Summary: Evidence supports involuntary commitment of a transgender woman as a sexually violent predator; however, transgender woman has right to a hearing on whether his equal protection rights were violated in the application of the involuntary commitment process to him.
The State of California filed an amended petition to extend the commitment of William Karl Olsen under the Sexually Violent Predators Act after his commitment expired in October of 2008. The petition stated that on October 5, 2000, Olsen was committed as a sexually violent predator to the state Department of Mental Health for two years, and since that date he “has been consistently committed to a new term as a Sexually Violent Predator.” The People asserted that Olsen “continues to meet the criteria for commitment as a sexually violent predator in that he continues to have a current diagnosed mental disorder that makes him a danger to the health and safety of others in that it is likely that he will engage in sexually violent criminal behavior in the future.” The SVPA provides for the involuntary civil commitment for treatment and confinement of an individual who is found, by a unanimous jury verdict, and beyond a reasonable doubt , to be a sexually violent predator (“SVP”). A jury found the allegation that Olsen was a sexually violent predator to be true. By order filed in February 2011, the trial court committed Olsen to the state Department of Mental Health for an indeterminate term.
The trial court found probable cause to believe that (1) Olsen had been convicted of a qualifying sexually violent offense against at least one victim; (2) he has a diagnosable mental disorder; (3) the disorder makes it likely that he will engage in sexually violent criminal conduct if released; and (4) the sexually violent criminal conduct will be predatory in nature. Thereafter, the case proceeded to a jury trial.
The jury trial yielded the following testimony.
At the age of five, Olsen was placed in foster care due to his mother’s health problems. He later graduated from high school and worked as a mechanic and truck driver. He also served in the Army in Vietnam. Olsen has been married twice and has an adult daughter. At the time of trial, Olsen was 61 years old.
TRIGGER WARNING: THIS MALE IS A DISGUSTING SEXUAL SADIST. BRUTAL CONTENT AHEAD.
In 1972, Olsen used a handgun to abduct a 27-year-old woman in her car. After a struggle, Olsen got out of the car and left. There was no indication that a sexual offense had occurred and Olsen was convicted of “grand theft of a person.” He served a jail sentence and was placed on probation.
The next incident took place in July 1973, when Olsen picked up two teenage girls, M. and T., who were hitchhiking. After taking the girls to an isolated area where his truck got stuck in the dirt, Olsen had them stand on the truck bed to gain traction. He then pushed T. down a 75-foot ravine and hogtied M. After finding T. and threatening her with a knife, Olsen saw that T. was bleeding profusely. He untied M. and together they brought T. back up to the truck. When the girls asked Olsen why he was doing this, he said he intended to rape them. Olsen did not rape the girls and instead took them home.
In August 1973, Olsen picked up an 19-year-old hitchhiker, M.L., and took her to an isolated area. When Olsen took out a rope, M.L. pleaded with him not to tie her up. Olsen then ripped off M.L.”s blouse and M.L. said she would do what he wanted her to do. After placing M.L. on the truck bed and raping her, Olsen apologized. M.L. asked him to take her to the hospital because she recently had surgery following a miscarriage. Olsen took M.L. to the hospital and checked himself into the psychiatric unit next door.
Olsen was incarcerated in 1974 and paroled in 1978. He was discharged from parole in 1979 and committed his next sexual offenses in 1980. C., a 16-year-old girl, was picked up by Olsen in January 1980 while she was hitchhiking and taken to Stevens Creek dam. After arriving, Olsen, who had knife, hit C. below the eye and tied her up with rope. Olsen then took C. to another location in the mountains. There, Olsen put a rope around C.”s neck and walked her up a trial to a desolate location, where he orally copulated C., sat on her, untied her, and forced her to orally copulate him. Olsen also sodomized C. and raped her. He then apologized and took C. home.
The next incident occurred in June 1980 and involved S.P., age 19. Olsen picked S.P. up while she was hitchhiking. He put his knife to her throat and cut her slightly, and also orally copulated her. Next, Olsen took S.P. to an isolated area in the mountains, where he tied her hands behind her back with a belt. S.P. screamed in pain when Olsen put his fingers in her anus and then sodomized her. He also made derogatory sexual statements during the course of the sodomy.
The last incident occurred on July 9, 1980, about one month after the incident involving S.P. K. was a 17- year-old beauty college student who met Olsen when he used a pay phone after she used it during her lunch hour. Later that day, Olsen called K. over to his car when she came out of the beauty college. Olsen then pulled K. into his car by holding a knife to her throat. Olsen had pictures of K. in his car and threatened to kill her.
After getting K. into his car, Olsen tied a rope painfully tight around her neck and gagged her with a cloth and shoestrings. Olsen then drove K. to an isolated area in the hills. On the way, Olsen undressed K. and fondled her. After arriving, Olsen tied K. to a log with ropes attached to her wrists, legs, and neck. He then hit K. in the buttocks with a stick, causing bruises, and sodomized and raped her. After finishing the assault, Olsen was pleasant and talkative with K. He also showed her how to shoot his BB gun. But when K. made the comment, “well, everyone needs friends,” Olsen became very angry and violent. He pushed K. down, sodomized her again, bit her neck, and hit her on the buttocks with his BB gun, breaking it.
Following the 1980 offenses, Olsen pleaded guilty to the sodomy and oral copulation of C. and the sodomy and rape of K. He has been in custody since 1980.
Robert Owen, Ph.D., a licensed clinical psychologist in private practice, has since 1986 conducted sexually violent predator evaluations for the Department of Mental Health. The trial court recognized Dr. Owen as an expert in “the diagnosis of mental disorders, treatment, and risk assessment of sex offenders.”
Dr. Owen began his evaluation of Olsen in 2008. At that time, he reviewed Olsen’s criminal record and psychological reports by other evaluators. Dr. Owen also interviewed Olsen on three occasions, in 2009, 2010, and 2011. In Dr. Owen’s opinion, Olsen has the following mental disorders: “sexual sadism, with gender identity disorder, and with a personality disorder involving borderline traits.”
Dr. Owen explained that the diagnosis of sexual sadism requires a pattern of sadistic behavior over a period of at least six months, in which the person is sexually aroused by the physical or psychological harm inflicted upon a nonconsenting victim.
Dr. Owen also explained that a sexual sadist is different from a “typical rapist” due to the “amount of violence that he’s used. . . . A person has to be turned on to violence or degradation of victims.” Dr. Owen further opined that sexual sadism is a chronic condition that does not spontaneously disappear.
The diagnosis of sexual sadism for Olsen was based largely on Dr. Owen’s finding that Olsen’s history of sexual offenses showed that he is sexually aroused in combination with violence and inflicting pain and degradation on the female victim. Dr. Owen also considered Olsen’s social history and Olsen’s statements about his homosexual activity, which included a male lover and cross-dressing.
Although Dr. Owen acknowledged that Olsen had behaved well during his 30 years of incarceration, that did not change Dr. Owen’s opinion that Olsen is a sexual sadist. Dr. Owen pointed out that Olsen had resumed committing sadistic sex offenses after his first incarceration, had not engaged in any treatment for sexual deviance, and lacked insight into what triggered his sex offenses. Additionally, it did not surprise Dr. Owen that Olsen had not engaged in sadistic rape while in custody, since it is unusual for sex offenders to commit rape in prison and “there are a couple of things missing in custody, his truck, his knife, his rope, and teenage girls.”
Dr. Owen also concluded that Olsen is a “volitionally impaired individual” because he has “struggled to contain these sadistic impulses” and had been undeterred from committing further sex offenses after serving a term in prison. In his opinion, Olsen’s mental disorder of sexual sadism is an “entrenched” condition that “causes volitional and emotional impairment” and renders him “likely to engage in sexually violent predatory criminal behavior.”
Additionally, Dr. Owen used risk assessment tools to evaluate Olsen, including the Static-99, which placed him in the moderate high risk category for committing future sexual offenses, and the MnSOST-R, which placed him in the highest risk category. Dr. Owen’s opinion is that Olsen falls between the moderate high to high risk categories for sexual reoffending.
Dale Arnold, Ph.D. is a clinical psychologist who has treated sex offenders at Atascadero State Hospital and is currently in private practice. He also performs sex offender evaluations under contract with the Department of Mental Health. The trial court recognized Dr. Arnold as an expert in the diagnosis of mental disorders, treatment of sex offenders, and recidivism.
Dr. Arnold was first assigned to evaluate Olsen in 2004. His evaluation included reviewing Olsen’s records, including court records, police records, medical reports, prison records, and state hospital records. Dr. Arnold also interviewed Olsen in 2009, 2010, and 2011. He formed the opinion that Olsen has currently diagnosed mental disorders, including sexual sadism, polysubstance dependence in institutional remission, gender identity disorder, and a personality disorder with antisocial and borderline personality traits.
Regarding the diagnosis of sexual sadism, Dr. Arnold found that the significant aspects of Olsen’s sex offenses were using rope to bind the victims, increasing the victims” fear, humiliating the victims, causing pain, and gratuitous violence. Dr. Arnold also noted that Olsen had admitted giving a false history of substance abuse to gain an advantage when he was in jail and was now claiming that he committed the sex offenses due to his unresolved gender identity issue. Dr. Arnold did not believe that a gender identity conflict caused Olsen to abduct the victims, tie them up, and force sex on them “because most transgender persons or homosexually oriented persons don”t express this level of anger and violence towards females . . . .” He also stated, “Honestly it just makes no sense. Because you feel like a woman in a man’s body, it doesn’t make sense that you would then . . . abduct people, and tie them up, and then force sex with them. So there’s no correlation.”
Additionally, Dr. Arnold found it significant that Olsen has consistently declined to engage in treatment for sexual sadism and believes that he has no risk of reoffending, since this attitude indicates his potential for failing to manage risk factors in the future. Olsen’s antisocial personality trait of dishonesty was also significant to Dr. Arnold.
Dr. Arnold believes that Olsen’s sexual sadism affects his emotional or volitional capacity in a way that predisposes him to commit criminal sexual acts in a degree making him a menace to the health and safety of others. According to Dr. Arnold, Olsen showed volitional impairment when he was released from prison in 1978 and surprised himself by reoffending in 1980. In Dr. Arnold’s opinion, sexual sadism is a sexual orientation that “tends to be something that is chronic and lifelong.” The fact that Olsen has not raped anyone while in custody did not alter Dr. Arnold’s opinion, since Olsen has not had the opportunity to do the things that sexually arouse him, such as isolating a victim, driving her up to the mountains, or tying her up and walking her down a path.
Dr. Arnold also conducted a risk assessment using several tools. The Static-99 Revised test placed Olsen in the moderate high risk category; the Static 2002 Revised test placed him in the low moderate risk category; and the MnSOST-R test placed Olsen in the “most serious group.” Dr. Arnold concluded that Olsen poses a serious and well-founded risk for committing future sexually violent predatory acts. He believes that the mental disorder that predisposes Olsen to commit such acts is sexual sadism, not a personality disorder.
Brian Abbott, Ph.D. is a licensed clinical psychologist and licensed clinical social worker who testified on behalf of Olsen. His background includes treatment and diagnosis of sex offenders for the past 32 years. Dr. Abbot does not perform evaluations for the state Department of Mental Health because he has concerns that the methodology used does not meet current scientific standards. The trial court recognized Dr. Abbott as an expert in the area of evaluating, diagnosing, treating, and assessing the risk of sex offenders.
To evaluate Olsen, Dr. Abbott reviewed his records, including hospital records and criminal justice records. He also interviewed Olsen and administered psychological tests. Although Dr. Abbott recognized that Olsen had committed very serious crimes, he concluded that Olsen does not have an antisocial personality disorder because his symptoms are insufficient. Dr. Abbott also determined that Olsen does not have a diagnosis of sexual sadism, based on the “Cumulative Severe Sexual Sadism Scale.” According to Dr. Abbott, none of the offenses “reached the cut-off for the diagnosis of sexual sadism.” Dr. Abbott also determined that Olsen does not currently suffer from sexual sadism because he has not displayed any symptoms for the past 30 years, meaning he has not been known to view pornography depicting sexual sadism, has not attempted to sexually assault someone, and has not engaged in sexual activity within the custodial setting that involved sadistic role-play.
Dr. Abbott believes that Olsen is a nonsadistic rapist, which is not a mental disorder, and has acted out his anger and hatred towards females through sexually offending behavior due to the events of his early childhood. Dr. Abbott also believes that Olsen committed the sexual assaults to displace his anger about his gender identity conflicts. In Dr. Abbott’s opinion, Olsen does not suffer from a currently diagnosed mental disorder that makes it likely that he will reoffend in a sexually violent and predatory manner and he does not currently have difficulty controlling his behavior in that regard.
Dr. Abbott acknowledged that Olsen’s score on the Static-99R risk assessment tool placed him in the moderate high range of relative risk. According to Dr. Abbott, the Static-99R test, although it is generally accepted in the field of risk assessment, is not accurate for predicting Olsen’s individual risk of recidivism because it is group-based.
James J. Park, Ph.D. is a clinical psychologist who testified on behalf of Olsen. He has been trained to treat sex offenders since the late 1970”s. In addition to private practice, Dr. Park is employed by the California Department of Corrections and Rehabilitation where his caseload for the Chico Parole Unit is mostly comprised of sex offenders. The trial court recognized Dr. Park as an expert in the areas of the treatment, diagnosis, and risk assessment of sex offenders.
Dr. Park was asked to determine whether Olsen fits the criteria of the SVPA because he has a mental disorder that predisposes him to commit sexual crimes. His evaluation included interviewing Olsen three times and reviewing his records from Coalinga State Hospital, previous evaluations, and medical records. Dr. Park also conducted psychological testing, including the Minnesota Multiphasic Personality Inventory and the “Million.” The test results showed that Olsen does not have a borderline personality disorder, and he did not score significantly on the antisocial personality scale or the narcissistic personality scale.
Although Dr. Park acknowledged the facts of Olsen’s prior sex offenses, he determined that these facts were not consistent with sexual sadism because a diagnosis of sexual sadism requires sexual arousal from the victim’s pain, not just the victim’s humiliation. Dr. Park also noted that Olsen apologized after sexually assaulting the victims and took them home, which in his view is also inconsistent with sexual sadism. Dr. Park therefore concluded that Olsen does not currently suffer from sexual sadism.
In Dr. Park’s opinion, Olsen does not have a serious and well-founded risk of reoffending, because he is now 61 years old and age lowers the risk of low or moderate indicated by the risk assessment tests. Dr. Park also opined that Olsen does not have a condition that would predispose him to commit violent sexual offenses.
Olsen testified that he is 61 years old and now refers to himself as a woman, although he has not undergone sex change surgery. He admitted that he was convicted of raping three girls, including M.L. in 1973 and C. and K. in 1980. He intended to rape M. and T. but changed his mind.
Olsen acknowledged the facts of his prior sexual offenses and explained that he was on drugs at the time and was cross-dressing in secret. He was angry because he felt that he did not have any control in his life and he was also angry at women who had hurt him, such as the foster mother who abused him, his older sister, his first wife who aborted their child, and his second wife whose child was still born. He expressed his anger through rape “[b]ecause it was a control issue” and because he “identified [himself] as a woman [he] took it out on women.”
Olsen has not participated in sex offender treatment while in custody at either Atascadero State Hospital or Coalinga State Hospital. He believes that the programs do not work because no one has been released, except through a judge’s order, and he has seen other people get worse despite treatment. On his own, Olsen is utilizing a workbook designed for sexual offenders. Olsen does not believe that he is at risk to reoffend, although he had the same belief when he was released from prison in 1978.
The jury rendered its verdict finding the petition alleging that Olsen was a sexually violent predator within the meaning of section 6600 to be true. The trial court issued its order committing Olsen to the custody of the State Department of Mental Health for an indeterminate term for appropriate treatment and confinement in a secure facility. The order further states that it is “subject to a hearing consistent with People v. McKee. Olsen subsequently filed a timely notice of appeal.
Olsen contends that the verdict that he is a sexually violent predator cannot be sustained because the evidence was insufficient to show beyond a reasonable doubt that he is currently dangerous and “likely to engage in sexually violent criminal behavior.” Specifically, Olsen argues that the People’s experts improperly relied almost exclusively on his criminal history and “largely ignored” the evidence that he was 61 years old and had not committed any acts of sexual sadism or violence for over 30 years.
(ED. NOTE: BECAUSE HE WAS IN JAIL FOR THE LAST THIRTY YEARS. JAIL HAS A WAY OF MAKING IT SO YOU CANNOT COMMIT ACTS OF SEXUAL SADISM OR VIOLENCE AGAINST WOMEN. The opinion has the following on this point: Dr. Owen and Dr. Arnold also considered the fact that Olsen had not committed any acts of sexual sadism or violence during his past 30 years in custody. That fact did not change Dr. Owen’s opinion that Olsen is a sexual sadist, since the record also showed that Olsen had resumed committing sadistic sex offenses after his first incarceration, had not engaged in any treatment for sexual deviance, and lacked insight into what triggered his sex offenses. Although Dr. Owen acknowledged that Olsen had not engaged in sadistic rape while in custody, Dr. Owen found that was not surprising in light of the things not available to Olsen in custody, including Olsen’s “truck, his knife, his rope, and teenage girls.”
Dr. Arnold similarly concluded that the fact that Olsen has not raped anyone while in custody did not alter his opinion that Olsen’s diagnosis of sexual sadism causes him to be volitionally impaired and predisposes him to engage in sexually violent predatory criminal acts. Dr. Arnold noted that Olsen did not have the opportunity while in custody to do the things that sexually arouse him, such as isolating a victim, driving her up to the mountains, or tying her up and walking her down a path.)
The People respond that there was sufficient evidence to prove that Olsen suffers from a current mental disorder and is likely to commit a future sexual offense if released from custody, based on the expert testimony of Dr. Owen and Dr. Arnold.
The SVPA provides: “Sexually violent predator” means a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.” The California Supreme Court instructed in McKee that “a person is “likely” to engage in sexually violent criminal behavior (i.e., reoffend) if he or she “presents a substantial danger, that is, a serious and well-founded risk, that he or she will commit such crimes if free in the community.”
The statutory definition of “[d]iagnosed mental disorder” includes a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others. The California Supreme Court has “made clear that a person is predisposed and likely to reoffend as an SVP if, because of a current mental disorder making it difficult to restrain sexually violent behavior, he [or she] presents “a substantial danger, that is, a serious and well-founded risk” that he [or she] will commit such crimes if released.”
The court determined that the evidence was sufficient for the jurors to find beyond a reasonable doubt that Olsen is a sexually violent predator within the meaning of the SVPA.
According to Olsen, the SVPA violates the state and federal equal protection clause because it treats persons committed as SVPs differently than persons committed under other civil commitment schemes. In McKee, the California Supreme Court determined that SVPs and mentally disordered offenders (MDOs) are similarly situated for equal protection purposes because their commitments have common features: they have been found to suffer from mental disorders that render them dangerous to others; they have been convicted of a serious or violent felony; and at the end of their prison terms, they are committed to the Department of Mental Health for treatment. The McKee court also determined that SVPs have “different and less favorable procedural protections” than MDOs.
In this case, Olsen raised his equal protection claim in the proceedings below by filing a pretrial objection to the imposition of an indeterminate commitment. Additionally, after the verdict was rendered, defense counsel requested that the trial court indicate in its commitment order that the commitment was subject to “a McKee hearing.” The requested language was included in the February 22, 2011 commitment order, which states that it is “subject to a hearing consistent with McKee.”
On appeal, Olsen contends that since he timely objected to the indeterminate commitment pursuant to McKee, the trial court erred in failing to require the People to show that the differential treatment of SVPs is justified prior to issuing the indeterminate commitment order. Olsen claimed the indeterminate commitment under the SVPA violates his constitutional right to equal protection. Pursuant to the ruling of the California Supreme Court in People v. McKee that the equal protection challenge to the indeterminate term under the SVPA has potential merit, the court reversed the judgment and remanded the matter for further proceedings consistent with McKee. The court rejected Olsen’s claims that he wasn’t a sexual sadist, however.