A mentally retarded child molester who was denied sexual deviancy counseling as a “low-risk” offender while in prison will face another trial that could result in his indefinite civil commitment as a high-risk, violent sexual predator.
In a hearing Thursday, Spokane County Superior Court Judge Michael P. Price ruled in favor of the Washington Attorney General’s office, which petitioned the court in April for the civil commitment of Carleton Sylvester Smith, 43. Convicted rapist Kevin Coe will face a similar civil commitment trial in September. If convicted, both men would end up in a special facility for sexual predators at McNeil Island Correctional Facility.
The civil commitment petition by Deputy Attorney General Todd Bowers says Smith suffers from a “mental abnormality” – either pedophilia or paraphilia, where a person is aroused by forced sexual activity.
Smith’s alleged disorders cause him to have “serious difficulty controlling his dangerous behavior and make him likely to engage in predatory acts of sexual violence unless confined to a secure facility,” the state’s petition says.
Smith went to prison in 1999 after pleading guilty to fondling a 5-year-old girl in his care. During his 51-month sentence, he requested counseling for sexual deviancy, but was deemed a low-risk offender and was denied. After he was released in 2003 and returned to Spokane, he pleaded guilty to a stalking charge in June 2004 and served a year in the Spokane County Jail. He has violated conditions of his probation several times, according to court documents.
The state’s civil commitment petition was triggered by an incident on Dec. 3.
Smith lurked for eight hours near a Spokane child care center in an industrial area along East Sprague, hiding in the bushes and allegedly “masturbating to sexual fantasies of females from the ages of 6 to 24,” the state’s petition says. At the time, Smith was wearing an electronic ankle bracelet in an experimental program to track Level III sex offenders in community custody.
The child care incident was the “overt act” required for the state to proceed with the civil commitment trial under state laws on violent sexual predators, Price said in his oral ruling from the bench.
Smith’s court-appointed attorney, Timothy Trageser, urged Price to dismiss the charges, saying the state hasn’t proved Smith has a mental disorder that makes him any more dangerous than millions of other people who have sexual fantasies but don’t act on them.
“There is a lack of evidence that my client has a mental abnormality. It was wrong what he did at the day care center, but the court can’t conclude he was driven to do it,” Trageser said. He said Smith has not committed any violent sexual offenses and the state is simply “guessing” at future behavior.
Smith may not have been at a high risk to reoffend in 1999 when he went to prison, but “times change,” said assistant attorney general Josh Choate, noting his sexual offender status was upgraded from a Level II to a Level III.
Trageser conducted a lengthy cross-examination of state expert Dr. Dale R. Arnold, a consulting psychologist from Pismo Beach, Calif. Arnold evaluated Smith in March and concluded he met the criteria for civil commitment. The psychologist said he’s testified for Washington state in eight civil commitment cases – ruling in three that there was insufficient evidence the person was a violent sexual predator.
Trageser asked Arnold if Smith was mentally slow and whether he understood the questions he was asked in the psychological interview. Arnold said Smith had been in special education classes in school and his IQ was 60 – mildly mentally retarded. But he appeared to comprehend the seriousness of the questions, Arnold said.
“He said he was nervous because of the potential outcome,” Arnold said.
Trageser said Smith has never been convicted of rape and doesn’t deserve to be labeled a sexually violent predator.
Arnold, however, said he’d concluded that Smith’s behavior in recent years was escalating out of control. In his written evaluation, he said Smith’s conduct at the child care center last year was not a planned act, “but happened after the smell of a female pedestrian’s perfume triggered sexual thoughts.”
Arnold’s report said Smith “acknowledged fantasies of rape and sexual arousal to children. Despite his attempts to control his deviant sexual urges, he admits he has been unable to do so.”