On April 17, 2014, the Virginia Supreme Court issued Gibson v. Commonwealth, No. 131256, a special case concerning the Sexually Violent Predators Act (“SVPA”), Va. Code §37.2-900, et. seq. It reversed and remanded the Judge’s civil commitment of a sexually violent predator because the wrong proof burden was applied. Id. at 1, 12.
The Court in Gibson reiterated for SVPA “the burden of proving there is no suitable less restrictive alternative to involuntary confinement rests with the Commonwealth and that burden cannot be shifted to the [respondent]”. Id. at 10. “In [an initial trial and an annual review hearing], when the Commonwealth presents a prima facie case [by clear and convincing evidence] that there is no suitable less restrictive alternative to involuntary commitment, the respondent then has the burden [of ‘going forward’] to produce evidence to rebut the Commonwealth’s case by showing that the respondent meets the criteria for conditional release in Code §37.2-912(A).” Id. at 11-12.
