In re Detention of Stanbridge ( 2012 )

ILLINOIS OFFICIAL REPORTS
Supreme Court
In re Detention of Stanbridge, 2012 IL 112337Caption in Supreme In re DETENTION OF STANBRIDGE (The People of the State of
Court: Illinois, Appellant, v. Kevin Stanbridge, Appellee).—In re DETENTION
OF LIEBERMAN (The People of the State of Illinois, Appellee, v. Brad
Lieberman, Appellant).
Docket Nos. 112337, 112802 cons.
Filed November 29, 2012
Held One petitioning for discharge or conditional release from civil
(Note: This syllabus commitment as sexually violent bears the burden of presenting a plausible
constitutes no part of account as to each required petition element so as to show a change in the
the opinion of the court circumstances which led to the initial commitment—probable cause
but has been prepared standard.
by the Reporter of
Decisions for the
convenience of the
reader.)
Decision Under No. 112337—Appeal from the Appellate Court for the Fourth District;
Review heard in that court on appeal from the Circuit Court of Adams County,
the Hon. William O. Mays, Judge, presiding.
No. 112802—Appeal from the Appellate Court for the First District;
heard in that court on appeal from the Circuit Court of Cook County, the
Hon. Dennis J. Porter, Judge, presiding.
Judgment No. 112337—Appellate court judgment reversed.
Circuit court judgment affirmed.
No. 112802—Affirmed.
Counsel on No. 112337—Lisa Madigan, Attorney General, of Springfield (Michael
Appeal A. Scodro, Solicitor General, and Michael M. Glick, Sheri L. Wong and
Davis H. Iskowich, Assistant Attorneys General, of Chicago, of counsel),
for the People.
Betsy Bier, of Bier & Bier, of Quincy, for appellee.
No. 112802—Kimball R. Anderson, Anthony D. Pesce, Daniel Braun and
Laura Whitney Lee, of Winston & Strawn LLP, of Chicago, for appellant.
Lisa Madigan, Attorney General, of Springfield (Michael A. Scodro,
Solicitor General, and Michael M. Glick and David H. Iskowich,
Assistant Attorneys General, of Chicago, of counsel), for the People.
Justices JUSTICE THEIS delivered the judgment of the court, with opinion.
Chief Justice Kilbride and Justices Freeman, Thomas, Garman, Karmeier,
and Burke concurred in the judgment and opinion.
OPINION
¶1 In these consolidated appeals, we are asked to clarify the quantum and scope of evidence
needed to establish probable cause in a postcommitment discharge or conditional release
proceeding pursuant to the Sexually Violent Persons Commitment Act (725 ILCS 207/1 et
seq. (West 2008)). In both cases, the trial court found a lack of probable cause and dismissed
the individual petitions for discharge or conditional release. In Stanbridge, the appellate court
reversed, finding that the trial court improperly weighed contradictory evidence of the
parties’ respective experts. Stanbridge, 408 Ill. App. 3d 553. In Lieberman, the appellate
court affirmed, over a dissent, finding that the expert did not present sufficient evidence on
the relevant statutory elements to warrant a further hearing and did not comply with the
statutory requirements for conditional discharge. Lieberman, 2011 IL App (1st) 090796.
¶2 We allowed petitions for leave to appeal in both cases (Ill. S. Ct. R. 315 (eff. Feb. 26,
2010)) and consolidated the appeals for review. For the following reasons, we reverse the
appellate court judgment in Stanbridge and affirm the appellate court judgment in
Lieberman.
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¶3 I. BACKGROUND
¶4 A. No. 112337, Kevin Stanbridge
¶5 The history of Kevin Stanbridge’s civil commitment is detailed in the appellate court
opinion. We will repeat here only those facts necessary to our analysis. Following a jury trial
in 2005, Stanbridge was convicted of aggravated criminal sexual abuse (720 ILCS 5/12-16(d)
(West 1998)), and his conviction was affirmed on direct appeal. People v. Stanbridge, No.
4-05-0585 (2007) (unpublished order under Supreme Court Rule 23).
¶6 In May 2005, during the pendency of Stanbridge’s appeal, the State filed a petition to
involuntarily commit him as a sexually violent person under the Sexually Violent Persons
Commitment Act (the Act) (725 ILCS 207/1 et seq. (West 2004)). Following a trial on the
State’s petition, in October 2007, a jury found Stanbridge to be a sexually violent person as
defined by section 5(f) of the Act (725 ILCS 207/5(f) (West 2004)). Thereafter, in February
2008, the trial court ordered him committed to a secure facility for institutional care and
treatment until such time as he is no longer a sexually violent person. His commitment was
affirmed on direct appeal. In re Kevin S., No. 4-08-0163 (2008) (unpublished order under
Supreme Court Rule 23).
¶7 Within six months after his initial commitment, the Department of Human Services
(Department) submitted its required evaluation report to the court on Stanbridge’s mental
condition to determine whether he had made sufficient progress to be conditionally released
or discharged pursuant to section 55 of the Act (725 ILCS 207/55 (West 2008)). The report
was prepared by Dr. Edward Smith. Stanbridge did not retain or request that the court
appoint an expert to examine him at that time. He did not file a petition for discharge, but did
not affirmatively waive his right to do so under the Act. Accordingly, the State then filed a
motion for a finding of no probable cause based on Dr. Smith’s evaluation report. On
October 31, 2008, the trial court granted the State’s motion, finding that no probable cause
existed to warrant a hearing on the matter.
¶8 In March 2009, Stanbridge filed a petition for discharge under section 70 of the Act (725
ILCS 207/70 (West 2008)), which did not coincide with the periodic-evaluation process. The
trial court appointed clinical and forensic psychologist Dr. Kirk Witherspoon to evaluate
Stanbridge’s mental condition to determine whether he was still a sexually violent person.
Dr. Witherspoon submitted his amended psychological evaluation report to the court in
January 2010.
¶9 While Stanbridge’s petition for discharge was pending, in August 2009, the Department
submitted its required periodic-reexamination report on Stanbridge’s mental condition, which
was conducted again by Dr. Smith. The State again filed a motion for a finding of no
probable cause, attaching Dr. Smith’s written report in support of the motion.
¶ 10 In January 2010, by agreement of the parties, the trial court held a joint probable cause
hearing on both Stanbridge’s petition for discharge and the State’s motion for a finding of
no probable cause based on the periodic reexamination. At the hearing, the court considered
the two psychological evaluation reports submitted by Drs. Smith and Witherspoon and
heard arguments of counsel.
¶ 11 Dr. Witherspoon’s report indicated that his evaluation was based primarily upon his
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interview with Stanbridge, a review of Stanbridge’s prior psychological evaluations, and
various diagnostic tests designed to measure deviant sexual attitudes and behavior and to
predict sexual offense recidivism rates. Based on this information, and consistent with his
prior findings, Dr. Witherspoon’s clinical impression was that Stanbridge’s test results did
not reveal ongoing evidence of deviant sexual psychopathology of any form and did not
evince historic or current antisocial tendencies.
¶ 12 In determining Stanbridge’s risk of reoffending, Dr. Witherspoon administered several
actuarial assessment instruments, including the Static 2002R. He indicated this test was a
revised version of the Static 99, which provides a more accurate measure of risk by better
accounting for risk decline due to age and by providing more current demographic trends.
Dr. Witherspoon stated that Stanbridge’s scores showed that his antisocial tendencies were
akin to that of average nonincarcerated males, and placed Stanbridge in a low relative sexual
reoffense risk in comparison to other convicted sexual offenders. Dr. Witherspoon’s opinion
that Stanbridge’s risk of reoffense was low was also based on other factors, including
Stanbridge’s age and his denial that he committed the offenses for which he was convicted.
Dr. Witherspoon based his opinion on research showing that all forms of criminality decrease
with advancing age, and that denial of sex crimes against minors is not a universally negative
indicator relative to the risk of reoffending. In conclusion, Dr. Witherspoon’s opinion was
that Stanbridge did not meet the diagnostic criteria minimally necessary for involuntary
commitment under the Act and that his risk of reoffending was not in the range necessary for
such commitment.
¶ 13 Dr. Smith’s evaluation was based on Stanbridge’s Department records, a peer
consultation and his prior six-month psychological examination. In Dr. Smith’s report, he
noted that Stanbridge declined to participate in the reexamination. Dr. Smith recounted
Stanbridge’s criminal and sexual offense history, including charges, convictions and other
allegations of sexual offenses. He also recounted his personal history, education and
employment, and his history of mental health and medical treatment, substance abuse,
behavioral tendencies, and treatment. Dr. Smith concluded that Stanbridge met the criteria
for the following diagnoses based on the guidelines in the Diagnostic and Statistical Manual
of Mental Disorders, Fourth Edition, Text Revision (DSM-IV-TR): “(1) Paraphilia, not
otherwise specified, sexually attracted to adolescent males, nonexclusive type; (2) alcohol
abuse in a controlled environment; (3) personality disorder, not otherwise specified, with
antisocial traits; and (4) rule out pedophelia, sexually attracted to males, nonexclusive type.”
¶ 14 In considering Stanbridge’s risk of reoffending, Dr. Smith conducted two assessments
not administered by Dr. Witherspoon, namely, the Static 99 and the Minnesota Sex Offender
Screening Tool-Revised. Based on these assessments, Dr. Smith placed Stanbridge in the
moderate to high category of recidivism risk on one assessment and in the high-risk category
on the other assessment. Dr. Smith also considered other empirical risk factors based on
scientific research that would likely contribute to Stanbridge’s risk of reoffense, and
concluded that he met those aggravating risk factors due to his personality disorder,
substance abuse, intoxication during the offense, intimate relationship conflicts, and deviant
sexual interest.
¶ 15 Dr. Smith also considered factors that might lower one’s risk of sexual recidivism,
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including sex-offense-specific treatment, a serious and debilitating medical condition, and
increased age. According to Dr. Smith, no medical issues warranted a decreased risk, and
treatment-based risk reduction was not warranted because Stanbridge refused treatment.
Additionally, because the research indicated no universal agreement on how age impacts
recidivism rates, Dr. Smith opined that some age-based risk reduction was present, but that
age was not currently a protective factor for Stanbridge. Accordingly, Smith concluded that
a substantial probability existed that Stanbridge would engage in further acts of sexual
violence due to his mental disorders.
¶ 16 After considering the expert reports and the parties’ arguments, the trial court made the
following findings:
“[T]he court found [respondent] to be a sexually violent person[—]had the
appropriate diagnosis and findings [in February 2008]. [The court does not] see
where the [State’s] expert, *** Smith, has found that there is anything different than
that, based on what has occurred between now and the time of the original finding.
Witherspoon, if [the court] remembers correctly, came up with many of the same
conclusions at the time of the original hearing, and that’s in fact what was determined
by the jury. So it seems to [this court that] at this point[,] there is no probable cause
to proceed with a full hearing on the matter, and the court would so rule.”
The trial court denied Stanbridge’s petition for discharge and granted the State’s motion for
a finding of no probable cause. The court order indicated that the court had considered both
evaluations prepared by Drs. Smith and Witherspoon, but found that based upon a review of
the reports related to the 18-month reevaluation of respondent, no probable cause existed to
warrant further proceedings to determine whether respondent remained a sexually violent
person.
¶ 17 On appeal, Stanbridge argued that the trial court improperly weighed the conflicting
testimony of the parties’ respective experts instead of determining whether the evidence
presented established probable cause to warrant further proceedings. 408 Ill. App. 3d at 558.
The appellate court agreed and reversed and remanded for further proceedings, concluding
that the evidence presented was sufficient to establish probable cause. Id. at 563. We granted
the State’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010).
¶ 18 B. No. 112803, Brad Lieberman
¶ 19 The history of Brad Lieberman’s commitment relevant to this appeal is detailed in the
appellate court opinion and will be recounted here to the extent necessary to our disposition.
In 1980, Lieberman was convicted of numerous counts of rape and sentenced to multiple
concurrent terms of imprisonment. Shortly before his scheduled release date from prison in
2000, the State sought to have Lieberman involuntarily committed as a sexually violent
person pursuant to the Act (725 ILCS 207/1 et seq. (West 2000)).
¶ 20 In February 2006, a jury found Lieberman to be a sexually violent person within the
meaning of the Act. The mental disorders that formed the basis for Lieberman’s commitment
included paraphilia, not otherwise specified, sexually attracted to nonconsenting persons
(paraphilia NOS-nonconsent). The State’s experts described this type of disorder as one
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premised on intense recurring rape behaviors with nonconsenting adults that cause distress
or impair one’s ability to function in society. Thereafter, in April 2006, the trial court ordered
Lieberman committed to the Department for institutional care and treatment in a secure
facility until further order of the court.
¶ 21 Lieberman appealed, arguing, inter alia, that the State failed to prove that he suffers from
a serious lack of volitional control resulting from a current mental disorder, and failed to
prove beyond a reasonable doubt that he suffers from a mental disorder or that he presents
any risk to reoffend. In re Detention of Lieberman, 379 Ill. App. 3d 585, 597-98 (2007).
Specifically, he maintained that the State’s expert’s opinions and diagnoses did not meet the
diagnostic criteria of the Diagnostic and Statistical Manual of Mental Disorders (DSM). Id.
at 602. His commitment was affirmed on direct appeal. Id. at 611.
¶ 22 The record reflects that in October 2006, the Department conducted its mandated six-
month reexamination to determine whether Lieberman had made sufficient progress to be
conditionally released or discharged. In conjunction with the mandated six-month
reexamination, Lieberman filed a petition for discharge or conditional release, which the
court denied in December 2006. The following year, in October 2007, Dr. David Suire, an
evaluator with the Department, conducted Lieberman’s mandated periodic psychological
reexamination to again determine whether Lieberman had made sufficient progress to be
conditionally released or discharged. Dr. Suire reported that in his clinical judgment
Lieberman continued to suffer from paraphilia NOS-nonconsent, cannabis abuse, antisocial
personality disorder, and narcissistic personality disorder. He believed it was substantially
probable that Lieberman would engage in future acts of sexual violence. He also noted that
Lieberman had not participated in any core sex-offender treatment offered by the
Department.
¶ 23 In conjunction with this annual reevaluation, the State filed a motion for a finding of no
probable cause. Lieberman did not affirmatively waive his right to petition for discharge and,
simultaneously with the State’s motion, exercised his right to file a petition for discharge
under section 65(b)(1) of the Act (725 ILCS 207/65(b)(1) (West 2006)). Thereafter, the court
granted Lieberman leave to amend his petition to alternatively petition for conditional release
under section 60(c) of the Act (725 ILCS 207/60(c) (West 2006)). The court appointed Dr.
Eric Ostrov to conduct an evaluation of Lieberman under this section. The court also granted
Lieberman’s motion to allow Dr. Chester Schmidt to perform an independent examination
of him.
¶ 24 The following testimony was presented by Dr. Schmidt at the probable cause hearing on
the petition for discharge or alternatively conditional release. Dr. Schmidt testified that he
was a physician psychiatrist, a professor of psychiatry at Johns Hopkins University School
of Medicine, and founder and member of the sexual behavior consultation unit at Johns
Hopkins Hospital. Dr. Schmidt rendered two opinions: (1) the diagnosis of paraphilia NOS-
nonconsent does not exist in the DSM; and (2) Lieberman does not have a paraphilia.
¶ 25 With respect to the first opinion, Dr. Schmidt explained that the DSM identifies a general
class of disorders called “paraphilias,” which the DSM defines as having the following
essential diagnostic features: “recurrent, intense sexually arousing fantasies, sexual urges,
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or behaviors generally involving *** nonconsenting persons that occur over a period of at
least 6 months.”1
¶ 26 Dr. Schmidt explained that the DSM specifically identifies nine common paraphilic
conditions and lists the diagnostic criteria for each condition. In addition, the DSM includes
a residual category of “paraphilia not otherwise specified” for paraphilias that do not meet
the criteria for any of the nine specifically listed categories. That residual section provides
a nonexhaustive list of examples that fall under this catch-all NOS category. Dr. Schmidt
testified that paraphilia NOS-nonconsent is not contained within either the section that lists
the nine common paraphilic conditions or within the examples listed in the residual NOS
category.
¶ 27 Dr. Schmidt acknowledged that there are those in the profession that believe paraphilia
NOS-nonconsent is a valid disorder that falls under the catch-all NOS category, and that they
apply the general diagnostic features of paraphilias to diagnose this particular rape-related
paraphilia. However, Dr. Schmidt disagreed with this approach and disagreed that the DSM-
IV contains a mental disorder known as paraphilia NOS-nonconsent without the proper
formal vetting of that diagnosis.
¶ 28 Dr. Schmidt explained that there is a formal process by which diagnoses are included in
the DSM. In 1986, he was the chairman of a committee convened by the American
Psychiatric Association (APA) to consider whether to include a diagnosis for paraphilia
NOS-nonconsent in the DSM-III-R. The committee voted against inclusion of a rape-related
paraphilia diagnosis for two reasons: (1) there was “no scientific support for the diagnosis”;
it was based solely on “expert opinion which is one of the lowest forms of research to
support anything”; and (2) there were numerous organizations within the legal, social work,
and psychiatric communities that voiced concern that the diagnosis would be misused to
create an insanity defense in rape trials. As a result, the board of trustees of the APA, of
which Dr. Schmidt was also a member, voted to exclude the diagnosis in the DSM-III-R.
¶ 29 During his later work as chairman between 1995 and 2000 on the revision of the DSM-
III-R to the DSM-IV, there were no requests that the disorder be included in the new edition.
To Dr. Schmidt’s knowledge there is no current reconsideration of that decision, which in
his opinion means that “the field in general is essentially satisfied with the *** diagnostic
format that exists within the DSM-IV.” It was his opinion that the use of officially
recognized diagnoses in the DSM is essential for purposes of patient care, valid research and
the integrity of the legal system, and failure to adhere to it may have an impact on the
treatment process.
¶ 30 On cross-examination, Dr. Schmidt recognized that the diagnosis of paraphilia NOS-
nonconsent is widely accepted by forensic experts in the medical field, and that the debate
regarding the use of this diagnosis has been ongoing for about 20 years. He also
1
This section of the DSM also identifies additional diagnostic features for some paraphilias
which can include a requirement that “the behavior, sexual urges, or fantasies cause clinically
significant distress or impairment in social, occupational, or other important areas of functioning.”
DSM at 566.
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acknowledged that Lieberman’s experts did not raise this issue at his original commitment
trial.
¶ 31 Dr. Schmidt further testified regarding the bases for his conclusion that Lieberman does
not suffer from a paraphilia, assuming the diagnosis exists. In preparing his opinions, Dr.
Schmidt relied upon Lieberman’s Department of Corrections (DOC) mental health reports,
his Department master treatment plans, police reports, articles on civil commitment and the
diagnosis of paraphilia, the transcript from Lieberman’s 2006 commitment trial, expert
evaluations from other evaluators, including Dr. Jacqueline Buck, Dr. Barry Leavitt, Dr.
Suire, Dr. Ostrov, and an interview with Lieberman in April 2008.
¶ 32 Dr. Schmidt considered that in the 15 evaluations done of Lieberman during his 20 years
in the DOC, he was never diagnosed with paraphilia, and that the evaluators were required
to record that diagnosis if in fact it existed. In considering Lieberman’s psychosexual history
prior to 1979, when he committed the rapes, Dr. Schmidt testified that his opinion that
Lieberman had a “fairly normal heterosexual development during his teen years and
adolescent years” was reasonably consistent with the other evaluations. Dr. Schmidt was of
the opinion that Lieberman has had no paraphilic fantasies or urges in the past 29 years based
upon Lieberman’s own self-reporting.
¶ 33 With respect to paraphilic behavior, Dr. Schmidt found that there were no reported
behaviors of any coercive sexual activity with either female staff or prisoners. It was his
opinion that Lieberman would have found an outlet to act out his paraphilia, including with
the prison’s homosexual community even though he was otherwise heterosexual. One who
has a paraphilia would have a heightened degree of impulsivity that is sexually driven and
compulsive, and one would expect that even in an incarcerated situation that such a person
could find outlets to act out the paraphilia. One would expect that in over 29 years of
incarceration there would be some evidence of attempts to act out the behavior and that the
acting out would have caused some difficulty.
¶ 34 Dr. Schmidt also based his opinion that Lieberman did not suffer from a paraphilia on
the Global Assessment of Functioning (GAF) scale, as determined by his treatment team.
The scale measures a person’s symptom severity and level of functioning. Assuming
Lieberman had a paraphilia, Dr. Schmidt believed that one could measure change in
Lieberman’s symptom severity by looking at his GAF scores over time. Lieberman’s GAF
scores from 1999 to 2005 were in the range of 45, which indicated serious symptoms or
impairment. His most recent score of 71 indicated, according to the DSM, that symptoms are
present, but that they are “transient and expect[ed] reactions to psycho-social stressors,” and
that Lieberman has “no more than slight impairment in social, occupation, or school
functioning.” Dr. Schmidt testified that Lieberman’s score indicated that those who have
observed and scored Lieberman believe that his symptoms and functional capacity have
dramatically improved. However, Dr. Schmidt acknowledged on cross-examination that he
did not speak to anyone at the Department as to how they use those scores.
¶ 35 Dr. Schmidt was asked to explain how Lieberman could have committed the numerous
rapes in 1979 but for the fact that he was driven by some type of mental disorder. Dr.
Schmidt testified that rape is not a mental disorder, nor is it necessarily paraphilic. Less than
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10% of rapists suffer from a paraphilia. Additionally, Dr. Schmidt believed that Lieberman’s
immediate prerape history may be relevant to explaining his multiple rapes. According to the
materials Dr. Schmidt reviewed, Lieberman reported a sexual experience in which a woman
that he was attempting to have intercourse with “initially resisted, resisted, and then allowed,
then said yes.” Lieberman reported this as being very important because it led him to believe
when he was 19 that “when women said no they really meant yes.” He reports that his first
rape was “very sexually gratifying,” and that “motivated him to engage further.” At that time
he had “absolutely no regard for the law” and was “acting selfishly for his own sexual
gratification.” When Lieberman was apprehended and then released on bond, he committed
the additional rapes because he thought “the law had no teeth,” and that he was “immune”
from it. Dr. Schmidt believed that these experiences provided “as plausible an explanation
as maybe we’ll ever get from the facts of the case.”
¶ 36 On cross-examination, Dr. Schmidt testified that he is not a member of any professional
organization focusing on the evaluation and treatment of sexual offenders and has never been
previously qualified as an expert in a sexually violent person’s commitment proceeding. He
has never evaluated a person who has been found to be a sexually violent person by the laws
of the state, but has evaluated and treated convicted sex offenders. With regard to the records
he reviewed, he stated that he did not review the trial transcripts or police reports from the
trials resulting in Lieberman’s rape convictions. Other than the mental health records from
the DOC, Dr. Schmidt did not review any other documents in the DOC file regarding
Lieberman’s behavior.
¶ 37 The parties stipulated that Dr. Mark Babula would testify that he was Lieberman’s
primary therapist at the treatment facility. Any contact he had with Lieberman did not
constitute sexual offender treatment. Dr. Babula would further testify that Lieberman has not
participated in any sexual offender treatment at the facility.
¶ 38 The court-appointed expert, Dr. Ostrov, testified that he diagnosed Lieberman based
upon the DSM with paraphilia NOS-nonconsent and a personality disorder with antisocial
and narcissistic features. It was his opinion that these disorders predispose Lieberman to
commit future acts of sexual violence and, therefore, Dr. Ostrov did not recommend
conditional release.
¶ 39 Dr. Ostrov testified that his diagnosis of paraphilia was informed by guidance from the
DSM general criteria for paraphilias, including recurrent and intense sexual behaviors over
a period of six months that caused clinically significant distress or impairment in social,
occupational, or other important areas of functioning. Dr. Ostrov further testified that his
diagnosis was based upon several aspects of Lieberman’s behavior. Based upon his review
of the relevant materials, Lieberman evinced repeated instances of nonconsensual sex
directed at different women over a period of more than six months which caused him
clinically significant distress and impairment in functioning. Lieberman’s actions were
“driven behavior” in that “despite his fear, the drivenness overcame that fear” and led him
to commit the numerous rapes. Dr. Ostrov found Lieberman evinced a lack of empathy for
his victims, and explained that Lieberman’s claim that he has not “acted out sexually” during
his detention must be viewed with the understanding that he has not been around his
preferred sexual stimuli.
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¶ 40 Dr. Ostrov further testified that Lieberman’s results on various diagnostic tools indicated
that he posed a high risk of reoffending. Dr. Ostrov believed that Lieberman’s failure to
participate in sex-offender treatment contributed to his high risk because he has not shown
an interest in and has not had the benefit of completing formal sexual offender treatment,
which has been empirically shown to decrease the risk of reoffending. Dr. Ostrov believed
that other dynamic factors such as age would have some impact on Lieberman’s likelihood
of recidivism, but not a very significant impact. Dr. Ostrov did not find evidence that
Lieberman had significantly decreased the risk that he would sexually reoffend.
¶ 41 Dr. Suire testified that he diagnosed Lieberman using the DSM criteria with paraphilia
NOS-nonconsent, cannabis abuse, antisocial personality disorder, and narcissistic personality
disorder. He acknowledged the disagreement regarding the diagnosis of paraphilia, but
believed it was primarily due to “political factors” and the understanding that not all rapes
are paraphilic. In diagnosing Lieberman, Dr. Suire considered the nature and pattern of the
rapes, whether the behaviors were occurring while he had access to consenting partners, the
frequency of the conduct, and whether he was committing other crimes at the same time.
¶ 42 Dr. Suire further testified regarding Lieberman’s risk assessment, relying on his file, and
the use of actuarial instruments to achieve a “baseline estimate of the risk.” Lieberman
scored in the high-risk category on these tests. Additionally, Dr. Suire considered other
aggravating and protective factors which could increase or decrease his risk levels.
Lieberman had several aggravating factors, including deviant sexual arousal, two personality
disorders, and high scores on other diagnostic tools, which correlate with an elevated risk.
Dr. Suire did not consider Lieberman’s age to be a significant protective factor, and noted
that Lieberman did not participate in any core sex-offender treatment, which can substantially
reduce his recidivism risk. Dr. Suire did not believe that Lieberman’s risk was reduced by
participation in “ancillary treatment-type” programs at the treatment facility. Accordingly,
it was Dr. Suire’s opinion that it was substantially probable that Lieberman would commit
new acts of sexual violence and that he had not made sufficient progress to allow him to be
safely managed in the community.
¶ 43 The trial court denied Lieberman’s petition for discharge or conditional release. The court
acknowledged the debate among mental health professionals as to the validity of the
diagnosis of paraphilia NOS-nonconsent, but found the question could not be answered
simply by testimony that the disorder is not specifically listed in the DSM. The court
ultimately found it was a mental disorder that satisfied the requirements of the Act. The court
further found Dr. Schmidt’s explanation for why Lieberman may have committed the rapes
to be absolutely lacking in credibility and found the State’s experts to be credible. Although
the court found that Lieberman had made some improvements, he also noted his refusal to
participate in formal sex-offender treatment, claiming that he did not need it, and found that
when viewed in totality, there was no probable cause to believe that Lieberman had made
sufficient progress to be conditionally released or discharged.
¶ 44 On appeal, Lieberman contended that the denial of his petition was error and violated his
right to due process. In its original decision, the appellate court found no error, finding that
the trial court was “free to accept the opinion of one expert witness over another or accept
part and reject part of each expert’s testimony,” and affirmed the trial court’s judgment. In
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re Detention of Lieberman, 401 Ill. App. 3d 903, 923 (2010). We subsequently directed the
appellate court to vacate its judgment and to reconsider in light of In re Detention of Hardin,
238 Ill. 2d 33 (2010).
¶ 45 On remand, the appellate court concluded that a different result was not warranted after
reviewing Hardin and, therefore, affirmed the circuit court’s judgment. 2011 IL App (1st)
090796, ¶ 65. The majority found that the expert did not present sufficient evidence on the
relevant statutory elements to warrant a further hearing and did not comply with the statutory
requirements for conditional discharge. Id. Justice Garcia dissented with respect to the
petition for conditional release. He believed that the decision in Hardin compelled the court
to reverse the circuit court’s finding on probable cause where the circuit court improperly
based its ruling on a “ ‘full and independent evaluation of [Dr. Schmidt’s] credibility and [his
expert opinion].’ ” Id. ¶ 83 (Garcia, P.J., dissenting) (quoting Hardin, 238 Ill. 2d at 53). We
allowed Lieberman’s petition for leave to appeal and consolidated his appeal with
Stanbridge’s appeal.
¶ 46 II. ANALYSIS
¶ 47 A. Overview of the Sexually Violent Persons Commitment Act
¶ 48 We begin our analysis with an overview of the Act. The Act authorizes the involuntary
civil commitment of “sexually violent persons” for “control, care and treatment.” 725 ILCS
207/40(a) (West 2008). The Act defines a “sexually violent person” as an individual who has
“been convicted of a sexually violent offense” and who “is dangerous because he or she
suffers from a mental disorder that makes it substantially probable that the person will
engage in acts of sexual violence.” 725 ILCS 207/5(f) (West 2008). A “mental disorder” is
defined under the Act as a “congenital or acquired condition affecting the emotional or
volitional capacity that predisposes a person to engage in acts of sexual violence.” 725 ILCS
207/5(b) (West 2008). If the State proves beyond a reasonable doubt that an individual is a
sexually violent person, that individual may be indefinitely committed “until such time as
the person is no longer a sexually violent person.” (Emphasis added.) 725 ILCS 207/35(f),
40(a) (West 2008).
¶ 49 After an individual has been committed to institutional care under the Act, the
Department is responsible for evaluating the individual’s mental condition within six months
of the initial commitment and again thereafter at least annually. 725 ILCS 207/55 (West
2008). The stated purpose of these periodic examinations is to determine “whether the person
has made sufficient progress to be conditionally released or discharged.” (Emphasis added.)
725 ILCS 207/55 (West 2008); People v. Botruff, 212 Ill. 2d 166, 171 (2004) (purpose of
reexamination is to determine whether person has “progressed enough to be conditionally
released or discharged”).2
2
We note that since the relevant periodic evaluations in these consolidated cases, the
legislature has amended this section to provide that the purpose of these evaluations is to determine
“whether: (1) the person has made sufficient progress in treatment to be conditionally released and
(2) whether the person’s condition has so changed since the most recent periodic reexamination (or
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¶ 50 Although commitment is potentially indefinite in nature, a committed individual may
challenge his continued commitment under the Act through a petition for discharge or a
petition for conditional release. A committed person may seek a discharge under three
available mechanisms. The first mechanism applies if the Secretary of Human Services
determines, at any time, that the individual is no longer a sexually violent person. In that
case, the Secretary must authorize the committed individual to petition the court for
discharge. 725 ILCS 207/65(a)(1) (West 2008).
¶ 51 The second mechanism for discharge is triggered whenever the committed individual
undergoes one of the periodic examinations required by section 55 of the Act. At the time
of each such examination, the committed person must be given written notice that he has the
right to petition for discharge over the Secretary’s objection. 725 ILCS 207/65(b)(1) (West
2008). If the committed individual does not affirmatively waive that right, the court must set
a probable cause hearing to determine whether facts exist that warrant a hearing on whether
the defendant is “still a sexually violent person.” Id.3 If the committed person does not file
a petition for discharge, but nonetheless does not waive his right to do so, then the probable
cause hearing consists only of a review of the reexamination reports and arguments of the
parties. Id.¶ 52 If the court finds that there is probable cause to believe that the committed individual “is
no longer a sexually violent person,” it must set a hearing on the issue and the State has the
burden of proving by clear and convincing evidence that the committed individual is “still
a sexually violent person.” 725 ILCS 207/65(b)(2) (West 2008).4
¶ 53 In addition to these procedures, under a third mechanism, the committed individual may
initial commitment, if there has not yet been a periodic reexamination) that he or she is no longer
a sexually violent person.” (Emphases added.) Pub. Act 97-1075 (eff. Aug. 24, 2012) (amending 725
ILCS 207/55).
3
The amended statute currently provides that “the court shall set a probable cause hearing
to determine whether facts exist to believe that since the most recent periodic reexamination (or
initial commitment, if there has not yet been a periodic reexamination), the condition of the
committed person has so changed that he or she is no longer a sexually violent person. However, if
a person has previously filed a petition for discharge without the Secretary’s approval and the court
determined, either upon review of the petition or following a hearing, that the person’s petition was
frivolous or that the person was still a sexually violent person, then the court shall deny any
subsequent petition under this Section without a hearing unless the petition contains facts upon
which a court could reasonably find that the condition of the person had so changed that a hearing
was warranted.” Pub. Act 97-1075 (eff. Aug. 24, 2012) (amending 725 ILCS 207/65(b)(1)).
4
The amended statute currently provides that “[i]f the court determines at the probable cause
hearing *** that probable cause exists to believe that since the most recent periodic reexamination
(or initial commitment, if there has not yet been a periodic reexamination), the condition of the
committed person has so changed that he or she is no longer a sexually violent person, then the court
shall set a hearing on the issue.” Pub. Act 97-1075 (eff. Aug. 24, 2012) (amending 725 ILCS
207/65(b)(2)).
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petition for discharge at times other than the periodic examinations and may do so without
the approval of the Secretary. 725 ILCS 207/70 (West 2008).5 If the person has not
previously filed a petition for discharge without the Secretary’s approval, the court must set
a probable cause hearing and, if appropriate, proceed in accordance with the same procedures
governing unapproved petitions for review filed at the time of the statutorily mandated
periodic examinations. Id. If, however, the person did previously file a petition for discharge
without the Secretary’s approval and the court determined, based on review of the petition
or following a hearing, that the petition was frivolous or that the defendant was still a
sexually violent person, then an important limitation applies to this section. The court is
required to dismiss the petition without a hearing unless the petition contains facts that would
support a finding that the defendant has so changed that a hearing is warranted. Id.¶ 54 A committed individual may also petition the court to modify the commitment order by
authorizing conditional release. The Department may recommend that a committed person
is appropriate for conditional release at any time and file a petition on the person’s behalf.
725 ILCS 207/60(a) (West 2008). Alternatively, if certain statutory requirements are met, the
committed person may file a petition without the Department’s approval. The trial court must
hold a hearing to determine whether probable cause exists “to believe that it is not
substantially probable that the person will engage in acts of sexual violence if on release or
conditional release.” 725 ILCS 207/60(c) (West 2008).6 If the court finds probable cause,
then it must hold an evidentiary hearing on the issue, and grant the petition unless the State
shows by clear and convincing evidence that the person has not made sufficient progress to
be conditionally released. 725 ILCS 207/60(d) (West 2008).7
¶ 55 B. Applicable Standard of Proof
¶ 56 We are initially asked in these consolidated appeals to consider the proper standard for
assessing the evidence at a postcommitment probable cause hearing on a petition for
discharge or conditional release. Initially, we address whether the quantum of proof for
probable cause in postcommitment proceedings is the same standard we adopted in In re
5
The legislature has since repealed this section of the statute. Pub. Act 97-1075, § 10 (eff.
Aug. 24, 2012).
6
The amended statute currently provides that the court must determine whether there is
“probable cause to believe the person has made sufficient progress in treatment to the point where
he or she is no longer substantially probable to engage in acts of sexual violence if on conditional
release.” (Emphasis added.) Pub. Act 97-1075 (eff. Aug. 24, 2012) (amending 725 ILCS 207/60(c)).
Additionally, “[t]he probable cause hearing shall consist of a review of the examining evaluators’
reports and arguments on behalf of the parties.” Id.
7
The amended statute currently provides that the State must prove by clear and convincing
evidence that “the person has not made sufficient progress in treatment to the point where he or she
is no longer substantially probable to engage in acts of sexual violence if on conditional release.”
(Emphasis added.) Pub. Act 97-1075 (eff. Aug. 24, 2012) (amending 725 ILCS 207/60(d)).
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Detention of Hardin, 238 Ill. 2d 33 (2010). The resolution of this question involves a legal
issue to be reviewed de novo. Id. at 44.
¶ 57 In Hardin, this court considered the quantum of evidence needed to support a finding of
probable cause to believe that a person is a sexually violent person under the Act. Id. In
establishing the appropriate standard, this court rejected the respondent’s argument that a
reasonable doubt standard was proper. Rather, this court gave the term “probable cause” its
ordinary and popularly understood meaning. Id. at 48. In doing so, we looked to the concepts
applicable to probable cause determinations in the criminal context. We ultimately adopted
the evidentiary standard employed in the Wisconsin case of State v. Watson, 595 N.W.2d
403, 420 (Wis. 1999), to guide probable cause hearings in sexually violent person
proceedings. Id. We noted that we had previously found the Wisconsin statute to be
substantially similar to our own state statute, and found the Watson court’s rationale to be
consistent with this court’s approach to probable cause proceedings in criminal cases. Id. at
46, 48. The Watson court likened the probable cause hearing to a preliminary hearing in a
felony case, which “is designed to prevent ‘hasty, improvident or malicious prosecution’ and
‘to discover whether there is substantial basis for bringing the prosecution and further
denying the accused his right to liberty.’ [Citation.]” Watson, 595 N.W.2d at 418.
¶ 58 Under the standard we enunciated in Hardin, the moving party is merely required to
“ ‘establish a plausible account on each of the required elements to assure the court that there
is a substantial basis for the petition.’ ” (Emphasis in original.) Hardin, 238 Ill. 2d at 48(quoting Watson, 595 N.W.2d at 420). “In making that determination, the trial judge must
consider ‘all reasonable inferences that can be drawn from the facts in evidence.’ ” Id.
However, at this stage of the proceedings, the role of the trial judge is not to “ ‘choose
between conflicting facts or inferences’ ” (id.) or to engage in a “full and independent
evaluation of [an expert’s] credibility and methodology” (id. at 53). The trial court “should
not attempt to determine definitively whether each element of the [movant’s] claim can
withstand close scrutiny as long as some ‘plausible’ evidence, or reasonable inference based
on that evidence, supports it.” Id. at 51-52.
¶ 59 Although the facts in Hardin dealt with a precommitment probable cause hearing under
section 30 of the Act, we find that these same principles equally apply to postcommitment
probable cause hearings on petitions for discharge or conditional release. “[T]he hearing is
intended to be preliminary in nature, a ‘summary proceeding to determine essential or basic
facts as to probability’ *** remaining cognizant of the respondent’s liberty rights.” Id. at 52
(quoting Watson, 595 N.W.2d at 420). Thus, no compelling reason exists to treat those
proceedings differently for purposes of the probable cause standard.
¶ 60 We reject the State’s contention that the circuit court’s role in assessing the evidence in
the postcommitment probable cause hearing is different than in a precommitment
proceeding. The general presumption is that words in a statute are given their ordinary and
commonly understood meanings. People v. Phelps, 211 Ill. 2d 1, 15 (2004). “Where a word
is used in different sections of the same statute, the presumption is that the word is used with
the same meaning throughout the statute, unless a contrary legislative intent is clearly
expressed.” People v. Maggette, 195 Ill. 2d 336, 349 (2001).
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¶ 61 The State asserts that in a postcommitment probable cause hearing, the Act presupposes
that there may be conflicting expert opinions and the court should weigh those conflicting
opinions against each other in determining whether there is a reasonable basis for the petition
to proceed to an evidentiary hearing or trial. The State maintains that in a precommitment
probable cause hearing, in contrast, the detainee is not entitled to present an expert and,
therefore, the court would never be in a position to weigh competing opinions, warranting
a different assessment.
¶ 62 We reject the State’s premise. Nothing in the Act precludes an individual from presenting
evidence at a precommitment probable cause hearing, whether the evidence be presented
from cross-examination or from the presentation of a witness. Section 25(c) of the Act
expressly provides that, with exceptions not relevant here, at any hearing, any individual who
is the subject of a petition for commitment has the right “[t]o present and cross-examine
witnesses.” 725 ILCS 207/25(c) (West 2008). The court’s role in assessing the evidence
remains the same throughout the various probable cause hearings; that role is to determine
whether the movant has established “ ‘a plausible account on each of the required elements
to assure the court that there is a substantial basis for the petition.’ ” (Emphasis in original.)
Hardin, 238 Ill. 2d at 48 (quoting Watson, 595 N.W.2d at 420). Thus, the State has not
demonstrated that the legislature meant something different when it used the identical term
in sections 30(b), 60, 65 and 70 of the Act.
¶ 63 A similar argument was made by the State and rejected in the Wisconsin case of In re
Commitment of Kruse, 2006 WI App 179, 296 Wis. 2d 130, 722 N.W.2d 742. There, the
State asserted that at the probable cause hearing on a petition for discharge, the circuit court
should decide which of two conflicting reexamination reports is more persuasive. The
appellate court rejected that argument, finding instead that the purpose of the probable cause
hearing was similar to the purpose of a preliminary examination in that it “performs a
‘gatekeeping function’ by ‘provid[ing] an opportunity for the committing court to weed out
frivolous petitions by committed persons alleging that they are no longer dangerous and are
fit for release.’ ” Id. ¶ 31 (quoting In re Commitment of Paulick, 570 N.W.2d 626, 629 (Wis.
Ct. App. 1997)). The court found that the purpose of the hearing was to determine if there
was an adequate basis for an evidentiary hearing, but was not a substitute for an evidentiary
hearing. Id. Accordingly, the court held that the circuit court’s role was to determine whether
there was a plausible expert opinion that, if believed, would establish probable cause to
believe the individual was no longer a sexually violent person within the meaning of the
statute. Id. ¶ 32.
¶ 64 To allow the trial judge to weigh conflicting evidence and choose between expert
opinions at this “summary proceeding” would be beyond the scope of the limited inquiry
intended at a probable cause hearing and would render meaningless and unnecessary the
subsequent sections of the Act providing for a full hearing or trial. The probable cause
hearing is not a substitute for a full evidentiary hearing where disputed questions of fact can
be resolved by the trier of fact, and where the basis for the opinions and credibility
determinations can be fully explored. See In re Detention of Cain, 402 Ill. App. 3d 390, 397
(2010) (Stewart, J., dissenting) (to allow the court to choose between conflicting opinions
at a probable cause hearing would “allow[ ] the court to bypass all of the truth-seeking
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functions and protections of our rules of evidence”). Accordingly, for all of the foregoing
reasons, we hold that the quantum of proof and the circuit court’s role in assessing the
evidence at a postcommitment probable cause hearing is the same as that expressed by this
court in Hardin.
¶ 65 C. Scope of the Probable Cause Hearing
¶ 66 We next consider the parties’ dispute regarding the scope of evidence that is relevant to
these proceedings and whether the evidence adduced at the probable cause hearings was
sufficient to meet the probable cause standard.
¶ 67 At the outset, we stress that our consideration of this issue is dependent upon the relevant
statutory scheme at the time of these proceedings only, and does not address the scope of the
postcommitment proceedings under subsequent amendments. Under the relevant statute
applicable to these cases, to support a finding of probable cause on a petition for conditional
release under section 60(c), the committed person bears the burden to show sufficient
evidence “to believe that it is not substantially probable that the person will engage in acts
of sexual violence if on release or conditional release.” 725 ILCS 207/60(c) (West 2008). To
support a finding of probable cause on a petition for discharge under section 65(b)(1) or on
a first petition for discharge under section 70, the movant bears the burden to show sufficient
evidence to warrant a hearing on whether the person is “still a sexually violent person.”
(Emphasis added.) 725 ILCS 207/65(b)(1), 70 (West 2008). To make that determination, the
court must find that there is a plausible account that “the committed person is no longer a
sexually violent person.” (Emphasis added.) 725 ILCS 207/65(b)(2) (West 2008).
¶ 68 Given the statutory definition of a “sexually violent person,” it follows that in a discharge
proceeding, the committed individual must present sufficient evidence that he no longer
meets the elements for commitment: (1) he no longer “has a mental disorder”; or (2) he is
no longer “dangerous to others because the person’s mental disorder [no longer] creates a
substantial probability that he *** will engage in acts of sexual violence.” (Emphasis added.)
725 ILCS 207/5(f), 15 (West 2008).
¶ 69 The State maintains in both of these consolidated appeals that the experts’ opinions do
not address the relevant statutory elements under the Act. Specifically, the State argues that
the legislature intended the statutory terms “no longer” and “still” in section 65(b)(1) to mean
that there must be some plausible evidence of changed circumstances since the jury’s original
finding to warrant an evidentiary hearing or jury trial. The State argues that the legislature
did not intend to permit relitigation of the determination that these individuals have already
been adjudicated sexually violent persons.
¶ 70 Whether the experts’ opinions in these cases are relevant to establishing probable cause
to believe that the petitioners are “no longer” or are not “still” sexually violent requires a
construction of the statutory terms, which we review de novo. People v. Johnson, 2011 IL
111817, ¶ 15. The primary goal of statutory construction is to ascertain and give effect to the
intent of the legislature. People v. Marshall, 242 Ill. 2d 285, 292 (2012). We must construe
the statute as a whole and afford the language its plain and ordinary meaning. Id. We must
also avoid rendering any part meaningless or superfluous, and consider words and phrases
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in light of other relevant provisions of the statute. Id. In construing the statute, we may also
consider the consequences of construing the language one way as opposed to another and,
in doing so, we presume the legislature did not intend the statute to have absurd,
inconvenient, or unjust consequences. Id. at 293. The court may also properly consider the
reason and necessity for the law, the evils sought to be remedied and the purpose to be
achieved. Botruff, 212 Ill. 2d at 175.
¶ 71 The statutory terms “no longer” and “still” have not previously been construed in Illinois.
However, we find the Wisconsin case of In re Commitment of Combs, 2006 WI App 137,
295 Wis. 2d 457, 720 N.W.2d 684, to be instructive. In Combs, the court construed the “no
longer” and not “still” language under a similar statutory scheme and concluded that:
“[I]n order to provide a basis for probable cause to believe a person is no longer
sexually violent *** an expert’s opinion must depend upon something more than
facts, professional knowledge, or research that was considered by an expert testifying
in a prior proceeding that determined the person to be sexually violent. By way of
example, an opinion that a person is not sexually violent based at least in part on
facts about the committed person that did not occur until after the prior adjudication
would meet this standard, as would an opinion based at least in part on new
professional knowledge about how to predict dangerousness. These examples are not
exhaustive.” Id. ¶ 32.
The court rejected the proposition that probable cause may be established “without regard
to whether that opinion is based on matters that were already considered by experts testifying
at the commitment trial or a prior evidentiary hearing.” Id. The court reasoned that requiring
a change in the person’s condition or new research or methodology “serves the purpose of
ensuring that a person who is not sexually violent does not continue in commitment, while
avoiding continual relitigation of issues.” Id. ¶ 33. As a result, the court concluded that a
reevaluation which reached a conflicting opinion regarding the likelihood that the petitioner
would reoffend, but which relied on the same historical facts and methodologies already
adjudicated at trial, was insufficient to establish probable cause to believe that the individual
was no longer a sexually violent person. See also In re Commitment of Kruse, 2006 WI App
179, ¶¶ 35-41, 296 Wis. 2d 130, 722 N.W.2d 742 (affirming the trial court’s finding of no
probable cause where the expert report did not rely on any new facts, professional
knowledge, or research not previously adjudicated at the initial commitment proceeding).
¶ 72 The construction in Combs comports with the plain meaning of our statute when read as
a whole. By using the terms “no longer” and “still,” the legislature intended that the relevant
inquiry must begin with the premise that the individual has been adjudicated in the past with
a mental disorder that makes it substantially probable that he will reoffend. The legislature
intended that in postcommitment proceedings for discharge, the individual must present
some plausible evidence that demonstrates a change in the circumstances that led to this
finding. To hold otherwise would render the terms “no longer” or “still” superfluous. Under
the relevant statutory scheme, a change in circumstances could include a change in the
committed person, a change in the professional knowledge and methods used to evaluate a
person’s mental disorder or risk of reoffending, or even a change in the legal definitions of
a mental disorder or a sexually violent person, such that a trier of fact could conclude that
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the person no longer meets the requisite elements.
¶ 73 1. Stanbridge
¶ 74 Applying these principles, we address each case in turn to determine whether the experts
presented a plausible account that these individuals were “no longer” sexually violent
persons. At the outset, we note that this court may affirm a trial court’s judgment on any
grounds which the record supports even if those grounds were not argued by the parties.
Studt v. Sherman Health Systems, 2011 IL 108182, ¶ 48. At Stanbridge’s probable cause
hearing, the trial court recalled that Dr. Witherspoon previously gave an opinion at the
commitment trial that Stanbridge was not a sexually violent person in need of institutional
care. The trial court, having presided over that proceeding, found that Dr. Witherspoon’s
amended report rendered many of the same conclusions at the time of the original trial. The
trial court further noted that these opinions were rejected by the jury. Therefore, the trial
court concluded that Dr. Witherspoon had not presented sufficient evidence of changed
circumstances to warrant a full hearing on his petition.
¶ 75 Although the record does not include Dr. Witherspoon’s prior evaluation at the initial
commitment proceedings, based upon the unpublished order from Stanbridge’s direct appeal,
Dr. Witherspoon previously testified that his evaluation of Stanbridge did not reveal any
sexual psychopathology or sexual deviant tendencies and that Stanbridge presented a low risk
of reoffending. In re Kevin S., No. 4-08-0163 (2008) (unpublished order under Supreme
Court Rule 23). In Dr. Witherspoon’s amended psychological evaluation report, he renders
the same conclusions and continues to believe that Stanbridge’s risk remains low.
¶ 76 There is no indication that the bases for Dr. Witherspoon’s new diagnoses are predicated
upon any new facts or professional knowledge or research that was not already considered
by the experts testifying at the commitment trial and rejected by the jury. Stanbridge
concedes that “Dr. Witherspoon did not address factors related to Mr. Stanbridge’s progress,
change in condition or treatment as it relates to diagnosis.” Furthermore, there is no
indication that Dr. Witherspoon’s scoring of the actuarial instruments was based on any
events or factual information that was not already considered and rejected at the commitment
trial. Although Dr. Witherspoon considered denial as a dynamic risk factor that he believes
may now be considered as a protective factor in evaluating risk of recidivism, Dr.
Witherspoon did not opine that such a change could alone support a finding that Stanbridge
is no longer a sexually violent person. Nor has he represented that the 2002R revised
actuarial instrument yielded remarkably different scores for Stanbridge than the Static 99,
previously administered. Without some evidence of sufficient progress or other relevant
changed circumstances, the opinion was insufficient to establish probable cause. Therefore,
the trial court properly concluded that Stanbridge had not presented a plausible account that
he was “no longer a sexually violent person.” 725 ILCS 207/65(b)(2) (West 2008).
¶ 77 2. Lieberman
¶ 78 Dr. Schmidt’s first opinion that paraphilia NOS-nonconsent is not a valid mental disorder
is not directed at the statutory relevant criteria as to whether Lieberman is no longer a
sexually violent person. Dr. Schmidt testified that the diagnosis does not exist in the DSM.
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Dr. Ostrov and Dr. Suire testified that the diagnosis is valid and finds support in the DSM,
although not specifically listed as a disorder in the manual. Dr. Schmidt’s opinion recognized
a controversy in the profession regarding the validity of the diagnosis and acknowledged that
it has been an ongoing debate in the field and literature for the last 20 years. Indeed, we are
cognizant that the conflicting professional views on the subject have been vigorously argued
by others committed under the same diagnosis. See McGee v. Bartow, 593 F.3d 556, 580 (7th
Cir. 2010) (addressing the debate regarding the validity of the diagnosis in a habeas
challenge and ruling that the diagnosis of a rape-related paraphilic disorder is “not so
unsupported by science that it should be excluded absolutely from consideration by the trier
of fact”).8
¶ 79 Nevertheless, the purpose of these proceedings is to raise a plausible account that
Lieberman no longer has the disorder. Lieberman has already been found beyond a
reasonable doubt by a jury to meet the legal definition of having a valid mental disorder.
Lieberman cannot relitigate the fact that, in 2006, he was diagnosed with the disorder. Thus,
the proper issue before the court applying the statute should be whether there was a plausible
account of changed circumstances such that he no longer has the mental disorder for which
he was already adjudicated in 2006. Dr. Schmidt’s repeated explanation of an acknowledged
20-year-long debate in the medical community is not evidence of changed circumstances
since Lieberman’s commitment. Accordingly, Dr. Schmidt’s testimony on the validity of the
mental disorder is not relevant in this discharge proceeding.
¶ 80 Furthermore, Dr. Schmidt’s opinion that Lieberman does not currently have the mental
disorder of paraphilia was insufficient to establish probable cause to believe that he is no
longer sexually violent. The opinion was based upon historical facts, professional
knowledge, and research already debated by the experts testifying in the prior proceeding and
rejected by the jury. Dr. Diane Lytton testified on behalf of Lieberman at his commitment
trial. In support of her finding that Lieberman did not have a paraphilia, she based her
opinions on Lieberman’s family and social upbringing, his psychosocial development, and
the 15 mental health evaluations compiled while he was incarcerated, which did not diagnose
a paraphilia. She also relied upon Lieberman’s behavior while in prison, the fact that he was
allowed to be around women, his attitudes toward women in his past relationships, and the
fact that rape is not necessarily paraphilic. The jury rejected these same opinions. See In re
Detention of Lieberman, 379 Ill. App. 3d at 594-97.
¶ 81 Additionally, Dr. Schmidt offered no opinion on whether, assuming Lieberman had a
mental disorder, he was no longer substantially likely to reoffend if released into the
community. Dr. Schmidt offered no testimony directed at Lieberman’s future risk of
reoffending. The only opinion he offered related to this criteria was that those individuals
that have administered and scored Lieberman on the GAF scale believe that his symptom
8
Dr. Schmidt noted that the American Psychiatric Society has formed a task force to study
this issue and they have reported their opposition to the misuse of nonofficial diagnoses as applied
to these sexually violent persons commitment laws, finding that they “threaten to undermine the
legitimacy of the medical model of commitment.”
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severity and functioning capacity had improved substantially since he was detained in 1999.
However, Dr. Schmidt offered no opinion on whether he believed Lieberman would no
longer be substantially likely to reoffend based upon the GAF score alone if released into the
community. Accordingly, we cannot infer that based upon the testimony regarding his GAF
score alone, Dr. Schmidt was of the opinion that Lieberman would no longer be a danger to
the community. Accordingly, the trial court properly concluded that Lieberman had not
presented a plausible account that he was “no longer a sexually violent person.” 725 ILCS
207/65(b)(2) (West 2008).
¶ 82 We also reject Lieberman’s contention that he established probable cause to warrant a
hearing on his conditional release under section 60(c) of the Act. Dr. Ostrov, the court’s
appointed expert on conditional release, reported that there was insufficient evidence to
believe that it is not substantially probable that Lieberman will engage in acts of sexual
violence if released or conditionally discharged. 725 ILCS 207/60(c) (West 2008). As stated
previously, we find nothing in Dr. Schmidt’s testimony that, if believed, would support a
plausible account that Lieberman had made sufficient progress to show that he was
substantially unlikely to reoffend if released into the community. Accordingly, the trial court
properly denied Lieberman’s petition for conditional release.
¶ 83 D. Violation of Due Process and Ex Post Facto Clause
¶ 84 Lastly, we consider Lieberman’s contention that his continued confinement violates both
the due process and ex post facto clauses because it is premised solely on his past criminal
conduct. We disagree. The ex post facto clause, under article I, section 10, of the United
States Constitution, prohibits the states from passing any law that retroactively alters the
definition of a crime or increases the punishment for a criminal act. Collins v. Youngblood,
497 U.S. 37, 43 (1990). Only penal statutes may implicate federal ex post facto protection.
Kansas v. Hendricks, 521 U.S. 346, 370 (1997). “An Act, found to be civil, cannot be
deemed punitive ‘as applied’ to a single individual in violation of the *** Ex Post Facto
Clause[ ] and provide cause for release.” Seling v. Young, 531 U.S. 250, 267 (2001). Thus,
the constitutional principles prohibiting ex post facto laws apply only to criminal
proceedings. Hendricks, 521 U.S. at 361.
¶ 85 Furthermore, due process permits an individual to be held as long as he or she is both
mentally ill and dangerous, but no longer. Foucha v. Louisiana, 504 U.S. 71, 77 (1992). The
State’s experts opinion was that Lieberman continues to have a mental disorder and that he
continues to be dangerous. To the extent that the experts relied on prior criminal conduct to
make that determination, the experts opinions when viewed in context used “such conduct
*** solely for evidentiary purposes, either to demonstrate that a ‘mental abnormality’ exists
or to support a finding of future dangerousness.” Hendricks, 521 U.S. at 362. The evidence
presented did not seek to “affix culpability for prior criminal conduct.” Id. Rather, it used the
prior acts “solely for evidentiary purposes” to support a finding of Lieberman’s mental
disorder and future dangerousness. Id. at 371. As Dr. Suire testified, he considered not
merely the convictions, but the pattern of behaviors, the frequency, and other related
considerations to determine if the driving force behind the rape-type behavior was a specific
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urge toward nonconsenting sexual contact. As Hendricks explained, evidence of a prior
criminal act in a civil commitment proceeding may represent an “ ‘important indicator of
future violent tendencies.’ ” Id. at 358 (quoting Heller v. Doe, 509 U.S. 312, 323 (1993)).
Both experts explained that Lieberman’s past behaviors were important predictors of future
sexual violence. Accordingly, we find no merit to Lieberman’s constitutional contentions.
¶ 86 III. CONCLUSION
¶ 87 To summarize, we hold that the quantum of proof and the circuit court’s role in assessing
the evidence at a postcommitment probable cause hearing is the same as that expressed by
this court in Hardin. We further hold that based upon the relevant elements applicable to
these proceedings, the legislature intended that to present a plausible account, the committed
individual bears the burden to present sufficient evidence that demonstrates a change in the
circumstances that led to the initial commitment. Applying these principles to these
consolidated cases, we hold that the trial court properly dismissed the petitions for discharge
and conditional release.
¶ 88 No. 112337—Appellate court judgment reversed.
¶ 89 Circuit court judgment affirmed.
¶ 90 No. 112802—Affirmed.
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