U.S.
Sam Ward for Al Jazeera America
Kevin Michael Reilly, 54, is a pedophile; no one disputes that, not even his lawyer. Since the 1980s, he has been convicted three times of molesting very young girls — including his 4-year-old daughter. His crimes resulted in three years in prison.
He finished serving the last of those years in 2000. But that wasn’t the end of his incarceration. Under California law, there are two sets of punishments for sex offenders: one for the crimes they are known to have committed and one for the people the legal system believes them to be. While murderers, arsonists, robbers and other kinds of convicted criminals serve a set amount of time and are released, sex offenders are transferred to a psychiatric hospital to be held indefinitely and evaluated as sexually violent predators, or SVPs.
Under this system, due process, rule of law and proportionate punishment are set aside, as hundreds of SVPs and potential SVPs remain incarcerated for years beyond their original sentences in a state-run purgatory. After his sentence was completed, Reilly spent 14 additional years locked up waiting for an evaluation.
Lawmakers justify the double detention by insisting that SVPs need treatment to rid them of the compulsion to commit future crimes. In 1997, the Supreme Court ruled in Kansas v. Hendricks that secondary confinement was legal because prison terms are administered through criminal court and hospitalization through civil court. In California, treatment cannot even begin until an offender has completed a prison term; there are no psychiatric programs for sex offenders in state prisons.
According to California’s welfare and health code, an SVP is a person who “has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder [making it] likely that he or she will engage in sexually violent criminal behavior.” The process for being investigated as a probable SVP starts six months before incarceration ends. The state flags inmates serving time for sex crimes and have them evaluated by psychologists. If the psychologists believe inmates might meet SVP criteria, the prisoners are sent to Coalinga State Hospital in Central California after their prison sentences to await what’s called a civil commitment trial. There are only two outcomes of these trials: If inmates are not found to be SVPs, they are released immediately. If inmates are declared SVPs, they are treated in Coalinga until the staff clears them for release and a judge or jury approves the decision.
Of the 887 psychiatric residents confined in Coalinga in 2014, 37 percent were waiting for an SVP trial; the rest were declared SVPs. In California, probable SVPs are held for an average of three to four years, but there is no time limit, and it can take as long as 10 years to get a patient before a civil commitment jury. Some of the delays are strategic — it’s better for Coalinga inmates to have a few years of treatment under their belts before facing a jury — but often the delays come from the courts.
The result is that for most of its inhabitants, Coalinga — regarded by some clinicians and lawmakers as the most humane and state-of-the-art treatment facility in the country, with tennis courts, a dentist’s office, a vast DVD library and its own Wells Fargo office — serves as a sort of a domestic Guantánamo, a limbo in which difficult decisions may be put off indefinitely.
The state cannot coerce a patient, even an involuntarily committed one, to participate in a therapy program. Aside from winning a postconviction appeal or suffering from a serious health problem, the only way for a patient to be released from Coalinga is by completing a treatment program. At the time of Reilly’s imprisonment, a program called Five Phase was the only one on offer.
Undergoing Five Phase entails admitting past crimes, writing letters to victims, submitting to polygraph exams and being subjected to pornographic images and sounds while being tested for erections. As a path out of confinement, the program presents a Catch-22: Statements given in Five Phase treatment are not confidential, so in seeking rehabilitation, patients can incriminate themselves for previously unrevealed crimes. In 2014 fewer than 30 percent of the roughly 900 certified SVPs confined in Coalinga chose to participate in Five Phase, and only eight people had completed the program.
But submitting to Phase Five wasn’t all Reilly did in his efforts to be released from Coalinga. When all was said and done, he underwent over a decade of detention, surgical castration at a personal expense of $6,000 and two civil trials.
Jeff Lowry, San Bernardino County public defender
In September 2014, 14 years after he completed his prison sentence and 14 months after his first civil trial resulted in a hung jury, Reilly went into his second civil trial, which would determine whether he would be classified as an SVP.
He is not an easy person to be in the same room with. On the first day of the trial, Michael Carroll, the Orange County assistant district attorney seeking to keep him confined, asked Reilly what drove him to fondle prepubescent girls. From the stand, he answered bluntly, “Their innocence.”
Squinting at Carroll through his glasses, Reilly elaborated. He spoke rapidly, with nervous agitation, saying, “Well, that’s a canned response we’re given in treatment. It’s an illogical attraction … not one I can articulate. As I sit here today and think about it, it’s almost repugnant.”
He quickly corrected himself. “It is repugnant.”
Several members of the jury winced and squirmed.
“Jury selection on these of cases are some of the most difficult you’ll find in law,” said public defender Jeff Lowry, who works on SVP cases for neighboring San Bernardino County. Reilly’s public defender, Holly Galloway, would not speak on the record about his case because, she said, “reporters don’t do right by clients like mine.”
Defense attorneys often move to have SVP cases decided by summary judgment, or conducted by a judge without trial. “In that scenario you only have to convince one person, and they are typically more clinical than emotional when reviewing the case,” Lowry said. Even so, it isn’t always simple. “Most judges don’t want to touch it … They’re elected, and they don’t want to be the one who put a sex offender back in the neighborhood. That won’t get them any votes.”
To declare Reilly an SVP and keep him detained indefinitely in Coalinga, the prosecution had to convince the jury that he met the following four criteria: he was convicted of a hands-on offense, he was diagnosed with a mental illness he could not control, it was necessary to keep him in detention, and he was likely to reoffend.
Galloway conceded the first two points. “My client did commit hands-on offenses, and he suffers from pedophilia,” she told the jury. She spoke with easy confidence. “In fact, that’s what this whole trial is about. Mr. Reilly has suffered from pedophilia for the past 20 years, but Mr. Reilly has also learned coping skills to control his pedophilia, and we believe he can continue to control and treat his pedophilia in the community.”
Reilly’s first offense was against a 4-year-old girl, Heidi, in 1982. His wife at the time ran a day care out of their apartment in San Diego, and she sometimes left him in charge of the children. According to court documents, he enticed Heidi into the bathroom with a cookie and molested her. The case against him was ultimately dismissed because Heidi’s father did not want his young daughter to testify.
The same year, Reilly was accused of molesting 3-year-old Kathryn and was arrested after he took an 8-year-old girl to his apartment. The girl told her parents about the incident, which led to his arrest.
He pleaded guilty to lewd and lascivious acts involving a child under 14, but before he could be sentenced, he fled the state with his young daughter, Melissa, and broke off contact with his wife. He relocated to Mesa, Arizona, where one afternoon in 1983, he was arrested again after molesting a young girl he was babysitting and furnishing obscene material to her brother. In early 1984 he was sent back to California to serve his original sentence and the Arizona sentence concurrently. After four and a half years, Reilly was released in Orange County and ordered to go to rehabilitation classes, which he never attended.
In 1991 he remarried without disclosing his record as a sex offender to his new wife. Two years later, they had a daughter, Alex. In 1997 he moved his new family to Orange County, but because he was a registered sex offender, police distributed flyers around his new neighborhood to alert residents that he lived in town.
One of his in-laws saw a flyer and notified social services. A social worker interviewed Alex, then 4 years old, who said he had put his hands on her “peepee and it hurt.”
Reilly pleaded guilty to molesting Alex and was sentenced to three years in prison. Six months before his release, his case was reviewed by two psychiatrists, who agreed that he met the legal threshold for being a probable SVP and signed off on his detention in a psychiatric facility.
Pedophilia is a psychiatric disorder that is estimated to affect 1 to 5 percent of the male population globally and has no known cure. Medical consensus holds that those who suffer from the disorder can manage and control their impulses through rigorous therapy, most often behavior modification, along with hormone treatments that reduce testosterone levels. Treatment is known to be effective only if the pedophile willingly engages in it. In an attempt to promote treatment for pedophiles and destigmatize the diagnosis, the latest version of the “Diagnostic and Statistical Manual of Mental Disorders,” the standard reference guide for mental disorders, differentiates between fantasizing about having sex with children under the age of 11 and acting on those impulses. The former is no longer considered a psychiatric disorder.
Being a sexually violent predator, the official classification around which Reilly’s trial pivoted, however, is not a psychiatric diagnosis. It does not exist in the “Diagnostic and Statistical Manual of Mental Disorders.” The term is a political invention, one that lives outside psychology and the usual rules of criminal law.
In California the term came to life in 1995, when the state legislature passed the Sexually Violent Predator Act. That allowed the state to civilly commit SVPs to psychiatric detention after they serve their prison terms.
Before that act, there was no legal mechanism in place to keep sexual offenders out of communities. Short sentences, reduced time for good behavior, parole and outpatient treatment all meant that child molesters could be back out within a couple of years of conviction. By the 1990s, as the country drifted to the right, that outcome appeared intolerable. The culture was permeated by “America’s Most Wanted” and other tabloid crime shows, and the public seemed willing to believe that a growing class of sexual psychopaths lurked in every neighborhood. Inspired by horrific but rare crimes, states passed more tough-on-sex-offenders measures in order to put an end to what was considered overly lenient treatment.
Restrictive laws soon gave way to even more restrictive ones. In 2005 in Florida, a registered sex offender abducted his neighbor Jessica Lunsford, a 9-year-old third-grader, from her home in the middle of the night. He kept her in his trailer, sexually assaulted and murdered her and buried her body in a garbage bag near her house. Amid the national outcry over her death, the next year California passed Proposition 83, known as Jessica’s Law, a ballot initiative that won more than 70 percent of the vote.
The measure lowered the standard for being labeled a sex offender from having been accused or convicted of assaulting two victims to one victim and eliminated reduced sentences for good behavior and increased parole time. Before Jessica’s Law, SVPs could be committed to a psychiatric hospital for up to two years, at which point the court would have to release or recommit them. Jessica’s Law abolished that limit, meaning SVPs could be detained indefinitely.
SVP inmates can still petition the court each year to be considered for release even if they are not in treatment. Yet in California, a judge will typically agree to hear a case only if the medical staff at Coalinga reports that an inmate’s condition has changed significantly.
Reilly was imprisoned at Coalinga in 2006, and by the time Jessica’s Law passed, the court had turned down two of his petitions for unconditional release.
Reilly agreed to participate in Five Phase when he entered Coalinga in 2000, but during his first few years, he broke the rules. He opened up credit cards under different names and wired himself money from the phony accounts through Coalinga’s in-house Wells Fargo. In 2003 he used some of that money to have his testicles removed.
Castration is not a mandated or even recommended treatment in California, but psychiatric hospitals will not stop patients if they choose to do it and pay for it themselves. Since 1996, California has allowed 15 sex offenders to be surgically castrated. Two were released shortly after their surgeries. Reilly was hoping for the same, so he petitioned a judge to let him to travel to a nearby urologist’s office to obtain a bilateral orchidectomy, a 30-minute procedure in which both testicles are surgically removed. Though he was still able to achieve erections after the procedure, his testosterone level was dramatically reduced, as was his sex drive. The drop in testosterone lowered his risk score on various assessment criteria that psychologists use to evaluate an offender’s likelihood of reoffending.
Yet his surgery failed to sway the members of his treatment team to sign off on his release. They were more concerned about the credit card fraud he committed to pay for it and what they deemed his failure of honest participation in treatment. Moreover, Coalinga psychologists were suspicious because he did not admit to molesting any children apart from the six in his case file — which, if true, would be an anomaly. Compulsive child molesters typically have victims that law enforcement officials never learn about. Even after his castration, Reilly refused to cooperate.
Then in 2006, things changed. He agreed to submit fully to treatment. He went so far as to withdraw a petition he filed asking a judge to review his request for release. “There are still some things for me to work on,” he wrote. “I’ve made a lot of mistakes in my life. I don’t want to make any more.”
Five Phase therapy takes several years of intensive group and individual therapy and allows patients to advance only through what the program calls total transparency, which inhibits them from compartmentalizing aspects of their personality or behavior. The program takes its name from its structure. The first phase, which typically lasts four weeks, focuses on the transition from prison to treatment and educates patients on various paraphilias. In the second phase, patients are supposed work on increasing their self-control through coping strategies. This is when most patients drop out or languish. They must agree to be polygraphed and to undergo penile plethysmography — which is basically a polygraph for the penis. It measures erectile response to different scenarios, including sexually suggestive images of children.
In phase three, patients pledge abstinence from deviant behavior and track their coping strategies through journals and logs. The fourth phase, the last administered in Coalinga, is meant to prepare patients for the outside world. After that, phase five is handled by a private agency, Liberty Healthcare, which contracts with the state of California for roughly $3 million a year. During this phase, patients live in communities outside prison while the company tracks them with GPS monitoring systems, administers drug tests, performs home visits and sometimes provides housing and security.
It took Reilly five years to complete the first four phases. In 2011 clinical staff agreed that he was no longer an SVP. Now all he had to do was convince a jury.
There are no confidentiality laws to prohibit material disclosed in Five Phase from being subpoenaed. According to an audit conducted by the California Coalition on Sexual Offending, several patients at Coalinga called Five Phase therapy a hoax and a scam, believing that participation in the program would not improve their chances of release. What’s more, they expressed fear that their journals, notes and therapeutic worksheets could show up in court. In Reilly’s case, they did.
During the third phase of therapy, he wrote in his journal about seeing a girl roughly 6 years old on television and finding her sexually attractive, “She fit my type,” he later recounted for the jury under cross-examination. “She was blonde and blue eyed, petite.” Yet he also wrote about how acting on his impulses would set back his progress and acknowledged the pain and duress it would cause the girl.
That journal entry was used against him in court by Carroll, the assistant district attorney. “Despite the castration, he still has sexual thoughts about prepubescent girls,” Carroll told the jury. He introduced in the courtroom other confessions Reilly made during therapeutic sessions. In one, Reilly told clinicians that he molested seven other girls who never brought charges against him, including his daughter.
“Mr. Reilly continues to lie and manipulate,” Carroll warned jurors. “He is still a sexually violent predator.”
“He is a drastically different person,” Nancy Webber, a forensic psychiatrist employed by Coalinga, told the jury. She testified that she turned down Reilly’s petitions to be released from the hospital for seven years in a row before he completed therapy. “Coalinga Hospital believes there are no longer barriers to keep Mr. Reilly from being released.” She added that he was the only patient in Coalinga’s nine-year history who completed treatment and had himself castrated.
“There is no more therapeutic value for Mr. Reilly to stay in Coalinga,” she concluded.
Reilly told the jury that if he was released, he would work to pay down the more than $60,000 in credit card debt he accrued while being treated at Coalinga. He also said he would enroll voluntarily in an outpatient sex offender treatment program in Utah.
“Can pedophilia be managed in a community setting? Yes,” said Deirdre D’Orazio, who served from 2006 to 2009 as the first head of treatment at Coalinga Hospital. “We do have a science. We know how it works. We know it’s always changing. But what it comes down to is that no matter how good our science gets, we will never be able to predict future behavior precisely. We can refine our estimates. We cannot definitively state what you or I will do tomorrow. We will never be able to predict behavior perfectly, but it is incumbent for us to do what we can with the science to make a clinical decision.”
She is skeptical about whether a jury is capable of handing down a fair verdict on an issue as emotionally charged as child sexual abuse. Instead, she believes that courts should defer to clinicians who treat sex offenders. “To make a decision on strictly political or sociopolitical values is a travesty,” she said.
Yet sometimes rulings can surprise. After three days of deliberation, on Oct. 24, 2014, the jury announced its decision: Reilly was not a sexually violent predator. He would be set free.
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