Adam Walsh Act Discharge Hearings

Facts of the Case

James Dow Vandivere had an extensive history of sexually abusing preteen boys, leading to his arrest in May 1998 at approximately 50 years old. He was convicted in December 1998 for crimes involving the sexual exploitation of children and was sentenced to almost 20 years imprisonment. In January 2015, toward the end of his criminal sentence, the government certified Mr. Vandivere as an SDP pursuant to AWA and petitioned the district court to commit him civilly. At the AWA hearing, the government had to demonstrate by clear and convincing evidence that Mr. Vandivere “engaged or attempted to engage in sexually violent conduct or child molestation,” that he “suffers from a serious mental illness, abnormality, or disorder,” and that he “would have serious difficulty in refraining from sexually violent conduct or child molestation if released” (Vandivere, p 484; citing 18 U.S.C. § 4247 et seq (2006)). In 2016, the government met its burden, and Mr. Vandivere was civilly committed to the Bureau of Prisons as an SDP.

In August 2020, Mr. Vandivere filed a motion for a discharge hearing to argue that he was no longer sexually dangerous and could be released. Mr. Vandivere also argued that the burden of proof should have remained on the government to show that he remained sexually dangerous. The government disagreed, stating that the burden had shifted to him to prove he was no longer sexually dangerous by a preponderance of the evidence.

At the outset of the discharge hearing, Mr. Vandivere conceded the first element of the sexual dangerousness test (i.e., his prior conduct) but disputed the serious mental illness and serious difficulty element. Three expert witnesses testified at the hearing. Dr. Gary Zink, a clinical forensic psychologist, on behalf of the government, testified that Mr. Vandivere continued to meet the requirements of sexual dangerousness. Dr. Zink diagnosed Mr. Vandivere with other specified paraphilic disorder, hebephilia, other specified personality disorder, and antisocial and narcissistic features. Dr. Zink testified that, although offenders older than age 60 are unlikely to reoffend, recidivism in older offenders, referred to as “rare birds,” can still occur. He testified that Mr. Vandivere was a rare bird, given his dynamic risk factors that increased his likelihood of reoffending. Dr. Dawn Graney, a psychologist retained by the government, diagnosed Mr. Vandivere with other specified paraphilic disorder, hebephilia, other specified personality disorder, and antisocial features. Dr. Graney testified that, although Mr. Vandivere’s age placed him at low risk for reoffending, it was important to consider a sex offender’s personal characteristics when assessing sexual dangerousness. On behalf of Mr. Vandivere, Dr. Luis Rosell, a clinical and forensic psychologist, testified that hebephilia is not recognized in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) and could not satisfy the serious mental illness element. Dr. Rosell testified that Mr. Vandivere was not likely to reoffend given the research indicating sex offenders older than 60 have a reduced rate of reoffending and dismissed data related to Mr. Vandivere’s dynamic risk factors.

The district court reviewed the record and found the government’s experts’ diagnoses persuasive. The district court found he would have serious difficulty in refraining from child molestation if released and cited the determination “requires more than relying on recidivism rates of past offenders but requires an analysis of a range of different factors” (Vandivere, p 487). The court stated they gave greater weight to the government’s experts as “[t]heir analysis of Vandivere’s sexual dangerousness [was] more thorough, better reasoned, better supported by the record, and better supported by research, especially in light of the factors” (Vandivere, p 487). The district court ruled that Mr. Vandivere failed to meet his burden of a preponderance of the evidence that he was no longer sexually dangerous and denied his motion for discharge. Mr. Vandivere appealed to the U.S. Court of Appeals for the Fourth Circuit, primarily arguing the district court wrongly forced him to bear the burden of proof and that the district court wrongly weighed the evidence indicating he remained sexually dangerous.

Ruling and Reasoning

The Fourth Circuit concluded that the AWA clearly indicates that detainees bear the burden of showing, by a preponderance of evidence, that they are no longer sexually dangerous. Mr. Vandivere asserted that this violates detainees’ due process rights. The court looked at three factors outlined in Mathews v. Eldridge, 424 U.S. 319 (1976) for guidance: the private interest at stake, fairness and reliability of existing procedures, and the public interest. The court found that the factors discussed in Matthews indicate the burden of proof on an AWA detainee does comply with the Due Process Clause. Mr. Vandivere attempted to avoid the Matthews comparison by citing three Supreme Court precedents (Addington v. Texas, 441 U.S. 418 (1979), Foucha v. Louisiana, 504 U.S. 71 (1992), and Kansas v. Hendricks, 521 U.S. 346 (1997)), none of which apply to the constitutionality of the AWA.

In response to Mr. Vandivere’s statement that the district court wrongly accepted a diagnosis of hebephilia as grounds for civil commitment, the court relied on prior rulings from United States v. Carta, 592 F.3d 34 (1st Cir. 2010) and Kansas v. Hendricks, which determined a mental disorder does not need to meet exact medical definitions or the diagnosis does not need to be identified in the DSM to meet civil commitment criteria. Mr. Vandivere argued that the district court relied on the “rare bird” theory, which he stated was highly subjective. The court determined that assessing a sex offender’s recidivism rate goes beyond general statistics, requiring district courts to analyze the “personal proclivities of each offender and what these idiosyncrasies might indicate about his risk of reoffending” (Vandivere, p 494). Finally, Mr. Vandivere argued that the district court did not consider his positive behavior while imprisoned. The court rejected his argument because he continued to endorse cognitive distortions about his sexual encounters with pubescent boys and noted the absence of 13- to 15-year-old boys in the Bureau of Prisons. Thus, the findings were affirmed.