Potential sex predator may be confined for life

11-1-2007 Missouri:

Clayton — A man who has never been to prison may be doomed to spend the rest of his life in a Missouri mental institution out of fear of sex crimes he might commit.

Last week's civil confinement of Richard Arnold, 53, formerly of Oakville, is unusual on several levels.

— He was sent away under a sex predator law usually applied to convicted rapists and molesters adjudged to be particularly dangerous, to extend their incarceration after they have served their prison sentences.

— His only felony conviction was 23 years ago.

— His lawyer argues that Arnold's low IQ prevents him from completing the rehabilitation required to qualify for release from the program, effectively stranding him there forever.

But the alternative — leaving him free — could result in sexual attacks on young boys, according to officials who acted on the concerns of a psychologist who evaluated him.

St. Louis County Circuit Judge Bernhardt C. Drumm Jr. decided last week that Arnold meets the legal criteria of a predator "by clear and convincing evidence." Drumm sent him to the Missouri Sex Offender Treatment Center in Farmington.

Yet treatment for Arnold's pedophilia is likely to fail, his attorney, Tim Burdick, argued before Drumm in a nonjury trial last week. The defendant lacks the mental capacity to understand what the treatment is all about, the lawyer said.

So Drumm's civil order has the effect of a life sentence for a person who has not been convicted in more than 20 years of any crime, said Burdick, an assistant public defender. Burdick said Friday that he will appeal the ruling.

Assistant Attorney General Charles Birmingham said at the trial that the key question is whether Arnold poses a threat to society.

To that end, Birmingham extensively questioned Richard Scott, a forensic psychologist who testified that Arnold suffers from pedophilia — a sexual desire for children.

Scott concluded that Arnold was "more likely than not" to engage in predatory acts of sexual violence if not confined.

The psychologist also said Arnold has an IQ of 63. That makes Arnold borderline
retarded.

Officials said the sexual predator law appeared to be the only legal mechanism to monitor Arnold.

John Fougere, a spokesman for Attorney General Jay Nixon, said that Arnold's court history shows a conviction in St. Louis in 1977 for lewd and lascivious behavior, a misdemeanor; and a conviction in St. Louis County in 1984 for sodomy.

The victim in the city case was 12; the victim of the sodomy, to which Arnold pleaded guilty, was 7, Fougere said. Arnold got five years of probation in the latter case.

Arnold has not come to the attention of police since, Burdick noted in the trial.

Evidence in Arnold's court file indicated that his mother, now deceased, may have paid $20,000 to the family of another victim to withhold a police report of a sexual attack and therefore keep Arnold out of prison, Scott disclosed under questioning by the attorneys.

Since his mother's death, Arnold has been on his own in recent years, Fougere said, noting that the Department of Mental Health got involved and "our office investigated."

A court document was more specific, mentioning "recent overt acts" of sexual aggression by Arnold, and listing the complaining parties as a sheltered workshop where Arnold had been employed, the St. Louis Regional Center for Developmental Disabilities, and his own family members.

Court documents in the confinement case do not indicate how long Arnold has been on his own or the date of his mother's death. His mental health records are sealed.

Court records show Arnold was placed in the custody of the Department of Mental Health last year, pending the psychological evaluation and trial.

Burdick contends that the allegation his client will offend in the future is "pure speculation."

Missouri law requires a judge to release a sexually violent predator from civil confinement upon finding there is no continuing threat.

Burdick argues that Arnold's impaired intellectual function should prohibit the state from committing him to a facility where treatment will fail and leave him confined without recourse.

Birmingham, the assistant attorney general, counters that Burdick's argument is premature, and that the state may be able to come up with an individual plan to accommodate Arnold's limited reasoning ability.

Moreover, the state is required to provide treatment, but there is no constitutional requirement that treatment results be guaranteed, Birmingham said. He suggested that there is little difference between patients who won't cooperate and patients who can't.

"His cognitive impairments do not lessen his risk as a sexually violent predator," Birmingham concluded in a pretrial argument, adding that, if anything, Arnold was more likely to reoffend.

The target group of Missouri's law "is the small number of habitual sex offenders who pose an immediate danger to the public because of their psychological makeup," Birmingham wrote. He said Arnold fits that group.

Since Arnold is small of stature, 5-foot-8 and weighing 120 pounds, Judge Drumm told mental health officials to keep him separate from the other patients at Farmington. ..more.. by William C. Lhotka, ST. LOUIS POST-DISPATCH