LGBTQ Letter to Virginia Attorney General Mark Herring re Galen Baughman

July 26, 2018

Attorney General Mark Herring

Office of the Attorney General

202 North Ninth Street

Richmond, Virginia 23219

RE: Commonwealth v. Baughman, Case No. CL 17-3009

Dear Attorney General Herring:

We are contacting you in connection with the above-titled case, currently pending in the Circuit Court for

Arlington County, Virginia, in which the Office of the Attorney General (“OAG” or “your office”) is

seeking the civil commitment of Mr. Baughman under Virginia’s Sexually Violent Predator Act

(“SVPA”).

We are legal and criminal justice professionals, scholars, and leaders representing national and state

organizations and communities, including a number of Virginia residents and voters. The concern we

raise here is the OAG’s aggressive application of an already-flawed statute against a young gay man,

Galen Baughman, essentially for juvenile offenses revived now on a technical probation violation.

Galen has committed no new crimes since a conviction 15 years ago,

and was on probation for

approximately four years without incident prior to his current incarceration for a technical violation. That

violation, for sending non-sexual text messages to a 16-year-old young man in another state, has

prompted your office to seek Galen’s indefinite civil commitment as one of Virginia’s most dangerous

sex offenders.

We believe that the OAG’s reliance on a first-time probation violation (that under normal circumstances

likely would not even draw jail time) to justify civil commitment can only be explained as sexual

orientation-based bias.

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 to a facility for dangerous sex offenders who are unable to control their violent behavior. The

As Galen’s attorneys have stated both in court documents and in their separate letter to you on this matter, Galen is a 34-year-

old man who, between 2003 and 2012, served nine years on two offenses, both of which occurred before he turned 20 years old.

One charge, for carnal knowledge, stemmed from a consensual sexual relationship that Galen had with a 14-year-old boy when

Galen was 19 years old; the other, an aggravated sexual battery charge from 1997, was based on the claim that when Galen was

14 he had instructed a 9-year-old boy how to masturbate. Neither of these charges can reasonably be characterized as “sexually

violent.”

Letter to Mark Herring, Attorney General of Virginia

Page 2

OAG is aggressively pursuing this case against Galen despite a 2012 jury finding that Galen is not a

sexually violent predator (SVP) and despite the finding of the expert psychologist initially appointed for

the Commonwealth in the current proceedings that Mr. Baughman is not a SVP.

As one of your attorneys confirmed in court, “ultimately, the Attorney General has discretion on whether

or not to file a new petition…the Attorney General has to look at the circumstances of the [probation]

violation and determine whether or not they feel like that might be evidence of an inability to control

predatory behavior such that the individual is likely to commit new sexually violent acts.”

It is ethically and legally unacceptable that the OAG is squandering Commonwealth resources to secure

the civil commitment of Galen in the absence of any allegation of criminal conduct or even evidence of

the intent to engage in such conduct. The handling of Galen’s case is additionally strange in view of the

fact that the Virginia civil commitment program is over-budget and its designated treatment facility

overcrowded.

While acknowledging that there was nothing that could be characterized as sexual in Galen’s text

communications, your office argued that his texting “ultimately could lead to additional predatory

behavior, making him more likely to engage in sexually violent acts.”

But there was no predatory

behavior here.

At a hearing on May 10, 2018, it became clear that the expert conclusions and bases for those

conclusions, deemed insufficient for civil commitment in the OAG’s 2009 civil commitment application,

are essentially the same as those of the current OAG expert, who was retained only after the state’s initial

expert concluded that civil commitment was not warranted in Galen’s current case.

Evidently,

representatives of your office believe that once a gay man has been convicted of a sex offense, any

communication with another young man, regardless of the nature or content, constitutes “grooming” of a

future sex partner.

It is shocking and inexcusable that Commonwealth attorneys could freely assert such

patently homophobic notions as the basis for subjecting a young man to indefinite imprisonment.

To be clear, all of the undersigned have severe concerns with the Virginia version of civil commitment,

what can only be described as a cruel and ineffective set of laws. The American Psychiatric Association

vigorously opposes these laws. One clinical psychologist who worked at a civil commitment facility in

Larned, Kansas calls the state’s civil commitment statute “an abomination.”

Recent studies also

document that LGBT citizens are arrested and punished at a rate that is disproportionate to their

representation in the general population.

The homophobic bias that drives this disparity was evident in

Transcript at 11-12,15.

The Virginia Center for Behavioral Rehabilitation (VCBR) is operated by the Department of Behavioral Health and

Developmental Services (DBHDS) Virginia Center for Behavioral Rehabilitation, http://vcbr.dbhds.virginia.gov/. The facility,

which opened in 2006, was constructed with a maximum capacity of 300 individuals. The number of individuals civilly

committed shot up dramatically in 2006, after lawmakers expanded number of crimes that would make someone eligible for

commitment from four to 28. As of July 2016, there were 374 male and 3 female residents committed to VCBR. Va. assessment

of sex offenders flawed, study says, Associated Press, November 15, 2011, https://www.washingtonpost.com/blogs/crime-

scene/post/va-assessment-of-sex-offenders-flawed-study-

says/2011/11/15/gIQAefmLON_blog.html?noredirect=on&utm_term=.f891c341bb12;

Virginia Center for Behavioral Rehabilitation, Presentation to the House Appropriations Committee (June 18, 2008),

http://hac.state.va.us/committee/files/2008/06-18-08/VCBR--06-18-08--Color.pdf

In the Matter of Commonwealth of Virginia v. Galen Michael Baughman, Arlington Circuit Court, Judge Fiore presiding,

Hearing Transcript, May 10, 2018, at 15. (Hereinafter “Transcript”). Following these comments, the judge suggested to counsel

for Galen that his giving a young man a ride home to change from his funeral clothes was “grooming behavior” on Galen’s part,

even though there was no allegation that Galen had said or done anything remotely inappropriate, because, as the judge put it,

“well, but grooming sometimes takes a while.” Transcript at 15-16, 21-22.

Transcript at 21-22.

This characterization of Galen’s emails clearly had an impact on the judge, who in colloquy with counsel for Galen flatly states,

“The reason why he is here is because he was grooming a 16-year-old.” Transcript at 83.

Koeppel, Barbara, “Sex Crimes and Criminal Justice: Formerly Incarcerated sex offenders say civil commitment programs deny

proper rehabilitation.” May 4, 2018. Available: www.washingtonspectator.org/koeppel-sex-crimes-and-criminal-justice/

See, e.g., Ilan H. Meyer, PhD, et als., Incarceration Rates and Traits of Sexual Minorities in the United States: National Inmate

Survey, 2011-2012, 107 AJPH 234, 238-239) (also noting that “because sexual minorities transgress societal norms, they are

Letter to Mark Herring, Attorney General of Virginia

Page 3

the OAG’s characterizations and assumptions of Galen’s conduct at the May 10, 2018 hearing and by

the Commonwealth Attorney at the probation violation and sentencing hearings, on November 21,

2016, November 29, 2016, and January 6, 2017.

For most people who are civilly committed, “indefinite” confinement morphs into a life sentence. While

the OAG is seeking Galen’s indefinite commitment as a dangerous sex offender for the purposes of

mental health treatment, in fact nothing approaching real treatment is or would be available to Galen.

Galen is facing a civil proceeding, has no history of violence, and is not an escape risk, yet he has been

confined for more than two years, many months past the sentence imposed for his technical probation

violation, under restrictions more typically imposed on a terrorism suspect. Galen has limited access to

books and reading material, no access to a library or computer, and is denied unmonitored

communications with anyone other than with the attorneys representing him. There is no real mental

health treatment since even therapist-patient conversations and records are not treated as confidential.

Galen’s professional career and personal reputation have been destroyed.

Beyond the tragic human costs of this prosecution, the financial costs are considerable. As of 2011, it cost

the Commonwealth about $91,000 per year for each of the individuals held in Burkeville.

During the

fiscal year that ended in June 2011, Virginia spent $24.5 million on its civil commitment program.

With

this level of expense to the taxpayers and the mounting evidence that such programs are not only of

limited use but harmful to the Commonwealth, we urge you to take a closer look at how cases for civil

commitment are chosen and prosecuted. As an Attorney General who campaigned on a more progressive

approach to policies affecting LGBT citizens, it is incumbent upon you to revisit the decision to invest

resources in Galen’s civil commitment as a “Sexually Violent Predator.”

This prosecution is indefensible legally and ethically. It is impossible, frankly, to imagine such vigorous

and expensive pursuit of a heterosexual man for non-sexual texts to a young person living in another state.

We respectfully request that your office dismiss the petition, thereby permitting Mr. Baughman’s release

to probation, the terms of which currently are already equivalent to the intensive supervision that can be

imposed under the SVPA as an alternative to institutional commitment.

The undersigned also ask that you meet with representatives of this group at your earliest convenience to

discuss your office’s criteria for selection of individuals for civil commitment as “Sexually Violent

Predator” and how those criteria are applied to Galen and to other LGBT Virginians.

Very truly yours,

National Organizations

The Center for HIV Law and Policy

National Center for Lesbian Rights

The National LGBTQ Task Force

Sex Law and Policy Center

Transgender Law Center

Witness to Mass Incarceration

Blacks in Law Enforcement of America

Prison Policy Initiative

Prisons and Justice Initiative at Georgetown University

Architects / Designers / Planners for Social Responsibility (ADPSR)

more likely than are their straight peers to be disciplined for even nonsexual behaviors…” See also Borchert J.W., A new iron

closet: failing to extend the spirit of Lawrence. v. Texas (2003) to prisons and prisoners. In: Halperin D., Hoppe T., eds. The War

on Sex, Duke University Press (2017).!

See supra n.4.

Id.

Galen has appealed the terms of the supervision imposed by the Court in response to his probation violation; that appeal

currently is pending.

Letter to Mark Herring, Attorney General of Virginia

Page 4

Women Against Registry National, Inc

The Dobbs Wire

CURE-Sex Offenders Restored Through Treatment

The Coalition for Prisoners' Rights

National Capital Crime Assistance Network

Defending Rights & Dissent

The Real Cost of Prisons Project

Human Rights Defense Center

National Religious Campaign Against Torture

National Juvenile Justice Network

National Incarcerated Veterans Ministry

National Center for Reason & Justice

Virginia Organizations

Social Action Linking Together

Citizens United for Rehabilitation of Errants- Virginia Inc (Virginia CURE)

Additional Organizations

Transformative Justice Law Project

PFLAG Council of Northern Illinois

International CURE

CURE Oregon

CURE Maryland

Heartwood Meditation Support Program

Center for Community Alternatives, Inc.

Middle Ground Prison Reform

TRANScending Barriers

Queeri

Virginia Residents

Peter Stearns, professor, former Provost at George Mason University

Timothy A. Gibson, Associate Chair, Department of Communication, George Mason University

Richard P. Melia, Ph.D. Director, Research Sciences, National Institute on Disability and Rehabilitation

Research (Retired)

Heather Spence, PhD behavioral neuroscience

Rev. Dr. Elizabeth Braxton, Parish Associate New York Avenue Presbyterian Church Washington, DC

Rev. Dr. David Ensign, Pastor Clarendon Presbyterian Church

Ann Zuniga, retired high school teacher

Carla Peterson

Thomas D. Edmondson

Lenora Thierry

Kevin Robins

Eleanor Robins

Janet Dunkelberger

Brent Spence

Moya Atkinson

Robert A. Gehring

Joan Ansheles

Karen Kallay

J. White

Yinan Wang

Thomas McCarty

Marilyn McCarty

Letter to Mark Herring, Attorney General of Virginia

Page 5

Justine Kunkle

Garth A. Baughman, PhD

Sgt. Gabrielle Baughman, USAF

Garnett Robins-Baughman

Additional Individuals

Micol Seigel, Professor, American Studies & History, Indiana University, Bloomington

Dean Spade, Associate Professor Seattle University School of Law

Doug Bauder, Director, LGBTQ+ Center, Indiana University

Raphael Sperry, Architect, President, Architects / Designers / Planners for Social Responsibility (ADPSR)

Marc Morjé Howard, Professor of Government and Law, Georgetown University

Richard Wollert, Ph.D., Member of the Mental Health, Law, and Policy Institute at Simon Fraser

University

Donna Leone Hamm, Judge (ret.)

Ken Faiver, Former Director of the Medical Services in the Michigan Department of Corrections

Marilyn Montenegro, PhD., LCSW

Andrea J. Ritchie, Researcher in Residence on Race, Gender, Sexuality and Criminalization, Barnard

Center for Research on Women

Janine Bertram, President, Disability Rights Center

Pastor Roger Gench, New York Avenue Presbyterian Church Washington, DC

Eric Janus, Professor of Law, Mitchell Hamline School of Law

Judith Wouk, LIB, kohenet, Acting Director, Citizenship and Immigration Canada, retired

James Kilgore, Center for African Studies, University of Illinois, Urbana'Champaign

Michele Deitch, Senior Lecturer, The University of Texas at Austin

Trevor Hoppe, PhD, Assistant Professor, SUNY Albany

Erica R. Meiners, Bernard J Brommell Distinguished Research Professor, Northeastern Illinois

University

Marianne Kielian-Gilbert, Professor Indiana University in Bloomington

Tamara Rice Lave, JD, PhD, Professor of Law, University of Miami

Chrysanthi Leon, JD, PhD, Associate Professor, Sociology and Criminal Justice, Women and Gender

Studies & Legal Studies, University of Delaware

Roger Lancaster, Professor of Cultural Studies, George Mason University

Harper Jean Tobin, Esq., Director of Policy, National Center for Transgender Equality

David Condliffe, Esq, Executive Director, Center for Community Alternatives

Eric Lotke, Esq.

Virginia Raymond, Esq.

Lisa Sangoi, Esq.

Andrea Black, Esq.

Nkechi Taifa, Esq.

Rosemary Strange, MSW

Dr. Pippa Holloway

Dr. John B. Lester, MD

Rev. Jason Lydon

Janet Mackie Marriott

Gene Guerrero

Marylib Pate

Lois Ahrens

Ron Hampton

Julie Suter

Mary Brown-Bay

Terry Kupers

Eugene Darden

Anne Laroche

Letter to Mark Herring, Attorney General of Virginia

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Ronald Simpson Bay

Phyllis Lawrence

Michaelangelo Rodriguez

Ralph Douglas Norwood

Linda Zottoli

John Zottoli

Michael Cox

Jim Murphy

Eldon Dillingham

Toni Weaver

Pat Dillingham

David Booth

Thomas Chleboski

*Questions about this letter and requests for additional information can be directed to Rev. Jason

Lydon. Contact: jasonmlydon@gmail.com - 312.543.5143