UPDATES & ANALYSIS

Iowa Supreme Court rules that a one-day release does not require the State to prove a recent overt act before committing a sexually violent predator

by Samuel Province | October 22, 2026

The Court heard oral argument in In re Detention of Harlow on September 9 and filed its opinion on October 9. Chief Justice Christensen wrote for the court that unanimously affirmed the district court’s judgment committing Joshua Harlow as a sexually violent predator (SVP).

Question: If a person is reincarcerated for violating a lifetime special sentence, are they “presently confined” under the SVP statute, and does the State have to prove a recent overt act when they were released before returning to prison?

In 2017, Harlow broke into his ex-wife’s home and raped her. After pleading guilty to third-degree sexual abuse, he was sentenced to ten years in prison with a lifetime special sentence under Iowa Code chapter 903B. While he was in prison, he had approximately 65 behavioral violations, at least nine of which involved sexual misconduct, and was convicted of assaulting a female correctional officer in 2018. He was released to work release under the terms of his special sentence in 2022, and was arrested a day later for failing to report to his parole officer. Ultimately, his parole was revoked and he returned to prison.

In August 2024, roughly two weeks before Harlow’s anticipated discharge, the State petitioned to commit Harlow under Iowa Code chapter 229A which permits commitment against persons who are “presently confined,” or those who have committed “a recent overt act.” The State sought to commit Harlow on the former. Experts for both the State and Harlow testified at trial regarding Harlow’s mental health, agreeing that Harlow had antisocial personality disorder, and the district court found that he was a SVP beyond a reasonable doubt. Rather than contesting that finding, Harlow contended in a motion to dismiss that he was not presently confined and that the State had the burden of proving an overt act, but the district court disagreed.

On appeal, Harlow contends that because he was subject to a special sentence that began after the underlying sentence was completed that his confinement was not for the sexually violent offense, and that due process (on both the federal and state level) require a recent overt act from persons who have been released into the community, regardless of how long they were released. He cited In re Detention of Wygle, a 2018 opinion that interpreted “presently confined” to exclude respondents serving a chapter 903B special sentence and cautioned that committing someone “many years or even decades later without a recent overt act merely because of the existence of a special sentence would plainly stretch the statute beyond the boundaries of due process.” Conversely, the State contended that chapter 229A changed because of Wygle, “and that the definition [of “presently confined”] satisfies that constitutional threshold requirements to comport with due process.” Further, the State argued that it met “the law’s most exacting burden,” by proving that Harlow was dangerous beyond a reasonable doubt.

The Court began by examining chapter 229A, stating that the legislature defined “presently confined” as “incarceration…as a condition of…[a] special sentence following conviction for a sexually violent offense.” Therefore, they explained that excluding special sentences from that definition “would change the meaning of §229A.2(10) and exceed our role as interpreters.”

Regarding Harlow’s due process challenge, the Court explained that the United States Supreme Court’s decisions in Kansas v. Hendricks (1997) and Kansas v. Crane (2002) suggest that due process does not require a recent overt act, though they do not definitively resolve the question. Conversely, Harlow cited a line of authority starting with Stamus v. Leonhardt, a 1976 federal district court decision that required an overt act for involuntary hospitalization, and later Iowa Supreme Court decisions that followed it. However, the Court explained that those cases arose from the general mental-health commitment statute (chapter 229, rather than chapter 229A) and were not controlling because “[t]he legislature enacted chapter 229A because it found ‘that the existing involuntary commitment procedure under chapter 229 [was] inadequate to address the risk…sexually violent predators pose to society.’” So when considering chapter 229A, the court cited In re Detention of Gonzales (2003) and In re Detention of Willis (2005), which held that when a respondent is presently confined for a sexually violent offense, that confinement satisfies the recent-overt-act requirement—a point Harlow conceded, acknowledging that serving such a sentence acts “as a substitute or proxy for a recent overt act.” The Court then held that confinement under a chapter 903B special sentence is confinement due to the sexually violent offense.

Indeed, the court explained that requiring the State to find that Harlow had committed an overt act would be absurd when considering the fact that “[e]xcept for a single day in 2022, Harlow has been incarcerated since 2017.” It explained that the State did not initiate the commitment proceeding “merely because of the existence of a special sentence,” but because of Harlow’s mental abnormality, underlying conviction, and conduct while he was incarcerated. The Court concluded that the due process concerns identified in Wygle do not apply to this case and “[s]peculation that the statute could someday be applied unconstitutionally” did not satisfy Harlow’s burden of demonstrating that the statute was unconstitutional when applied to his facts.

The Court cited several out of state opinions to bolster its position which agreed “that a recent overt act is not the only way to prove dangerousness.” The Court explained that requiring a recent overt act simply because Harlow had been released for a single day would create an arbitrary bright-line rule, forcing the State “to prove the absurd” and rewarding Harlow for being returned to prison so quickly.

Tags: Iowa Supreme Court 2026-27