In Re The Detention Of Emery E. Darling, Emery E. Darling

IN THE SUPREME COURT OF IOWA

No. 9 / 04-1703

Filed March 31, 2006

IN RE THE DETENTION OF EMERY E. DARLING,

EMERY E. DARLING,

Appellant.

Appeal from the Iowa District Court for Appanoose County, Daniel P.

Wilson and Annette J. Scieszinski, Judges.

Mentally retarded adult appeals his commitment as a sexually violent

predator. AFFIRMED.

Mark Smith, First Assistant State Public Defender, and Michael H.

Adams, Assistant State Public Defender, for appellant.

Thomas J. Miller, Attorney General, and Linda J. Hines and Denise A.

Timmons, Assistant Attorneys General, for appellee, State of Iowa.

TERNUS, Justice.

The appellant, Emery Darling, is moderately mentally retarded, has a

history of molesting young children, and has been diagnosed with

pedophilia. He was committed as a sexually violent predator under Iowa

Code chapter 229A (2003) on September 22, 2004. He appeals the judgment of

commitment, contending chapter 229A does not apply to a person who is

mentally retarded and not amenable to sex offender treatment. Darling also

asserts his confinement violates his statutory and due process rights to

treatment.

I. Application of Chapter 229A.

Darling argued in the district court and claims on appeal that chapter

229A does not apply to him because he is mentally retarded and is not

amenable to cognitive behavioral therapy. We recently rejected similar

arguments made by a respondent who suffered from an organic brain disorder

that rendered him unlikely to benefit from traditional sex offender

treatment. See In re Matter of Betsworth, ___ N.W.2d ___ (Iowa 2006). In

Betsworth, we held the “mental abnormality” required for commitment under

chapter 229A is not limited to a particular type of mental disease or

defect.[1] Id. at ___. Moreover, the fact that the respondent in

Betsworth had previously been committed under chapter 229, the civil

commitment statute for mentally ill persons, did not mean that he could not

simultaneously qualify for commitment under chapter 229A. Id. at ___.

In Betsworth, we also rejected the suggestion that chapter 229A

requires “that the person committed be amenable to the long-term cognitive

behavioral treatment principally used to treat sex offenders.” Id. at ___.

We explained that “the State is free to provide individualized treatment

for sexually violent predators,” and therefore, “chapter 229A encompasses

sexually violent predators who . . . will not benefit greatly from

cognitive behavioral therapy and must instead be treated with other

modalities.” Id.

The same conclusions are warranted here, as we explain.

A. Mental abnormality. Initially, it is important to recognize that

Darling’s commitment is not based on his mental retardation. The State’s

expert testified at trial that Darling suffered from the mental abnormality

of pedophilia and was at a high risk to reoffend if not confined. Thus,

the basis for his commitment under chapter 229A is his pedophilia, not his

mental retardation. The State’s expert further opined that Darling’s

pedophilia was congenital or acquired and affected the respondent’s ability

to control his sexual impulses. Therefore, Darling’s mental

abnormality—pedophilia—is a proper foundation for his commitment under

chapter 229A. See In re Detention of Palmer, 691 N.W.2d 413, 415 (Iowa

2005) (committing as a sexually violent predator a respondent who suffered

from pedophilia); In re Detention of Cubbage, 671 N.W.2d 442, 443 (Iowa

2003) (same); In re Detention of Garrett, 671 N.W.2d 497, 498 (Iowa 2003)

(same); In re Detention of Ewoldt, 634 N.W.2d 622, 622 (Iowa 2001) (same).

The fact the respondent also suffers from mental retardation does not alter

this conclusion.

Darling also argues he should be committed under the statute providing

for the civil commitment of mentally retarded persons, Iowa Code chapter

222, rather than under chapter 229A. He asserts the former statute would

allow for the least restrictive means necessary to deal with his mental

retardation, rather than confinement in a secure facility, which is

mandated under chapter 229A. This argument rests on a faulty premise: that

Darling’s confinement is intended to address his condition of mental

retardation. But as we have already pointed out, Darling is being

committed for his pedophilia, not his mental retardation. Therefore,

chapter 229A is the appropriate vehicle. Moreover, as this court has

previously held, chapter 229A’s requirement that a respondent be confined

in a secure facility does not violate the respondent’s right to the least

restrictive placement. See In re Detention of Garren, 620 N.W.2d 275, 285

(Iowa 2000).

B. Amenability to treatment. In Betsworth, we held the respondent

could properly be committed under chapter 229A notwithstanding the fact

that his organic brain disorder made it unlikely that he would benefit from

traditional sex offender treatment. ___ N.W.2d at ___. Likewise, here,

the fact that Darling’s mental retardation makes it unlikely that he can

effectively participate in cognitive behavioral therapy does not preclude

his commitment under chapter 229A. There was evidence at trial that a

treatment plan for Darling could be tailored to his individual abilities.

Therefore, his cognitive limitations do not disqualify him from being

committed as a sexually violent predator.

II. Right-to-Treatment Claims.

Darling claims he has a statutory right to effective treatment and a

constitutional due process right to treatment, and these rights are

violated by his commitment under chapter 229A because he is not amenable to

sex offender therapy. These statutory and constitutional claims are

somewhat overlapping insofar as the sexually violent predator act requires

that the involuntary commitment of persons under chapter 229A must “conform

to constitutional requirements for care and treatment.” Iowa Code §

229A.9. We will discuss the statutory and constitutional claims

separately, however.

A. Chapter 229A. One goal of chapter 229A is treatment of the

sexually violent predator. See Betsworth, ___ N.W.2d at ___. But like the

respondent in Betsworth, Darling has failed to establish that his chapter

229A right to treatment has been violated. The record shows the State will

individualize a treatment program to compensate for Darling’s limited

cognitive abilities. Chapter 229A does not require that the treatment will

ultimately be successful as a prerequisite for commitment.

B. Substantive due process. We reach the same conclusion with

respect to the respondent’s substantive due process claim. There is no

constitutional bar to the civil confinement of sexually violent predators

with untreatable conditions when confinement is necessary to protect the

public. Id. at ___; accord Seling v. Young, 531 U.S. 250, 262, 121 S. Ct.

727, 734, 148 L. Ed. 2d 734, 746 (2001). Here, Darling was committed only

after a jury unanimously determined beyond a reasonable doubt he was a

sexually violent predator, a determination that required a finding he was

“likely to engage in predatory acts constituting sexually violent offenses,

if not confined in a secure facility.” Iowa Code § 229A.2(11). Clearly,

his confinement is necessary to protect the public. See generally id. §

229A.1, para. 2 (noting “legitimate public safety concerns” regarding the

commitment of sexually violent predators and “the need to protect the

public”). Consequently, even if Darling’s mental retardation will prevent

effective treatment of his pedophilia, the Constitution does not prohibit

his confinement.

AFFIRMED.

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[1]The requirement of a “mental abnormality” is found in the

statutory definition of “sexually violent predator.” The latter term is

defined as

a person who has been convicted of or charged with a sexually violent

offense and who suffers from a mental abnormality which makes the

person likely to engage in predatory acts constituting sexually

violent offenses, if not confined in a secure facility.

Iowa Code § 229A.2(11) (emphasis added). A “mental abnormality” is defined

as “a congenital or acquired condition affecting the emotional or

volitional capacity of a person and predisposing that person to commit

sexually violent offenses to a degree which would constitute a menace to

the health and safety of others.” Id. § 229A.2(5).