Maurice I. Millard v. David W. Harris, Acting Superintendent, St. Elizabeths Hospital

BAZELON, Chief Judge:

The appellant challenges his continued commitment to Saint Elizabeths Hospital under the Sexual Psychopath Act.¹ He has been a patient there since October 17, 1962. Slightly more than a month before that date, he was charged in the old Municipal Court — now the Court of General Sessions — with indecent exposure, the maximum punishment for which was imprisonment for 90 days or a $300 fine, or both.² The Corporation Counsel for the District of Columbia, however, filed a statement with the court before trial stating that in addition to the allegations giving rise to the complaint “several females in the neighborhood have seen him expose himself” on other occasions. The court in response, and pursuant to the statute, directed two psychiatrists to examine Millard. The doctors reported to the court that “we have arrived at the conclusion that Maurice I. Millard is a sexual psychopath as defined in the Sexual Psychopath Statute.” The court after a hearing then ordered the appellant committed to Saint Elizabeths “until he is restored to mental competence and released in accordance with the provisions of the * * * law.”

The appellant has been before this Court before.³ On that occasion we remanded the case for an evidentiary hearing to determine (1) whether the original commitment fulfilled the requirements of the statute, (2) whether the sexual misconduct which the petitioner has or is likely to indulge in is sufficiently serious to justify commitment, and (3) whether the appellant was receiving at Saint Elizabeths the adequate psychiatric care and treatment to which we found him entitled.

Contrary to his prior representations to counsel, the appellant testified at the remand hearing that the two psychiatrists who examined him in 1962 did in fact testify at the hearing preceding his commitment. His attorney consequently no longer argues that the procedural requirements of the statute were not met. Nor does the appellant contest in this appeal the conclusion of the trial judge in the remand proceedings that Saint Elizabeths Hospital “is and has been treating petitioner.” Millard does, however, vigorously challenge the finding of the court below that he “remains a sexual psychopath” as defined by the statute. Alternatively, he attacks the constitutional validity of the Sexual Psychopath Act and argues that the 1964 Hospitalization of the Mentally 111 Act⁴ partially or wholly supersedes the statute. In order to resolve these entwined issues, we must examine not only the record below, but also the uncertain position of the Sexual Psychopath Act in the District of Columbia statute books and under the Constitution.

I

The Sexual Psychopath Act was enacted in 1948 as “a humane and practical approach to the problem of persons unable to control their sexual emotions.” ⁵ Unlike the more recent legislation in a number of other jurisdictions, the statute permits proceedings for commitment as a sexual psychopath to be instituted either before or after trial, or for that matter even when no criminal charge is pending. A person may thus be hospitalized as a sexual psychopath without ever having been convicted of even a single criminal offense. While the legislative plan was “to provide for the commitment and treatment of sexual psychopaths in a manner similar to the treatment afforded insane persons,”⁶ Congress was explicit in its intention to exclude insane persons from the operation of the statute:

The term “sexual psychopath” means a person, not insane, who by a course of repeated misconduct in sexual matters has evidenced such lack of power to control his sexual impulses as to be dangerous to other persons because he is likely to attack or otherwise inflict injury, loss, pain or other evil on the objects of his desire.⁷

The exclusion of the insane, and the choice of language, was explicable in 1948. If an individual was “insane,” he could be civilly committed; the commitment statute then in force spoke throughout in that language.⁸ And if a criminal defendant was “insane” at the time of his offense, the “insanity defense” would excuse him from punishment.

Nor was it then senseless to invoke the medical model and provide for the hospitalization of a class of persons who were not “insane.” The tendency then still extant to equate that term to psychosis and a clear break with reality resulted in a large category of persons who were not “insane,” but who needed and would profit from psychiatric treatment. This Court acknowledged as much when we first encountered the statute in 1953 and found it constitutional. The psychiatrist had reported that the petitioner in Miller v. Over-holser⁹ was not “insane” in the then popular use of the term:

This man is not insane. He is of sound mind and does not display currently, any mental symptoms indicative of a psychosis. He is oriented in all fields and there are no delusions, neither are there any hallucinations.¹⁰

This Court, while concluding that the statute did not authorize his alleged “incarceration * * * in a place maintained for the * * * violent, criminal, hopeless insane,” approved by implication commitment “in a place designed and operated for the treatment of the mentally ill who are not insane.”¹¹

The twenty years since 1948, however, have seen broad changes in the attitudes and language with which both lawyers and psychiatrists approach mental disturbances. In 1954 this Court reformulated the insanity defense within the District of Columbia. Durham v. United States¹² announced the rule that “an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect.” We adopted this “broader test” to escape the “misleading emphasis on the cognitive” of the M’Naghten rule¹³ and to free the jury as fact-finder “to consider all information advanced by relevant scientific disciplines.”¹⁴ It was our hope thereby to allow the jury in making its moral judgments to be “guided by wider horizons of knowledge concerning mental life.” ¹⁵

In later defining a “mental disease or defect [to include] any abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior controls,” ¹⁶ we reaffirmed in McDonald v. United States that the insanity defense should encompass the fullest inquiry into the mental condition and development of the accused. Psychiatrists participating as expert witnesses in the application of the Durham- rule have tortured themselves to decide which of the conditions tagged by name in their taxonomy should be called a “mental illness.”¹⁷ The outcome of their efforts remains still uncertain.¹⁸ But regardless of what a particular doctor concludes should be christened a “mental illness,” clearly an accused today need not be a hallucinating psychotic to pass through the eye of the insanity defense. Whatever the current state of “the esoteric and swiftly changing vocabulary of psychiatry,”¹⁹ as we made clear in McDonald the definition of “mental disease” is for the purposes of the insanity defense a legal and not a medical question. “What psychiatrists may consider a ‘mental disease or defect’ for clinical purposes * * * may or may not be the same as mental disease for the jury’s purpose in determining criminal responsibility.”²⁰ Indeed, in our most recent effort to combat the tendency of expert witnesses to testify in conelusory fashion without discussion of the underlying facts relating to the defendant’s mental condition, it was only with reluctance that we approved the continued use of the term “mental disease” in expert testimony:

[Prohibition of testimony about “mental disease or defect” would not be a panacea. Other words and other concepts may similarly be transformed into labels. * * * At least for now, rather than prohibit testimony on “mental disease or defect,” we shall try to help psychiatrists understand their role in court, and thus eliminate a fundamental cause of unsatisfactory expert testimony.²¹

The legislatively-formulated law of civil commitment has also changed in response to broadened conceptions of mental disturbances since the Sexual Psychopath Act was enacted. In 1964, after extensive hearings, Congress enacted the Hospitalization of the Mentally Ill Act²² to replace the 1939 statute entitled “An act to provide for insanity proceedings in the District of Columbia.” ²³ As the name given the new legislation suggests, the term used throughout the prior legislation, “insanity,” is replaced in the new act by “mental illness.” The definition provided by the legislature reflects the fuller, more contextual conception of mental disturbances which has permeated our formulation and administration of the insanity defense:

“mental illness” means a psychosis or other disease which substantially impairs the mental health of a person.²⁴

On the infrequent occasions upon which this Court has encountered the new statutory scheme, we have accorded the term “mental illness” a liberal construction. In re Alexander ²⁵ for example, affirmed the civil commitment of a disturbed mental defective with the following language :

Although * * * the psychiatrists * * * were reluctant to label appellant’s illness a psychosis, or in fact to attempt to fit it specifically into any of the various classes of mental illness recognized by the American Psychiatric Association, the thrust of their testimony was that appellant was suffering from a condition which substantially impaired his mental health, that this condition was interrelated with his mental deficiency, and that his antisocial behavior occurred as a result and manifestation of this underlying mental illness. We are satisfied, after a complete review of the record, * * * that there was sufficient evidence for the jury to find that * * * appellant was suffering from a mental illness.²⁶

II

These developments in the law pose the question of what role remains for the Sexual Psychopath Act, if indeed that statute survives at all. On the level of policy, one might well conclude that the more flexible standards now applied in the areas of the insanity defense and civil commitments leave scant need for a separate statutory scheme for sexual offenders. While the world of the “not insane” might in 1948 have included many men for whom treatment within a mental institution was more appropriate than criminal punishment, the changes in substance and semantics since then have narrowed if not eliminated the class of offenders ineligible for civil commitment or the insanity defense but still too sick to deserve criminal punishment.

Ours, however, is not the task to resolve such issues of policy. The Sexual Psychopath Act remains in the statute books unless the legislature has repealed it. The appellant argues that the 1964 Hospitalization of the Mentally 111 Act did just that. We are unable to agree. Congress stated explicitly in Section 19 of the 1964 Act the prior legislation repealed thereby.²⁷ The Sexual Psychopath Act was not mentioned. Presented with strong evidence elsewhere in the 1964 Act that the Sexual Psychopath Act was superseded, we might conclude that this was simply a casus omissus. Such evidence is lacking. The remainder of the new statute speaks of the “mentally ill,” a broader category than those “insane” under the 1939 legislation. But in providing for the application of certain provisions of the Hospitalization of the Mentally 111 Act to those committed before 1964, Congress limited the protection of the new statute to those “declared insane or of unsound mind pursuant to a court order.” ²⁸ This, of course, would not include any persons committed previously under the Sexual Psychopath Act, since a requirement for their hospitalization was a finding that they were not insane.

Repeals by implication are not favored,²⁹ and whatever the strength of the arguments that the Sexual Psychopath Act should have been repealed by the 1964 Hospitalization of the Mentally 111 Act, we cannot find evidence of a legislative intent to supersede the 1948 statute. The coexistence of the 1964 Act regarding civil commitments and the Sexual Psychopath Act presents the problem, however, of determining the classes of individuals to which each applies. Before the new law, the verbal dividing line was clear, if difficult to apply: “insane” persons were eligible for civil commitment, and those “not insane” for commitment under the Sexual Psychopath Act, providing the other requirements of that statute were met. The categories were thus mutually exclusive, and since in Miller v. Over-holser³⁰ we found the cutting edge of the classification, that of “sanity,” a meaningful one, no problems of equal protection arose.

Today, however, we confront statutes providing for civil commitment if the person is “mentally ill and, because of that illness, * * * likely to injure himself or other persons,”³¹ and for commitment as a sexual psychopath if the person is “not insane, * * 'x' [but] by a course of repeated misconduct in sexual matters has evidenced such lack of power to control his sexual impulses as to be dangerous to other persons.” ³² Our earlier discussion has shown that the class of “mentally ill” persons, as that term is understood today, includes some disturbed individuals who would have been considered “not insane” at the time the Sexual Psychopath Act was enacted in 1948. But serious problems of equal protection would arise were we to conclude that the statutes permit the Government to commit these mentally ill persons under the Sexual Psychopath Act while all other mentally ill individuals are accorded the greater procedural protections incorporated in the 1964 Hospitalization of the Mentally 111 Act.³³ While the former statute does provide for appointed counsel and a hearing at which a jury may be requested, unlike the present civil commitment law it does not assure the individual proceeded against a warning of his right to a jury determination.³⁴ Nor does it provide for a preliminary determination before the Mental Health Commission, which is assigned initial responsibility for civil commitments.³⁵ More important, perhaps, are the vast differences between the two statutes regarding release. The Sexual Psychopath Act provides merely that a person committed “may be released * * * when the Superintendent of Saint Elizabeths Hospital finds that he has sufficiently recovered so as not to be dangerous to other persons * * ³⁶ The Hospitalization of the Mentally III Act, on the other hand, provides specifically for periodic re-examinations of the patient by one or more physicians — including, in some circumstances, one acting in his behalf — and a court hearing if the physicians disagree as to whether “the patient continues to be mentally ill to the extent that he is likely to injure himself or other persons * * ³⁷

It would indeed be strange logic to argue that the fact that a person is “mentally ill” but not so mentally ill as to be “insane” as that word was understood in 1948 justifies withholding from him the protections of the civil commitment law. Nor can we conceive of any rational reason for shading the procedural rights incident to commitment and release simply because the person’s dangerous proclivities manifest themselves in the form of sexual misconduct. Certainly no one has ever argued, for example, that in the context of a criminal prosecution an alleged rapist is entitled to less protection of his right to a jury trial than an accused murderer.

It might be argued that to avoid these problems the procedural protections of the civil commitment law should be read into the Sexual Psychopath Act. But while this Court has in some contexts interpreted other statutes dealing with the mentally ill in a manner to harmonize the overall statutory framework in the District of Columbia and thereby avoid constitutional problems,³⁸ there are limits to this process. As we said in Cameron v. Mullen,³⁹ quoting from the Supreme Court decision in Aptheker v. Secretary of State,⁴⁰

It must be remembered that “[although this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute * * * ” or judicially rewriting it.

The problem here is similar to that faced in Mullen. The appellant there had been committed to Saint Elizabeths Hospital by the Court of General Sessions after an acquittal by reason of insanity. Mrs. Mullen had been charged with the misdemeanor of simple assault, and the insanity defense had been raised by the court over her objection. We agreed with the District Court where she filed a petition for a writ of habeas corpus that the statute ⁴¹ did not empower the trial court to so commit the appellant. An integral part of our reasoning was our conviction that “under the logic of the Supreme Court’s recent decision in Baxstrom v. Herold, * * * serious constitutional doubts would attend any construction of Subsection (a) which authorized post-verdict indefinite confinement” without the protections of the civil commitment statute.⁴²

We were unable for two reasons to agree with the Government’s argument that the trial judge had obviated these problems by holding a hearing such as the civil commitment law provides and instructing the hospital to apply civil release standards. First, “to import all of the civil commitment standards into Subsection (a), * * * we would have to rewrite completely that section.”⁴³ Second, since the Hospitalization of the Mentally 111 Act entrusted exclusive jurisdiction over civil commitments to the District Court,⁴⁴ we would have to rewrite that statute as well to authorize a judge of the Court of General Sessions “to impose conditions reserved for civil commitment proceedings. * * *⁴⁵

The problems are identical here. To harmonize the Sexual Psychopath Act with the procedural aspects of the civil commitment statute not only would we need to rewrite the former legislation, but also, since the Sexual Psychopath Act may be invoked in the Court of General Sessions and the Juvenile Court as well as the District Court,⁴⁶ we would have to confer jurisdiction upon those courts reserved by Congress to the District Court.

We therefore cannot avoid the constitutional problems that arise if the Sexual Psychopath Act can be applied to mentally ill persons by importing civil commitment standards. And consequently we conclude that to avoid these problems we must construe the words “not insane” in the sexual psychopath statute to mean “not mentally ill,” as indeed the Government conceded we should at the oral argument of this case.

Ill

Having done so, however, we must examine the Sexual Psychopath Act when so interpreted. The statute defines a “sexual psychopath” as

a person, not insane, who by a course of repeated misconduct in sexual matters has evidenced such lack of power to control his impulses as to be dangerous to other persons because he is likely to attack or otherwise inflict injury, loss, pain, or other evil on the objects of his desire.⁴⁷

When “insane” is read to mean “mentally ill” in the broad sense that term has come to be used in the statutes and court decisions of this jurisdiction, a serious question arises whether its language is not so meaningless or self-contradictory as to be constitutionally infirm. Specifically, the problem is whether a person who by a pattern of repeated sexual misconduct has demonstrated himself sufficiently dangerous to meet that part of the statutory definition is not, as a definitional matter, mentally ill and therefore outside the statutory definition.

The medical and legal literature is voluminous which deals with the personality problems that lead to sexual recidivism.⁴⁸ We have no doubt that a large proportion of such offenders are mentally ill in the broad sense that their behavior is affected by their personality problems and that psychiatric treatment would be more appropriate for them than the traditional mechanisms of deterrence or simple restraint. Evidence of such repeated misconduct would certainly be relevant to a jury determination of the issue, and in light of McDonald and Alexander we have difficulty imagining circumstances where we would be compelled to reverse a finding of mental illness premised upon such evidence.

However, to strike down the Sexual Psychopath Act as meaningless and self-contradictory, we would need to go further. It is not enough that most sexual recidivists may be mentally ill in some appropriate sense of that difficult concept. Nor is it sufficient that we would have difficulty reversing a determination by a jury or other fact-finder that such an offender was mentally ill. Nor would it even be sufficient to find from the record in this case that the appellant is mentally ill, as the only expert who spoke directly to the question testified. To conclude that the statute is meaningless, we would need to find that the intersection of the class of dangerous sexual recidivists and the class of not mentally ill persons is the null set — i. e., that there is no person who is a dangerous sexual recidivist but who is not mentally ill.

This we are reluctant to do. The decisions of this court have consistently emphasized that determinations of mental illness are to be made on a case-by-case basis, with individualized attention paid to the personality of the person involved, his past behavior and present conflicts. To establish a sweeping rule that all dangerous sexual recidivists are ipso facto mentally ill would stand in direct contradiction to this principle. Our doubts concerning the number of men whose conduct would place them within the Sexual Psychopath Act but who are not mentally ill may lead us to question the wisdom of or need for the statute. The changes in our approach to mental disturbances since 1948 have sorely dated the humanitarian impulses which gave rise to the legislation, even if the impulses were well considered then. But the implications in other areas of declaring as a matter of law that all individuals guilty of repeated sexual misconduct are mentally ill render us loath to take this step until we have examined all other possible dispositions of this case.

It would be necessary to strike down the legislation in this case only if we found the statute applicable to the appellant. Regardless of whether Millard is mentally ill or not, the statute is not applicable to him unless his past sexual misconduct enables us to conclude that his likely dangerousness places him within the statutory definition.

IV

In scrutinizing this question, we begin with the premise that when “not insane” is read to mean “not mentally ill” the sole justification for commitment under the sexual psychopath statute is his dangerousness to others. Since that is true, we must view the statute realistically as one which borders close upon preventive detention — detention which under our statute does not even require prior conviction of a criminal act.

When the statute is evaluated in that light, constitutional issues of the gravest magnitude immediately appear. Substantively, there is serious question whether the state can ever confine a citizen against his will simply because he is likely to be dangerous in the future, as opposed to having actually been dangerous in the past. Since such a prediction of likely dangerousness can only be premised upon past behavior, there are closely related procedural questions concerning the proof of past conduct. When a person is being committed to a mental hospital not because he is mentally ill but only because his past conduct allegedly demonstrates his likely dangerousness, we have great difficulty imagining how the full protection of the self-incrimination privilege and the right to confront and cross-examine witnesses could constitutionally be denied him.⁴⁹ The Supreme Court has demonstrated no intention to be led astray in such circumstances by a legislative label that such proceedings are “civil” rather than “criminal.” ⁵⁰ When the proceeding “is closely related to the behavior of the person rather than to his mental condition considered apart from his behavior,” as the Government in its brief describes proceedings under the Sexual Psychopath Act, the constitutional guaranties implicit in due process of law must come into play.

On this score also the Sexual Psychopath Act appears vulnerable. But we would need to examine whether the procedural requirements of the statute meet constitutional standards only if the statute is, as an initial matter, applicable to the appellant. We therefore must first consider the question of whether the appellant falls within the statutory definition of a sexual psychopath.

V

Predictions of dangerousness, whether under the Sexual Psychopath Act or in some other context, require determinations of several sorts: the type; of conduct in which the individual may engage; the likelihood or probabilitj that he will in fact indulge in that con - duct; and the effect such conduct if engaged in will have on others. Depending on the sort of conduct and effect feared, these variables may also require further refinement. Our evaluation of the ultimate dangerousness of certain forms of behavior may vary with the frequency with which they can be expected. If so, it will be necessary to evaluate not only the likelihood that the individual will misbehave in such fashion, but also the probability that he will offend with a certain frequency. And since the effect on others may depend on who the victim is, an estimate of the likelihood that a certain sort of person may prove the victim may also be necessary.

Each and all of these determinations may well be difficult, as this case demonstrates. But an examination of all aspects of the problem is essential. Because the court below short-circuited the analysis we find required, we cannot accept its ultimate conclusion that the appellant “by his sexual misconduct, is likely to inflict injury, loss, pain or other evil on others.” A plethora of evidence was introduced at the remand proceedings, however, and on the basis of this full exploration of the appellant’s personality and problems we are able to conclude that he has borne his burden in this habeas corpus proceeding to show by a preponderance of the evidence⁵¹ that his continued confinement as a sexual psychopath is not justified under the statute as we have construed it.

Five psychiatrists testified at the hearing concerning the appellant’s dangerousness. Dr. Weickhardt, the appellant’s former physician at Saint Eliza-beths Hospital, stated that he agreed with the diagnosis made at the hospital in October 1962 when Millard was first committed: the appellant was not and is not psychotic, but suffers from a personality disorder categorized as a “passive-aggressive personality, passive-dependent type, exhibitionism.” None of the remaining expert witnesses criticized this diagnosis. All of the witnesses testified that the appellant is unable to enter into a mature relationship with women. The sexual misconduct which precipitated the 1962 commitment, exhibitionism, is the product of this difficulty. The psychiatrists testified that, when he was experiencing difficulties with his marriage, Millard would react by exhibiting himself in public, and sometimes masturbating. On occasion the triggering event for his misconduct would be some other disturbing occurrence, such as the loss of his job. But even in these cases, according to the expert testimony, the appellant would exhibit himself not because of his distress at losing his job, but because he felt that such a setback led his wife to regard him as less a man.

Concerning the appellant’s exhibitionism in public places before his commitment in 1962 there seems little dispute. There was also some evidence in the hospital records that Millard admitted to assorted acts of voyeurism before his marriage. On the stand, however, he denied having been a peeping tom since then. Although there was testimony that voyeurism and exhibitionism are frequently associated, at least one psychiatrist, Dr. Dabney, testified that the two did not seem “tied up” in Millard’s case.

Shortly after Millard was committed in 1962, his wife told a social worker that the appellant had walked around naked in his home in the presence of his small children, holding his penis in his hand. Although the appellant denied ever having done so, and although neither his wife nor even the social worker have ever testified in any of the proceedings related to the appellant’s commitment, this alleged incident played a prominent and repeated role in the expert testimony at the remand hearing.

The hospital records contain no evidence that Millard has exhibited himself since becoming a patient at Saint Eliza-beths. Nor were any of the three doctors from Saint Elizabeths aware of any such misconduct by the appellant. Millard himself denied any such acts while in the hospital. Nevertheless, although the testifying psychiatrists spoke with varying degrees of certainty, the majority agreed that since the appellant still suffers from the same personality disorder, he would, if released, be likely to exhibit himself in public at times of stress. In explaining why they felt that the appellant would revert to his old ways once released despite almost six years of apparent good sexual behavior in the hospital, the psychiatrists spoke both of the close supervision at the hospital and the appellant’s lack of opportunity while there to encounter the same tension-producing difficulties with women in general and his wife in particular that precipitated his misconduct before his commitment.

The record contains no allegations that appellant has ever committed a violent sexual offense, and the testifying psychiatrists agreed that because of “the lack of aggressiveness, inferiority, timidity and heterosexual immaturity of the [typical] exhibitionist,” such individuals are markedly less likely to com,mit violent sexual crimes than other /jtypes of sexual offenders.

There was also testimony drawn from the hospital records concerning various aggressive acts of a non-sexual nature allegedly committed by the appellant. The most serious of these was said to have occurred while Millard was on city parole from the hospital in November 1964. He had purchased a used car and became angry when the seller refused to refund his money after the car broke down. The hospital received a complaint from the husband of the saleswoman, who said that Millard had come to his house on Halloween night, said “Trick or treat,” and thrown a solution of lye through the open doorway, some of which struck the complainant in the eye. Millard has consistently denied having done this.

There was also evidence in the hospital records that the appellant had struck a salesman visiting his home about the same time with a window screen. His city parole privileges were revoked and the appellant returned to the hospital because of a third incident, in which he became involved in a squabble at his home and allegedly slapped his sister-in-law because he felt she was intruding into a private domestic dispute.

The doctors from Saint Elizabeths also testified to certain aggressive acts by the appellant while in the hospital. He once slapped a considerably smaller patient because, as Millard told the doctor, “the man wouldn’t let me go into the water section [bathroom].” On other occasions the appellant was said to have violated ward rules by changing television channels without the consent of the other patients; because of Millard’s impressive physical size, the other patients were supposedly too intimidated to object.

The testifying psychiatrists viewed these aggressive but non-sexual acts as a manifestation of the same passive-aggressive personality disorder which led to his exhibitionism and earlier voyeurism. As Dr. Weickhardt, for example, stated:

[I]n reaction to trivial challenges to self-esteem, he becomes impulsive. In other words, he acts without thinking of the consequences of his acts. And he does this in two ways. With men, particularly, he acts aggressively, and he may even become violent physically. With women he has felt ill at ease, afraid of intimate relationship; and therefore he tends to expose himself or to masturbate so that women could see him.

I think that this reaction with men and with women is part of the same thing; that with both the behavior is sort of a defense against reaching the intimacy for which he really is longing. I think he longs for an intimate sort of relationship with people, but yet he is sort of afraid of it.

Were this a case involving civil commitment, such a rounded view of the individual’s personality and past behavior would of course be essential both to a determination of whether he was mentally ill and, if so, whether his condition would cause him to be dangerous to himself or others. But since the petitioner has been committed as a sexual psychopath, our sole concern is the likelihood that he would if released be dangerous to others because of sexual misconduct.

The Act speaks plainly of “misconduct in sexual matters,” and our doubts concerning the constitutional validity of the sort of preventive detention implicit in the statute certainly do not permit us to broaden the words of the act. As a corollary, moreover, we must read “sexual” in the common meaning of that term in considering what acts may be considered in applying this statute.

Similarly, the appellant’s mental disorder is not in itself even a partial justification for his commitment, for the reasons discussed earlier in this opinion. The testimony regarding the appellant’s aggressive acts toward men, and the evidence it presents to confirm the diagnosis of a passive-aggressive personality, is therefore relevant only to a determination of his dangerousness because of probable sexual misconduct. In this regard, the appellant’s alleged history of aggressiveness toward men might, despite the apparent general timidity of exhibitionists in the heterosexual sphere, affect the likelihood that Millard might commit a violent sexual assault. In response to such , a question, for example, Dr. Cameron replied:

Assuming the facts as you have stated them, a person who masturbates while exhibiting himself * * * might be more likely to indulge in an assault at some other time. If there is a history of throwing lye or some other aggressive act — superficially, at least, a non-sexual act — then one would have to believe that the person was capable of aggression and we would be more concerned about sexual aggression. * * *

Concerning the likely effect of the appellant’s exhibitionism on others, psychiatrists agreed that the effect would vary with the viewer. Most women would find the act repulsive, but their distress would be brief. Dr. Owens testified that some women might find such conduct amusing; he declined to concur in the trial judge’s “layman’s diagnosis” that any women who laughed “is sick.” The consensus of the expert witnesses was that a highly sensitive woman would be more shocked, and that a “very seclusive, withdrawn, shy, sensitive suspicious” woman might become “quite upset.” But even in that case, the effect would be for only “two or three days.” There was no evidence presented of any actual harm to adult women from the appellant’s past exhibitionism.

Dr. Weiekhardt did testify, however, that one viewer had suffered “serious psychological harm” — the appellant’s son Darrell, who was six years old at the time of the appellant’s commitment in 1962. His conclusion was based, not on any independent examination of the boy, but upon an evaluation report of a child health center where Darrell was treated in 1966. On cross-examination, however, Dr. Weiekhardt admitted,

There’s nothing in this report that shows that Darrell suffers because of his father’s sexual behavior, but the report does show that Darrell has an emotional problem which is in part due to his relationship with his father.

The examination continued,

Q. * * * Now, is it not a fairer inference, Dr. Weiekhardt, that the child, Darrell, suffered because of rejection by his father, by virtue of being a scapegoat, rejection and being physically abused, than the inference that you drew that his problem is due in part to the exhibitionism of his father?

A. It’s my view that all of these things are so interrelated that you can’t really attribute injury to any one of them.

We sympathize with the psychiatrist’s reluctance, indeed inability, to compartmentalize the father’s relationship with his son and evaluate the damage done by the former’s sexual misconduct, if any. But, unfortunately, such compartmentalization is required by the Sexual Psychopath Act. The legislation provides for the institutionalization of individuals who are dangerous to others because of their sexual misconduct, not for the hospitalization of fathers who traumatize their children by a general pattern of rejection and abuse. If the effect of alleged sexual misconduct cannot be separated out, the solution in applying the statute is not to heap together all the unhappy effects of an unhealthy parent-child relationship as evidence of the harm produced by “sexual misconduct.”

VI

In an opinion written after the completion of the hearing held in response to our earlier remand of this case, the trial court summarized at some length the evidence presented by each of the psychiatrists who testified concerning the appellant’s dangerousness to others. In doing so it recited' without distinction the evidence related to past sexual misconduct toward women and the alleged aggressive acts toward men. The opinion also speaks of the “serious psychological harm” suffered by the child “whom petitioner physically abused and rejected and before whom petitioner [was alleged by his wife as reported by a social worker to the psychiatrist who testified at trial to have] paraded in the nude holding in his hand his genital organ.” Here also the court below failed to distinguish between dangerousness due to sexual misconduct and dangerousness due to other behavior. For these reasons we are unable to accept the conclusion of the trial court that, “After weighing all of the evidence in this case I conclude that if petitioner were to be released at this time * * * he, by his sexual misconduct, is likely to inflict injury, loss, pain, or other evil on others.”

We find the analysis of the trial court erroneous, or at least incomplete, on another score as well. In the final paragraph of its discussion of the appellant’s dangerousness, the court summarized the expert testimony,

Except for Dr. Dabney’s opinion * *, all witnesses * * * are of the opinion that petitioner, through his public exhibitionism and masturbation, would likely inflict injury, loss, pain or other evil on one type of individual or another without physical contact. Some women viewers would be psychologically affected as would small children viewers. Since petitioner’s misconduct has been in the public such women and children are “potential viewers.”

Implicit in this reasoning is the assumption that the mere fact that some such women and children are among the “potential viewers” of the appellant’s expected exhibitionism if released is enough to justify the ultimate conclusion of likely dangerousness. But the requirement for commitment for dangerousness is not the mere possibility of serious harm, but its likelihood. The trial court made no effort to evaluate the probability, as opposed to the possibility, of such harm. We recognize the difficulty of such determinations. But the fact that Millard in this habeas corpus proceeding must bear the burden of showing that he does not fall within the statutory definition of sexual psychopathy does not imply, as the Government suggests, that he must demonstrate that it is “certain or highly probable that appellant, if released, would not again publicly expose and masturbate * * * [or] that if he did so, children or delicate adult women could not be among the potential viewers.” Rather, to bear his burden of proof the petitioner for a writ of habeas corpus must show only that his past behavior, viewed under the illumination provided by psychiatric evaluation of those actions, does not justify the conclusion that he falls within the statutory definition of one who is likely to inflict injury on others.

Because the trial court failed to distinguish between sexual and nonsexual misconduct as a justification for commitment and also failed to evaluate the likelihood as opposed to the mere possibility of sexual misconduct, we must reverse its decision to dismiss the appellant’s petition for a writ of habeas corpus. We are, however, reluctant to remand this case for yet a third hearing on a petition originally filed more than three years ago, especially since we have difficulty envisaging a more thorough presentation of expert testimony than was adduced in the hearing just concluded. In view of the unusual circumstances of this ease, therefore, we have ourselves scrutinized the record and find that we can conclude that the appellant has borne his burden to show by a preponderance of the evidence that he is not now, if he ever was, a sexual psychopath within the statutory definition. Limiting ourselves to an evaluation of the likelihood of sexual misconduct, we find that the appellant is unlikely to engage in sexual misconduct other than exhibitionism. As for the possibility that Millard may expose himself and perhaps masturbate in public, we do not conclude that he is unlikely to do so. We do find from the testimony of the Saint Elizabeths psychiatrists that the appellant’s self-control and insight into his personality shortcomings have improved sufficiently to permit the conclusion that such misconduct is likely to occur infrequently and only at times of stress. For six years the appellant has not deen detected exposing himself, although the witnesses testified he did encounter women at Saint Elizabeths. It may be true that the limbo of hospital life prevented the sort of tensions toward women that have plagued appellant in the past from building up. But by the same token it was by the Government’s choice, and not his, that he has had no greater opportunity to prove his self-control. The fact that he has successfully resisted the limited temptations placed before him supports the testimony of Dr. Miller, who appeared on the appellant’s behalf, that the fear of punishment (and perhaps a now internalized sense of self-control) will reduce the likelihood of future sexual misconduct.

The unanimous testimony of all the expert witnesses that serious psychological harm would result from public exposure only to unusually sensitive adult women and small children leads us to conclude that the future sexual misconduct of the appellant, if any, is not sufficiently likely to cause the sort of harm required by the statute to justify further commitment. The appellant did not, it is true, prove that no such “potential viewers” would view him in the course of any future exhibitionism. But having shown that he was unlikely to commit such acts with great or uncontrollable frequency, and that in the event of such misconduct harm would be produced in only a small proportion of the population, the appellant could fairly demand of the Government that it show that the members of these restricted classes were not merely “potential viewers,” but likely viewers. This the Government wholly failed to do. And without the assistance of any evidence adduced on this score, we cannot conclude that supersensitive women and small children are likely to suffer serious harm from isolated instances of exhibitionism. “Very seclusive, withdrawn, shy, sensitive” women are a minority. While the law must and does protect them like other citizens, there are limits on the extent to which the law can sweep the streets clear of all possible sources of occasional distress to such women. Small children present a different problem. But the expert testimony was not that the typical small child would be injured by witnessing an isolated act of exposure on the part of a stranger, but rather that psychological danger to their development was likely from repeated exposure to such abnormal adult sexual behavior. We therefore conclude that the likelihood of serious injury to a child happening to see the appellant expose himself in public is too remote to justify commitment. As for harm to the appellant’s own children, we have already adverted in passing to the questionable nature of the sole evidence that the appellant ever did expose himself in his home before them. Even if we accept this evidence, however, and assume that the appellant might expose himself in his home if released, his children can be protected from the harm which might follow from repeated exposure by other means than his involuntary hospitalization. His wife need not permit the appellant to so abuse his children, and other legal remedies are available to her to insure that he does not inflict such harm on his children.

Reversed and remanded for proceedings in accordance with this opinion.

Reversed.

1 . 22 D.C.Code §§ 3503-11 (1967).

2 . 22 D.C.Code § 1112(a) (1967).

3 . Millard v. Cameron, 125 U.S.App.D.C. 383, 373 F.2d 468 (1966).

4 . 21 D.C.Code §§ 501-591 (1967).

5 . Senate Comm, on the District of Columbia, Providing for the Treatment of Sexual Psychopaths in the district of Columbia, S.Rep.No. 1377, 80th Cong., 2d Sess. 5 (1948).

6 . Id.

7 . 22 D.C.Code § 3503(1) (1967) (emphasis added).

8 . Act of Aug. 9, 1939, eh. 326, 53 Stat. 1299 (formerly 21 D.C.Code §§ 308-325; repealed 1964).

9 . 92 U.S.App.D.C. 110, 206 F.2d 415 (1953).

10 . Id. at 114, 206 F.2d at 418.

11 . Id. at 115, 206 F.2d at 419.

12 . 94 U.S.App.D.C. 228, 241, 214 F.2d 862, 874-875, 45 A.L.R.2d 1430 (1954).

13 . Id. at 238, 214 F.2d at 871.

14 . Id. at 239, 214 F.2d at 872.

15 . Id. at 242, 214 F.2d at 876.

16 . McDonald v. United States, 114 U.S.App.D.C. 120, 124, 312 F.2d 847, 851 (1962).

17 . See, e.g., Blocker v. United States, 107 U.S.App.D.C. 63, 64, 274 F.2d 572, 573 (1959) ; Briscoe v. United States, 101 U.S.App.D.C. 318, 322 n. 6, 248 F.2d 640, 644 n. 6 (1957).

18 . See, e.g., King v. United States, 125 U.S.App.D.C. 318, 320-323, 372 F.2d 383, 385-388 (1967).

19 . Campbell v. United States, 113 U.S.App. D.C. 260, 277, 307 F.2d 597, 614 (1962).

20 . McDonald v. United States, 114 U.S. App.D.C. 120, 124, 312 F.2d 847, 851 (1962).

21 . Washington v. United States, 129 U.S. App.D.C. 29, 41, 390 F.2d 444, 456 (1967).

22 . 78 Stat. 944 (1964), 21 D.C.Code §§ 501-591 (1967).

23 . 53 Stat. 1299 (1939) (formerly 21 D.C. Code §§ 308-325; repealed 1964).

24 . 21 D.C.Code § 501 (1967).

25 . 125 U.S.App.D.C. 352, 372 F.2d 925 (1967).

26 . Id. at 354-355, 372 F.2d at 927-928.

27 . 78 Stat. 953 (1964).

28 . 21 D.C.Code § 589(a) (1967).

29 . E.g., Amell v. United States, 384 U.S. 158, 165-166, 86 S.Ct. 1384, 16 L.Ed.2d 445 (1966) ; United States v. Zacks, 375 U.S. 59, 67-68, 84 S.Ct. 178, 11 L.Ed.2d 128 (1963) ; Silver v. New York Stock Exchange, 373 U.S. 341, 357, 83 S.Ct. 1246, 10 L.Ed.2d 389 (1963).

30 . 92 U.S.App.D.C. 110, 206 F.2d 415 (1953).

31 . 21 D.C.Code § 545 (1967).

32 . 22 D.C.Code § 3503(1) (1967).

33 . See Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966).

34 . Compare 22 D.C.Code §§ 3505, 3507 (1967) with 21 D.C.Code §§ 543, 545 (1967).

35 . See 21 D.C.Code §§ 542, 544 (1967).

36 . 22 D.C.Code § 3509 (1967).

37 . 21 D.C.Code §§ 546-549 (1967).

38 . See Bolton v. Harris, 130 U.S.App.D.C. 1, 395 F.2d 642 (1968) ; Rouse v. Cameron, 125 U.S.App.D.C. 366, 373 F.2d 451 (1966).

39 . 128 U.S.App.D.C. 235, 245, 387 F.2d 193, 203 (1967).

40 . 378 U.S. 500, 515, 84 S.Ct. 1659, 1668, 12 L.Ed.2d 992 (1964).

41 . 24 D.C.Code § 301(a) (1967).

42 . 128 U.S.App.D.C. at 241, 387 F.2d at 199.

43 . Id. at 245, 387 F.2d at 203.

44 . 21 D.C.Code § 501 (1967) defines “court” for purposes of civil commitment as “the United States District Court for the District of Columbia.”

45 . 28 U.S.App.D.C. at 245, 387 F.2d at 203.

46 . 22 D.C.Code § 3503(2) (1967).

47 . 22 D.C.Code § 3503(1) (1967).

48 . See, e.g., C. Allen, A Handbook of Psychosexual Disorders (1962); B. Karpman, The Sexual Offender and His Offenses, Etiology, Pathology, Psychodynamics and Treatment (3d ed.1957); F. T. Lindman & D. M. McIntyre, Jr., The Mentally Disabled and the Law 298-313 (1961).

49 . Cf. Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967).

50 . See id. at 608, 87 S.Ct. 1209.

51 . See Bolton v. Harris, 130 U.S.App.D.C. 1, 12, 395 F.2d 642, 653 (1968).