Present: All the Justices 

LORENZO TOWNES 

 OPINION BY 

v. Record No. 040979 JUSTICE LAWRENCE L. KOONTZ, JR. 

March 3, 2005 

COMMONWEALTH OF VIRGINIA*

FROM THE CIRCUIT COURT OF CAMPBELL COUNTY 

J. Samuel Johnston, Judge 

Pursuant to Code § 37.1-70.6(A), the Commonwealth 

successfully petitioned the Circuit Court of Campbell County 

(trial court) to civilly commit Lorenzo Townes as a sexually 

violent predator. In this appeal, the dispositive issue we 

consider is whether Townes was subject to the statutory scheme 

for the civil commitment of sexually violent predators. 

BACKGROUND 

On April 18, 1973, Townes was convicted in the Circuit 

Court of Campbell County of statutory rape in violation of 

former Code § 18.1-44 and was sentenced to eighteen years’ 

imprisonment. A conviction under former Code § 18.1-44 is 

 *

 In the trial court this case was styled “Jerry W. Kilgore, 

Attorney General of Virginia, ex rel. Commonwealth of Virginia 

v. Lorenzo Townes.” While Code § 37.1-70.6 directs the Attorney 

General to initiate the proceedings for civil commitment of an 

alleged sexually violent predator, Code § 37.1-70.16 makes clear 

that in doing so the Attorney General acts as counsel for the 

Commonwealth in such proceedings. Thus, the Commonwealth is not 

a relator with only a beneficial interest in the action but is 

the real party in interest. Accordingly, we have amended the 

name of this case to reflect the proper style. 
defined as a predicate “sexually violent offense” for the 

determination of a person as a “sexually violent predator.” 

Code § 37.1-70.1. Townes completed serving his sentence for 

this offense on January 22, 1991. However, as the result of 

convictions for other offenses, none of which were sexually 

violent offenses, committed by Townes while he was in prison, 

Townes remained continuously in prison until April 2, 2002, when 

he was granted parole. Townes violated his parole almost 

immediately and was returned to prison on April 15, 2002 to 

complete his remaining sentence. 

On April 2, 2003, the Director of the Virginia Department 

of Corrections notified the Commitment Review Committee that 

Townes, who was scheduled to be released from prison on August 

15, 2003, was subject to review for civil commitment by the 

Commitment Review Committee because he had committed a sexually 

violent offense and had been identified through testing as being 

likely to re-offend. Code § 37.1-70.4. Following an 

examination of Townes by Dr. Stephen M. Herrick, a licensed 

clinical psychologist and certified sexual offender treatment 

provider, as required by Code § 37.1-70.5(B), the Commitment 

Review Committee completed its assessment of Townes and on May 

21, 2003 forwarded to the Attorney General a recommendation that 

Townes be committed as a sexually violent predator. 

2 
On June 25, 2003, the Commonwealth filed in the trial court 

a petition for the civil commitment of Townes. By order entered 

that same day, counsel was appointed for Townes as required by 

Code § 37.1-70.2. The trial court subsequently entered an order 

for the appointment of Dr. Evan Nelson, a clinical psychologist, 

as a mental health expert to aid in Townes’ defense. 

On July 18, 2003, the trial court conducted a probable 

cause hearing as required by Code § 37.1-70.7. After hearing 

testimony from Dr. Herrick, the trial court determined that 

there was probable cause to believe that Townes is a sexually 

violent predator and ordered that Townes remain in custody until 

a full hearing on the Commonwealth’s petition could be 

conducted. 

On September 19, 2003, Townes filed several motions to 

dismiss the Commonwealth’s petition. Townes contended in one of 

the motions that the trial court lacked jurisdiction because he 

had completed his sentence for the 1973 rape conviction and, 

thus, was not incarcerated for a predicate sexually violent 

offense at the time the Commonwealth’s petition was filed.1 The 

 1

 Townes also challenged the validity of the 1973 rape 

conviction because Townes was a juvenile at the time of the 

offense and allegedly was not afforded adequate due process when 

he was transferred from the juvenile court to the circuit court 

for trial as an adult. Although Townes reasserts this argument 

on appeal, it is not germane to our resolution of the 

dispositive issue and, accordingly, we will not address it. We 

note, however, that in 2003 the legislature amended Code § 37.1-

3 
trial court subsequently ruled that although Townes had 

completed his sentence for the 1973 rape conviction, he was 

subject to commitment as a sexually violent predator because he 

remained incarcerated on other offenses. 

During the trial on the commitment petition, the 

Commonwealth presented evidence from Dr. Herrick, a Department 

of Corrections employee, two probation and parole officers, and 

the police officer who had arrested Townes on the 1973 rape 

charge. Townes presented evidence from Dr. Nelson and Townes’ 

aunt and brother. Because our resolution of this appeal does 

not require an examination of the evidence presented by these 

witnesses, we need not recount the substance of their testimony. 

Although the two expert witnesses differed in their 

opinions, the trial court determined that Townes is a sexually 

violent predator. The trial court specifically found that the 

evidence established that Townes suffers from an antisocial 

personality disorder that makes it difficult for him to control 

his predatory behavior, and which makes it likely that he will 

engage in sexually violent acts in the future. The trial court 

further determined that Townes was in need of in-patient 

 

70.2 to include the provision that “[i]n no event shall a 

prisoner or defendant be permitted, as a part of any proceedings 

under this article, to raise challenges to the validity of his 

prior criminal sentences or institutional convictions.” Acts 

2003, chs. 989 and 1018. 

4 
treatment and that there was no suitable less restrictive 

alternative to in-patient treatment. Accordingly, in an order 

dated February 9, 2004, the trial court, pursuant to Code 

§ 37.1-70.10, ordered that Townes be committed to the custody of 

the Department of Mental Health, Mental Retardation and 

Substance Abuse Services for appropriate treatment and 

confinement in a secure facility. We awarded Townes this 

appeal. 

DISCUSSION 

Along with Commonwealth v. Allen, 269 Va. ___, ___ S.E.2d 

___ (2005) (today decided) and McCloud v. Commonwealth, 269 Va. 

___, ___ S.E.2d ___ (2005) (today decided), this case involves 

the procedures required to be followed in order for the 

Commonwealth to have a prisoner who has been convicted of a 

sexually violent offense declared to be a sexually violent 

predator and to have that prisoner involuntarily committed to a 

secure mental health facility at the time of his release from 

prison. Those procedures are set out in Chapter 2, Article 1.1 

of Title 37.1, commonly referred to as the Sexually Violent 

Predators Act (SVPA). Code § 37.1-70.1 through Code § 37.1-

70.19. We have reviewed those procedures in some detail in 

McCloud and need not do so again here. 

Townes contends that the trial court erred in finding that 

he remained subject to the SVPA despite the undisputed fact that 

5 
he had completed serving his sentence for the 1973 rape 

conviction, which the Commonwealth’s petition stated was the 

sexually violent predicate offense supporting the assertion that 

Townes is a sexually violent predator. The Commonwealth 

responds that “[t]he General Assembly did not specifically 

require that the prisoner be currently serving a sentence for 

the sexually violent offense, only that he be in prison and have 

[been convicted of] one of the four predicate offenses” 

identified in Code § 37.1-70.1 that constitute sexually violent 

offenses. 

In relevant part, Code § 37.1-70.4 provides: 

. . . . 

B. The Director of the Department of Corrections 

shall establish and maintain a database of prisoners 

in his custody who are incarcerated for sexually 

violent offenses. 

C. Each month, the Director shall review the 

database of prisoners incarcerated for sexually 

violent offenses and identify all such prisoners who 

are scheduled for release from prison within 10 months 

from the date of such review who receive a score of 

four or more on the Rapid Risk Assessment for Sexual 

Offender Recidivism or a like score on a comparable, 

scientifically validated instrument as designated by 

the Commissioner. Upon the identification of such 

prisoners, the Director shall forward their name, 

their scheduled date of release, and a copy of their 

file to the [Commitment Review Committee] for 

assessment. 

(Emphasis added). 

Code § 37.1-70.5(A) provides: 

6 
Within 90 days of receiving notice from the 

Director pursuant to § 37.1-70.4 regarding a prisoner 

who is incarcerated for a sexually violent offense, 

the [Commitment Review Committee] shall (i) complete 

its assessment of such prisoner for possible 

commitment pursuant to subsection B and (ii) forward 

its recommendation regarding the prisoner, in written 

form, to the Attorney General pursuant to subsection 

C. 

(Emphasis added). 

The Commonwealth’s contention that the language of these 

statutes does not limit the application of the SVPA to those 

prisoners who are currently serving a sentence for a sexually 

violent offense as defined by Code § 37.1-70.1 ignores the 

present tense of that language. Grammatically the phrase “who 

is incarcerated for a sexually violent offense” simply does not 

purport to include prisoners incarcerated on offenses other than 

statutorily defined sexually violent offenses. The Commonwealth 

contends, however, that this Court should accept the 

Commonwealth’s interpretation of these statutes because to do 

otherwise would frustrate the purpose of the SVPA. We disagree. 

It cannot be seriously disputed that a person subjected to 

an involuntary civil commitment proceeding has a substantial 

liberty interest in avoiding confinement in a mental hospital. 

Zinermon v. Burch, 494 U.S. 113, 131 (1990). “Civil commitment 

for any purpose constitutes a significant deprivation of liberty 

that requires due process protection.” Addington v. Texas, 441 

U.S. 418, 425 (1979). Accordingly, we are of opinion that, 

7 
although civil in nature, a statutory scheme such as the SVPA 

that permits an involuntary commitment process to be initiated 

by the Commonwealth is subject to the rule of lenity normally 

applicable to criminal statutes and must therefore be strictly 

construed. 

Contrary to the Commonwealth’s interpretation, when 

strictly construed, the clear and unambiguous language of Code 

§§ 37.1-70.4 and 37.1-70.5 requires that a prisoner must be 

serving an active sentence for a sexually violent offense as 

defined by Code § 37.1-70.1 at the time he is identified as 

being subject to the SVPA. Moreover, the Commonwealth’s 

interpretation of the law would require us to add language and 

broaden the scope of the act by applying it to prisoners “who 

are or previously have been incarcerated for sexually violent 

offenses.” Courts cannot add language to the statute the 

General Assembly has not seen fit to include. Holsapple v. 

Commonwealth, 266 Va. 593, 599, 587 S.E.2d 561, 564-65 (2003), 

cert. denied, ___ U.S. ___, 125 S.Ct. 164 (2004). “Nor are they 

permitted to accomplish the same result by judicial 

interpretation.” Burlile v. Commonwealth, 261 Va. 501, 511, 544 

S.E.2d 360, 365 (2001)).2

 2

 Code § 37.1-70.1, the SVPA’s definitional statute, does 

define a “sexually violent predator” as “any person who . . . 

has been convicted of a sexually violent offense.” (Emphasis 

added). However, the statute’s use of the present perfect tense 

8 
The Commonwealth concedes that at the time Townes was 

identified by the Director and referred to the Commitment Review 

Committee he had completed serving his sentence for the 1973 

rape conviction. Accordingly, we hold that since Townes was no 

longer “incarcerated for a sexually violent offense” at the time 

of the Director’s notice to the Commitment Review Committee in 

this case, the trial court erred in ruling that Townes was 

subject to the provisions of the SVPA as a sexually violent 

predator.3

CONCLUSION 

For these reasons, we will reverse the judgment of the 

trial court and dismiss the Commonwealth’s petition. 

Reversed and dismissed. 

 

here in a passive construction is not relevant, as the 

definition describes a person who has been determined to be a 

sexually violent predator, not a prisoner who is subject to the 

process for making that determination. 

3

 Because Townes was not subject to commitment under the 

SVPA, we need not consider his further assignment of error 

challenging the trial court’s determination that the evidence 

was sufficient to declare him to be a sexually violent predator. 

9