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AGO 1976 No. 9 - March 30, 1976
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Slade Gorton | 1969-1980 | Attorney General of Washington

CRIMES ‑- RAPE ‑- MINIMUM TERM OF CONFINEMENT ‑- DEFERRED OR SUSPENDED SENTENCE FOR COMMITMENT AS SEXUAL PSYCHOPATH

The requirement of § 4, chapter 14, Laws of 1975, 1st Ex.Sess. (RCW 9.79.170) that persons convicted of first degree rape ". . . be confined for a minimum of three years . . ." does not restrict the power of a superior court to grant a conditional release to a person earlier given a deferred or suspended sentence in order to be committed as a sexual psychopath under the provisions of RCW 71.06.060 and 71.06.091 following a conviction of first degree rape.

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                                                                  March 30, 1976

Honorable Arthur R. Eggers
Prosecuting Attorney
Walla Walla County
407 Drumheller Building
Walla Walla, Washington 99362

                                                                                                                   Cite as:  AGO 1976 No. 9

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on a question which we paraphrase as follows:

            Does the requirement of § 4, chapter 14, Laws of 1975, 1st Ex. Sess. (now codified in RCW 9.79.170) that persons convicted of first degree rape ". . . be confined for a minimum of three years . . ." restrict the power of a superior court to grant a conditional release to a person earlier given a deferred or suspended sentence in order to be committed as a sexual psychopath under the provisions of RCW 71.06.060 and 71.06.091 following a conviction of first degree rape?

            We answer your question in the negative for reasons set forth in our analysis.

                                                                     ANALYSIS

            RCW 9.79.170, codifying § 4, chapter 14, Laws of 1975,  [[Orig. Op. Page 2]] 1st Ex. Sess., as amended by § 1, chapter 247, Laws of 1975, 1st Ex. Sess., defines the crime of first degree rape and then provides that:

            "(2) Rape in the first degree is a felony, and shall be punished by imprisonment in the state penitentiary for a term of not less than twenty years.  No person convicted of rape in the first degree shall be granted a deferred or suspended sentence except for the purpose of commitment to an inpatient treatment facility:  Provided, That every person convicted of rape in the first degree shall be confined for a minimum of three years:  Provided further, That the board of prison terms and paroles shall have authority to set a period of confinement greater than three years but shall never reduce the minimum three‑year period of confinement nor shall the board release the convicted person during the first three years of confinement as a result of any type of automatic good time calculation nor shall the department of social and health services permit the convicted person to participate in any work release program or furlough program during the first three years of confinement."

            The "inpatient treatment facility" language which appears in this statute appears to encompass the sexual psychopath program which has been established pursuant to the provisions of chapter 71.06 RCW.  Under the provisions of RCW 71.06.020,1/ a sexual psychopathy petition may be filed only after  [[Orig. Op. Page 3]] an individual has been charged with a "sex offense" which, as defined in RCW 71.06.010, includes rape.  The criminal proceeding then must be disposed of, either by a finding of guilty or by an acquittal, before the court may proceed to hear the sexual psychopathy matter.  See, RCW 71.06.030 andState ex rel. Schillberg v. Morris, 85 Wn.2d 382, 536 P.2d 1 (1975).

            Commitment as a sexual psychopath under RCW 71.06.060 delays service of the sentence for the original crime and allows the superior court to retain jurisdiction over the individual.  See, RCW 71.06.091, which provides that:

            "A sexual psychopath committed pursuant to RCW 71.06.060 shall be retained by the superintendent of the institution involved until in the superintendent's opinion he is safe to be at large, or until he has received the maximum benefit of treatment, or is not amenable to treatment, but the superintendent is unable to render an opinion that he is safe to be at large.  Thereupon, the superintendent of the institution involved shall so inform whatever court committed the sexual psychopath.  The court then may order such further examination and investigation of such person as seems necessary, and may at its discretion, summon such person before it for further hearing, together with any witnesses whose testimony may be pertinent, and together with any relevant documents and other evidence.  On the basis of such reports, investigation, and possible hearing, the court shall determine whether the person before it shall be released unconditionally from custody as a sexual psychopath, released conditionally, returned to the custody of the institution as a sexual psychopath, or returned to the department of institutions to serve the original sentence imposed upon him.  The power of the court to grant conditional release for any such person before it shall be the same as its power to grant, amend and revoke probation as provided by chapter 9.95 RCW.  When the sexual psychopath has entered  [[Orig. Op. Page 4]] upon the conditional release, the state board of prison terms and paroles shall supervise such person pursuant to the terms and conditions of the conditional release, as set by the court:  Provided, That the superintendent of the institution involved shall never release the sexual psychopath from custody without a court release as herein set forth."

            Successful completion of the sexual psychopath program usually results in an order of release under this last quoted statute ‑ although such a release may be conditional since the legislature has granted the superior court the same powers with respect to sexual psychopaths as the court possesses under the provisions of chapter 9.95 RCW relating to suspended or deferred sentences.2/

             We are informed that, as would be expected of any treatment program, the sexual psychopath program under chapter 71.06 RCW is not of a specific fixed duration.  Rather, its length in a particular case depends upon the individual participant and his progress in the program.  Inpatient portions of the treatment program, however, generally last less than three  [[Orig. Op. Page 5]] years, averaging more in the neighborhood of fifteen to eighteen months.  The question, then, is whether the legislature, by RCW 9.79.170, supra, intended to require a minimum of three years' confinement inall first degree rape cases, including those where the sentence is suspended or deferred in favor of a sexual psychopath commitment.  Or, instead, did the legislature only intend such a three‑year minimum confinement to apply to cases in which the court, rather than suspending or deferring the sentence, imposes sentence and commits the defendant to prison?

            In answering this question we initially note that as a penal statute, RCW 9.79.170 is subject to the oft-cited rule that such statutes are to be strictly construed against the state and in favor of the persons against whom the penalty is sought to be imposed.  State v. Hoffman, 30 Wn.2d 475, 191 P.2d 865 (1948).  We note also that the sexual psychopath statute, chapter 71.06 RCW, would probably be considered remedial and thus be subject to a liberal interpretation.  See, Sutherland on Statutory Construction, 4th ed., § 60.01 et seq.

            Even more importantly, since the legislature did not amend RCW 71.06.091 when it enacted RCW 9.79.170, we are faced with a potential conflict between the provisions of the two statutes.  The former, on its face, continues to allow the court to release an individual convicted of first degree rape but then committed to an inpatient treatment facility any time after his successful completion of the prescribed treatment program while the latter may be read as requiring that such an individual serve a minimum of three years in confinement.

            Amendments by implication are not favored and will not be found to have occurred in doubtful cases.  State v. Becker, 39 Wn.2d 94, 234 P.2d 897 (1951), and cases cited therein.  In regard to the statutes here in question, not only did the legislature which enacted RCW 9.79.170 not attempt to amend the provisions of RCW 71.06.091, but it went so far as specifically to allow a first degree rape conviction to be suspended or deferred for the purpose of allowing the defendant to participate in an inpatient treatment facility even though, in all other cases, the court's power to suspend or defer was removed.

            We also observe that a three‑year minimum confinement provision would be inconsistent with the nature of a treatment  [[Orig. Op. Page 6]] program which (as we have seen) will inevitably be of varying length in individual cases.  In addition, we note that under the provisions of RCW 71.06.091, if a superior court judge feels that further punishment is still warranted after a person has completed the sexual psychopath treatment program, the judge has the discretion so to order.

            Accordingly, in direct answer to your question, it is our opinion that the three‑year minimum term of confinement requirement of RCW 9.79.170 was intended by the legislature to apply only to those persons who are committed directly to prison (and thus to the custody of the state board of prison terms and paroles) and not to those granted a suspended or deferred sentence for the purpose of commitment to an inpatient treatment facility.  Commitments under the latter alternative remain governed by the provisions of RCW 71.06.091,supra, which does not require any mandatory minimum term of confinement.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General


WILLIAM C. COLLINS
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/RCW 71.06.020 provides:

            "Where any person is charged in the superior court in this state with a sex offense and it appears that such person is a sexual psychopath, the prosecuting attorney may file a petition in the criminal proceeding, alleging that the defendant is a sexual psychopath and stating sufficient facts to support such allegation.  Such petition must be filed and served on the defendant or his attorney at least ten days prior to hearing on the criminal charge."

2/See, in particular, RCW 9.95.210 which provides that:

            "The court in granting probation, may suspend the imposing or the execution of the sentence and may direct that such suspension may continue for such period of time, not exceeding the maximum term of sentence, except as hereinafter set forth and upon such terms and conditions as it shall determine.

            "The court in the order granting probation and as a condition thereof, may in its discretion imprison the defendant in the county jail for a period not exceeding one year or may fine the defendant any sum not exceeding one thousand dollars plus the costs of the action, and may in connection with such probation impose both imprisonment in the county jail and fine and court costs. . . ."

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