include facts in the record that refute sexual motivation when possible.
• Seek agreements that preclude SVP petitions.

2. Conduct Defense Investigations

• Secure early expert evaluations.
• Document positive behaviors, treatment history, mitigating factors.
• Use actuarial tools like Static-99R or Stable-2007.
• Consider polygraphs or psychological testing (with caution).

3. Prepare Clients for Prison and Beyond

• Educate about behavior in custody and SVP risk.
• Encourage completion of SOTAP.
• Warn against risky disclosures during treatment.
• Help develop housing, treatment, and support plans post-release.

What Not to Do

Certain behaviors increase the likelihood of SVP petitions:

• Prison infractions, especially sexual misconduct
• Antisocial behavior or poor hygiene
• Risky disclosures during treatment or PSI interviews
• Possession of sexualized material

Evaluations: To Participate or Not?

Clients are not required to participate in evaluations—but evaluators will proceed regardless. Participation can backfire if poorly handled.

Assess whether:

• The client has new, positive information to offer
• The client communicates in a pro-social way
• Participation will reduce perceived risk

Red Flags for Potential SVP Cases

• Pre-ISRB sex offenses
• Pleas from more serious charges
• History of incompetency or NGRI
• Media attention or persistent victims
• Prior SVP evaluations (even if not committed)

Community Reentry and Long-Term Advocacy

Support should continue after avoiding commitment. Help clients:

• Secure housing (with no children present)
• Engage in aftercare and treatment
• Understand DOC conditions and registry obligations
• Avoid any new acts that could be considered recent overt acts

Final Thoughts

RCW 71.09 cases lie at the intersection of civil commitment, criminal law, and psychology. But defenders can—and should—play a critical role in preventing unjust confinement and ensuring long-term stability.
 

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