Eric Terhaar and Rhonda Bailey had traumatic childhoods, marked by experiences that likely led them to commit sex offenses against other people. But their lives should have never intersected, at least inside the walls of a program designed to treat sex offenders in Minnesota. 

That’s what several court-appointed experts testified to during two days of hearings in federal court in St. Paul this week. The experts — who oversee similar programs in New York, Wisconsin and Florida — criticized Minnesota’s confinement of Terhaar, 24, whose only offenses were committed as a juvenile, and Bailey, 48, the only woman currently in the Minnesota Sex Offender Program (MSOP).

Terhaar’s and Bailey’s cases are the first to get judicial scrutiny as part of a class action lawsuit against the state on behalf of nearly 700 clients currently housed in its sex offender treatment program. The broader lawsuit has challenged the way the program is administered, arguing that MSOP is unconstitutional because it offers treatment without the possibility of release, even though most offenders in the program have already completed their prison sentence. Only one person has ever been provisionally released from the program in its nearly 20-year history.

Both the experts and attorneys for the offenders are advocating that the state find an individualized treatment program for Bailey or release her into a community-based treatment program. For Terhaar, the recommendation coming out of the hearing was more clear-cut: He should be freed, immediately. “He should be unconditionally released today,” Dan Gustafson, attorney for the offenders, said. “The evidence is overwhelming.”

Treatment ‘breaks every rule’

Given a rare opportunity to step outside the razor-wire fences that surround MSOP’s Moose Lake facility, Terhaar and Bailey attended the two-day hearing, listening as attorneys grilled the four-expert panel on the two patients’ history of offenses and trauma, and whether they still posed a danger to society.

That history was as depressing as it was predictable. Terhaar was abandoned by his mother as a baby and placed in foster care by the time he was 2. Growing up, his uncle sexually abused him, and by age 10, he had sexually abused his own sister. After that, he repeatedly got in trouble at the juvenile facilities where he was sent, often getting in fights with other delinquents or verbally assaulting staff. 

In an effort to raise questions about his readiness for release, Deputy Attorney General Nate Brennaman brought up Terhaar’s pattern of behavioral problems. He committed three physical assaults against other MSOP patients and 47 smaller rule violations in the last year. Brennaman also brought up an incident that occurred not long before Terhaar was civilly commitment to MSOP in 2009, when he was living with a foster family in Avon, Minnesota. Then 17, Terhaar was caught masturbating in a darkened car with a young child nearby while his foster parents picked up groceries.

As the experts noted in their testimony, such incidents are not uncommon given the trauma Terhaar suffered as a child, and his sexual behavior has developed into that of a normal young adult during his time in MSOP.

The most pointed criticism of Minnesota’s treatment of Terhaar, however, was over the state’s decision to treat him — as it does all of its patients who have committed their offenses as children or teens — with therapy designed for adult offenders, instead of focusing treatment on Terhaar’s own childhood trauma. Many states don’t even allow for the civil commitment of people with only juvenile offenses, and their rate of re-offense as adults is low.

“It breaks every rule research tells us we should follow,” said Robin Wilson, one of the court-appointed experts. 

Instead, Terhaar would be better served by being released from the program and moving to a community-based program, the experts said, where he could learn life skills that he will need after being institutionalized since the age of 10. “How do you buy toothpaste, how do you live on a budget?” said Naomi Freeman, one of the expert witnesses, who’s also the director of the Bureau of Sex Offender Evaluation and Treatment at the New York State Office of Mental Health. “All those little things we take for granted.”

Brennaman said the state is trying to provide that for Terhaar by recommending moving him from the first phase of treatment to the final stages, which includes community preparation services. If the court releases Terhaar, he warned, there will be limited state resources available to help him transition into society.

But Gustafson, the patients’ attorney, questioned how long that final stage of the treatment could take, pointing out that Thomas Duvall, an offender whose petition for release became controversial late last year, has been in the final stages of community preparation for more than four years.

Nancy Johnston, executive director of MSOP, testified that the lawsuit has put the state on an “expedited” track to release Terhaar, though she acknowledged that the protocol for release is a “long process.”

The only woman

Bailey’s case has proven to be even more vexing for the state. As the only woman ever civilly committed to MSOP, it’s clear officials had little idea what to do or how to treat her.

Like Terhaar, she suffered a traumatic upbringing: abused by her father, brother and two of her uncles starting as early as 5 years old and continuing through young adulthood. She had a child at 14, and as an adult, sexually abused two boys.

She was committed to MSOP in 1993, but initially lived with women in the Minnesota Security Hospital in St. Peter. Later, she was moved to MSOP after she sexually abused a woman in her program, Brennaman said.

Deb McCullough, another of the court-appointed experts who also leads Wisconsin sex offender treatment program, characterized Bailey’s offenses as “reactive” to her trauma as a child. As an adult, Bailey is “flirtatious” and “forward” and easily stimulated in discussions of sexual activities. All of which means that treating her in an all-male program, with group therapy sessions, might have actually made things worse, Wilson said. “She is in a group with men, focusing on issues of men and living with men.”

Brennaman argued that Bailey has shown she can’t be placed with other vulnerable females, and the state has consulted with national experts about a better placement for her within the state’s system, and he criticized the panel for recommending her release or a new treatment program without offering any specific solutions. “Should she be housed with women?” Brennaman asked. “She has offended against women.” 

U.S. District Court Judge Donovan Frank has said he’ll rule on Bailey’s and Terhaar’s cases within 30 days.