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SVP: Likelihood of Future Sexual Violence Satisfies Substantive Due Process & Equal Protection

State v. Scott R. Nelson, 2007 WI App 2, PFR filed 1/22/07
For Nelson: Joseph L. Sommers


¶15      … Even under the “more likely than not” standard, there must be a strong nexus between the person’s mental disorder and that person’s level of dangerousness. Under this standard, the likelihood that the person will engage in an act of sexual violence is more than 50%. [6]¶16      The principal purposes behind chapter 980 are “the protection of the public and the treatment of convicted sex offenders who are at a high risk to reoffend in order to reduce the likelihood that they will engage in such conduct in the future.” State v. Carpenter, 197 Wis. 2d 252, 271, 541 N.W.2d 105 (1995). We recently said in Tabor that “the legislature may modify the threshold for dangerousness so long as the applicable criteria remain relevant to ch. 980’s underlying purposes of both protecting society and providing needed treatment to persons whose mental disorder makes them dangerous.” Tabor, 282 Wis. 2d 768, ¶5. Nelson provides no persuasive explanation for why these purposes are not well served by the “more likely than not” standard. Cf.Hendricks, 521 U.S. at 360 n.3 (“[W]hen a legislature ‘undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad and courts should be cautious not to rewrite legislation.’” (citation omitted)).

¶18      In sum, we discern no reason why the “more likely than not” standard is not sufficiently narrowly tailored to achieve the State’s compelling interest in protecting society by preventing acts of sexual violence through the commitment and treatment of those identified as most prone to commit such acts. Certainly none of Nelson’s substantive due process arguments persuade us beyond a reasonable doubt that chapter 980, as amended by 2003 Wis. Act 187, is unconstitutional.

Equal protection also satisfied, ¶¶20-22.


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