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AGO 1950 No. 278 - May 17, 1950
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Smith Troy | 1941-1952 | Attorney General of Washington

COMMITMENT PROCEEDINGS ‑- SEXUAL PSYCHOPATHS

The affidavit alleging a person to be a sexual psychopath should be filed as a probate matter and findings and conclusions and the maintenance order entered.

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                                                                   May 17, 1950

Honorable Harold Van Eaton
Director of Public Institutions
Olympia, Washington                                                                                                              Cite as:  AGO 49-51 No. 278

Attention:  Van R. Hinkle, Supervisor

Dear Sir:

            You have requested an opinion from this office on the following questions relating to an interpretation of sections 26 and 27 of chapter 198, Laws of 1949

            1. Should the affidavit alleging a defendant to be a sexual psychopath be filed in the criminal cause or as a probate matter?  If filed in the criminal case, should the court proceed with hearing on the allegation of sexual psychopathy and enter findings therein?

            2. Should findings, conclusions and an order as to maintenance be entered against a person, and if so, should this be done as a probate cause?

            Our conclusions may be summarized as follows:

            1. The affidavit alleging a defendant to be a sexual psychopath should be filed as a probate matter and the hearing on the allegation of sexual psychopathy should be held in the probate matter.

            2. Findings, conclusions and an order as to maintenance may be entered in the probate cause.

                                                                     ANALYSIS

             [[Orig. Op. Page 2]]

            Section 26, chapter 198, Laws of 1949 (Rem. Supp. 1949, 6953-26) provides as follows:

            "If, when any person is charged with crime either before or after adjudication of the charge, it appears by affidavit to the satisfaction of the Court that such person is a sexual psychopath within the meaning of this act, the Court may adjourn the proceedings or suspend the sentence, as the case may be, and thereupon proceed as provided by this act.  The affidavit shall state fully the facts upon which the allegation is based.  If the person is not then before the Court or in custody, the Court may order that the person be detained in a place of safety until the issue of and service of a warrant of apprehension.  The Judge or Justice presiding in such Court shall issue and deliver to some peace officer, for service, a warrant directing that the person be apprehended and taken before a Judge of the Superior Court for a hearing and examination upon the allegation that the person is a sexual psychopath.  The officer shall thereupon apprehend and detain the person until a hearing and examination can be had.  At the time of the apprehension, a copy of the affidavits and warrant shall be personally delivered to the person."

            The section clearly contemplates that after the affidavit has been filed charging the person with being a sexual psychopath the court will adjourn the proceedings or suspend the sentence and then proceed under the 1949 act for the care and treatment of the mentally ill.  The charge that a person is a sexual psychopath is not a criminal charge, nor is it one which is included within the scope of the criminal charge on which the person is to be or is being tried.  Therefore, it would appear that the affidavit charging a person with being a sexual psychopath is in the nature of a new proceeding not criminal in nature which should be entered as a probate matter.

            Accordingly, you are advised that it is the opinion of this office that the affidavit alleging the defendant to be a sexual psychopath should be filed as a probate matter, and the hearing on the allegation of sexual psychopathy should be held in the probate matter.

            Section 27, chapter 198, Laws of 1949 (Rem. Supp. 6953-27) provides as follows:

             [[Orig. Op. Page 3]]

            "If, upon the hearings of the allegation of sexual psychopathy, the person before the Court upon trial, or under conviction, is found not to be a sexual psychopath, the Court, may proceed with trial or impose sentence, as the case may be.  If, upon the hearing on the allegation of sexual psychopathy, the person is found to be a sexual psychopath the Court may suspend proceedings, and commitment to a State Hospital shall proceed according to the provisions for the commitment of the mentally ill."

            The section contemplates that special hearings shall be held on the allegations of sexual psychopathy in the probate matter, and if the person is found to be a psychopath, the court commits the person to a state hospital according to the provisions of the mentally ill.  Accordingly, the necessary findings, conclusions and order as to maintenance should be entered at that time.

            Accordingly, you are advised in answer to your second question that the hearing on the allegations of sexual psychopathy should be held in the probate cause and that findings, conclusions and maintenance order should be entered at that time.

Very truly yours,

SMITH TROY
Attorney General

JANE DOWDLE
Assistant Attorney General

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