The decision in Baughman v. Virginia ends the state’s efforts to civilly commit activist Galen Baughman as a ‘sexually violent predator’
In mid-September 2022 the Supreme Court of Virginia reversed a trial court decision and dismissed the Commonwealth’s petition to have Galen Baughman declared a sexually violent predator and confined in civil commitment.
Baughman is a gay man who was incarcerated for nine years for a sex offense conviction as a teenager. After his release, he became an advocate and was awarded a Soros Justice Fellowship in 2015 to campaign against the indefinite civil commitment of youth who are deemed to be “sexually violent predators.”
Virginia is one of 20 states that can indefinitely civilly commit people convicted of a sex-related crime after they have served their sentences, provided a court finds sufficient evidence to declare them a sexually violent predator. An SVP is defined as a person suffering from a psychological “abnormality” that predisposes him to commit a sexually violent offense. This is a “disorder” invented by legislators; it is not recognized by professional psychological associations. Civil commitment is preventive detention: incarceration for an offense that might happen in the future. It’s a violation of law going back to the Magna Carta, not to mention of fundamental human rights. SVP programs are touted as residential therapy. But they operate as prisons, except that the inmates have no release dates.
After Baughman’s incarceration, Virginia sought to civilly commit him as an SVP, but a jury determined he was not one, and he was released on supervised probation.
In 2016, because of a technical violation of his probation—exchanging non-sexual text messages with a teenage boy he met at a funeral—the Commonwealth of Virginia jailed Baughman and tried again to confine him indefinitely in civil commitment. A state-appointed psychologist examined him and found that he was not a sexually violent predator and was not at risk of reoffending. Unsatisfied by this report, the prosecution found an expert who would testify against Baughman. This “expert” did not interview Baughman. The state’s only evidence offered at trial, besides the prosecution’s “expert” testimony, referred to the offenses Baughman committed in 2003. Meanwhile, the judge did not allow the defense to mention the previous state-appointed expert’s assessment, to present its own expert testimony, or to hear the earlier jury’s determination that Baughman was not a sexually violent predator. This time the jury found him to be an SVP.
On appeal, the Virginia Supreme Court ruled that the state had improperly engaged in expert shopping and vacated and reversed the lower court’s decision. Having spent years in jail on a technical violation, Baughman was finally exonerated.
The case is important in several ways. First, the Virginia Supreme Court made a clear and strong statement against the practice of expert shopping. Second, the case revealed the deep homophobic bias embedded in the Orwellian civil commitment assessment process and in the drive to confine Baughman as a dangerous predator in the absence of credible evidence. In an amicus brief filed on behalf of LGBTQ+/HIV rights advocates and organizations in support of Baughman’s petition for appeal, the Center for HIV Law and Policy eloquently made this argument.
“This decision validates the main argument in our brief, that the lower court made errors due to the bias baked into the process of determining a person’s ‘future dangerousness’ in civil commitment proceedings,” said attorney Anne Kelsey, who was the lead author of the brief for CHLP. “Galen’s conduct was legal and the court agreed it was the persecution by the state of Virginia that crossed a line.”
Third, Baughman’s supporters brought Virginia’s unjust, punitive civil commitment program to the attention of state legislators, many of whom knew little about it. In 2021, two Virginia lawmakers introduced legislation to repeal the state’s civil commitment laws.
NCRJ joined CHLP’s brief, along with legal organizations including GLBTQ Legal Advocates and Defenders (GLAD), Health Professionals Advancing LGBTQ Equality (GLMA), the O’Neill Institute for National and Global Health Law, the National Center for Lesbian Rights (NCLR), and Brad Sears, J.D. The National Association of Criminal Defense Attorneys (NACDL) also filed an amicus brief in support of Galen’s appeal. A third amicus brief was filed by a group of law professors and issue-area experts.
Thanks to our friends at the Center for HIV Law and Policy for their work in support of Galen Baughman and also for their press release on his case, from which this article is adapted.
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