Minnesota's sex offender treatment program came under harsh criticism in federal court Monday for indefinitely confining a young man who has never been convicted of a crime as an adult and a woman who has been locked up with only male sex offenders since 2008.
In strongly worded testimony, four court-appointed specialists in the treatment of sexual misbehavior argued for the immediate and unconditional release of Eric Terhaar, 24, as well as the transfer and possible release of Rhonda Bailey, 48, who sexually assaulted two boys and is the only woman ever committed as a sex offender in Minnesota.
The witnesses, who included officials of both the Wisconsin and New York state sex offender programs, argued that Terhaar and Bailey are not receiving treatment appropriate to their age, their gender and the severity of their conduct. They said both could do better receiving therapy in the community rather than at the state's prisonlike centers in Moose Lake and St. Peter.
The hearing on Terhaar and Bailey marks a pivotal moment in the broader debate over the constitutionality of Minnesota's sex offender program, which has successfully discharged only one sex offender in its 19-year history. Attorneys for a class of sex offenders have sued the state, claiming the program violates their due process rights by failing to provide sex offenders with effective treatment and the opportunity for release.
At Monday's hearing, attorneys representing the Minnesota Department of Human Services, which oversees the program, attempted to limit the scope of the debate, arguing that Terhaar and Bailey were unusual cases that do not represent the broader concerns of offenders in the program.
Speaking at the start of the two-day federal hearing, the witnesses were particularly vehement in opposing the confinement of Terhaar, whose 2009 commitment to the Minnesota Sex Offender Program is based solely on sexually aggressive behavior he committed between the ages of 10 and 14. They noted that children who act out sexually rarely go on to commit sex crimes as adults, and are no more likely to engage in sexual misconduct than other juvenile offenders.
"The panel believes the life skills [Terhaar] needs to adjust would be better served in the community," said Dr. Naomi Freeman, director of the Bureau of Sex Offender Evaluation and Treatment at the New York State Office of Mental Health.
The department opposes Terhaar's immediate release, but has argued that he should be moved to a less-secure setting at St. Peter. Nancy Johnston, executive director of MSOP, argued in a court affidavit that Terhaar "had not yet mastered the independent living skills that would be required of him outside a structured setting."
Speaking for the state, Deputy Attorney General Nathan Brennaman referred to Terhaar as a "frequent rule breaker" and repeatedly questioned the expert witnesses on whether they knew of any community-based programs outside of MSOP that would provide him ongoing treatment and services. In cross-examination, the experts said they were not aware of any such services.
Both Terhaar and Bailey experienced severe trauma as children.
Upon birth, Terhaar tested positive for cocaine, marijuana, Zanax and alcohol, according to his 2009 court commitment papers. Terhaar's mother worked as a prostitute in Las Vegas and abandoned him in a hotel room. His grandmother briefly raised him until she abandoned him at a day-care center at age 2, records show. Shortly after that, social workers placed him with foster parents.
At 2 years old, Terhaar "didn't know about sleeping in a bed, he didn't know how to eat at a table, and he tended to scavenge food. The first thing he said to his new mother was, 'On the floor, the cops are here,' " according to the county court records. At age 10, he sexually abused his 10-year-old developmentally delayed sister. Terhaar reported that his uncle forced him to perform oral sex and showed him pornographic magazines, court records show.
Bailey also had a chaotic and troubled childhood. According to records, she became pregnant at age 13 and gave birth to a boy at age 14. She reported abuse by her father, brother and two uncles, starting at the age of 5 and continuing into her 20s, according to court records.
The witnesses also said the pair's current treatment courses are inappropriate in part because they have failed to address their traumatic experiences as children. One of the experts argued that commitment in a facility filled only with men may have worsened Bailey's mental state.
"Rather than making her better, her issues have been prolonged," said Deborah McCulloch, director of Wisconsin's sex offender commitment program. "I do not believe her needs are being fulfilled."
In Terhaar's case, the experts argued, staff at MSOP have used the wrong metrics for assessing his risk for reoffending. They based their risk analysis on factors that predict behavior in adults, which are not as relevant with adolescents and children.
"The testimony of these experts raises all sorts of questions about why the system has failed to identify people who ought to be released," said Dan Gustafson, an attorney for Terhaar and Bailey. "How is it that someone can stay in a setting that all the experts agree is wrong?"
The four expert witnesses are expected to complete a comprehensive report on the MSOP by the end of August.