A repeat child molester from Lawrence won't be going back to his lock-up in a treatment program at Larned State Hospital.
Randy A. Foster, who had his commitment to the hospital overturned earlier this year by the Kansas Supreme Court, will be freed because of a Larned evaluator's finding that he no longer fits the definition of a "sexually violent predator." Without that label, Atty. Gen. Phill Kline's office can't go forward with its effort to have Foster sent back to the program.
"We're bound by what the Larned evaluator determines," said Sherriene Jones, a spokeswoman for Kline's office.
As of Wednesday, Foster was being held in the Douglas County Jail.
The case shows that when it comes to determining who is and isn't a sexual predator, the evaluator's word can mean everything. Paul Appelbaum, a former president of the American Psychiatric Assn., said in an interview last year that evaluators have "enormous discretion" because the definition of a predator is so vague.
In Kansas, a sexually violent predator is someone with a "mental abnormality" or "personality disorder" that makes him likely to commit repeated acts of sexual violence.
"Almost everybody who has committed an offense like this will get some mental abnormality diagnosis," Appelbaum said. "Evaluators therefore are left in a very difficult position. Here's somebody who by definition has committed a major sexual offense. You say 'No,' and they're released and they do it again. Fingers point at you ... If you say 'Yes,' the person is sent away, maybe never to be out on the streets again."
Foster was sexually abused by his father and was molested by a 12-year-old boy when he was 5 years old, according to court records. His sex crimes include 1993 convictions for molesting two stepdaughters, ages 4 and 6, and a stepdaughter's friend.
He underwent treatment in prison and was required to complete an outpatient sex-offender program after his release on parole in 1998. He participated for two years, but eventually was kicked out for "lack of progress." That led to his parole being revoked in August 2000.
In February 2003, the state sought to have him sent indefinitely to the sexual-predator program - a place critics such as Appelbaum say provides dubious treatment and is a costly way of extending sex offenders' prison time.
Foster went to Larned for a pretrial evaluation in March 2003, and evaluators found he met the definition of a predator. A screening tool found he had a 45 percent risk of reoffending within six years.
One of the evaluators was Rex Rosenberg, a master's level psychologist who has been criticized for developing a survey intended to diagnose whether someone is possessed by a demon. When Rosenberg took over sexual-predator evaluations for the hospital in late 2001, the percentage of people labeled a predator after their evaluation roughly doubled.
Based largely on the evaluation, jurors at Foster's trial in Douglas County found he was a predator. But earlier this year, the Kansas Supreme Court ruled that Assistant Atty. Gen. Nola Wright made inappropriate comments that prejudiced the jury - for example, telling them he already had been deemed a predator in numerous evaluations and screenings.
To try Foster again, the state needed a new evaluation from Larned. Earlier this month, the word came back from the hospital that Foster "does not meet the criteria of a violent sexual predator," according to court records.
The records don't indicate who performed the more recent evaluation of Foster. The public may not ever know its contents.
"We can't talk about the details of the report because it's confidential and it's under seal with the court," Jones said.
Foster's attorney, Jessica Kunen, couldn't be reached for comment Wednesday.