In re Commitment of Bauer , 2020 IL App (2d) 180905 ( 2020 )

2020 IL App (2d) 180905No. 2-18-0905
Opinion filed June 4, 2020
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
In re COMMITMENT OF NICHOLAS R. ) Appeal from the Circuit Court
BAUER ) of Lee County.
)
) No. 09-MR-64
)
(The People of the State of Illinois, ) Honorable
Petitioner-Appellee, v. Nicholas R. Bauer, ) Daniel A. Fish,
Respondent-Appellant.) ) Judge, Presiding.
JUSTICE McLAREN delivered the judgment of the court, with opinion.
Justices Hutchinson and Jorgensen concurred in the judgment and opinion.
OPINION
¶ 1 Respondent, Nicholas R. Bauer, appeals the trial court’s orders (1) finding, after a hearing
pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), that the diagnosis of hebephilia
has been generally accepted in the relevant scientific community and (2) finding him to be a
sexually violent person (SVP). Hebephilia is defined as “the strong, persistent sexual interest by
adults in pubescent children who are in early adolescence, typically ages 11-14 and showing
Tanner stages 2 to 3 of physical development.” Wikipedia, https://en.wikipedia.org/wiki/
Hebephilia (last visited June 3, 2020). We affirm.
¶2 I. BACKGROUND
¶ 3 Respondent was convicted in 2007 of one count of indecent solicitation of a child (720 ILCS
5/11-6(a) (West 2006)) and sentenced to six years in the Illinois Department of Corrections
2020 IL App (2d) 180905(IDOC), to be followed by one year of mandatory supervised release. In 2009, the State filed a
petition for an order of commitment pursuant to the Sexually Violent Persons Commitment Act
(Act) (725 ILCS 207/1 et seq. (West 2008)), seeking an order of detention pursuant to section 30(a)
of the Act and commitment to the Illinois Department of Human Services for control, care, and
treatment pursuant to section 40 of the Act. The State alleged, inter alia, that respondent had been
evaluated by Dr. Ray Quackenbush, a clinical psychologist, who diagnosed respondent as suffering
from the mental disorders of (1) “Paraphilia, Not Otherwise Specified, with Mixed Features” and
(2) “Personality Disorder, Not Otherwise Specified, with Antisocial Features.” In 2015, the State
amended its petition, deleting any reference to Quackenbush and his diagnoses. Instead, the State
cited the diagnoses of two other doctors: (1) Dr. Richard Travis diagnosed respondent as having
“Other Specified Paraphilic Disorder, Sexually [sic] Arousal To Early Pubescent Females,
Nonexclusive Type” and (2) Dr. Angeline Stanislaus diagnosed respondent as suffering from
“Other Specified Paraphilic Disorder—Hebephilia.” Paraphilia is defined as “a pattern of recurring
sexually arousing mental imagery or behavior that involves unusual and especially socially
unacceptable sexual practices (such as sadism or pedophilia).” Merriam- Webster Online
Dictionary, https://www.merriam-webster.com/dictionary/paraphilia (last visited June 3, 2020).
¶ 4 Respondent filed a motion in limine seeking to bar the testimony of the State’s evaluators or
to subject portions of it to a hearing pursuant to Frye, 293 F. 1013. Respondent amended his motion
in light of the State’s amended petition, deleting certain evaluators and adding Travis and
Stanislaus. According to respondent, both Travis and Stanislaus submitted “a diagnosis of
hebephilia.” Respondent argued that, pursuant to our supreme court’s decision in In re Detention
of New, 2014 IL 116306, a Frye hearing was required to determine whether the diagnosis of
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2020 IL App (2d) 180905hebephilia (defined as a preferential sexual interest in pubescent (early stages of puberty) children)
had gained general acceptance in the psychological and psychiatric communities.
¶ 5 Both the State and respondent agreed that a Frye hearing was necessary to evaluate Travis’s
and Stanislaus’s diagnoses, and a hearing was held in October 2016. After hearing testimony from
State’s witnesses Dr. David Thornton and Dr. James Cantor, and respondent’s witness Dr. John
Fabian, the trial court found that “there is more than a reasonable subset, there is a substantial subset
of the psychologists and psychiatrists who as a substantial part of their work evaluate, treat or
research sex offenders who accept hebephilia as a diagnosis.” Thus, the trial court denied
respondent’s motion to exclude at trial the evidence of the diagnosis.
¶ 6 The matter then proceeded to a bench trial on the commitment petition. The State presented
the testimony of Stanislaus and Travis, both of whom found that respondent met the criteria to be
committed as a sexually violent person. Respondent presented the testimony of Fabian. The trial
court found respondent to be a sexually violent person and committed respondent to the Illinois
Department of Human Services. This appeal followed.
¶7 II. ANALYSIS
¶ 8 Respondent first contends that the trial court erred in finding that the diagnosis of hebephilia
has gained general acceptance in the relevant scientific community and that expert reliance on the
diagnosis was reasonable.
¶ 9 The admission of scientific evidence is governed by the Frye standard (New, 2014 IL 116306,
¶ 25), which is now 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
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2020 IL App (2d) 180905to have gained general acceptance in the particular field in which it belongs.” Ill. R. Evid.
702 (eff. Jan. 1, 2011).
The Frye test is used to exclude new or novel scientific evidence that undeservedly creates “a
perception of certainty when the basis for the evidence or opinion is actually invalid” (internal
quotation marks omitted) and serves to prevent a factfinder from simply adopting the judgment of
an expert because of the natural inclination to equate science with truth and, therefore, accord
undue significance to any evidence labeled as scientific. New, 2014 IL 116306, ¶ 26. “General
acceptance” does not mean universal acceptance; it does not require that the methodology in
question be accepted by unanimity, consensus, or even by a majority of experts. In re Commitment
of Simons, 213 Ill. 2d 523, 530 (2004). It is sufficient that the underlying method used to generate
an expert’s opinion is reasonably relied upon by experts in the relevant field. Id. We review de
novo a trial court’s determination of whether a Frye hearing is necessary and whether there is
general acceptance in the relevant scientific community. New, 2014 IL 116306,
¶ 26. In conducting this de novo review, a reviewing court may consider the trial court record and,
where appropriate, sources outside the record, including legal and scientific articles, as well as
judicial opinions from other jurisdictions. Simons, 213 Ill. 2d at 531.
¶ 10 In New, our supreme court determined that “the diagnosis of hebephilia is subject to Frye”
and remanded the cause “for a Frye hearing to determine if hebephilia is a generally accepted
diagnosis in the psychiatric and psychological communities.” Id. ¶ 53. The parties here agreed that
a Frye hearing was necessary, and we have not found any reported cases that have examined the
diagnosis of hebephilia under Frye since the supreme court addressed the issue in New. Thus, we
will review the trial court’s decision as it relates to the Frye hearing.
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2020 IL App (2d) 180905¶ 11 At the Frye hearing, both Thornton and Cantor testified that the diagnosis of hebephilia is
generally accepted by experts who assess and treat sexual disorders. Thornton testified that the
term “hebephilia” was first used in 1955 by a researcher named Glueck who was researching,
among other things, sexual offenders. Thornton defined hebephilia as “a sexual preference for
children in the early stage of puberty, Tanner stages II and III,” such that the person “is more
attracted to children at that stage of development than they are to either adults or to younger
children.” He distinguished hebephilia (primary interest in pubescent children) from pedophilia
(primary interest in prepubescent children).
¶ 12 Thornton testified that, according to his training and experience, hebephilia is generally
accepted by the majority of people in the scientific community who specialize in the assessment
and treatment of sex offenses and who work clinically with paraphilias or research paraphilias as
mental disorders and mental conditions. In forming his opinion, Thornton relied on clinical
experience, published research, and his own research. The main studies on hebephilia had come
from Canadian laboratories, including the Kurt Freund Laboratory at the Center for Addiction and
Mental Health (CAMH), which Thornton described as the “standard of excellence” in thefield.
¶ 13 Cantor testified that the International Classification of Diseases (ICD-10), which is published
by the World Health Organization (WHO), is generally accepted by experts who assess or research
the assessment of sexual offenders and is used “essentially everywhere outside of the United
States.” Hebephilia could be diagnosed using the ICD-10, although the ICD-10 included it under
its definition of “paedophilia,” which describes “attraction to prepubescent or early pubescent
children.”
¶ 14 Cantor testified that there were 40 peer-reviewed studies on hebephilia, 34 of which made
specific comparisons between pedophiles, hebephiles, and teleiophiles (those attracted to adults).
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2020 IL App (2d) 180905He testified that, of those 34, 32 demonstrated “a statistically significant difference between—
between the hebephiles and the teleiophiles or demonstrated that there were no significant
differences between the pedophiles and the hebephiles.”
¶ 15 Cantor also reviewed the report that Fabian had produced for the proceedings, including
Fabian’s discussion regarding a review by Karen Franklin of literature on hebephilia. Franklin’s
review categorized 117 documents on the diagnosis of hebephilia as “pro,” “con,” or “other.”
Cantor had read each of the documents and he noted that Franklin was “a bit ambiguous” in her
analysis and often “grossly misrepresented what the authors were actually saying.” Of the 117
documents listed, Franklin found 27 to be “pro” diagnosis and 60 “anti” diagnosis, with the rest
“other;” Cantor’s analysis was 56 “pro” and 43 “anti,” with the rest “other. Looking at only the 65
peer-reviewed documents in the list, Franklin found 19 “pro” and 20 “anti,” while Cantor found 41
“pro” and 12 “anti.” Cantor also reviewed an additional 16 peer-reviewed articles not included in
Franklin’s list, all of which he found to be “pro” diagnosis.
¶ 16 Cantor opined that the mental condition of hebephilia was “almost unanimously accepted”
in the scientific community of experts in mental health who, as a substantial part of their work,
assess or research the assessment of sexual offenders, as was the general acceptance of hebephilia
under the Diagnostic and Statistical Manual of Mental Disorders (DSM). He also stated that he
was not in favor of SVP legislation and had spoken out against it in the media.
¶ 17 Respondent’s expert, Dr. Fabian, opined that hebephilia was not a generally accepted
diagnosis. Fabian described the relevant scientific community as made up of three subgroups:
(1) forensic-expert psychologists, neuropsychologists, and psychiatrists; (2) “folks that have a
quasi-forensic clinical background who are doing assessments and treatments in the community”;
and (3) “folks like Dr. Cantor who are in a lab—laboratory in a university or government setting
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2020 IL App (2d) 180905who will do research.” He found that “the study of hebephilia is most scientific and most credible in
the research domain, and that research is coming out of CAMH.”
¶ 18 Fabian opined that hebephilia was not generally accepted by forensic experts, in group 1, but
was generally accepted by researchers, in group 3, although he thought that it was more accepted
in Canada than in the United States. As to clinicians, in group 2, Cantor explained that the “few
people” that he knew “do not adhere to it.” He thought that, in the area of SVP civil commitments,
experts who testify for the State “do condone, agree, and support *** this diagnosis,” while experts
who often testify for respondents do not, “so I don’t know if that’s general acceptance or not.”
However, he did state that clinicians working in the SVP civil- commitment field were “typically”
trained in issues related to hebephilia but that it was up to each clinician to decide “whether they
will then incorporate this information as to, yes, I believe there’s enough to diagnose or not with
hebephilia.”
¶ 19 Respondent first argues that the trial court assessed the relevant scientific community too
broadly in that it included factors and scientific knowledge on the diagnosis of hebephilia from
outside the United States. This argument is directed against the testimony of Thornton, who
testified that, outside the United States and Canada, the ICD-10 is the authoritative text regarding
diseases and mental disorders. The ICD-10 included a diagnosis of hebephilia within its definition
of “paedophilia,” which describes “attraction to prepubescent or early pubescent children.”
¶ 20 Respondent cites no authority to support the claim that, for Frye purposes, the relevant
scientific community is limited to persons residing and publishing in the United States. In Simons,
our supreme court looked to judicial decisions from other states in its analysis of the general
acceptance of actuarial risk assessment in a sexually-dangerous-person proceeding. The
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2020 IL App (2d) 180905court analyzed Roeling v. State, 880 So. 2d 1234 (Fla. Dist. Ct. App. 2004), which found that
actuarial risk assessment satisfied the general-acceptance standard of Frye. The court noted that
the Roeling court had “exhaustively examined” the relevant academic literature, including Robert
D. Hare, Psychopathy and the Predictive Validity of the PCL-R.: An International Perspective, 18
Behav. Sci. & L. 623 (2000). Simons, 213 Ill. 2d at 538 (citing Roeling, 880 So. 2d at 1239). The
court had no issue with a sister court’s examination of and reliance on an explicitly international
perspective in making a Frye determination (left unsaid was whether any of the other literature
included analysis of international studies), and we find no basis for making a contrary decision
here. Thus, the trial court here did not err in considering scientific information and factors from
outside the United States.1
¶ 21 Respondent next contends that a diagnosis of hebephilia is not valid. Respondent correctly
asserts that the American Psychiatric Association (APA) rejected a proposal to include the
diagnosis of “pedohebephilia” (sexual preference for both prepubescent and early pubescent
children, with pedophilia and hebephilia subtypes) in the DSM-5, the most recent edition of the
DSM. See New, 2014 IL 116306, ¶ 42 (noting the “proposal to include hebephilia as a diagnosis
was rejected in the DSM-5”). However, respondent then claims that the DSM-5 is “the
authoritative text governing the assessment and diagnosis of sex offenders” and that Fabian
testified that all professionals in his field “are bound by” it. First, respondent fails to direct us to
any evidence that any professionals are “bound” by the DSM. Second, such a claim is refuted by
our supreme court, which, while noting that DSM-5 is “an undisputed authoritative reference
1 We further note that, in his brief, respondent cites with approval a 2001 vote against the
adoption of the diagnosis of hebephilia by the International Association for the Treatment of Sex
Offenders.
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2020 IL App (2d) 180905manual in the field of psychology and psychiatry” and that “numerous experts do apply and rely
upon the DSM as an authoritative source to support civil commitment,” also noted that “an expert
in a civil commitment proceeding is not required to rely upon the DSM.” (Emphases added.) Id.The court has noted the importance of the DSM’s consideration and rejection of the hebephilia
diagnosis. See id. ¶ 51. However, while important, it is not paramount, let alone dispositive,
regarding the issue of general acceptance of the diagnosis.
¶ 22 Our review of the evidence leads us to conclude that the diagnosis of hebephilia is generally
accepted in the psychological and psychiatric communities. The concept of hebephilia has been in
existence for 65 years, and its diagnosis has been included in the ICD-10, which, according to
Cantor, is generally accepted by experts who assess or research the assessment of sexual offenders
and is used “essentially everywhere outside of the United States.” Both Thornton and Cantor
testified that the diagnosis of hebephilia was generally accepted in the scientific community of
experts in mental health who, as a substantial part of their work, assess or research the assessment
of sexual offenders (“almost unanimously accepted,” according to Cantor).
¶ 23 Fabian included in his report Franklin’s list of literature addressing the issue of hebephilia.
Of the documents that Franklin found to take a position on hebephilia, almost 33% were found to
be “pro” diagnosis. Cantor’s analysis of these same documents resulted in a score of 56% “pro”
diagnosis. The results were even more in favor of the diagnosis when only peer-reviewed
documents were considered; Franklin found an almost-even split, while Cantor found 77%
supporting the diagnosis (82% when considering peer-reviewed documents not on Franklin’s list).
¶ 24 While Fabian opined that the diagnosis of hebephilia was not generally accepted in the
scientific community, his description of acceptance within the various subgroups thereof
demonstrates otherwise. He testified that researchers generally accepted the diagnosis and that
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2020 IL App (2d) 180905forensic experts did not. As to clinicians, Cantor testified that the “few people” that he knew “do
not adhere to it.” Further, while experts that usually testify for the State “do condone, agree, and
support *** this diagnosis,” experts that often testify for respondents do not, “so I don’t know if
that’s general acceptance or not.” Fabian did not identify a lack of general acceptance. He
identified a significant group of experts that do accept the diagnosis.
¶ 25 Respondent spends a great deal of his brief emphasizing Fabian’s testimony attacking the
methodology of some of the studies supporting the diagnosis of hebephilia. However, “[u]nder the
Frye standard, the trial court is not asked to determine the validity of a particular scientific
technique.” Simons, 213 Ill. 2d at 532. A trial court is not required to conduct a two-part inquiry into
both the reliability of the methodology and its general acceptance; the reliability of an expert’s
methodology is naturally subsumed by the inquiry into its general acceptance in the relevant
scientific community. Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 81 (2002),
overruled on other grounds, Simons, 213 Ill. 2d at 532. Once it is determined that a methodology
is generally accepted in the applicable community, it follows that it has achieved a sufficient degree
of reliability and validity to cross the threshold of admissibility. In re Commitment of Sandry, 367
Ill. App. 3d 949, 966 (2006).
¶ 26 During oral argument, it was pointed out that the WHO released a proposed revision to the
ICD-10 that was accepted by WHO member states in May 2019. The new edition of the ICD, ICD-
11, will go into effect on January 1, 2022. This court ordered supplemental briefing on the issue
of general acceptance in light of the ICD-11.
¶ 27 The ICD-11 has eliminated the classification of “paedophilia” that the ICD-10 listed under its
nine types of “Disorders of Sexual Preference.” The ICD-11 does list “pedophilic disorder” within
its five specific “Paraphilic Disorders”; this disorder concerns only a sexual interest in
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2020 IL App (2d) 180905“prepubertal children” and makes no mention of early pubescent children, as “paedophilia” did. In
addition, the ICD-11 added a general category of paraphilic disorders called “Other paraphilic
disorder involving non-consenting individuals” (OPD) that focuses on an interest in individuals
“who are unwilling or unable to consent [to sexual activity] but that is not specifically described
in any of the other named Paraphilic Disorders categories.”
¶ 28 Our review of the ICD-11 revisions does not affect our conclusion that that the diagnosis of
hebephilia is generally accepted in the psychiatric and psychological communities. First, as we
have already stated, the DSM-5, while important, “is not paramount, let alone dispositive,
regarding the issue of general acceptance of the hebephilia diagnosis.” Supra ¶ 21. This applies
as well to the ICD. No one publication or source is dispositive on the question of general
acceptance.
¶ 29 Second, even the deletion of the ICD-10 reference to “early pubescent children”—and the
failure to make any reference to hebephilia—cannot be conclusively read to mean that hebephilia
is not a recognized diagnosis. The ICD-11 reduced from nine to five the number of specifically
named sexual disorders but included OPD, the general category of paraphilic disorders. This
category focuses on a person’s interest in individuals “who are unwilling or unable to consent [to
sexual activity] but that is not specifically described in any of the other named Paraphilic Disorders
categories.” Hebephilia is defined as a preferential sexual interest in pubescent (early stages of
puberty) children, a group whose age renders them unwilling or unable to consent. Thus, a
diagnosis of hebephilia would fit within the ICD-11’s sexual disorder of OPD.
¶ 30 Ultimately, the issuance of the ICD-11 does not affect our analysis and our determination that
the diagnosis of hebephilia is generally accepted in the psychiatric and psychological communities.
As we have stated, “general acceptance” does not mean universal acceptance or
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2020 IL App (2d) 180905even acceptance by a majority of experts; it requires only that the underlying method used to
generate an expert’s opinion is reasonably relied upon by experts in the relevant field. Simons, 213
Ill. 2d at 530. The revisions to the ICD-11 do not negate the testimony of Thornton, Cantor, and
Fabian at the Frye hearing that identified significant segments of the relevant scientific community
that have accepted the diagnosis of hebephilia. Thus, we determine that the State proved that the
diagnosis of hebephilia has achieved general acceptance in the relevant scientific community, and
the trial court’s judgment was not in error.
¶ 31 Respondent next contends that the trial court erred in finding him to be a sexually violent
person. In reviewing a trial court’s finding that a respondent is sexually violent, we ask only
whether, after viewing the evidence in the light most favorable to the State, any rational trier of
fact could find the elements proved beyond a reasonable doubt. In re Detention of Lieberman,
379 Ill. App. 3d 585, 598 (2007).
¶ 32 Pursuant to the Act, a person is a sexually violent person if he (1) has been convicted of a
sexually violent offense, (2) suffers from a mental disorder, and (3) is dangerous because the
mental disorder creates a substantial probability that he will engage in acts of sexual violence. 725
ILCS 207/5(f) (West 2018). Respondent concedes that he was convicted of a sexually violent
offense but argues that the State failed to prove the remaining elements beyond a reasonable doubt.
¶ 33 At trial, the State presented the testimony of Stanislaus, the forensic psychiatrist and licensed
sex-offender evaluator. Stanislaus testified that she performed a clinical evaluation of respondent
but never met with him, as he did not wish to participate in an interview. She completed two
reports, in 2014 and 2018, based on her review of various records.
¶ 34 Respondent had pleaded guilty to two counts of aggravated criminal sexual abuse, arising out
of several incidents in 2003 involving three girls who were 13 to 14 years old at the time, while
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2020 IL App (2d) 180905respondent was approximately 20 years old. Respondent had sex several times with one 14-year-
old victim while he was on bond for charges involving another victim. At around that same time,
there were allegations that respondent was chatting online with another 14-year-old girl,
persistently asking for sex. He also had sexual contact with a 16-year-old friend of one of his
victims.
¶ 35 Respondent was paroled in August 2005. He was ordered not to have any Internet access or
possess electronic devices such as a cell phone. In November 2006, he was found to have violated
his parole by sending sexually explicit messages to a 13-year-old girl after setting up a MySpace
account, claiming to be a 16-year-old high school student. Respondent was 23 to 24 years old at
the time. This led to his conviction of indecent solicitation of a child (720 ILCS 5/11-6(a) (West
2006)) and a sentence of six years in prison. Around that time, the police discovered that
respondent had gotten in touch with one of his prior victims, who was then approximately 15 years
old, and was engaging in sex with her. Respondent did not participate in any sex-offender
treatment while he was imprisoned but did receive some sex-offender treatment while on parole.
¶ 36 Using the DSM-5, Stanislaus diagnosed respondent with the mental disorder of Other
Specified Paraphilic Disorder-Hebephilia. Stanislaus defined a paraphilia as any intense persistent
sexual interest in anything other than with phenotypically normal, physically mature, consenting
human partners. According to Stanislaus, it is not just a deviant sexual interest—the person must
have acted on it and resulted in harm to another or significant distress to the person committing
the behavior. Respondent had engaged in recurrent sexual behavior with 13 and 14- year-old
female victims. This led to his imprisonment. This diagnosis did not require that
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2020 IL App (2d) 180905pubescent girls were his only attraction; respondent could be attracted to physically mature
partners as well.
¶ 37 Stanislaus also stated that the mental disorder affected respondent’s emotional or volitional
capacity and predisposed him to engage in continued acts of sexual violence. Static-99 and Static-
99R risk-assessment tests showed that respondent was above-high risk to reoffend, the second-
highest risk category. Stanislaus opined that, to a reasonable degree of psychiatric certainty, it was
substantially probable that respondent would reoffend. She then opined that respondent met the
criteria to be found a sexually violent person.
¶ 38 Travis diagnosed respondent, pursuant to the DSM-5, as “Other Specified Paraphilic Disorder,
sexually attracted to early pubescent females, Nonexclusive,” also known as hebephilia. He
described the criteria for this diagnosis as “over the period of at least six months having intense
fantasies, urges or engaging in behaviors—sexual behaviors toward persons who are in the time
period, we’ll call pubescent, which is 11 to 14 generally.” He also found it to be a mental disorder
because respondent acted out on it, causing harm to other people. He cited respondent’s lack of
control, acting out with a 14-year-old when he was on bond, and attempting to “become sexual”
with a 13-year-old while he was on parole.
¶ 39 Respondent presented the testimony of Fabian, who diagnosed respondent as suffering from
“specific learning disorder,” a disorder recognized by the DSM-V. Fabian did “not support” the
possibility that this disorder would predispose respondent to acts of sexual violence. Fabian
believed, with “some conjecture,” that respondent’s “lower functioning *** could be in part related
to him gravitating towards younger, you know, let’s say adolescents.” Fabian opined that the
prefrontal cortex of the brain does not fully develop until a person is 23 to 24 years old; respondent
committed his offenses while in his late teens to 24 years old and suffered at that time from specific
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2020 IL App (2d) 180905learning disorder. Fabian could not say that respondent had a paraphilic disorder and agreed that
respondent “does not in any respect suffer from a congenital or acquired condition affecting the
emotional or volitional capacity that predisposes him to engage in acts of sexual violence.”
Respondent did “in part” have a history of being hypersexual, but that was not a diagnosis of a
paraphilia, it was more related to a risk factor.
¶ 40 Fabian reiterated his opinion that respondent did not have a paraphilic disorder and that
hebephilia “does not exist.” Because respondent did not suffer from a relevant mental disorder, the
issue of risk of sexual reoffense was irrelevant.
¶ 41 Fabian did state that, “technically based on DSM-5 criteria,” respondent “would have
qualified” for a diagnosis of pedophilia, but two of his victims were almost 14 and almost 16;
thus Fabian saw a “pubescent/postpubescent interest,” where respondent was at the “high-end
cutoff of pedophilic disorder,” and he could not say that he could not reasonably diagnose
respondent as such.
¶ 42 We conclude that, after viewing the evidence in the light most favorable to the State, a rational
trier of fact could find the elements proved beyond a reasonable doubt. See Lieberman, 379 Ill.
App. 3d at 598. Respondent’s conviction of a sexually violent offense was not at issue. Both
Stanislaus and Travis testified that they diagnosed respondent with the mental disorder of “Other
Specified Paraphilic Disorder-Hebephilia” pursuant to the DSM-5, a diagnosis amply supported
by respondent’s history of sexual offenses involving 13- and 14-year-old girls. Fabian,
respondent’s own expert, testified that respondent was on the cusp of a diagnosis of pedophilia.
Respondent’s commission of some of these offenses while on bond or on parole and his “above-
high risk to reoffend” score pursuant to the Static-99 and Static-99R risk-assessment tests also
support a finding that it was substantially probable that respondent will engage in future acts of
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2020 IL App (2d) 180905sexual violence. Thus, we conclude that there was no error in the trial court’s finding that
respondent is a sexually violent person under the Act.
¶ 43 III. CONCLUSION
¶ 44 For these reasons, the judgment of the circuit court of Lee County is affirmed.
¶ 45 Affirmed.
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2020 IL App (2d) 180905No. 2-18-0905
Cite as: In re Detention of Bauer, 2020 IL App (2d) 180905Decision Under Review: Appeal from the Circuit Court of Lee County, No. 09-MR-64; the
Hon. Daniel A. Fish, Judge, presiding.
Attorneys Allison B. Fagerman, of Law Office of Allison B. Fagerman, P.C.,
for of Rock Falls, for appellant.
Appellant:
Attorneys Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz,
for Solicitor General, and Michael M. Glick and Nicholas Moeller,
Appellee: Assistant Attorneys General, of counsel), for the People.
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