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May 03, 2012
McKenna: Ruling in State Supreme Court protects public from sex predators

OLYMPIA – In a rare turn of events, the State Supreme Court today reversed a previous decision in a challenge filed by a pedophile against the state’s Sexually Violent Predator (SVP) law.

“David McCuistion, who was convicted of rape and assault, among other charges, sought to force the state to re-fight – at huge expense – cases already proven beyond a reasonable doubt,” McKenna said. “This would have in effect re-written state laws protecting the public from mentally ill predators, opening the flood gates for countless new trials. The Court, in its wisdom, today made it clear that it would not allow predators to abuse the court system in this manner.”

Washington State’s SVP law requires the State to prove that an individual is both mentally ill and sexually dangerous before allowing the mentally ill person to be held indefinitely as a sexually violent predator in the state’s Sexual Commitment Center on McNeil Island. The State has the burden to show every year that they continue to meet the definition of a sexually violent predator.

McCuistion claimed that new jury trials could be triggered anytime any evidence was put forward that an SVP no longer met the criteria, even if the evidence existed prior to the initial determination. The basis for McCuistion’s appeal involves amendments passed in 2005 by the Legislature. In response to lower court rulings on SVP trials, the Legislature passed an amendment that said once the state shows the individual continues to meet criteria, the only way for an SVP to be granted a new a new trial is to show that their condition had so changed as a result of treatment or being physically incapacitated, that they are no longer a threat to the public.

In September 2010, the State Supreme Court ruled that the Legislature’s amendments violate the Constitution’s protection of substantive due process. The Attorney General’s Office filed for reconsideration because the US Supreme Court indicated in previous decisions that, in order to satisfy due process rights, states should periodically review each case. New trials are not required.

McKenna points out that each case costs about $400,000 and there are 302 people residing at the Commitment Center at McNeil Island.

Washington law defines an SVP as any person:

  • Who has been convicted of or charged with a crime of sexual violence; and
  • Who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility.

The Attorney General’s Sexually Violent Predator Unit was created following the enactment of the state’s SVP law and is responsible for prosecuting sex predator cases for 38 of Washington’s 39 counties (King County being the exception). The expertise of the unit permits it to handle all aspects of sex predator cases, including pre-filing investigations, pre-trial motion practice, trial, post-commitment proceedings and appeals.

The State Supreme Court case was successfully argued by Managing Assistant Attorney General Brooke Burbank, who leads the office’s Sexually Violent Predator Unit.


Janelle Guthrie, Director of Communications, (360) 586-0725

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