UPDATES & ANALYSIS

Iowa Supreme Court 2016-17 Preview: Must the State protect public from released sex offenders?

by Rox Laird | August 8, 2016

When Iowa releases a convicted sex offender confined under the State’s civil commitment statutes, does the State have a duty to protect the public from harm?

The answer is yes, according to the family of a woman allegedly sexually assaulted by a convicted sex offender at a Pomeroy nursing home where both were residents. The family sued the nursing home and the State. The nursing home also sued the State.

The State says it had no duty to protect the public in this case because the offender had been discharged from confinement by court order, which ended any State obligations.

The issue will be decided by the Iowa Supreme Court in its term beginning next month (Gottschalk vs. Pomeroy Care Center vs. State of Iowa). Both sides of the dispute agree that the case raises issues the court has not yet confronted.

“This case contains a mix of issues involving existing legal principles such as the application of exceptions to the Iowa Tort Claims Act as well as previously unexamined issues involving the violent sexual offenders commitment statute, and whether plaintiff and the third party defendant are owed any duty arising from that code chapter,” according to a brief submitted to the Court by the Iowa Attorney General.

“The presence of sex offenders in nursing homes and elsewhere in society once they are no longer imprisoned or in a treatment program has been a topic of considerable public interest in recent years, and is a problem with no apparent satisfactory solution,” the State added.

The facts are disturbing.

William Cubbage had a long history of sex offense convictions, mostly involving children. When he completed his latest prison sentence for sexual assault in 2002, Cubbage was declared by a judge to be a “sexually violent predator.” He was ordered to the Iowa Civil Commitment Unit for Sexual Offenders Unit (CCUSO) in Cherokee.

Eight years later, after Cubbage had been diagnosed with Alzheimer’s Disease and other mental and physical ailments, Cubbage’s attorney petitioned for his release in District Court. The court, finding that Cubbage was a danger to himself and others, committed him under a civil statute to the care of the nursing home in Pomeroy.

Though the Pomeroy Care Center was aware of Cubbage’s criminal history, the family of the alleged victim asserts that neither the nursing home nor the residents were warned of the risk that Cubbage might reoffend. In fact, Pomeroy’s director of nursing testified she was told by CCUSO staff that Cubbage was “no risk at all to the residents of Pomeroy.”

Nine months after being committed to the nursing home, however, an eight-year-old girl visiting the nursing home allegedly witnessed Cubbage sexually molest a 93-year-old female resident.

Calhoun County District Judge Thomas Bice dismissed the family’s and the nursing home’s lawsuits against the State, finding that the State had no duty to supervise or monitor Cubbage or to institute a plan to protect the home’s residents.

In arguing that the Supreme Court should uphold Judge Bice’s ruling, the State says Cubbage was “unconditionally discharged” from the CCUSO, by order of the District Court, after which the state had no control over him. The state likened his release to an inmate released upon completion of a prison sentence and that once discharged, Cubbage could have been dropped off at a homeless shelter, a relative’s home or a bus station.

“For that matter,” the Attorney General’s brief noted, “the state could have set him and his possessions out on the curb, and from there he could have gone anywhere, including into a nursing home . . . .”

In response, the Pomeroy Care Center and the family point out that Cubbage was not “unconditionally” released. Rather, he was immediately committed by court order to the Pomeroy Care Center upon his release, which they argue meant the State had a duty to control Cubbage and a duty to protect the nursing home residents from harm.

Passage of the statute in 1989 providing for civil commitment of “sexually violent predators” triggered a wave of lawsuits over the law’s constitutionality. While those cases dealt with the rights of the accused, this case appears to be the first to reach the Iowa Supreme Court that addresses the rights of victims.

Thus, this case could have a significant impact on how sex offenders are treated by the state when, or if, they are released.