In re Detention of New , 2013 IL App (1st) 111556 ( 2013 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
In re Detention of New, 2013 IL App (1st) 111556
Appellate Court In re THE DETENTION OF JOHN NEW JR. (The People of the State
Caption of Illinois, Petitioner-Appellee, v. John New Jr., Respondent-Appellant).
District & No. First District, Third Division
Docket No. 1-11-1556
Filed June 12, 2013
Held The commitment of respondent as a sexually violent person was reversed
(Note: This syllabus and the cause was remanded for a Frye hearing to determine whether the
constitutes no part of expert testimony diagnosing respondent as suffering from paraphilia not
the opinion of the court otherwise specified, sexually attracted to adolescent males, also known
but has been prepared as hebephilia, was sufficiently established to have gained general
by the Reporter of acceptance in the field in which it belonged, since respondent raised
Decisions for the serious questions as to the validity and unorthodoxy of the diagnosis.
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 05-CR-80002; the
Review Hon. Michael McHale, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Stephen F. Potts, of Law Office of Stephen F. Potts, of Des Plaines, for
Appeal appellant.
Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
Solicitor General, and Michael M. Glick and Erica Seyburn, Assistant
Attorneys General, of counsel), for the People.
Panel JUSTICE HYMAN delivered the judgment of the court, with opinion.
Presiding Justice Neville and Justice Pierce concurred in the judgment
and opinion.
OPINION
¶1 Involuntary commitment under the Illinois Sexually Violent Persons Commitment Act
(SVP Act) (725 ILCS 207/1 et seq. (West 2010)) is not punishment for the respondent’s past
crimes, nor should it be. The proceeding under the SVP Act is a statutorily created civil
action that considers the respondent’s current mental state to determine the likelihood of
respondent engaging in further acts of sexual violence on his or her release. Essentially, the
respondent’s liberty is tied to an assessment of the mental disorder and the risk of future
sexual offenses. These cases turn on expert testimony.
¶2 Respondent John New, Jr., appeals his commitment raising four issues: (i) whether the
court should have held a Frye hearing to determine whether the State’s expert testimony
regarding his diagnosis was admissible; (ii) whether the State improperly presented evidence
of certain psychological conditions not asserted in its petition; (iii) whether the SVP Act is
constitutional as applied to New; and (iv) whether the evidence at trial supported New’s
commitment as a sexually violent person. Finding the trial court erred by failing to conduct
the Frye hearing, we reverse and remand.
¶3 I. BACKGROUND
¶4 A. New’s Life and Criminal History
¶5 New did not testify, and the trial consisted of expert testimony only. We review the
expert testimony with the understanding that none of the experts had personal knowledge of
the events to which they testified.
¶6 New was born on April 29, 1963. He was diagnosed with bipolar disorder as a child.
When he was seven, he began consuming alcohol. In his teens, he smoked marijuana. When
he was young, a male neighbor sexually abused New, holding him at knife point and forcing
New to perform oral sex. In 1980, New, 17, was caught performing oral sex on a 15-year-old
boy. It is unclear whether this sex was consensual. New was convicted of contributing to the
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sexual delinquency of a child and received supervision.
¶7 When New was 23 he had a sexual encounter with an 11-year-old boy in an abandoned
warehouse. A few months later, New met the boy, who was then 12, and his friend, also age
12, on the street and bought them dinner. The three went to the same warehouse and the boy
performed anal sex on New. The friend declined New’s invitation to participate. New later
stated that he believed the friend was 17 and the boy was 15. As a result of these encounters,
New pleaded guilty to two counts of aggravated criminal sexual assault and was given seven
years in prison.
¶8 In 1992, New was placed on mandatory supervised release. During his release, New was
arrested for soliciting prostitution from an undercover male police officer whom New
described as young-looking. New’s parole was revoked, and he returned to the Illinois
Department of Corrections. New again received mandatory supervised release in 1994.
¶9 Thereafter, New took a job as a camp counselor for the Chicago park district. Watching
the children in the locker room aroused New. Occasionally, after observing the children, New
would go to a bar and pick up an adult male to perform oral sex on while fantasizing about
the children. New solicited sex from one of the children attending the camp. The child
refused but took $35 from New to help find a willing partner. The boy identified another
camper who was willing to have sex with New for money. In July 1995, in a swimming pool
locker room, New performed fellatio and anally penetrated the 14-year-old camper and then
had the camper perform oral sex on him. New was charged and convicted of one count of
aggravated criminal sexual assault and two counts of criminal sexual assault. Certified as a
“habitual sexual offender or child sexual offender,” New was sentenced to nine years in
prison. Later New said that he believed the camper, who was a ward of the state, was 15
years old.
¶ 10 In prison New underwent limited substance abuse and sex-offender treatments. The sex-
offender treatment consisted of six months of group therapy. New reported that he quit
participating in the treatment because he felt he was not learning much, and because he was
uncomfortable with the female therapist’s suggestion to masturbate.
¶ 11 New was scheduled for release in 2004. But 37 days before his release date, New was
accused of fondling the genitalis of a 19-year-old inmate who had recently arrived from the
youth facility. The inmate was a 6-foot 3-inch, athletic, black male with no facial or chest
hair. New later stated that this inmate made him “thirsty” and aroused. New requested the
inmate be transferred into his cell. He sexually fantasized about the inmate, imagining that
the inmate had no pubic hair. As a result of the fondling incident, New pleaded guilty before
the prison’s adjustment committee and received a sexual misconduct ticket, delaying his
release until March 2005. New later claimed that the inmate welcomed his advances.
¶ 12 In March 2005, the State filed a petition to have New committed as a sexually violent
person. The trial court held a probable cause hearing in December 2005 and found probable
cause to detain New at a facility of the Illinois Department of Human Services. While there,
New met a young-looking, bearded 20-year-old whom New had coached in 1994, when the
man was around 11 years old. New requested to room with the man and also admitted he was
attracted to him. Additionally, New requested to room with several residents at the facility
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and became angry when his requests were denied. At the human services facility, New
successfully completed the orientation group, the introduction to thinking errors groups, and
the anger management group. He participated in the tactics group and the life stressors group,
but did not participate in sex-offender treatment.
¶ 13 B. The SVP Act Trial
¶ 14 The SVP Act trial occurred in November 2010 before a jury. Three experts testified: Drs.
Fogel and Brucker for the State, and Dr. Witherspoon for New.
¶ 15 1. Dr. Fogel’s Testimony
¶ 16 Dr. Michael Fogel is a forensic psychologist. Based on his education and experience,
Fogel was qualified as an expert in clinical psychology in the area of assessing the risk that
a sex offender will re-offend.
¶ 17 Fogel reviewed New’s master file, including his mental health evaluations, records of his
current and previous medical issues, statements of facts from the State’s Attorney’s office,
and police reports of various criminal offenses. Clinical psychologists generally rely on and
accept these documents in evaluation of sex offenders. Fogel interviewed New twice, in 2004
and 2010. He also conducted two psychological tests, called the Hare Psychopathy Checklist
Revised and the Static 99.
¶ 18 Referring to the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, Text
Revision (DSM-IV-TR) (published by the American Psychiatric Association, the manual
provides the definitions of psychiatric diagnoses and is considered the definitive reference
for the categorical classification of mental disorders), Fogel testified that New suffers from
“paraphilia, not otherwise specified, sexually attracted to early pubescent males.” Fogel
defined early pubescence as between 11 and 14 years old. Paraphilia, a general class of
sexual disorders, is characterized by current, intense sexually arousing fantasies involving
sexual urges or behaviors generally involving (i) nonhuman objects, or (ii) the suffering or
humiliation of oneself or another, or children or other nonconsenting persons that occurs over
a period of six months. Further, the person must have acted on his or her sexual urges, or the
sexual urges or fantasies must have caused the person marked distress or inner-personal
difficulty. The “not otherwise specified” diagnosis indicates that New meets the paraphilia
diagnostic criteria in the DSM-IV-TR, but he does not fall neatly into one of the named
categories, such as voyeurism, sadism, or pedophilia. The “sexually attracted to early
pubescent males” is the specific diagnosis, the type of paraphilia.
¶ 19 The DSM-IV-TR describes paraphilias as “mental disorders [that] are characterized by
sexual fantasies, urges, or behaviors involving non-human objects (coprophilia, fetishism,
transvestic fetishism), suffering or humiliation (sexual sadism, masochism), children
(pedophilia) or other non-consenting person (voyeurism, frotteurism, exhibitionism).” There
is a debate whether to include a diagnosis of hebephilia in the upcoming DSM-V, and
according to Fogel, the proposed definition for hebephilia in the DSM-V is the same as
New’s diagnosis of paraphilia not otherwise specified, sexually attracted to early pubescent
persons. (Hebephilia refers to sexual attraction to pubescent children, that is to say, those
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early in their sexual development, around the ages of 11 to 14. Pedophilia, unlike hebephilia,
involves sexual attraction to prepubescent children, generally younger than 11.)
¶ 20 Fogel testified that New also suffered from antisocial personality disorder involving a
pervasive pattern of disregard for or violation of the rights of others. Fifty to eighty percent
of individuals that are incarcerated suffer from antisocial personality disorder. Fogel admitted
that New’s antisocial personality disorder alone would not determine him to be a sexually
violent person.
¶ 21 According to Fogel’s analysis, New had suffered under and acted on his sexual urges
toward adolescent males since his twenties. New chose his victims based on looks (preferring
tall, athletic, African American, young-looking men without facial or chest hair), and
vulnerability, typically, those who had a history of sexual abuse. Fogel noted that New
befriended younger boys, often overestimating their age, and would then fantasize about
them. Fogel said New described himself at times as a passive recipient of the boys’ advances,
and at other times admitted that he sought out certain individuals.
¶ 22 New told Fogel that he has sexual fantasies about adolescent males and felt somewhat
powerless over his urges. Specifically, that he masturbated while fantasizing about
performing oral sex on young-looking inmates and on adolescent television actors. Fogel
reported that, before being imprisoned, New used marijuana to alleviate his shame about
these fantasies, though the shame did not stop him from re-offending. New told Fogel that
he would not solicit minors again because he feared spending the rest of his life in prison.
¶ 23 On a standardized actuarial measure (similar to those developed by insurance companies)
known as the Static 99, New scored in the high range. Fogel said the Static 99 evaluates a
man’s risk of committing future sex offenses based on objective data in 10 static categories,
including his age, his romantic partners, and whether his victim was male and unrelated to
him. The Static 99 is the most researched, cross-validated, and widely used actuarial measure
for sexual recidivism. On the Static 99, New scored a seven, placing him at a high risk of re-
offending when compared to other male sex offenders. Among others in the high risk
category, 26% committed a sexual offense within 5 years, 34% within 10 years, and 37%
within 15 years. But, because these percentages excluded unreported offenses, some reported
offenses that did not result in an arrest, and some reported offenses that did not result in
formal charges, the percentages underestimate the actual recidivism rate. Fogel admitted that
he did not use updated, more accurate actuarial measures, either the Static 99R or the Static
2002R. Fogel testified that New would have scored a six on the updated measures, a score
that still places him in a high risk category.
¶ 24 On the Hare Psychopathy Checklist, New showed a moderate range of psychopathic
personality traits. The checklist considers two factors: (i) an individual’s “personal affective
component of the psychological contract of psychopathy,” and (ii) antisocial personality
traits. In the later, New was in the twentieth percentile among the male prison population.
Psychopathic personality traits include callous, remorseless, and manipulative behaviors.
¶ 25 Fogel testified that, while a paraphilia diagnosis did not predispose a person to be
sexually violent, New’s paraphilia diagnosis did because of serious difficulty controlling his
sexual urges. In support, Fogel pointed to New’s history of sexual offenses, which continued
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despite legal sanctions, and his continued sexual attraction to adolescent males.
¶ 26 New claimed during his interview with Fogel that he would be less likely to re-offend if
he had a community to support him. Fogel spoke with New’s mother and stepfather. Neither
of them was aware of New’s history of sexual offenses or the victims’ ages. Fogel said that
since New’s mother and stepfather did not know about his history, they would not be able
to offer the kind of support New needed.
¶ 27 Other risk factors associated with recidivism increased New’s risk that he would re-
offend. These factors include: (i) never having completed sex-offender treatment; (ii) the lack
of a long-term romantic relationship; (iii) a history of establishing relationships with
vulnerable youth in an effort to sexually offend; (iv) poor control over his sexual impulses;
(v) the lack of concern for others; and (vi) his attitude of condoning or excusing his own
sexual offenses.
¶ 28 Fogel also considered factors that might mitigate New’s risk of re-offending: (i) New’s
age; (ii) his limited participation in sex-offender treatment; (iii) his claim that he suffered
from erectile dysfunction; and (iv) his family support system. Fogel felt neither New’s age
at trial, 42, nor the other factors mitigated the risk that New would sexually re-offend.
¶ 29 Fogel testified that New’s paraphilia would not go away without treatment, though he
admitted that treatment could be on an out-patient basis. Taking into account New’s
paraphilia, history of sexual offenses, and the results of the Static 99 measure, along with
New’s exposure to risk factors associated with recidivism, Fogel concluded that there was
a substantial probability New would commit an act of sexual violence in the future, although
Fogel admitted no tests determine with absolute certainty whether a sex offender will re-
offend.
¶ 30 2. Dr. Brucker’s Testimony
¶ 31 The State’s other expert, Robert Brucker, examined New, too. Brucker is a licensed
clinical psychologist. The court certified him as an expert in clinical psychology, specifically
relating to sex-offender evaluation, risk assessment, and treatment.
¶ 32 Brucker reviewed New’s master file and interviewed him in January 2006. Brucker
administered three written psychological tests: (i) the Minnesota Multiphasic Personality
Inventory II (MPPI-II), a psychological test designed to collect information about an
individual’s mental health issues and personality traits; (ii) the Millon Clinical Multiaxial
Inventory III (MCMI-III), a test similar to the first except that it focuses on chronic
personality traits; and (iii) the Multiphasic Sex Inventory III, which provides information
related to people and their tendencies and thoughts related to sex offending. Brucker updated
his report in December 2009 with additional medical and treatment documents, and
psychological evaluations.
¶ 33 Brucker noted that New’s history of sexual offenses and sexual misconduct showed that
his victims were typically between 12 and 15 years old, and that New’s behavior did not
change, even after being imprisoned. Brucker testified that New suffered from five mental
disorders. The first disorder was paraphilia not otherwise specified, sexually attracted to
adolescent males, nonexclusive type. Brucker defined paraphilia in the same way as Fogel,
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and added that the diagnosis did not necessarily indicate criminal behavior, but did indicate
deviant sexual interest. Brucker found New’s paraphilia manifested in his recurrent sexual
interest in teenage boys, and his desire to room with young-looking people in the correctional
and mental health facilities. Brucker also noted that New acknowledged that teenage males
arouse him, and that he fantasizes about them while masturbating, though New denied this
attraction after 2005.
¶ 34 The second, third, and fourth disorders were alcohol dependence with physiological
dependence in a controlled environment, cannabis dependence without physiological
dependence in a controlled environment, and cocaine abuse. Brucker testified that New
began using alcohol and marijuana at the age of seven. New consistently abused alcohol up
until his 1995 incarceration, but reportedly stopped using marijuana at age 21. New began
to abuse cocaine around age 14 or 15, but could not afford the drug most of the time. Brucker
noted that while alcohol was not currently available to New, every time New was released,
he would rush back to using alcohol and was reportedly under the influence of substances
each time he committed a sexual offense. The fifth mental disorder was antisocial personality
disorder.
¶ 35 New’s paraphilia, according to Brucker, affected his volitional capacity in that he could
not stop himself from engaging in sexual conduct with boys between the ages of 12 to 15 and
predisposed him to commit acts of sexual violence. In reaching this conclusion, Brucker used
three actuarial instruments–the Static 99, the Static 99R, and the Minnesota Sex Offender
Screening Toll, Revised (MnSOST-R)–and considered other risk factors related to predicting
future sexual offenses. Brucker admitted that using multiple actuarial instruments may not
increase the prediction’s accuracy. Again, New scored a seven on the Static 99, placing him
in a high risk category. On the Static 99R, New scored a six, also placing him in a high risk
category. On the MnSOST-R, which considered additional risk factors not included in the
Static 99 or 99R, New scored a 14, the highest risk category.
¶ 36 Other risk factors Brucker considered included New’s deviant sexual interests, his
antisocial personality disorder, an elevation in the psychopathic deviant scale on the MPPI-II,
interpersonal relationship conflicts, and intoxication while offending. Brucker also
considered New’s age, sex-offender treatment, and any serious and debilitating medical
conditions. Brucker concluded that New’s age did not lower his risk of sexually re-offending,
and that New did not have a serious or debilitating medical condition that would prevent him
from offending.
¶ 37 Brucker opined New’s paraphilia, other diagnoses, and other risk factors increased New’s
likelihood of sexually re-offending, and that, due to his mental disorders, it was substantially
probable that New would commit future acts of sexual violence.
¶ 38 3. Dr. Witherspoon’s Testimony
¶ 39 Dr. Kirk Witherspoon, a licensed psychologist, testified on New’s behalf. The court
certified Witherspoon as an expert in forensic psychology with a specialty in consulting
evaluations.
¶ 40 Witherspoon conducted a clinical interview with New in January 2010 and reviewed
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New’s criminal history, mental health records, Department of Corrections records, human
services records, and other evaluators’ reports regarding New’s condition. In addition,
Witherspoon conducted a mental status exam, a four-year structured sentence completion
test, a personal problems checklist, a personality disorder or psychopathology test called the
MCMI-III, the MnSOST, informal sexual attitude and interest questionnaires, and a sexual
history form.
¶ 41 Witherspoon interpreted these tests in the context of the same information considered by
Fogel and Brucker. Witherspoon testified that New’s substance abuse disorder was either in
remission or resolved, and that New had a personality disorder with mild antisocial and
histrionic traits. Witherspoon said that New’s history of sexual offenses did not indicate he
had a mental disorder because “it’s normal for adults to be sexually attracted to other adults
and also to sexually immature adolescents,” and while illegal to act on those feelings, it is
not considered a pathology. Witherspoon said that paraphilia not otherwise specified,
sexually attracted to adolescent males, is not a generally accepted diagnosis, unlike
pedophilia, where a person is sexually attracted to children who have not reached puberty.
¶ 42 As to risk assessment, Witherspoon used a structured risk assessment method called the
Sexual Violent Risk 20 (SVR 20), which evaluates a person’s deviant sexual attitudes and
interests, interpersonal relationships, and self-management difficulties. He also employed the
Static 2002R, and another tool that measured more dynamic variables. On the SVR 20, New
fell into a moderate category of risk. Comparing the Static 2002R with the Static 99 and
Static 99R, the Static 2002R is more accurate and uses more conceptually meaningful
categories than mere statistical correlation. On the Static 2002R, New scored in the moderate
high category, but Witherspoon adjusted that to low/moderate based on the SVR 20 and
New’s health problems. On cross-examination, Witherspoon admitted that he improperly
scored the Static 2002R, and that New was actually in a high risk category before the
adjustment. Witherspoon believed that New did not need sex-offender treatment and had
only a 15% chance of re-offending, and that chance would decrease each year until, after 10
years, there was almost no chance New would re-offend.
¶ 43 4. Verdict and New’s Posttrial Motion
¶ 44 The jury found New to be a sexually violent person under the SVP Act. The court
committed New to a treatment facility with the Illinois Department of Human Services. New
filed a motion for a new trial. The circuit court denied the motion, and this appeal followed.
¶ 45 II. ANALYSIS
¶ 46 A. New’s Diagnosis and Frye
¶ 47 Fogel diagnosed New with “paraphilia, not otherwise specified, sexually attracted to early
pubescent males.” Brucker diagnosed New with “paraphilia not otherwise specified, sexually
attracted to adolescent males, non-exclusive type.” New contends that the mental disorder
about which Fogel and Brucker testified should have been subjected to a Frye hearing to test
its admissibility. New contends the mental disorder is novel, not generally accepted in the
community of mental health professionals, and its diagnosis cannot produce reliable results.
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The State responds that Frye does not apply to a diagnosis because a diagnosis does not
constitute a scientific principle or methodology. Our standard of review of the denial of a
motion in limine based on a Frye issue is de novo review. In re Commitment of Simons, 213
Ill. 2d 523, 531 (2004).
¶ 48 The SVP Act authorizes the involuntary civil commitment of “sexually violent persons”
for “control, care and treatment.” 725 ILCS 207/40(a) (West 2010). The SVP Act defines a
“sexually violent person” in two parts. First, as “a person who has been convicted of a
sexually violent offense, has been adjudicated delinquent for a sexually violent offense, or
has been found not guilty of a sexually violent offense by reason of insanity.” 725 ILCS
207/5(f) (West 2010). And second, as a person “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 2010).1
¶ 49 The SVP Act defines a “mental disorder” 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 2010). The courts have defined “substantially probable”
to mean “ ‘much more likely than not.’ ” In re Detention of Bailey, 317 Ill. App. 3d 1072,
1085-86 (2000). If the court or jury is “satisfied beyond a reasonable doubt that the person
is a sexually violent person,” he or she may be indefinitely committed “until such time as the
person is no longer a sexually violent person.” 725 ILCS 207/35(f), 40(a) (West 2010).
¶ 50 Illinois has adopted the standard set forth in Frye v. United States (293 F. 1013 (D.C. Cir.
1923)) with regard to the admissibility of expert testimony. In re Commitment of Simons, 213
Ill. 2d 523, 529 (2004). The Frye standard is codified in the Illinois Rules of Evidence:
“Where an expert witness testifies to an opinion based on a new or novel scientific
methodology or principle, the proponent of the opinion has the burden of showing the
methodology or scientific principle on which the opinion is based is sufficiently established
to have gained general acceptance in the particular field in which it belongs.” Ill. R. Evid.
702 (eff. Jan. 1, 2011).
¶ 51 New contends that a diagnosis of paraphilia not otherwise specific, sexually attracted to
adolescents, is hebephilia. The State disagrees with this conclusion, but the State’s expert,
Dr. Fogel, agreed that his diagnosis was a hebephilia diagnosis. As part of his motion in
limine to exclude the diagnosis, New cited numerous academic articles that questioned the
validity of categorizing hebephilia as a mental disorder. A proponent of including hebephilia
in the upcoming DSM-V, Dr. Ray Blanchard, defined hebephilia as an erotic preference for
pubescent children, around the ages of 11 to 15. Ray Blanchard et al., Pedophilia,
Hebephilia, and the DSM-V, Archives of Sexual Behavior (2008). But opponents contend
the hebephilia diagnosis may dramatically expand or add “to the DSM diagnostic categories
of mental disorders without any evidence or reasoning that those who would be newly
1
After 2010, the Generally Assembly updated the definition of a sexually violent person to
include specific offenses, but because New conceded at trial that his criminal history satisfied the
first portion of section 5(f), those updates are not relevant. See Pub. Act 96-1551 (eff. July 1, 2011);
Pub. Act 97-1150 (eff. Jan. 1, 2013).
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included under the mental disorder rubric can be properly categorized as mentally
disordered.” Philip Tromovitch, Manufacturing Mental Disorder by Pathologizing Erotic
Age Orientation: A Comment on Blanchard et al. (2008), Archives on Sexual Behavior
(2008) (letter to the editor); see also Karen Franklin, Hebephilia: Quintessence of Diagnostic
Pretextuality, Behavioral Sciences & the Law (2010) (“unlike the listed examples of
paraphilias not otherwise specified in the DSM-IV-TR, which are all extremely rare, adult
male attraction to adolescent children is common”); Gregory DeClue, Should Hebephilia Be
a Mental Disorder? A Reply to Blanchard et al. (2008), Archives on Sexual Behavior (2008)
(“The decision to classify a pattern of sexual attraction as a mental disorder (paraphilia)
inevitably entails more than (1) reliable differences in patterns of sexual attractions and (2)
checking law books to see which sexual activities are currently illegal in a particular
jurisdiction.” (letter to the editor)); Thomas K. Zander, Adult Sexual Attraction to Early-
Stage Adolescents: Phallometry Doesn’t Equal Pathology, Archives on Sexual Behavior
(2008) (“Clinicians who are currently using the miscellaneous DSM diagnosis of paraphilia
not otherwise specified to pathologize adult sexual attraction to adolescents of all stages of
sexual development are creating a diagnosis on an ad hoc basis.” (letter to the editor)).
¶ 52 As a noun, “a diagnosis” is defined as the “determination of a medical condition (such
as a disease) by physical examination or by study of its symptoms. The result of such an
examination or study.” Black’s Law Dictionary 518 (9th ed. 2009). As a verb, “to diagnose”
indicates process and method, and is defined as the “art or act of identifying a disease from
its signs and symptoms.” Webster’s Third New International Dictionary 622 (1993). The
State’s argument conflates these two usages.
¶ 53 As these definitions indicate, diagnosing a medical condition, in this case a mental
disorder, by considering characteristic signs and symptoms presupposes a mental condition
exists as a matter of scientific evidence. Put another way, a prerequisite for a diagnosis is
scientific evidence that such a mental condition exists. Absent reliable scientific validation
or acceptance of the mental condition, its presence would be merely theoretical. Before
diagnosis comes identifying, naming, describing, and classifying the condition. A Frye
hearing is appropriate to determine whether an emerging diagnosis is an actual illness or
disorder. See Bernardoni v. Industrial Comm’n, 362 Ill. App. 3d 582, 594 (2005)
(“[G]enerally, if the proposed testimony concerns a syndrome that has not yet been admitted
in Illinois, then the trial court should conduct a Frye hearing to determine the scientific
validity, or invalidity, of the syndrome.”); People v. Taylor, 552 N.E.2d 131, 134-35 (N.Y.
1990) (applying Frye to validity of rape trauma syndrome); Kuxhausen v. Tillman Partners,
L.P., 197 P.3d 859, 863 (Kan. Ct. App. 2008) (applying Frye to determine validity of
emerging diagnosis accepted by only limited number of medical doctors); cf. In re Marriage
of Bates, 212 Ill. 2d 489, 519-20 (2004) (discussing application of Frye to validity of parental
alienation syndrome, though deciding case on other grounds).
¶ 54 If we were to accept the State’s arguments, litigants could proffer fictional conditions.
Justice does not put the fact finder in the position of culling good science from bad.
Moreover, the State’s distinction would so narrow the Frye test as to make it almost
meaningless. The purpose of a Frye hearing is to safeguard the court’s truth-finding role
(People v. Zayas, 131 Ill. 2d 284, 294 (1989)), ensuring that the fact finder cannot make
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findings based on unsound science.
¶ 55 The State points to case law from other jurisdictions holding that psychological diagnoses
are not subject to Frye. We find their cases distinguishable. In In re the Detention of Berry
(248 P.3d 592 (Wash. Ct. App. 2011)), the Washington Court of Appeals held that the
diagnosis of a mental disorder was not subject to a Frye hearing because psychological
analysis is a generally accepted methodology, and because arguments as to the validity of a
diagnosis go to the weight of expert testimony, not admissibility. Berry, 248 P.3d at 595-97.
But this is beside the point. The issue here is the validity of the mental disorder. Unless
established, we expose the justice system to avenues of future regret, whereby a so-called
mental disorder that has not reached, and may never reach, a critical mass of general
acceptance yet forms the basis of an individual’s loss of liberty. A Frye hearing was meant
to preclude this kind of “junk science.”
¶ 56 In Westerheid v. State, 767 So. 2d 637, 657 (Fla. Ct. App. 2000), the court declined to
address the Frye issue, but noted in dicta that “neither expert used any psychological profile
or syndrome designed to identify violent sexual predators which may very well be subject
to a Frye analysis. Rather, both experts rendered their opinions in this case based on their
training and experience.” Westerheide, 767 So. 2d at 657. The Florida court in Westerheide
relied on the pure opinion exception to Frye. See Noakes v. National R.R. Passenger Corp.,
363 Ill. App. 3d 851, 858 (2006) (“Pure opinion testimony that does not involve a new or
novel scientific technique or procedures or depend upon new or novel scientific principles
to support its conclusion need not be subjected to a Frye test.”). But that exception does not
apply. Fogel and Brucker based their testimony on more than their training and experience.
Indeed, it is difficult to imagine a forensic psychologist testifying that a respondent is
substantially likely to commit acts of sexual violence in the future based on his or her
training and experience alone.
¶ 57 The third case, People v. Ward, 83 Cal. Rptr. 2d 828 (Cal. Ct. App. 1999), held that
under California law scientific evidence, but not expert medical opinion, is subject to Frye.
Id. at 831. The court reasoned “[n]o precise legal rules dictate the proper basis for an expert’s
journey into a patient’s mind to make judgments about his behavior,” and that psychological
evaluation is “a learned professional art” while Frye only applies to “exact sciences.”
(Emphasis omitted and internal quotation marks omitted.) Id. We do not find the
characterization of psychology as an art to be a meaningful one under Frye. “[T]he Frye rule
is meant to exclude methods new to science that undeservedly create a perception of certainty
when the basis for the evidence or opinion is actually invalid.” Donaldson v. Central Illinois
Public Service Co., 199 Ill. 2d 63, 78 (2002). It is not the purview of the courts to exclude
entire fields of study from the general acceptance test because those sciences are “softer,”
while allowing experts in those fields to present opinions that create a perception of scientific
certainty. Creating these exceptions opens the justice system to abuse.
¶ 58 Also of import, a liberty interest is at stake in proceedings under the SVP Act. Liberty
includes the right to “generally to enjoy those privileges long recognized at common law as
essential to the orderly pursuit of happiness by free men” and women. (Internal quotation
marks omitted.) Ingraham v. Wright, 430 U.S. 651, 673 (1977). “Because involuntary
commitment procedures implicate substantial liberty interests, the respondent’s interests
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must be balanced against the dual objectives of involuntary admissions: (1) providing care
for those who are unable to care for themselves due to mental illness and (2) protecting
society from the dangerously mentally ill.” In re Lance H., 2012 IL App (5th) 110244, ¶ 21.
Thus, the purpose of civil commitment is treatment, not punishment. Id. As is noted in the
DSM-IV-TR, a “mental disorder” denotes the boundary between “normality and pathology.”
Am. Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders xxxi (4th ed.,
text rev. 2000).
¶ 59 This boundary in involuntary commitment proceedings is the difference between
treatment and impermissible retribution. See Kansas v. Hendricks, 521 U.S. 346, 373 (1997)
(Kennedy, J., concurring) (“[I]f it were shown that mental abnormality is too imprecise a
category to offer a solid basis for concluding that civil detention is justified, our precedents
would not suffice to validate it.”). That is, if a respondent in an SVP proceeding does not
suffer from an actual mental disorder, then there is nothing to cure, and commitment is
pointless. Accordingly, we hold that a diagnosis of a novel condition is subject to the general
acceptance test under Frye.
¶ 60 The State further argues that it sustained its burden of showing general acceptance. The
proponent of the evidence bears the burden of showing general acceptance. People v.
McKown, 236 Ill. 2d 278, 294 (2010); Ill. R. Evid. 703 (eff. Jan. 1, 2011). A proponent can
prove general acceptance through the “use [of] scientific publications, prior judicial
decisions, practical applications, as well as the testimony of scientists as to the attitudes of
their fellow scientists.” People v. Kirk, 289 Ill. App. 3d 326, 332 (1997). General acceptance
does not mean universal or even majority acceptance, but requires a showing of reasonable
reliance by experts in the relevant field. In re Commitment of Simons, 213 Ill. 2d 523, 529-30
(2004). Behind the general acceptance test is the idea that there is value in consensus.
¶ 61 In his motion in limine, New raised serious questions regarding the validity and
unorthodoxy of the State’s diagnosis of paraphilia not otherwise specified sexually attracted
to adolescent males, also known as hebephilia. In response, the State argued that because
paraphilia not otherwise specified was in the DSM-IV-TR, it was a generally accepted
diagnosis, but did nothing to show that the addendum to the diagnosis “sexually attracted to
early pubescent males” was generally accepted as a mental disorder. At the hearing before
the trial court, the State admitted that there was controversy regarding the addendum its
experts attached to the diagnosis. The State did not provide support showing that the
addendum was generally accepted. As the proponent, the State bore the burden of showing
general acceptance. Therefore, the court should have conducted a Frye hearing, and it is error
to fail to do so. See In re Detention of Hargett, 338 Ill. App. 3d 669, 675 (2003) (reversing
for refusal to hold a Frye hearing in SVP Act case).
¶ 62 Accordingly we reverse and remand for a Frye hearing, and, if necessary, a new trial.
¶ 63 B. Diagnoses Not Pleaded in the State’s Petition
¶ 64 Before trial, New requested an instruction that the jury could not commit him based on
any mental disorder other than the paraphilia diagnosis. The trial court denied this motion.
New argues that the trial court erred in permitting the State to elicit testimony and argue for
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involuntary commitment based on mental disorders not pleaded in its petition. We review
the trial court’s decision for an abuse of discretion, which occurs where “the instructions
mislead the jury and result in prejudice to the litigant.” Taylor v. County of Cook, 2011 IL
App (1st) 093085, ¶ 79. We find no prejudicial or misleading variance between the pleadings
and proof.
¶ 65 The State’s SVP Act petition must allege, among other things, that the respondent “has
a mental disorder” and “is dangerous to others because [his or her] mental disorder creates
a substantial probability that he or she will engage in acts of sexual violence.” 725 ILCS
207/15(b)(4), (b)(5) (West 2010). A “mental disorder” is “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 2010). In other words, to state a cause of action,
the State needs to plead, among other things, the respondent’s mental disorder, its affect on
his or her volitional or emotional capacity, and a substantial probability that due to the
mental disorder the respondent will commit future acts of sexual violence.
¶ 66 Generally, in civil litigation, variance between the pleadings and the proof “will not be
deemed material unless it misleads the adverse party to his [or her] prejudice.” Cummings
v. Dusenbury, 129 Ill. App. 3d 338, 346 (1984); Tomlinson v. Dartmoor Construction Corp.,
268 Ill. App. 3d 677, 685 (1994).
¶ 67 The State’s petition alleged New suffers from the mental disorder paraphilia not
otherwise specified, listing no other mental disorders. At trial, Fogel and Brucker testified
that New suffered from (i) paraphilia not otherwise specified, sexually attracted to early
pubescent persons, (ii) antisocial personality disorder, and (iii) numerous substance abuse
disorders. In closing argument, the State urged that all of these mental disorders together
made it much more likely that New would commit sexual violence again.
¶ 68 “[F]or a variance between allegations and proof to constitute reversible error, the
variance must be shown to be material,” misleading one party to its prejudice. Tomlinson v.
Dartmoor Construction Corp., 268 Ill. App. 3d at 685. New fails to show any prejudice from
the variance between the State’s pleadings and the proof.
¶ 69 New submits that any variation between the pleadings and proof constitutes reversible
error. We disagree that this is the current standard in Illinois. Although case law states that
“proof without pleadings is as defective as pleadings without proof” (Colonial Inn Motor
Lodge ex rel. Cincinnati Insurance Co. v. Gay, 288 Ill. App. 3d 32, 40 (1997)), this is
tempered by the requirement that the party objecting to the variance show prejudicial effect.
Cummings v. Dusenbury, 129 Ill. App. 3d at 346. Prejudice often takes the form of surprise.
None appears here since New’s expert rebutted the State’s diagnosis of substance abuse
disorders and mitigated the antisocial personality disorder diagnosis. See Losurdo Bros. v.
Arkin Distributing Co., 125 Ill. App. 3d 267, 271 (1984) (holding objection to variance
waived where party introduces evidence rebutting unpleaded allegations). Thus, we find no
prejudice resulting from the variance.
¶ 70 C. As-applied Constitutionality of the SVP Act
¶ 71 Next, New argues that the Cook County circuit court applies the SVP Act in an
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unconstitutional manner by treating a civil proceeding as a criminal case. New supports his
contention by noting that in Cook County, SVP Act cases: (i) are adjudicated by judges in
the criminal division, (ii) are given criminal case numbers, (iii) are assigned to the criminal
appeals division at the State’s Attorney’s office, and (iv) take place in the criminal court’s
building.
¶ 72 We find the issue procedurally defaulted and decline to address it. New provides no
framework, cites no law, and offers little guidance as to why the circuit court’s treatment of
SVP Act cases violates the due process or equal protection clause. Under Illinois Supreme
Court Rule 341(h)(7) (eff. Feb. 6, 2013), appellants must present fully developed arguments
with adequate legal and factual support or face procedural default. Housing Authority v.
Lyles, 395 Ill. App. 3d 1036, 1040 (2009). The challenging party has the burden to show a
statute is invalid over the strong presumption favoring constitutionality. People v. Masterson,
2011 IL 110072, ¶ 23. New has not met his initial burden to comply with the appellate rules.
Id.
¶ 73 D. New’s Commitment as a Sexually Violent Person
¶ 74 Because we reverse and remand this case for a Frye hearing and possibly retrial, we
decline to review the results of New’s first trial.
¶ 75 III. CONCLUSION
¶ 76 For the reasons stated above, we reverse and remand for a Frye hearing, and if necessary,
a new trial.
¶ 77 Reversed and remanded.
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