Convicted sex predator committed for writing fantasies about children

Friday, May 27, 2011

A Washington state man’s civil commitment as a sexually violent predator in part for writing fantasies about children did not violate his First Amendment rights, a state appeals court has ruled.

James Aston Jr. was convicted of raping a child in 1999, a crime for which he served time in prison until January 2006. Even though a sex offender has served a criminal sentence, the law in many states allows for the institution of “civil commitment” proceedings against sex offenders if they are deemed sexually violent and likely to reoffend. Prosecutors must show that the person has been convicted of a sex offense and suffers from some sort of disorder that makes it likely that he will engage in sexual predatory acts in the future.

In July 2007, the King County prosecutor filed a petition alleging that Aston needed to be removed from the community and treated. An impetus for this petition was that Aston had told his community control officer that he had been writing fantasies about children, masturbating to them and then destroying the stories. He also told his parole officer that he would commit sexually predatory acts in the future.

On the basis of this evidence, a jury found that Aston met the criteria for civil commitment. On Oct. 6, 2009, a trial court ordered him committed to the Special Commitment Center on McNeil Island. The trial court said writing the stories and talking about reoffending in the future constituted a recent overt act, which state law defines as: “Any act, threat or combination thereof that has either caused harm of a sexually violent nature or creates reasonable apprehension of such harm in the mind of an objective person who knows the history and mental condition of the person engaging in the act or behaviors.”

In his appeal, Aston argued that his conduct did not constitute a recent overt act.

“Aston’s various statements and stories were not ‘threats’ under the plain language of the statute,” his brief to the Washington Court of Appeals read. Aston contended that none of his actions rose to the level of a true threat, a category of unprotected speech under the First Amendment. He also emphasized that he was being punished for his thoughts instead of any harmful act. “A combination of protected speech, private thoughts and intimate conduct involving no other person cannot be a ‘recent overt act’ under the statute,” the brief continued.

However, the Washington Court of Appeals affirmed his involuntary commitment as a sexually violent predator in its May 16 opinion in In re Detainment of Aston. The appeals court determined that Aston’s actions could amount to both a “threat” and an “act” within the meaning of the civil-commitment law.

The appeals court said Aston’s statement that he would reoffend given the chance could constitute a threat. The appeals court also found he had committed an act: “Aston was actively writing deviant sexual fantasies about children and masturbating to them. He was also watching children’s movies and masturbating to fantasies about them.”

The appeals court relied on its 2009 decision in In re Detention of Danforth (2009), in which the appeals court determined that a sex offender’s statement that he would commit another offense was a threat.

“It is our position that Mr. Aston’s writings did not rise to the level of a recent overt act and are protected speech under the First Amendment,” said Jennifer J. Sweigert, Aston’s attorney.

“I do plan on appealing this decision to the Washington Supreme Court,” Sweigert said, adding that the Danforth decision is pending before the state high court. Danforth was argued before the court on Feb. 8.

A call to the prosecuting attorney’s office has not been returned.

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