Wash. court upholds commitment of 2 sex offenders

The indefinite confinement of two child molesters has been upheld by the Washington Supreme Court, although in one case the offender had not committed any recent sexual violence.

Justices Barbara Madsen, Susan Owens and James M. Johnson joined in the principal opinion that upheld the civil commitment of David Tyler Fair in a case from Kitsap County. Justices Mary E. Fairhurst and Charles W. Johnson joined in a concurrence.

Justices Richard B. Sanders, Gerry L. Alexander and Tom Chambers signed a dissent, with Chambers agreeing only that Fair should not have been committed. Justice Debra L. Stephens did not participate.

The court also decided 6-3 to uphold the commitment of Bryan Duncan, who unsuccessfully claimed that he had not gotten a fair trial because of rulings on the evidence by Benton County Superior Court Judge Craig J. Matheson.

Fair, who was then 22, gave three girls, ages 12 and 13, alcohol at a birthday party at a neighbor's house, then "fondled and aggressively pursued and kissed the girls," according to the lead ruling. He was convicted of child molesting in 1988 but was granted a special sentencing alternative that enabled him to avoid spending a year and eight months in prison.

Six months later the state moved to revoke the alternative sentence because he had failed to complete sexual offender treatment. He robbed an acquaintance and fled to New Mexico, where he committed several other nonsexual crimes before being caught and was sentenced to more than seven years in prison.

He pleaded to the robbery in Washington and was sentenced to seven years and three months consecutive to the New Mexico sentence, as well as the 20-month molestation sentence to be served concurrently.

While in prison, he participated in a program for sexual offenders and told his treatment provider that he had sexual contact with 17 other children, some as young as 2 but most were 8 to 12.

"According to his treatment provider, Fair could not see how his sexual offending had negatively impacted anybody," Johnson wrote in the lead opinion. "Additionally, Fair said that he did not think there was anything wrong with having sex with children."

After serving those sentences, Fair remained in custody pending a civil commitment trial in 2004. After a state expert diagnosed Fair as a pedophile, Kitsap County Superior Court Judge Leonard W. Costello found him to be a sexual predator and he was sent to the Special Commitment Center on McNeil Island.

A three-judge panel of the state Court of Appeals rejected Fair's claim that he should not have been committed because he had not done any recent sexual violence.

"Requiring proof of a recent overt act for an incarcerated sex offender is absurd because incarcerated sex offenders do not have access to potential victims," Johnson wrote.

Fairhurst's concurring opinion was based on a different reading of the state's sexual predator law but agreed in the outcome.

Sanders wrote that the law requires "a recent overt act" for civil commitment of sexual predators.

"Statutes such as this, which curtain civil liberties, are strictly construed so as not to expand their scope beyond that minimally required by the language itself," he asserted in his dissent.

Moreover, since Fair did not act as a sexual predator during his release in 1989 before he committed his nonsexual crimes, "there is no such evidence that he is one today," Sanders wrote.

"It stands the due process clause on its head not to require proof of an overt act that is at least as recent as the last opportunity to reoffend," he added.