Judge denies MSOP client requests, expedites class action suit
A federal judge denied a request Monday to order the release and/or transfer of two clients in the Minnesota Sex Offender Program (MSOP) in Moose Lake. The request came at the behest of Rhonda Bailey, the only female client in the program, asking that she be transferred to a more appropriate facility, and Eric Terhaar, who committed sexual assault as a minor, asking that he be released unconditionally.
U.S. District Judge Donovan Frank qualified his decision by saying it comes “without prejudice,” meaning that a new case or cases may be brought forward by one or both of the same two individuals in the future.
The requests came concurrently with the findings of a court-appointed panel of experts as they issued their final report on the processes followed by the MSOP to the court earlier this summer.
In their report, the experts pointed out that Bailey has been committed since 1993, and since 2008 she has been housed at MSOP as the only female in a unit of all male high-risk sexual offenders. They issued the opinion that her sexual offending is “no doubt in reaction to the severe emotional, physical, psychological and sexual abuse she experienced as a child, adolescent and young adult,” adding that she was physically and sexually abused by several of her male family members beginning at the age of 5 or 6. They stated the opinion that she would be better off in a program where she wasn’t channeled in with an all-male sex offender population as she is now, one that would better address her particular background and mental health needs in a gender-appropriate setting.
The experts stated that Terhaar’s commitment to the MSOP was “a result of behavior that he engaged in between the ages of 10 and 14,” including the rape of his sister when he was 10. Further, the panel’s report stated, Terhaar’s file also makes reference to incidents that occurred while he was in juvenile placement facilities, for which no charges were filed against him. As such, the experts said, Terhaar has no adult criminal history, pointing out that his sexual offenses were likely influenced by his own history of “sexual victimization and a lack of understanding of how to deal with his trauma,” and concluding that his “history of juvenile delinquency” was likely a contributing factor in his commitment to the MSOP at the age of 19. They concluded that “there is little evidence to suggest that Mr. Terhaar is a dangerous sexual offender who poses a significant risk to public safety.”
Judge Frank made note of these findings in his “Opinion and Order” memorandum Monday. He explained that while he is willing to re-address the situations of both MSOP clients in the future, he declined to take action on the requests at this time in favor of expediting the related class action suit filed against the program on behalf of the nearly 700 clients at the MSOP facilities at St. Peter and Moose Lake. In so doing, he said, the court can address the more overriding issue of when and if MSOP clients should eventually be transferred to less restrictive facilities or programs that will transition them back into society. In the past, only one client has ever been released from the MSOP program.
State Senator Tony Lourey (DFL-Kerrick), said Judge Frank’s decision comes as “no real surprise.”
“Unconditional release would be quite unwise at this time,” Lourey concurred. “Both clients have been institutionalized for a long time. At the very least, they would require some transition planning.”
Lourey agreed that the state definitely needs to take a closer look at less restrictive programming for at least some of the civilly committed sex offenders in the program. He said the federal courts would prefer that local authorities would be the policy makers in this regard and address the “constitutional underpinnings” of the program. If the state fails to act in a timely manner, however, he warned the courts would likely take over that responsibility as a last resort.
“If we don’t do anything soon, the courts will go ahead and move some people on their own,” he said. “That’s never the best way to make changes. They don’t have the entire tool set to work with and they’d have to use a big hammer instead. They’ve demonstrated that in the past.”
Lourey has long been a proponent of finding an alternative to the process followed by the current sex offender program.
“It encompasses a wide range of people with a wide range of issues who are housed in a one-size-fits-all program,” he said. “We’re going to have to give some serious thought to changing some things.”
Lourey said a bill to that effect was passed with broad-based support in the Minnesota Senate in 2013, but it failed to gain traction in the Minnesota House. The bill, he said, would have provided for an intensive supervised release program for people coming out of the MSOP program, one that would balance the needs of the clients served with the safety interests of the public.
Lourey said he is eager to see the legislature take the issue up again in its 2015 session.
“I think we can probably expect to see a decision [in the class action suit against the program] by the time the legislature gets together next January,” said Lourey. “Then we’ll have a better idea of where we’re going.”
In the meantime, Frank stated in Monday’s “Opinion and Order” memorandum that it appears the state is at least looking into the possibility of moving Terhaar to a less-restrictive setting and also is “willing to explore options to transfer” Bailey.
The judge set a scheduling conference for Aug. 21 with counsels for both the plaintiffs and the defendants in the class action suit “with 2014 trial dates in mind,” emphasizing the urgency of moving things along as soon as possible.
Minnesota is one of 20 states to allow judges to civilly commit sex offenders to treatment after serving out their prison sentences. The law is based on the fear that sex offenders could reoffend if allowed back into society.
Don Davis of Forum News Service contributed to this story.