Last month, Virginia Attorney General Mark Herring (D) succeeded in his aim of incarcerating a gay man indefinitely for sending text messages.
AG Herring maintains the man – who has never been accused or arrested
for any act of violence – is a “Sexually Violent Predator.” Virgina’s
treatment of Galen Baughman, now 36, has attracted protests from LGBT and criminal-justice groups, and at least one Virginia lawmaker. His case
highlights the dangers of Orwellian civil-commitment laws that allow
indefinite confinement of people to prevent possible future offenses.

Baughman – a former Indiana University student and Soros Justice
fellowship recipient – was condemned October 17th by an Arlington,
Virginia, jury to what is almost always lifetime confinement, on the
basis of an alleged parole violation – for exchanging texts with a
16-year-old youth in Minnesota, a friend of his family’s whom he met at
a funeral that he’d received explicit permission from his parole officer
to attend. The two were just conversing – nothing remotely sexual. But
Virginia contends that the chats violated terms of Baughman’s probation.

At age 20, Baughman had been convicted for something that took place
long before, when, after he had just turned 14, he showed another boy
how to masturbate. As well, he was charged for a sexual encounter with
another teenager when Baughman himself was 19. “Neither case involved
force or deception and neither ‘victim’ participated in the
prosecution,” noted Philip Fornaci and Roger Lancaster in an August
Washington Post op-ed they wrote about Baughman’s case. Baughman was
prosecuted as an adult for both teenage encounters and took an
ill-advised plea bargain, resulting in a sentence of six-and-a-half
years. But at the end of his term Baughman wasn’t released: the state
moved to civilly commit him indefinitely as a “Sexually Violent
Predator” – holding him for another two-and-a-half years in the process.
However in 2012, an Arlington, Virginia, jury concluded he did not
deserve that designation and Baughman gained his freedom.

After his release on probation, Baughman came out fighting – becoming an
activist fighting against out of control sex laws, speaking
internationally about the injustice of civil commitment, giving a well
received TEDx talk, and winning a prestigious Soros Justice fellowship.

Civil-commitment laws let prosecutors impose lifetime incarceration on
those judged to have vaguely defined “mental disorders” that might lead
them to commit another sex offense in the future. Confinement lasts
until “treatment” is successful, but in practice, that’s never.
Including Virginia, 19 US states along with the Feds have enacted these
statutes, and some 6,400 men – with the number continually growing – are
now locked up.

Baughman’s texting with the Minnesota youth was the sort of technical
parole violation that would normally garner a warning. Instead, a
blatantly homophobic judge had Baughman sent back to prison.
“Arlington Circuit Court Judge Daniel S. Fiore II insisted that the
texts were evidence that Baughman was trying to recruit the heterosexual
youth into gay sex,” Fornaci and Lancaster note, describing the
intensely homophobic atmosphere in the courtroom. “Asserting that a
‘tragedy for a minor’ had been narrowly averted, the judge sentenced
Baughman to 21 months in jail.”

Once incarcerated, Virginia struck again, seeking to get Baughman
permanently committed. But the state’s state-appointed psychologist,
Ilona Gravers, recommended Baughman’s release, as had psychiatrists from
John Hopkins and Columbia University. AG Herring, ignored the state’s
finding, and going outside the law’s provisions, hired another
psychologist, Michelle Sjolinder, who, for a reputed $20,000 fee, gave
the answer the AG wanted.

Coming into the trial this past October, Baughman’s pro bono attorneys’
hands were tied: Judge Fiore disallowed introduction of the first
psychologist’s report urging release, or informing the jury that
Baughman had been found previously not “sexually violent.” With
Baughman’s record clean in the 15 years since his conviction, there were
no new facts to support any other conclusion.

“There’s nothing about Galen’s past that suggests he’s dangerous or
likely to reoffend,” Virginia Delegate Patrick Hope was quoted in the
Richmond Times-Dispatch. “But Virginia’s [sex] laws and civil commitment
proceedings, in particular, are so arcane and seriously flawed, the AG’s
office is blindly following a pattern of prosecution that is neither
evidence-based or just. This area of the law is in serious and desperate
need of reform based on science and evidence.”

Civil commitment laws are bad enough. Because it’s a civil rather than a
criminal matter – with the Supreme Court declaring that lifetime
confinement is somehow not “punishment” – standards of proof in
“Sexually Violent Predator” hearings are reminiscent of kangaroo courts
and Stalin show trials. Virtually any evidence obtained however can be
used against a defendant – and the state can retry again and again a
case that it loses. But Virginia’s law is worse than most. The
commonwealth uses a blatantly homophobic questionnaire, called
“Static-99,” that gives men “points” for having same-sex relations, with
a higher score able to trigger a bid for lifetime confinement.

In July 2018, the National LGBTQ Task Force, Blacks in Law Enforcement
of America, and the National Religious Campaign Against Torture were
among scores of organizations and individuals signing on to a joint
letter – drafted by the Center for HIV Law and Policy – urging the
Virginia AG to drop the effort to commit Baughman. “Your office is
arguing that even completely legal conduct can serve as sufficient
evidence that a gay man intends to engage in violent, illegal conduct at
some point; and on that basis alone should be confined indefinitely
….” the letter noted.

Baughman’s attorneys are focusing now on an appeal of the jury’s
decision last month, made in the dark, with the most relevant
exculpatory evidence witheld. As well, his advocates can seek to
ameliorate the terms of his confinement to perhaps some kind of house
arrest, even though almost all of the more than 600 men Virginia
condemns are warehoused at the Virginia Center for Behavioral
Rehabilitation, which the state is spending an additional $110 million
to expand.

For now, Baughman is locked up in the Arlington County jail, where he
has been for the past three-and-a-half years, pending transfer to the
Virginia Center for Behavioral Rehabilitation, the gulag where for some
mild adolescent same-sex encounters, Virginia plans for Galen Baughman
to spend the rest of his life.