'Sexually Violent Predator' tag debated

Attorneys, offenders debate Colorado's use of 'sexually violent predator' designation

Christine Reid, Daily Camera, March 8, 2008

What is a sexually violent predator?

A sexually violent predator is defined by Colorado law as 

The perpetrator could be a stranger or a person who promoted a  relationship with the victim for the purpose of the crime.

When the court finds a defendant to be a sexually violent predator, it  is determined through the pre-sentence report the court gets at the time  of sentencing. A sexually violent predator risk assessment is supposed  to be part of that report, and the judge makes the determination after  the prosecutor and defense attorney get a look at the report.

A person being considered for parole from prison also can be  administered the sexually violent risk assessment tool and labeled by  the parole board before he or she is set free.

The SVP test

The Colorado Sexually Violent Predator Assessment Screening Instrument  was developed by the state's division of criminal justice with help and  approval by the state sex offender management board.

"Yes" answers count as one point. The weight of the last three questions  are measured by a "scale criteria" system based on more questions and  actions by the offender.

A score of 4 or above means the label gets attached.

Longmont resident Dwight Jackson says the term "sexually violent  predator" conjures up images of a 50-year-old man hiding behind a bush  and snatching up 4- and 5-year-old children -- not his 22-year-old son.

Yet that's the unsavory title Sean Christopher Jackson will carry for  the rest of his life after denying to Colorado's parole board that he's  a rapist.

Arrested in 2004 on suspicion of sexually assaulting two girls, aged 14  and 15, Sean Jackson insisted the sex was consensual. He took a plea  deal to avoid a possible life sentence, his father said, and spent three  years in prison. Now he's barred from even seeing his two younger  sisters until they turn 18, thanks to the predator tag.

"It's a real twisted law that is costing taxpayers," Dwight Jackson said in a recent interview. "We just think it's ridiculous. ... He's just an immature teenager -- a stupid kid."

Colorado's sexually violent predator label was created in 1999 to warn  communities -- through public meetings and frequent registration with  police -- of those offenders most immutable to treatment and, according  to research, most likely to reoffend.

Despite those intentions, the designation -- which can be affixed by a  judge at sentencing or the parole board at the conclusion of a prison  sentence -- has attracted its share of naysayers, including those  bearing the label and inside the criminal-defense community, as well as  some police and prosecutors. One local legislator is even trying to  change the law so that only a judge -- and not the parole board -- can  affix the sexually violent predator tag to offenders.

Just hearing the phrase "sexually violent predator" can strike fear in  neighbors, notes former Boulder County sex-crimes prosecutor Ingrid Bakke.

"That does a lot in terms of scaring people and making the offender  equally afraid of more repercussions when tagged," said Bakke, who is now a private defense attorney. "And I think we have yet to see if it works or not."

Crimes of violence

At the end of 2007, there were 354 people designated as sexually violent  predators by the state of Colorado, according to the Department of  Corrections. Of those, 157 were labeled by the state's parole board.  Three hundred remain incarcerated.

Currently, two sexually violent predators call Boulder County home --  and both say their crimes involved consensual sexual relationships with  underage girls.

Friday, a bill designed to change the way people convicted of sexual  crimes receive the label was approved on a second reading by the  Colorado House of Representatives. The bill, sponsored by Rep. Dianne  Primavera, D-Broomfield, seeks to require that the judge handing down an  offender's sentence also determine whether that person gets the sexually  violent predator label.

"It's intended to make sure a SVP is assessed at the right place at the  right time," Primavera said. "It's really important they get labeled  appropriately"

Boulder defense attorney Mary Clair Mulligan said the label shouldn't be  slapped on men who are just older than the legal limit who are convicted  of having consensual sex with underage girls.

"I realize there is an element of community safety involved," Mulligan said, "but it does sort of boil down to how (the state) defines sexually violent predator compared to the rest of the community."

While the tag includes the word "violent," those bearing it may not  necessarily have been convicted of violent crimes. Of the five sexually  violent predators who have ever lived in Boulder County, two were  convicted of touching victims over their clothing.

"It's such a misnomer," said Julie Brooks, a Boulder police spokeswoman. "There can be no violence involved (and people can still be) labeled."

Sex offenders are the lepers of the 21st century, said Denver defense  attorney Phil Cherner, even though two-thirds of them are sentenced to  serve time in the community, not prison.

"We need to find a rational way to deal with them, not overreact,"  Cherner said.

Yet sex assault survivor Renee Dulany does not think Colorado's predator  law is broad enough.

Last summer, Rudy Gaytan was convicted of brutally raping Dulany at  knifepoint in Longmont in 1996 -- but he cannot earn the sexually  violent predator label because his crime occurred before that law went  into effect. He was sentenced to 72 years in prison earlier this month.

"If you've been convicted, I think you are a sexually violent predator," Dulany said. "The justice system is still lacking in protecting future victims."

Dulany said victims of sex assault can't be healed with medicine or  treatment -- it is something they live with every day.

"To have these people on the street -- they're dangerous," she said. "We have every right to know."

Janine D'Anniballe, the executive director of Boulder's Moving to End  Sexual Assault, said the intent of the law is to give a "heads up" to  the community.

"That's always a good thing," she said. "I think the way it's done is to  try and capture people's attention and give people a forum to learn and ask questions."

However, D'Anniballe said, the label has a lot of focus and fear  attached to it, when, in reality, the majority of sex offenses are  perpetrated by people the victim knows -- not strangers jumping out of  the bushes.

"The perpetrator could just as easy be someone in the family -- that's  closer to them than any (sexually violent predator) in the  neighborhood," D'Anniballe said.

Inflammatory label

Michael Dell said he's seen overreaction to the predator label firsthand.

Dell was convicted of sexual assault in Boulder in 1999. He does not  carry the sexually violent predator label, but as a board member of  Colorado CURE -- a national organization that advocates on prison issues  and also acts as a clearinghouse to help former inmates -- he talks to  lawmakers about the effects of the legislation they pass.

"The purpose is good," Dell said of Colorado's predator label. "There is a certain percentage of sex offenders who will never manage themselves, and that's basically what the predator group is."

But the problem lies in how the system identifies that group, he said.  Not distinguishing between those who seek out strangers and those who  are familiar to their victims, and also not separating those who have  multiple victims or those who attack strangers is troubling, Dell said.

"If you overdesignate everyone, then you lose the people who are  dangerous in the crowd," Dell said.

And the label itself is so inflammatory it makes living on the outside  of prison walls very tough for its designates and drives some  underground, meaning they fail to register.

"We're back to the boogeyman syndrome," Dell said. "People need to realize unless you know the individual circumstances ... just because someone a sex offender, they're not going to be drooling over your kids as they walk to school."

Laurie Kepros, a public defender in Arapahoe County who specializes in  sex cases, said when sex offenders are given the predator label by a  judge in court at the time of sentencing, they at least can have help  from an attorney to dispute the designation.

However, she said, when the parole board labels offenders there is  nobody advocating for the defendant. That is problematic, Kepros said, and she is hearing more and more  "horror stories" -- people being given the label even after the court  deemed they were not qualified for it, and others slapped with the label  when their crime doesn't fit the definition.

"That's really alarming," she said. "We're trying to figure out if we  can help or not. "

But David Michaud, chairman of Colorado's parole board, defended the  post-prison labeling.

He said the parole board is just following the law, using the Colorado  Sexually Violent Predator Assessment Screening Instrument, which was  developed from research collected by Colorado's division of criminal  justice and approved by the sex offender management board.

"You've got some discretion, but if it were me doing them, I'm not going to go against that risk assessment ... unless I see there is a blatant mistake," Michaud said.

When the label is applied in court, it happens at a public hearing --  but the parole board meeting is closed.

Offenders are given at least 24 hours' notice of the possible label and  have a chance to submit evidence or call witnesses to try and fight the  designation, Michaud noted.

Michaud said he knows there will always be people not happy with how  they were labeled, but the real retribution to his board will come when  an offender passes the assessment test, leaves prison without the  sexually violent predator tag -- and then reoffends.

"Then someone's going to be screaming and hollering that this doesn't work," he said.