P v. White (2nd Dist, Div.5) "Sexually Violent Criminal Behavior" is Distinct From "Sexually Violent Offense" Under California's Sexually Violent Predator Law.

Mr. White's criminal convictions include the following.
     In 1979, assault with intent to commit rape;
     In 1981, immoral acts before a child;
     In 1983, indecent exposure;
     In 1984, battery for fondling a woman's butt;
     In 1998, sexual battery for pinning a woman against a wall and fondling her butt and breasts;
     In 1999, battery for bumping his penis into a woman's butt; and,
     In 2001, sexual battery.  

Following White's release from prison, the State sought to have White civilly committed as a Sexually Violent Predator (SVP).  Following a trial on this issue, White was found to satisfy the criteria for an SVP and was committed as requested.  He appealed.

The Second District affirms.

To civilly commit a person as a SVP, California law requires that the State prove, among other facts, the person [1] has a conviction for a "sexually violent offense", [2]  suffers from a diagnosed mental disorder that makes the person a danger to the health and safety of others, and [3] the mental disorder makes it likely the person will engage in "sexually violent criminal behavior".  

The issue here is the definition of "sexually violent criminal behavior" in [3], specifically whether it is tantamount to "sexually violent offense" in [1].  "Sexually violent offense" is defined by reference to enumerated crimes, one of which is assault with intent to commit rape.  However, the trial testimony of various experts did not assert that White's mental disorders were likely to make him engage in any "sexually violent offense[s]" in the future.  Rather White's disorders, including Frotteuristic disorder (fantasy of and compulsion to, rub one's erect penis against strangers), were likely to result in White continuing to commit the crime of sexual battery, a crime that does not fall within the legal definition of "sexually violent offense".  The upshot is that the case turns on whether the State proved element [3], which depends on the definition of "sexually violent criminal behavior".  

If "sexually violent criminal behavior" means committing a "sexually violent offense", White would prevail, as there was no evidence his mental disorders made it likely he would commit such an offense.  However if the former is a phrase to be analyzed by using its words' common meanings, White would lose.  "Violent" is commonly understood to mean the use of force for an unlawful purpose.  Ramming one's penis into the butt of an unsuspecting woman is undoubtedly sexual, involves violence, and is criminal.

The panel examines the statutory language and concludes, quite reasonably IMEO, that by using different words to define elements [1] (sexually violent offense) and [3] (sexually violent criminal behavior), the legislature meant to confer different definitions.  As the phrase "sexually violent criminal behavior" is not statutorily defined, the panel interprets the phrase using the words' common meanings.  The result is as predicted in the latter part of the previous paragraph.   

For those interested, I performed some cursory research on White's disorder, of which I had never heard.   "Frotteuristic disorder" originates from the French word "Frotteur" meaning "one who rubs".  The disorder was first identified by French psychiatrist Valentin Magnan.