In 2006, Congress enacted, and former President George W. Bush signed into law, the Adam Walsh Act, also know as the Sex Offender Registration and Notification Act (SORNA). The purpose of the law is to “protect children from sexual exploitation and violent crime.” To achieve this statutory purpose, along with revising sex registration requirements, the Act amended existing Federal civil commitment provisions to allow the Government to seek an indefinite court-ordered civil commitment of U.S. Bureau of Prison sex offenders deemed “sexually dangerous” once their prison sentence is complete.
The Act authorizes either the Attorney General (or any designee) or the Director of the Bureau of Prison to “certify” which sex offender scheduled for release is too “sexually dangerous” to be returned to the community. Once a preliminary certification is made, the process is then sent to a Federal district court where a hearing must be conducted to determine whether the offender is, in fact, sexually dangerous.
The Government bears the burden of showing by clear and convincing evidence that the offender is sexually dangerous by demonstrating 1) the offender has “engaged or attempted to engage in sexually violent conduct or child molestation,” 2) the offender “suffers from a serious mental illness, abnormality, or disorder,” and 3) as a result of this disorder, the offender “would have serious difficulty in refraining from sexually violent conduct or child molestation if released.”
There are two popular misconceptions about child sexual abuse. First, most people believe that sexual crimes against children are committed by stranger “pedophiles” when, in fact, according to Human Rights Watch, over 90 percent of the acts of child sexual abuse are committed by persons known to the child (primarily an immediate or extended family member). The HRW also reports that 87 percent of the people who commit acts of sexual abuse against children have no prior sex offense convictions.  Second, most people believe that child sex offenders are repeat offenders. Not true. Government figures place the recidivism rate for these sex offenders at 5 percent while HRW says that 75 percent do not re-offend within the first fifteen years after release.
No one really knows how many sex offenders are currently under civil commitment at the Federal and state level. USA Today reported in March 2012 that roughly 2,000 such offenders are committed to the Bureau of Prisons each year. Only fifteen of those had been civilly committed under the Adam Walsh Act.
In 2007, the New York Times reported that there were approximately 2700 sex offenders under civil commitment in 19 states, with 66 being in the State of Texas. Those states were spending $450 million a year to keep these sex offenders under civil commitment—an average of $100,000 a year as compared to $26,000 a year for penal incarceration. It’s worst in the State of Washington, a pioneer state in civil commitment. In 2012, the Seattle Times reported that it takes 3 to 5 years to civilly commit a sex offender in that state at a cost of $450,000 with another $173,000 annual cost to keep him indefinitely committed.
Beyond the exorbitant costs and the marginal benefits of civil commitments, the programs nonetheless enjoy strong support among victim rights advocates like John Walsh (the father of Adam) and the Center for Missing & Exploited Children.
Sex offenders like John Charles Volungus spur this support. His case was dealt last September by the First Circuit Court of Appeals. The court said the 45-year-old Massachusetts native had a normal childhood in a two-parent household. He graduated from college and enlisted in the U.S. Army. He was stationed in United States, Europe and the Middle East. It was while he was stationed abroad that he developed an interest in what he called “teen sex magazines.”
Upon his return to the states and while stationed at Fort Campbell, Kentucky, Volungus began to download child pornography. The First Circuit said these images were of children ranging from eighteen months to 18 years of age. He would view the images seven hours each night on weekdays and 13 hours on the weekends. He managed to amass thousands of images of child porn by programming his computer to download the images when he was not actively using it. This prurient interest in child porn led Volungus to “chat rooms” where he engaged in sexually explicit conversations with persons he believed were minors. He graduated to posting what the appeals court described as “advertisements” on chat rooms bulletin boards expressing his desire to meet and have sex “with young females.”
This Internet activity led him directly into a federal law enforcement trap. Agents posing as young teenage girls encouraged him to speak openly about his sexual interests. He described himself as a “real-life pedophile” who had filmed a sex tape with one fourteen year old girl and had “anal sex” with another. He boasted about having his first sexual encounter with an “underage female” when he was seventeen and had sex with a 12-year-old girl he was babysitting. The agents arranged a meeting at which Volungus brought “sex toys and lingerie” only to be surprised when he was arrested by military police.
Volungus was as open with law enforcement officials after his arrest. He told investigators about meeting another fourteen year old girl and had discussed with a father in Canada about having sex with his “eight- or nine-year-old daughter,” although he denied ever having sex with a minor. He eventually pled guilty to an 8-count Federal indictment including possession of child pornography and using a computer to persuade a minor to engage in a sex act. In June 1999, he was sentenced to 53 months of incarceration to be followed by three years of supervised release.
For the next four years, 1999 to 2003, Volungus was incarcerated at the Federal Correctional Institution at Fort Dix, New Jersey. Prison did not curb his interest in children. Searches by prison guards turned up books about sex acts with children and hand drawings depicting sex with children. He admitted to prison officials that he had “a problem and … [was thinking] about sex with children all the time.
After completing his prison sentence, Volungus was released and place on supervised release. The appeals court pointed out that in April 2004 Volungus’ residence was visited by probation officers to “install monitoring software on his computer as a condition to his supervised release.” The officers discovered that once again Volungus was downloading child pornography—images of children “engaged in oral sex, intercourse, and lascivious exhibition.” Volungus admitted to his probation officer “he had difficulty controlling his impulses” and had again visited chat rooms. His supervision and treatment program was increased, “adding one-on-one psychological treatment” to the regimen.
Over the next few months Volungus seem to improve until May 2005 when he had contact with his five-year-old niece in violation of the conditions of his release. He was arrested for three specific violations: possessing child pornography, viewing child pornography, and having unauthorized contact with a minor. Volungus informed the revocation hearing panel that the treatment program “hasn’t helped enough … I know that … I have a problem controlling it … I really don’t have enough control over it.” He was sent back to prison to serve an additional 23 months followed by thirteen months of supervised release.
Shortly after Volungus’ sentencing, government authorities learned that he had had a correspondence with a man in Texas who had been arrested for possession of child pornography. This correspondence took place between March and April 2005 when Volungus was on supervised release and during the time he was “attending sex offender treatment classes.” The letters not only discussed graphic details about sex with children but possible plans for the two men “to travel to other countries for the purposes of having sex with children and producing child pornography.”
In 2006, just before Volungus’ second scheduled release from prison, Bureau of Prisons’ psychologists evaluated him and found he was a “high risk to reoffend” and, therefore, the government should “initiate proceedings for civil commitment.” The prospect of being civilly committed still did not deter Volungus’ abnormal interest in children. In August 2007, with the commitment proceedings pending, the government found a “sizeable file” containing hundreds of articles about sex with minors and a mass of other material relating to child pornography and sex with children, including the slogan “sex before eight or else it’s too late.”
Prior to his Adam Walsh commitment hearing, Volungus was examined by government and defense experts to determine if he was a “sexually dangerous person.” He denied ever having sex with anyone younger than eighteen. In March 2012, after a seven-day hearing, a Federal district court ruled that the government had made its case that Volungus “suffered from pedophilia, a mental disorder, which impaired his ability to refrain from deviant sexual behavior,” including difficulty refraining from child molestation.
The First Circuit upheld this finding.
We have no doubt that Volungus is mentally disturbed; that he suffers from an abnormal interest in children. But does this make him either a violent or sexually dangerous person? The district court pointed out that the government “had not proved any actual or attempted child molestation offenses” but the court added that because Volungus is “so driven by his ‘obsessional impulses’ with child pornography and the idea of performing sexual acts with minors, that he would be unable to control his pedophilia and limit it to private masturbation sessions at home.”
Absent his involuntary commitment, the is little doubt Volungus would return to the community and resume his disordered interest in child pornography, sexually explicit chat room sessions, and other venues that cater to sexual interest in children.  However, there are already sufficient criminal laws on the books to punish Volungus with stiff terms of penal incarceration for the rest of his life if he did so.  Arguably, Volungus will never live outside of prison or supervised release, and perhaps, for the protection of society, he shouldn’t.
We can accept punishment for what a person does, for the wrongs he commits.  That is the purpose of law in an orderly society.  We whole heartedly support hefty sentences for offenders who abuse children in any way.  What we cannot accept is indefinite incarceration,” civil commitment,” for future crimes that a person might commit.  This is one step away from thought police and application of civil comitment to other, equally unpopular, crimes.