Future DangerousnessAssessments And Sex Offender Law

In recent decades, federal, state, and local governments have become increasingly restrictive on the freedom and privacy of those labeled sexually violent predators (“SVP”s) in hopes of preventing further sexual violence. The most commonly used tools to manage SVPs are involuntary commitments for mental treatment, sex offender registration, and residency restrictions (hereinafter “SVP laws”).

In an effort to streamline the identification of sex offenders who pose a future danger and thus might be subject to SVP laws, officials place substantive legal emphasis on psychosexual evaluations by individuals accepted as experts. These experts are generally mental health practitioners who offer opinion evidence about an individual’s potential for future dangerousness, often using actuarial (statistical calculation of risk) assessments. 

This article critically analyzes whether future dangerousness assessments using actuarial tools are responsive to legal standards contained in SVP laws and whether courts, when confronted with such assessments, are adequately engaging in the gatekeeper role to accept only good science considering the evidentiary benchmarks of Daubert and Frye.

Specifically, this article concludes that because of uncritical reliance upon actuarial assessments of future dangerousness, legal professionals have largely failed to grasp the significant empirical limitations of these tests.

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