[No. 79111-2. En Banc.]
Argued January 15, 2008. Decided July 9, 2009.
Donald B. Lundahl, for petitioner.
Robert M. McKenna, Attorney General, and Sarah B. Sappington, Senior Counsel, for respondent.
David J.W. Hackett on behalf of Washington State Association of Prosecuting Attorneys, amicus curiae.
En Banc
¶1 J.M. JOHNSON, J. -- John Anderson is a convicted child rapist and, for the past decade, a mental patient institutionalized at Western State Hospital (WSH). At WSH he engaged in numerous sexual liaisons with vulnerable and developmentally disabled copatients. When he sought release, the State petitioned to commit him as a sexually violent predator under chapter 71.09 RCW.
¶2 The trial court appointed and funded an expert to assist in his defense, but Anderson ultimately decided not to call that expert at trial. Before trial, Anderson asked the court for the appointment of a different expert, Dr. Richard Wollert, but the trial judge denied his request. At the conclusion of Anderson's trial, the trial court found that Anderson's sexual activities at the hospital were recent overt acts, found him to meet the sexually violent predator (SVP) definition, former RCW 71.09.020(16) (2006), recodified as RCW 71.09.020(18), and ordered his commitment. The Court of Appeals affirmed the holding of the trial court on a recent overt act but reversed and remanded for a new trial holding that the trial court erred in refusing to appoint the requested testifying expert for Anderson. In re Det. of Anderson, 134 Wn. App. 309, 139 P.3d 396 (2006).
¶3 Anderson now claims that the trial court erred in finding recent overt acts and in denying him another expert for trial. Anderson petitioned for discretionary review, and the State cross-petitioned, arguing the State's obligation is satisfied by providing the first expert. We granted review on both issues. In re Det. of Anderson, 160 Wn.2d 1005, 158 P.3d 614 (2007).
¶4 This court affirms the Court of Appeals' decision to remand for a new trial at which Anderson may call Dr. Wollert, or another expert witness, to perform an evaluation and testify at trial. Whether or not Anderson's conduct amounted to a recent overt act, according to former RCW 71.09.020(10) (2006), recodified as RCW 71.09.020(12), will also be determined on remand but the acts as found do satisfy that requirement.
FACTS AND PROCEDURAL HISTORY
¶5 When John Anderson was 13, he lured a 5-year-old girl and exposed himself. At 15, he anally raped a 2-year-old boy and a boy 2 years his junior. When Anderson was 17, he pleaded guilty to statutory rape in the first degree of a 2 1/2-year-old boy. For this crime, Anderson was sentenced to a juvenile rehabilitation center. While serving his time at the juvenile center, he sexually abused his roommate. A year later, Anderson exposed himself to a female staff member and was convicted of public indecency.
¶6 Prior to Anderson's release, the State filed a petition to involuntarily commit him as an SVP. ¶7 While at WSH, Anderson had sexual relationships with eight patients, including four men. ¶8 Anderson himself described these relationships as "deviant," and he admitted that he took sexual advantage of at least two patients because they were disabled. 2 Verbatim Report of Proceedings at 120. Anderson's treatment professional at WSH testified that at least three of the patients with whom Anderson had sex were incapable of consensual sex. Anderson was repeatedly told by WSH staff to end these relationships, but he ignored this instruction. ¶9 After a decade in the hospital, Anderson sought to leave. The State and every expert who examined Anderson concluded that he was not safe to be at large, and the State petitioned to commit him as an SVP. While Anderson awaited trial, he was confined at the Special Commitment Center on McNeil Island. ¶10 Initially, the court appointed an expert for Anderson, Dr. Brian Judd, at state expense; however he ultimately decided not to use Dr. Judd at trial. Two years before trial, Anderson informed the State that he wished to consult with another expert, Dr. Richard Wollert. One week prior to trial, Anderson requested that the court appoint Dr. Wollert to testify on Anderson's behalf. Anderson agreed to waive his trial date to accommodate the State's need to interview Dr. Wollert prior to testimony. The State objected, and the trial court denied Anderson's request for appointment of this expert. ¶11 At trial, one of the State's experts, Dr. Amy Phenix, testified that Anderson's sexual relations with vulnerable copatients proved he was still dangerous because Anderson substituted vulnerable patients for his preferred child victims. Based on the expert testimony and documentary evidence, the trial court found that Anderson is a sexual sadist, a pedophiliac, and has a personality disorder. ¶12 Anderson appealed, arguing that the State failed to prove a recent overt act. Anderson also claimed the trial court abused its discretion by denying his request for appointment of another expert for trial. The Court of Appeals suggested that the State had met its burden of proving a recent overt act, but it also held that the trial court had abused its discretion in denying Anderson's request for a new expert and remanded for a new trial. Both parties sought review. STANDARD OF REVIEW [1, 2] ¶13 We review de novo whether Anderson's acts were recent and overt. In re Det. of Marshall, 156 Wn.2d 150, 158, 125 P.3d 111 (2005). We review a trial court's decision to admit expert testimony for abuse of discretion. In re Pers. Restraint of Young, 122 Wn.2d 1, 57, 857 P.2d 989 (1993). Abuse of discretion occurs when the trial court acts on unreasonable or untenable grounds. Indus. Indem. Co. of Nw., Inc. v. Kallevig, 114 Wn.2d 907, 926, 792 P.2d 520 (1990). ANALYSIS I. Recent and Overt Act [3, 4] ¶14 Under the SVP law, to commit a nonincarcerated person, the State must prove a recent overt act, defined as any act or threat creating a reasonable apprehension of sexually violent harm in the mind of an objective person who knows the person's history and mental condition. Former RCW 71.09.030(5) (2008); former RCW 71.09.020(10). Anderson claims that his acts are neither recent nor overt. The State agrees it must establish this element beyond a reasonable doubt. Because Anderson does not challenge the trial court's findings of fact in this regard, we treat those findings as true. In re Estate of Jones, 152 Wn.2d 1, 8, 93 P.3d 147 (2004). Note, however, that Anderson will receive a new trial, at which he may challenge all findings. [5] ¶15 Anderson's sexual activities at WSH could constitute overt acts. Dr. Phenix testified, and the trial court found, that Anderson engaged in sexual activity with vulnerable patients as substitutes for his preferred victims, children. [6] ¶16 Anderson's overt acts were recent. This court has held in the SVP context that overt acts occurring up to five years before the petition's filing may be "recent." In Marshall, the defendant committed the act in November 1995, and the State brought the petition in November 2000. Marshall, 156 Wn.2d at 153. We held it to be a recent overt act. Id. at 159. In In re Detention of Henrickson, 140 Wn.2d 686, 2 P.3d 473 (2000), one of the defendants committed his act in 1996, and the State filed the petition in 1999. Id. at 691. We held that this act was sufficiently recent. Id. at 696. Here, only two months before the State filed this petition, Anderson was reported having sex with a vulnerable copatient, the most recent reported act in a long string of such acts. The trial court correctly concluded that Anderson's acts two months before filing were recent, consistent with the law and prior decisions of this court. II. It Was Abuse of Discretion To Fail To Appoint a Trial Expert [7] ¶17 The trial court may appoint additional experts at State expense for good cause. See former WAC 388-885-010(3)(c) (1999), recodified as WAC 388-885-013(2). The Court of Appeals correctly determined that Anderson should have been permitted to engage an expert (Dr. Richard Wollert) to perform a forensic psychosexual evaluation and to testify as an expert witness at trial. Anderson, 134 Wn. App. at 321-22. We agree with the Court of Appeals that Anderson's motion to call Dr. Wollert as an expert should be granted. A sufficient showing was made that Dr. Wollert would provide distinctly meaningful expert testimony in Anderson's defense. Dr. Wollert would have challenged Dr. Phenix's conclusion that Anderson is likely to commit predatory acts of sexual violence if not confined in a secure facility. ¶18 No significant countervailing interests undermined Anderson's request. As the Court of Appeals observed, any additional delay would not be in Anderson's best interest because he was confined. The State would not have been unduly prejudiced as a result of any delay. Dr. Wollert offered to be available to the State for discovery at any time. Anderson was also willing to waive his trial date to accommodate the State's need to interview Dr. Wollert prior to his testimony. Under these circumstances, we agree with the Court of Appeals that there was good cause to appoint Dr. Wollert as an additional expert witness at public expense under former WAC 388-885-010(3)(c). ¶19 We recognize that among the exceptional protections provided by the legislature for SVP trials, CONCLUSION ¶20 We remand for a new trial so that Dr. Wollert, or another appropriate expert witness, may perform an evaluation of Anderson and testify on his behalf. Whether or not Anderson's conduct amounted to a recent overt act, as with the other elements of the State's case, will have to be proved at that new trial. ALEXANDER, C.J., and C. JOHNSON, MADSEN, and OWENS, JJ., concur. ¶21 SANDERS, J. (dissenting) -- I agree with our majority and the Court of Appeals that the trial court abused its discretion when it refused to appoint Dr. Richard Wollert as John Anderson's expert witness and thus denied Anderson the services of a trial expert to rebut the State's evidence. I disagree, however, that the acts relied upon by the State could constitute recent overt acts. Therefore I would reverse and dismiss. I. Facts and Procedural History ¶22 In 1988 Anderson pleaded guilty to first degree statutory rape of a two-and-a-half-year-old boy. Anderson was 17 years old. He was sentenced to a juvenile rehabilitation center. ¶23 In 1990 after serving his time at the juvenile rehabilitation center, Anderson voluntarily committed himself to Western State Hospital (WSH) for treatment of sexual sadism and pedophilia. ¶24 During his 10-year residence at WSH, Anderson engaged in consensual homosexual relationships with four adult male patients: Darryl, Curtis, Bobby, and Rory. ¶25 As part of group therapy Anderson and his partners spoke about these relationships, ending them when counseled to do so, albeit not immediately. ¶26 Neither Darryl, Curtis, Bobby, nor Rory requested any action against Anderson even though encouraged to do so if they felt victimized. At no time did the staff at WSH pursue charges against Anderson even though the possibility was investigated. Dr. Larry Arnholt testified there was no "coercive or forceful aspects to any of these sexual relationships." Clerk's Papers (CP) at 181. Sexual relationships between patients are against WSH rules but are not uncommon. WSH makes condoms available. ¶27 As a voluntary patient Anderson could leave WSH with or without permission. Anderson would regularly take permissive leave up to four times a month, generally to visit his mother for a couple days. At least twice during his 10-year residence, Anderson left without permission. During one of his nonpermissive leaves, he admitted to consuming alcohol; during the other he helped a friend find an apartment. Nothing in the record suggests Anderson engaged in sexually violent activity during any of his time away from WSH. ¶28 During his time at WSH Anderson underwent various treatments, therapies, and evaluations wherein he admitted to numerous sexually violent offenses as a juvenile and to sexually violent fantasies. According to Anderson's last assessment, he can now control his sexual arousal. ¶29 On February 20, 2000, Anderson informed WSH staff he intended to leave WSH permanently. On February 25, 2000, "Sexually violent predator" means any person who has been convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility. Former RCW 71.09.020(16) (2006). "Likely to engage in predatory acts of sexual violence if not confined in a secure facility" means that the person more probably than not will engage in such acts if released unconditionally from detention on the sexually violent predator petition. Such likelihood must be evidenced by a recent overt act if the person is not totally confined at the time the petition is filed . . . . Former RCW 71.09.020(7) (2006).» ¶30 Anderson moved for judgment on the pleadings, arguing insufficient allegations to support the State's claim that he is a sexually violent predator or that he committed a recent overt act. The trial court denied Anderson's motion to dismiss and then tried him, pursuant to chapter 71.09 RCW, to determine whether Anderson should be civilly committed. The trial court found Anderson's homosexual relations with Darryl, Curtis, Bobby, and Rory were substitutes for his preferred victims. The trial court concluded Anderson was a sexually violent predator, and these homosexual relations constituted recent overt acts. The Court of Appeals affirmed. In re Det. of Anderson, 134 Wn. App. 309, 323-24, 139 P.3d 396 (2006). However, the Court of Appeals remanded for a new trial because the trial court refused to permit "Anderson to engage an appropriate expert witness." Id. at 322. II. Standard of Review ¶31 Whether an act is both recent and overt is a mixed question of law and fact. ¶32 The facts here are unchallenged. Anderson admits he was convicted of a sexually violent offense, suffers from a mental abnormality, and engaged in sexual relations while a patient at WSH. The State concedes it must prove Anderson committed a recent overt act. Anderson, 134 Wn. App. at 323. Therefore, all that remains is the "legal inquiry" into whether Anderson's consensual homosexual relationships, as well as other conduct, are recent overt acts. Marshall, 156 Wn.2d at 158. ¶33 The issue should be framed as one of consensual homosexual relations for two reasons. First, the State does not allege Anderson's heterosexual relationships were recent overt acts. Second, Washington law does not presume an individual is incapable of consenting to sex due to an intellectual disability. III. Analysis ¶34 In re Detention of Harris, 98 Wn.2d 276, 284-85, 654 P.2d 109 (1982) first recognized due process requires proof of a recent overt act to determine the current dangerousness of one who is subject to involuntary civil commitment. In re Det. of Albrecht, 147 Wn.2d 1, 8 n.9, 51 P.3d 73 (2002). "[I]nvoluntary commitment requires a showing that the potential for doing harm is 'great enough to justify such a massive curtailment of liberty.'" Harris, 98 Wn.2d at 283 (quoting Humphrey v. Cady, 405 U.S. 504, 509, 92 S. Ct. 1048, 31 L. Ed. 2d 394 (1972)). For constitutional due process purposes, we defined a recent overt act as an act "which has caused harm or creates a reasonable apprehension of dangerousness." Id. at 285. ¶35 The purpose behind the recent overt act requirement is to add objectivity to an otherwise subjective determination of mental illness and dangerousness. See Harris, 98 Wn.2d at 284; see also Christopher Slobogin, Dangerousness and Expertise Redux, 56 EMORY L.J. 275, 318 (2006) ("The strong consensus of the risk literature is that the number and type of prior violent acts committed by an individual are the factors most germane to a prediction of future behavior."). ¶36 In re Personal Restraint of Young, 122 Wn.2d 1, 857 P.2d 989 (1993) applied the recent overt act requirement established in Harris to sexually violent predator proceedings; "the State must provide evidence of a recent overt act in accord with Harris ¶37 After Young the legislature amended chapter 71.09 RCW to define a recent overt act as "any act that has either caused harm of a sexually violent nature or creates a reasonable apprehension of such harm," tracking the language in Harris. LAWS OF 1995, ch. 216, $ 1(5). ¶38 However, in 2001 the legislature redefined a recent overt act as "any act or threat that has either caused harm of a sexually violent nature or creates a reasonable apprehension of such harm in the mind of an objective person who knows of the history and mental condition of the person engaging in the act." LAWS OF 2001, ch. 286, $ 4(5) (emphasis added), former RCW 71.09.020(10) (2006). If possible, this legislative addition to our due process requirement should be construed as consistent with the constitutional justification for civil confinement. See Young, 122 Wn.2d at 41. ¶39 The constitutional justification for civil confinement is current dangerousness caused by a mental defect plus a recent overt act, which "satisfies the dangerousness element required by due process." Albrecht, 147 Wn.2d at 11; see also Kansas v. Hendricks, 521 U.S. 346, 358, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997). It must be determined whether Anderson's conduct was both recent and dangerous. A. Anderson's conduct was not recent ¶40 "[E]vidence [of an overt act] must be recent to be meaningful." Harris, 98 Wn.2d at 284. "The dangerousness must be current." Albrecht, 147 Wn.2d at 7. "[T]he recency of the acts upon which the State bases its commitment petition may be a significant factor in determining whether the individual is presently dangerous as required by both the statute and due process." In re Det. of Henrickson, 140 Wn.2d 686, 697, 2 P.3d 473 (2000). ¶41 Former RCW 71.09.020(10) does not define "recent," but the dictionary definition is "of or belonging to the present period or the very near past." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1894 (1993). "[C]urrent" is defined as "occurring in or belonging to the present time : in evidence or in operation at the time actually elapsing." Id. at 557. ¶42 Anderson's homosexual relationship with Darryl ended in 1991, and his relationship with Curtis and Bobby ended around 1996, years before the State filed its petition on February 25, 2000. ¶43 Moreover, these prior relationships lack relevancy to Anderson's current dangerousness because the trial court found Anderson is currently able to control his sexual arousal. In order to be subjected to civil commitment "there must be proof of serious difficulty in controlling behavior." Kansas v. Crane, 534 U.S. 407, 413, 122 S. Ct. 867, 151 L. Ed. 2d 856 (2002). ¶44 Anderson's ability to control his behavior is not only relevant, it is dispositive; current dangerousness is the foundation of sexually violent predator commitment. See In re Det. of Henrickson, 140 Wn.2d 686, 692, 2 P.3d 473 (2000) ("The Washington sexually violent predator statute is premised on a finding of the present dangerousness of those subject to commitment."); Foucha v. Louisiana, 504 U.S. 71, 78, 112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992) (requiring the dual predicates of current mental illness and current dangerousness). ¶45 Even assuming these long-past relationships were somehow involuntary, they do not establish Anderson's current dangerousness. Nor can Anderson's current dangerousness be established under the analysis of In re Detention of Pugh, 68 Wn. App. 687, 845 P.2d 1034 (1993). ¶46 In Pugh the Court of Appeals stated, "in considering whether an overt act, evidencing dangerousness, satisfies the recentness requirement, it is appropriate to consider the time span in the context of all the surrounding relevant circumstances." Id. at 695. The critical circumstance in Pugh was Pugh's incarceration for the five-year period prior to the State's seeking involuntary commitment. Id. at 689. "The absence of more recent overt acts during confinement is readily explainable as a lack of opportunity to offend rather than a demonstration of improvement so as to negate the showing that he presents a substantial risk of physical harm." Id. at 696. However, Pugh recognized the "absence of overt acts in the last 5 years might be sufficient to discount the diagnosis and prediction of dangerousness were Pugh then living in the typical community." Id. ¶47 Anderson may not have been living in the "typical community" envisioned by the court in Pugh; however, Anderson was also not meaningfully "isolated from children toward whom he has a predilection to cause harm" because he regularly left the grounds of WSH up to four times a month. Id. If Anderson were truly unable to suppress his sexual urges toward children, some act or attempt would have manifested itself during all those years Anderson had access to the community. ¶48 The Pugh analysis is inapplicable to resolving the recentness element of our overt act requirement. Anderson's relationship with Rory remains as the barometer of Anderson's current dangerousness. ¶49 Anderson ended his relationship with Rory in late 1999. The State filed its petition on February 25, 2000. At least two months elapsed between Anderson's ending his relationship with Rory and the State's filing its petition. This delay renders Anderson's relationship with Rory too remote to be a meaningful barometer of Anderson's current dangerousness. ¶50 The majority argues that Marshall, 156 Wn.2d 150, and Henrickson, 140 Wn.2d 686, stand for the proposition that two months is sufficiently recent because in Marshall and Henrickson the overt act in question occurred years before the State filed its petition. Majority at 8. These cases are distinguishable because Anderson was not incarcerated at the time the State filed its petition. ¶51 In Marshall and Henrickson the individuals subject to commitment were incarcerated at the time the State filed its petition, making it "impossible" for the State to prove a recent overt act. Young, 122 Wn.2d at 41; see also Marshall, 156 Wn.2d at 154; Henrickson, 140 Wn.2d at 689. "[W]here the State lacks an opportunity to prove present dangerousness with evidence of a recent overt act, the statute and our case law relieve the State of pleading and proving a recent overt act." In re Det. of Lewis, 163 Wn.2d 188, 194, 177 P.3d 708 (2008) (citing Young, 122 Wn.2d at 41). Correlatively, however, where the State has the opportunity to prove present dangerousness with evidence of a recent overt act, due process requires it to do so. Young, 122 Wn.2d at 41. In other words, due process does not require the "impossible," but it does require the possible. Id. As Anderson was not incarcerated at the time the State filed its petition, it was possible for the State to show Anderson committed a recent overt act. ¶52 Nevertheless, even assuming two months is sufficiently recent to be meaningful, Anderson's consensual homosexual relationship with Rory, an adult of average intelligence, does not evince Anderson is currently dangerous. B. Anderson's conduct was not an overt act ¶53 To reiterate, the legislative definition of a recent overt act is "any act or threat that has either caused harm of a sexually violent nature or creates a reasonable apprehension of such harm in the mind of an objective person who knows of the history and mental condition of the person engaging in the act." Former RCW 71.09.020(10). The State does not argue Anderson's conduct caused sexually violent harm. Instead, the State argues Anderson's conduct causes a reasonable apprehension of sexually violent harm. ¶54 The statute does not define "reasonable apprehension." Anderson argues we should incorporate the common law definition of "reasonable apprehension." See State v. Wilson, 125 Wn.2d 212, 217-18, 883 P.2d 320 (1994) (recognizing Washington courts may look to the common law to define undefined statutory terms). ¶55 In Harris we stated, "[t]he risk of danger must be substantial and the harm must be serious before detention is justified." 98 Wn.2d at 284. For example in In re Detention of Meistrell, 47 Wn. App. 100, 103, 107, 733 P.2d 1004 (1987), the Court of Appeals affirmed the trial court's finding of a recent overt act involving the subject of the petition repeatedly placing his two young children in actual physical danger. Similarly, in In re Detention of A.S., 91 Wn. App. 146, 955 P.2d 836 (1998), aff'd, 138 Wn.2d 898, 982 P.2d 1156 (1999), the Court of Appeals affirmed the trial court's finding of a recent overt act involving repeated threats of suicide coupled with the respondent's making sawing motions against her wrist with a comb three days after an attempted suicide. Id. at 152. ¶56 These cases suggest an overt act requires an actual or obvious risk of substantial physical harm to self or others. See Harris, 98 Wn.2d at 284-85; see also Christopher Slobogin, A Jurisprudence of Dangerousness, 98 NW. U. L. REV. 1, 21 (2003) ("Unless the individual engages in conduct that causes legally-defined harm or that is otherwise obviously risky, the government should not be permitted to intervene preventively."). ¶57 An actual or obvious risk of substantial physical harm, however, is only part of the equation. The legislature added an element not found in Harris, and this element should be construed constitutionally, if possible. ¶58 To satisfy due process the legislature's addition to the recent overt act requirement demands a causal relationship between the person's diagnosed mental or personality disorder and his conduct. This relationship reflects "the constitutional importance of distinguishing a dangerous sexual offender subject to civil commitment 'from other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings.'" Crane, 534 U.S. at 412 (quoting Hendricks, 521 U.S. at 360) "That distinction is necessary lest 'civil commitment' become a 'mechanism for retribution or general deterrence'--functions properly those of criminal law, not civil commitment." Id. (quoting Hendricks, 521 U.S. at 372-73 (Kennedy, J., concurring)); see also Eric S. Janus, Preventing Sexual Violence: Setting Principled Constitutional Boundaries on Sex Offender Commitments, 72 IND. L.J. 157 (1996) (discussing the rejection of prevention as the sole justification for civil commitment). ¶59 The statute requires this causal connection in its definition of a sexually violent predator as "any person who has been convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility." Former RCW 71.09.020(16) (2006) (emphasis added); see also RCW 71.09.010 (stating "sexually violent predators generally have personality disorders and/or mental abnormalities which are unamenable to existing mental illness treatment modalities and those conditions render them likely to engage in sexually violent behavior" (emphasis added)). ¶60 Moreover, this causal connection gives purpose and meaning to the definition of a recent overt act, which requires knowledge of the person's history and mental disorder. Former RCW 71.09.020(10). This establishes the rational basis for the apprehension of sexually violent harm, separating the everyday activities of life from activities that justify civil commitment. Harris, 98 Wn.2d at 283. ¶61 Otherwise, a person risks civil commitment once convicted of a sexually violent offense and diagnosed with a mental illness regardless of any causal relationship between the mental condition and the conduct in question. Persons could be subject to commitment based solely on their status as a prior sexual offender and fear of mental illness. See Harris, 98 Wn.2d at 281 (stating "[t]he laws of involuntary civil commitment should not reflect the[ ] irrational fears of mental illness"). ¶62 Civil commitment for sexual predators would then no longer "focus[ ] on treating petitioners for a current mental abnormality, and protecting society from the sexually violent acts associated with that abnormality." Young, 122 Wn.2d at 21 (emphasis added); see also Eric S. Janus & Wayne A. Logan, Substantive Due Process and the Involuntary Confinement of Sexually Violent Predators, 35 CONN. L. REV. 319 (2003) (positing a substantive due process right to treatment). ¶63 Here we must examine the relationship, if any, between the conduct the State alleges to be a recent overt act and Anderson's diagnosed pedophilia and sexual sadism. Compare Albrecht, 147 Wn.2d 1 (alleged sexually violent predator with a history of child sexual assault and diagnosed with pedophilia violating community release conditions) with Marshall, 156 Wn.2d at 159 (alleged sexually violent predator with a history of child molestation and diagnosed with pedophilia raping a developmentally disabled woman); In re Det. of Froats, 134 Wn. App. 420, 140 P.3d 622 (2006) (alleged sexually violent predator with a history of child-kidnapping and molestation and diagnosed with pedophilia sexually harassing a developmentally delayed fellow inmate and displaying hundreds of pictures of children); In re Det. of Hovinga, 132 Wn. App. 16, 130 P.3d 830 (2006) (alleged sexually violent predator with a history of raping young girls and masturbating while covertly following girls around a store); In re Det. of Robinson, 135 Wn. App. 772, 146 P.3d 451 (2006) (alleged sexually violent predator with a history of child rape in a locked room with a child), review denied, 161 Wn.2d 1028, 172 P.3d 360 (2007); In re Det. of Broten, 130 Wn. App. 326, 122 P.3d 942 (2005) (alleged sexually violent predator with a history of child molestation and a diagnosis of pedophilia being unsupervised at a playground); In re Det. of Albrecht, 129 Wn. App. 243, 252, 118 P.3d 909 (2005) (alleged sexually violent predator with a history of child sexual assault and diagnosed with pedophilia luring a young boy). ¶64 As succinctly stated by Judge Armstrong, "in every case where we found sufficient evidence of a recent overt act, the act was a continuation of the sex offender's pathological behavior." Anderson, 134 Wn. App. at 327-28 (Armstrong, J., dissenting). ¶65 Thus, a recent overt act is an act presenting an actual or obvious danger of substantial physical harm or a threat of an actual or obvious danger of substantial physical harm caused by the individual's diagnosed mental or personality disorder. ¶66 The majority asserts that Anderson committed a recent overt act by engaging in consensual homosexual conduct. ¶67 Anderson's history of sexual offense involves the rape of a child. He was convicted of raping a two-and-a-half-year-old boy. He has admitted to raping other boys as a juvenile. He is a diagnosed pedophile and sexual sadist. ¶68 Over the course of 10 years, Anderson engaged in consensual homosexual relationships with four adult males, yet only one relationship is arguably recent to be a useful barometer of Anderson's current dangerousness. This conduct does not result from Anderson's diagnosed pedophilia or sexual sadism. A consensual homosexual relationship with an adult male of average intelligence is inconsistent with a diagnosis of pedophilia. The record does not indicate any sexual violence or otherwise forceful conduct consistent with Anderson's diagnosed sexual sadism. ¶69 Dr. Amy Phenix, the State's expert witness, testified Anderson's conduct was a form of victim substitution. However, whether Anderson's consensual sexual activity with an adult is a substitution for his victimization of children is irrelevant to the issue of whether Anderson's conduct satisfies the due process requirement of a recent overt act. As a mixed question of law and fact the underlying facts are found by the fact finder with the court applying legal principles to those facts. Erwin, 161 Wn.2d at 687. Here, Anderson concedes the underlying facts. "Victim substitution" may be an interesting psychiatric label, but it is not dispositive of the legal issue before this court. Whether Anderson's conduct constitutes a recent overt act is a determination the court must make as a matter of law. ¶70 Anderson's consensual homosexual sex is distinguishable from the conduct in Marshall, 156 Wn.2d 150, and Froats, 134 Wn. App. 420, two similar cases where the court observed a recent overt act. In Marshall, this court found a recent overt act in the rape of a developmentally disabled woman. "In light of Marshall's history [prior convictions of child molestation] and mental condition [pedophilia], the third degree rape, which involved nonconsensual sex with a developmentally disabled woman who functioned at the level of a 10- or 12-year-old, would create a reasonable apprehension of harm . . . ." Marshall, 156 Wn.2d at 159 (emphasis added). ¶71 In Froats, petitioner made unwanted advances to a fellow resident of a work release facility not fitting Froats' victim profile. The State's expert testified the conduct was a form of symptom substitution in which Froats acted out his pedophilic urges on an adult in the absence of a preferred victim. 134 Wn. App. at 437. ¶72 But here there are no allegations of rape or unwanted advances. Moreover, Anderson was never meaningfully sequestered away from his allegedly preferred victims. Anderson was able to leave WSH, which he did frequently. In sum, there is no relation between Anderson's consensual homosexual relationship, history, and his mental diagnosis. ¶73 Significantly, the State filed its petition not in response to Anderson's sexual activities at WSH, but in response to Anderson's expressing his desire to leave WSH. The State never sought to commit Anderson during his residence at WSH, during which time Anderson openly engaged in the sexual behavior the State now calls evidence of Anderson's dangerousness. The relevant act, therefore, is not the conduct the State pardoned for years, but Anderson's expressing his desire to leave WSH, an act insufficient to show current dangerousness. C. Dismissal is proper remedy ¶74 The Court of Appeals stated the remedy for insufficient evidence was remand not dismissal because "double jeopardy does not preclude retrial in the civil context . . . ." Anderson, 134 Wn. App. at 324. This is partly correct. ¶75 The Court of Appeals correctly noted under our existing precedent double jeopardy does not apply to sexually violent predator petitions because those petitions are "civil rather than criminal." Young, 122 Wn.2d at 59. However, as properly observed by Judge Armstrong, "if we hold that the State failed to prove a recent overt act, res judicata or law of the case would prevent the State from again litigating the issue on the same evidence." Anderson 134 Wn. App. at 328 (Armstrong, J., dissenting); see also Hayes v. City of Seattle, 131 Wn.2d 706, 712-13, 934 P.2d 1179, 943 P.2d 265 (1997) (providing a multipart analysis to determine if a subsequent suit would be permitted). Since the State failed to prove a recent overt act, the State should be precluded from again seeking to prove so using the same evidence. The appropriate remedy is dismissal. ¶76 Therefore, I dissent. ¶77 FAIRHURST, J. (concurring in dissent) -- I find I cannot join either the majority or the dissent. I cannot join the majority's holding that John Charles Anderson's consensual relationships with four adult men constitute recent overt acts. ¶78 Former RCW 71.09.020(10) establishes that a "'[r]ecent overt act'" is "any act or threat that has either caused harm of a sexually violent nature or creates a reasonable apprehension of such harm in the mind of an objective person who knows of the history and mental condition of the person." The State's expert, Dr. Amy Phenix, testified that Anderson's relationships with four adult male patients at Western State Hospital (WSH) qualified as recent overt acts. Based on her assessment, the trial court found that Anderson's "conduct with respect to these patients" constituted a recent overt act. Clerk's Papers (CP) at 188. Although Anderson's partners are characterized as "vulnerable," CP at 187, neither the State nor Anderson's partners claimed that any actual harm of a sexually violent nature resulted from these relationships. Dr. Larry Arnholt, who described Anderson's WSH partners at trial, testified that "he was unaware of any coercive or forceful aspects to any of these sexual relationships." CP at 181. Contrary to the majority's assertion, there is no testimony that any of the partners had developmental or psychiatric disabilities that rendered them legally incapable of consenting. Majority at 547. Well, the indication was that [Darryl] was developmentally disabled, certainly not a consensual equal partner. That's something that we focused on the group, that a person should be functioning on the same level, that they should be competent to make a decision, and that a relationship, an equal relationship should clearly be established, because the context of the group indicates that any sexual offense uses somebody or something as an object, and it was certainly not considered acceptable. So we focused on the quality of the relationship for sexual contact to be something that would be positive. 1 Verbatim Report of Proceedings (VRP) at 74-75. Prior to that testimony, the assistant attorney general explicitly told the trial court she would not elicit testimony from Dr. Arnholt regarding whether the relationships were consensual or not. 1 VRP at 72. Testifying that the partner was functioning at a different level than Anderson, with nothing more, is not the same as testifying the partner was incapable of consent.» ¶79 Whether an individual's actions constitute a recent overt act is a mixed question of law and fact. In re Det. of Marshall, 156 Wn.2d 150, 158, 125 P.3d 111 (2005). I disagree with the majority's application of the law to the facts. In Marshall, this court adopted a two-step analysis for determining whether an act qualifies as a recent overt act for the purposes of a sexually violent predator petition. [F]irst, an inquiry must be made into the factual circumstances of the individual's history and mental condition; second, a legal inquiry must be made as to whether an objective person knowing the factual circumstances of the individual's history and mental condition would have a reasonable apprehension that the individual's act would cause harm of a sexually violent nature. Id. ¶80 Under Marshall, we first look to the factual circumstances of Anderson's history and mental condition. Dr. Phenix diagnosed Anderson with sexual sadism, pedophilia, and a personality disorder with antisocial, borderline, and narcissistic traits. His past offenses include anally raping a two-and-a-half-year-old boy (1988), assaulting his roommate (1988), and exposing himself to a female adult staff member (1989). During therapy sessions at WSH, Anderson admitted to sexual fantasies involving women, fantasies about sexual molestation of young boys and girls, and two other rapes of children. ¶81 The second part of the Marshall test is the legal inquiry. The test requires a reasonable connection between the claimed recent overt act and the individual's history and mental condition in the view of an objective person. ¶82 Thus, the alleged recent overt acts at issue are Anderson's consensual sexual relationships with fellow adult male patients. None of Anderson's partners filed any complaints against him, although WSH staff urged all parties to end the relationships. Dr. Phenix characterized the relationships as exploitive but did not describe them as abusive. Again, no witness testified that the relationships were nonconsensual. The question is whether these relationships create a reasonable apprehension of sexually violent harm, given Anderson's diagnosis and pattern of nonconsensual, abusive sexual relations with children and inappropriate behavior toward women. ¶83 Anderson's consensual relationships with the four adult male patients at WSH do not produce a reasonable apprehension of sexual violence given his history and diagnosis. CHAMBERS and STEPHENS, JJ., concur with FAIRHURST, J.