In re Detention of New

Illinois Official Reports
Supreme Court
In re Detention of New, 2014 IL 116306Caption in Supreme In re DETENTION OF JOHN NEW, JR. (The People of the State of
Court: Illinois, Appellant, v. John New, Jr., Appellee).
Docket No. 116306
Filed November 20, 2014
Held Experts’ diagnoses of sexual attraction to adolescent males (referred
(Note: This syllabus to as paraphilia not otherwise specified or hebephilia) should not have
constitutes no part of the been admitted at a jury trial for civil commitment under the Sexually
opinion of the court but Violent Persons Commitment Act without a Frye hearing to determine
has been prepared by the the general acceptance of this diagnosis in the relevant scientific
Reporter of Decisions community; and judicial notice was not appropriate where the record
for the convenience of was inadequate for the making of this determination—remand for
the reader.) Frye hearing.
Decision Under Appeal from the Appellate Court for the First District; heard in that
Review court on appeal from the Circuit Court of Cook County, the Hon.
Michael McHale, Judge, presiding.
Judgment Appellate court judgment affirmed.
Cause remanded.
Counsel on Lisa Madigan, Attorney General, of Springfield (Michael A. Scodro
Appeal and Carolyn E. Shapiro, Solicitors General, and Michael M. Glick and
Erica Seyburn, Assistant Attorneys General, of Chicago, of counsel),
for the People.
Stephen F. Potts, of Des Plaines, for appellee.
Justices JUSTICE THEIS delivered the judgment of the court, with opinion.
Chief Justice Garman and Justices Freeman, Thomas, Kilbride,
Karmeier, and Burke concurred in the judgment and opinion.
OPINION
¶1 At issue in this case is whether the circuit court of Cook County erred in admitting certain
expert testimony regarding a diagnosis of hebephilia at respondent’s civil commitment trial
without first conducting an evidentiary hearing pursuant to Frye v. United States, 293 F.
1013 (D.C. Cir. 1923) (Frye hearing) to determine whether the diagnosis had been generally
accepted as a valid mental disorder in the relevant scientific community. For the reasons that
follow, we hold that the diagnosis of hebephilia is subject to the Frye standards for the
admissibility of novel scientific evidence, and that a hearing is necessary in this case to
determine its general acceptance.
¶2 BACKGROUND
¶3 In March 2005, the State filed a petition to commit respondent, John New, Jr., to the
Department of Human Services (DHS) as a sexually violent person under the Sexually
Violent Persons Commitment Act (Act) (725 ILCS 207/1 et seq. (West 2004)). The petition
alleged that respondent had a history of committing sexually violent offenses, citing
respondent’s 1987 conviction of two counts of aggravated criminal sexual assault against a
12-year-old boy, and his 1995 conviction of aggravated criminal sexual assault and two
counts of criminal sexual assault against a 14-year-old boy. Respondent was sentenced to
seven years in prison for the 1987 conviction, and was sentenced to two consecutive terms of
seven and six years respectively for the 1995 conviction. The petition further alleged that
respondent had been diagnosed with “paraphilia not otherwise specified, [paraphilia NOS],
sexually attracted to adolescent males,” that his condition affected his emotional or volitional
capacity which predisposed him to commit acts of sexual violence, and that there was a
substantial probability that he would engage in future acts of sexual violence.
¶4 Prior to trial, respondent filed a motion in limine to bar the expert testimony from the
State’s evaluators regarding their diagnosis. Respondent contended that the experts’ opinions
failed to meet the Frye standards for the admissibility of novel scientific evidence.
Specifically, respondent argued that in recent years the diagnosis, “paraphilia NOS, sexually
attracted to adolescent males,” which is otherwise referred to in the academic literature as
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hebephilia, has been applied in civil commitment proceedings as the basis for an accepted
mental condition. Respondent maintained that the purported mental condition was not listed
as an accepted mental disorder in an authoritative reference manual, was not grounded in
sound scientific principles, and was not generally accepted as a valid diagnosis within the
psychiatric and psychological communities. In support of his motion, he attached several
exhibits, including numerous articles criticizing a proposal to include the diagnosis as a
qualifying mental disorder in the next edition of the American Psychiatric Association’s
Diagnostic and Statistical Manual of Mental Disorders (DSM).
¶5 In response, the State argued that the diagnosis was made in reliance upon the DSM
category for paraphilia NOS, that there was nothing novel about the use of the DSM as a
methodology, that paraphilia NOS is a frequently diagnosed mental disorder in sexually
violent persons commitment proceedings, and that it has gained general acceptance by
professionals who assess sexually violent offenders. The trial court denied respondent’s
motion, concluding that the expert testimony was admissible without the need for a Frye
hearing. The court did not preclude respondent from cross-examining the State’s experts
based upon any scientific disagreement regarding the validity of the diagnosis.
¶6 At trial, Dr. Fogel testified that he is a licensed forensic psychologist. In that capacity, he
conducted a clinical evaluation of respondent to determine if he was a candidate for
commitment under the Act. As part of that evaluation, Dr. Fogel reviewed respondent’s
master file, which contained information regarding respondent’s incarceration, his medical
file, and police reports regarding his various criminal offenses. Additionally, Dr. Fogel
interviewed respondent in 2004 and 2010.
¶7 Dr. Fogel considered respondent’s sexual offense history. In 1980, at the age of 17,
respondent was convicted of contributing to the delinquency of a minor and received
supervision. In 1987, he was convicted of aggravated criminal sexual assault of a 12-year-old
boy. While on mandatory supervised release for that conviction, he was convicted for
soliciting a young male prostitute in his early 20s. Thereafter, in 1995, he was convicted of
one count of aggravated criminal sexual assault and two counts of criminal sexual assault of
a 14-year-old boy. Respondent was 32 years old at the time. One month prior to his release
from the Department of Corrections, respondent received a sexual misconduct ticket for
soliciting a 19-year-old male for sex. This individual had recently been transferred from the
juvenile detention facility and was reportedly young looking. While awaiting trial in DHS
custody, respondent requested to share a room with a recently arrived detainee whom he had
known in prison. Dr. Fogel noted documentation indicating that respondent had been the
detainee’s basketball coach when the detainee was 11 years old. Dr. Fogel was of the opinion
that respondent continued to fixate on this individual.
¶8 Dr. Fogel testified regarding respondent’s admitted attraction to younger-looking men
and respondent’s feelings of powerlessness over his urges and sexual fantasies about younger
men. Dr. Fogel noted that respondent had a history of befriending younger males, often
overestimating their actual ages, purchasing items for them, and having sexual fantasies
about them. Respondent described himself to Dr. Fogel at times as a passive recipient of the
advances, and at other times admitted that he sought out certain individuals with a history of
sexual abuse or individuals that were underprivileged or vulnerable in some way. According
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to Dr. Fogel, respondent reported a preference for tall, athletic, African-American,
young-looking men without facial or chest hair.
¶9 Following the evaluation, Dr. Fogel diagnosed respondent with paraphilia NOS, sexually
attracted to adolescent males or alternatively sexually attracted to early pubescent males,
ranging from age 11 to 14 years old. In formulating a diagnosis, Dr. Fogel relied upon the
Diagnostic and Statistical Manual of Mental Disorders, 4th edition, Text Revision
(DSM-IV-TR), which was the current version of the DSM at the time. American Psychiatric
Association, Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text
Revision, DSM-IV-TR (2000). The manual, which is published by the American Psychiatric
Association, provides an authoritative categorical classification of mental disorders.
¶ 10 Dr. Fogel explained that a paraphilia, as identified in the DSM, refers to a general class of
sexual disorders. There are two general criteria for establishing a paraphilic disorder related
to children or other nonconsenting persons. The first criteria requires that over a period of at
least six months the individual experiences recurrent, intense, sexually arousing fantasies,
urges or behaviors generally involving children or other nonconsenting persons. The second
criteria requires either that the sexual urges or fantasies cause the individual clinically
significant distress or impairment, or the individual has acted on the sexual urges.
¶ 11 Dr. Fogel testified that a paraphilia NOS diagnosis indicates that the individual meets the
general overall diagnostic criteria for a paraphilia, but the condition fails to fall into one of
the specifically listed paraphilic disorders in the DSM, such as voyeurism, sadism, or
pedophilia. Dr. Fogel then identified the specific target of the paraphilia in respondent’s case
as a sexual attraction to early pubescent males. Dr. Fogel expressed that respondent meets the
criteria for that diagnosis based on his sexual conduct with the 12- and 14-year-old boys, and
his admitted fantasies focusing on early pubescent individuals during his incarceration, as
well as fantasies about those adolescents he observed on television.
¶ 12 On cross-examination, Dr. Fogel agreed that there is a debate about how the paraphilia
NOS diagnosis should be applied within his field. He acknowledged the controversy over
whether there should be a category in the DSM for those individuals with a sexual arousal to
early pubescent males within the age range of 11 to 14, which has been described as
hebephilia. He explained that unlike hebephilia, pedophilia is a listed diagnosis in the DSM.
Pedophilia requires an interest in prepubescent children, and provides a general age category
as including children 13 years old and younger. Dr. Fogel stated that the problem with that
limitation is that a 13 year old is generally not prepubescent. Therefore, there was a debate
about how the DSM should be modified.
¶ 13 At the time of trial, Dr. Fogel was aware of a proposal to modify the language of the
pedophilia diagnosis to include hebephilia, the attraction to adolescent individuals in the 11
to 14 year old age range. Dr. Fogel acknowledged that his diagnosis of paraphilia NOS,
sexually attracted to early pubescent males, or hebephilia, was essentially the same as the
diagnosis proposed for inclusion in the upcoming fifth edition of the DSM (DSM-5). He
agreed that there was no specific listing of hebephilia as a paraphilic disorder in the DSM.
¶ 14 With respect to respondent’s probability of reoffending, Dr. Fogel administered various
tests and considered certain additional factors which can increase and mitigate the risk of
reoffending. Based upon these measurements, Dr. Fogel determined that respondent
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presented a high risk of recidivism. Accordingly, it was his opinion that it was substantially
probable that respondent would commit acts of sexual violence in the future.
¶ 15 Dr. Robert Brucker testified that he is a licensed clinical psychologist qualified as an
expert in the area of sex offender evaluation and risk assessment and treatment. In December
2005, he was assigned to conduct a clinical evaluation of respondent to determine whether he
was a candidate for commitment. Dr. Brucker reviewed respondent’s master file, performed
psychological testing, and conducted an interview with him in January 2006.
¶ 16 As part of his evaluation, Dr. Brucker also relied upon the DSM-IV-TR as an
authoritative reference manual in his field. Relevant here, Dr. Brucker diagnosed respondent
with paraphilia NOS, sexually attracted to adolescent males, non-exclusive type. He
explained that a paraphilia is essentially a deviant sexual interest. To establish a paraphilic
disorder, an individual needs to have recurrent, intense urges, arousals, fantasies or behaviors
toward a sexually deviant interest. These urges need to be present for at least six months, and
the individual needs to have acted on the urges or fantasies, or they have to have caused
significant clinical stress or impairment.
¶ 17 Dr. Brucker noted that respondent exhibited a clear sexual interest toward adolescent
males between the ages of 12 and 15. It was Dr. Brucker’s opinion that the disorder impacted
respondent’s emotional or volitional capacity because despite having received legal
consequences for his behaviors respondent continued to engage in paraphilic, sexually
deviant, behavior. This suggested to Dr. Brucker that respondent was unable to control this
behavior. In addition, Dr. Brucker utilized various assessment tools along with other risk
factors to predict that respondent was at a high risk for reoffending.
¶ 18 Dr. Brucker acknowledged on cross-examination that the paraphilia NOS category of
diagnosis is a miscellaneous one and that there is nothing specifically in the DSM about an
attraction to adolescent males being a paraphilia. He testified that paraphilia NOS exists
because it would not be practical for the DSM to identify and itemize each separate deviant
sexual interest. The ones that tend to be the most common are the ones listed, such as
pedophilia or exhibitionism or voyeurism. He acknowledged that the DSM provides a list of
examples under the paraphilia NOS category, and that those examples may not be common
paraphilias, but he stated that the list of examples is not intended to be comprehensive.
Dr. Brucker additionally agreed that the term “garbage can diagnosis” has been commonly
used to refer to the paraphilia NOS category of diagnoses, but he did not believe that it was a
useless diagnosis.
¶ 19 Dr. Kirk Witherspoon testified as an expert in the field of clinical psychology on behalf
of respondent. He performed his evaluation of respondent in January 2010. As part of his
evaluation, he reviewed materials regarding respondent’s sexual offense history, family
history, incarceration history, and the evaluations of Fogel and Brucker. Additionally,
Dr. Witherspoon interviewed respondent and administered various psychological tests.
¶ 20 Dr. Witherspoon was of the opinion that respondent’s prior sexual offense history was
not indicative of a mental disorder because an attraction to adolescents is not a
psychopathology. Dr. Witherspoon stated that it is statistically normal for adults to be
sexually attracted to sexually immature adolescents. Although it is illegal to act on those
feelings with someone under the age of consent, which varies by state, the fact that
something is illegal does not make it pathological. According to Dr. Witherspoon,
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“paraphilia NOS, sexually attracted to adolescent males,” is not a generally accepted
diagnosis.
¶ 21 In assessing respondent’s risk of reoffending, Dr. Witherspoon utilized various
assessment tools. Based on the outcome of these tests, respondent had a moderately high risk
of reoffending which would decrease over 10 years to almost no risk.
¶ 22 At the conclusion of the evidence, the jury found respondent to be a sexually violent
person under the Act, and the trial court committed him to the Department of Human
Services for care and treatment in a secured facility. Respondent appealed. While the case
was pending on appeal, in 2013, the DSM-5 was published. The DSM-5 does not list
hebephilia as a paraphilic disorder or as an expansion of the specifically listed pedophilic
disorder. American Psychiatric Association, Diagnostic and Statistical Manual of Mental
Disorders, 5th Edition, DSM-5 Paraphilic Disorders 685-705 (2013).
¶ 23 On appeal, respondent argued, in part, that the trial court erred in admitting the testimony
of Dr. Fogel and Dr. Brucker without first conducting a Frye hearing. The appellate court
agreed, holding that a diagnosis of a novel condition is subject to the general acceptance test
under Frye (2013 IL App (1st) 111556, ¶ 59), and that as the proponent of the evidence, the
State failed to meet its burden of showing its general acceptance. Id. ¶ 61. Accordingly, the
court reversed and remanded the case for a Frye hearing, and, if necessary, a new trial. Id.
¶ 62. We subsequently allowed the State’s petition for leave to appeal. Ill. S. Ct. R. 315(a)
(eff. July 1, 2013).
¶ 24 ANALYSIS
¶ 25 In Illinois, the admission of scientific evidence is governed by the Frye standard (In re
Commitment of Simons, 213 Ill. 2d 523, 529 (2004) (citing Frye v. United States, 293 F. 1013(D.C. Cir. 1923)), which has now been codified by 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).
¶ 26 The purpose of the Frye test is 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.” Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 78 (2002),
abrogated on other grounds by Simons, 213 Ill. 2d at 530. Imposition of the test serves to
prevent the jury from simply adopting the judgment of an expert because of the natural
inclination of the jury to equate science with truth and, therefore, accord undue significance
to any evidence labeled scientific. People v. McKown, 226 Ill. 2d 245, 254 (2007). 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. Simons, 213 Ill. 2d
at 531.
¶ 27 Testimony Subject to Frye
¶ 28 Initially, we must consider whether expert testimony involving a purported mental
diagnosis is the type of scientific evidence subject to the screening function served by the
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Frye test. In Donaldson, this court explained that the Frye test does not concern an expert’s
ultimate conclusion but, instead, focuses on the underlying scientific principle, test, or
technique used to generate that conclusion. Donaldson, 199 Ill. 2d at 77; see also In re
Marriage of Alexander, 368 Ill. App. 3d 192, 197 (2006) (when an expert opinion is derived
solely based upon observation and experience, that opinion is generally not considered
scientific evidence subject to the Frye test). Relying on this court’s opinion in Donaldson, the
State maintains that a diagnosis is never subject to Frye because it is not a scientific
technique or test used to diagnose but, rather, an expert’s conclusion based on training and
experience.
¶ 29 Although this court has not had occasion to consider specifically whether expert
testimony involving a purported mental diagnosis is the type of scientific evidence that could
be subject to the Frye test, our appellate court has previously applied the Frye standard to
expert testimony related to a syndrome or diagnosis. In People v. Shanahan, 323 Ill. App. 3d
835, 839 (2001), the court held that the expert’s testimony related to battered child syndrome
was subject to the Frye standard. In Bernardoni v. Industrial Comm’n, 362 Ill. App. 3d 582,
594 (2005), the court subjected proffered expert testimony on multiple chemical sensitivity to
the Frye standard to determine whether it was a clinically valid diagnosis. In comparison, in
Noakes v. National R.R. Passenger Corp., 363 Ill. App. 3d 851, 856 (2006), the court held
there was no need for a Frye hearing where there was no dispute that carpal tunnel syndrome
existed as a valid diagnosis.
¶ 30 Additionally, in the context of civil commitment proceedings, in McGee v. Bartow, 593
F.3d 556 (7th Cir. 2010), the Seventh Circuit acknowledged that “a particular diagnosis may
be so devoid of content, or so near-universal in its rejection by mental health professionals,
that a court’s reliance on it to satisfy the ‘mental disorder’ prong of the statutory
requirements for commitment would violate due process.” McGee, 593 F.3d at 577.
¶ 31 Furthermore, the United States Supreme Court in Kansas v. Hendricks, 521 U.S. 346(1997), recognized the importance of distinguishing between the dangerous sexual offender
subject to civil commitment, and other dangerous, but typical, recidivists, who are more
properly dealt with through the criminal system. Hendricks, 521 U.S. at 360. The Court
found that this distinction was made possible, in part, by the “presence of what the
‘psychiatric profession itself classifie[d] ... as a serious mental disorder.’ ” Kansas v. Crane,
534 U.S. 407, 412 (2002) (quoting Hendricks, 521 U.S. at 360).
¶ 32 Thus, in the context of civil commitment, courts have acknowledged the importance of
establishing an underlying mental condition recognized by the mental health community, and
have acknowledged that a diagnosis may be so unsupported by science that it should be
excluded from consideration by the trier of fact. These same concerns are relevant to our
Frye standard.
¶ 33 Here, the question raised by respondent is whether paraphilia NOS, sexual attraction to
early adolescent males, otherwise known as hebephilia, is a diagnosable mental condition
based upon legitimate scientific principles and methods. Contrary to the State’s assertion,
respondent does not seek to test the conclusions drawn by the experts who testified here
based on their clinical observation and experience that respondent exhibits the characteristics
of a particular condition. Rather, the science behind the condition is at issue, as evidence by
the supporting documentation presented by respondent regarding flawed methodology. See,
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e.g., Joseph J. Plaud, Are There “Hebephiles” Among Us? A Response to Blanchard et al.
(2008), 38 Archives of Sexual Behav. 326 (2009) (setting forth “multiple methodological
issues that preclude a call for the establishment of hebephilia as a diagnostic entity in the
DSM-V”); Thomas K. Zander, Adult Sexual Attraction to Early-Stage Adolescents:
Phallometry Doesn’t Equal Pathology, 38 Archives of Sexual Behav. 329 (2009) (“Any new
or expanded DSM diagnosis that can have implications as profound as the one proposed by
Blanchard et al. requires a broad base of replicated research (not just one study with a glaring
methodological omission), as well as extensive field testing to ensure its interrater reliability,
and a full and open debate about its conceptual validity.”). This is the type of scientific
evidence that the analytic framework established by Frye was designed to address.
¶ 34 We next consider whether the diagnosis is predicated on new or novel science. Although
not always easy to identify, we have held that generally, scientific evidence is new or novel if
it is “ ‘original or striking’ ” or does “ ‘not resembl[e] something formerly known’ ” or used.
Donaldson, 199 Ill. 2d at 79 (quoting Webster’s Third New International Dictionary 1546
(1993)). The State represents that the term hebephilia has been previously applied in many
contexts in the scientific literature as a descriptive label to classify a sexual attraction to
adolescents. However, its use as the basis for a mental condition is of more recent origin as
the debate surrounding its proposed inclusion and subsequent rejection in the DSM-5
demonstrates.
¶ 35 As Dr. Fogel testified, the same diagnosis was the subject of a recent proposal to be
included in the DSM-5 based on the research of Ray Blanchard and his colleagues. Ray
Blanchard et al., Pedophilia, Hebephilia, and the DSM-V, 38 Archives of Sexual Behav. 335
(2009). The proposal sought to include hebephilia as a listed category of paraphilic disorder,
or as an extension of the already specified disorder, pedophilia. Id. The authors noted that
studies have “demonstrated the utility of specifying a hebephilic group, at least for research
purposes.” Id. Blanchard acknowledged that the term “has not come into widespread use,
even among professionals who work with sex offenders.” Id. at 336.
¶ 36 The proposal drew vigorous criticism about its scientific validity and methodological
flaws. Opponents contended that the hebephilia diagnosis would dramatically expand or add
“to the DSM diagnostic categories of mental disorders without any evidence or reasoning
that those who would be newly 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), 38 Archives
of Sexual Behav. 328 (2009); See also Gregory DeClue, Should Hebephilia Be a Mental
Disorder? A Reply to Blanchard et al. (2008), 38 Archives of Sexual Behav. 317 (2009);
Joseph J. Plaud, Are There “Hebephiles” Among Us? A Response to Blanchard et al. (2008),
38 Archives of Sexual Behav. 326 (2009); Thomas K. Zander, Adult Sexual Attraction to
Early-Stage Adolescents: Phallometry Doesn’t Equal Pathology, 38 Archives of Sexual
Behav. 329 (2009); Allen Frances & Michael B. First, Hebephilia Is Not a Mental Disorder
in the DSM-IV-TR and Should Not Become One in DSM-5, 39 J. Am. Acad. Psychiatry & L.
78, 84-85 (2011) (“[T]he very preliminary studies conducted by a few research groups should
not be construed to indicate that hebephilia has any solid scientific support. Hebephilia is not
an accepted mental disorder that can be reliably diagnosed.”).
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¶ 37 Ultimately, the proposed diagnosis was recently rejected by the Board of Trustees of the
American Psychiatric Association for inclusion in the DSM-5. American Psychiatric
Association, Diagnostic and Statistical Manual of Mental Disorders, 5th Edition, DSM-5
Paraphilic Disorders 685-705 (2013). The State recognizes the recent debate over whether
hebephilia is a diagnosable mental condition. Accordingly, we conclude that the diagnosis of
hebephilia as a mental condition is sufficiently novel for purposes of Frye.
¶ 38 General Acceptance
¶ 39 Having determined that the particular testimony is subject to Frye, we next consider the
issue of its general acceptance in the psychological and psychiatric communities. Ill. R. Evid.
702 (eff. Jan. 1, 2011). A court may determine the general acceptance in either of two ways:
“(1) based on the results of a Frye hearing; or (2) by taking judicial notice of unequivocal
and undisputed prior judicial decisions or technical writings on the subject.” McKown, 226
Ill. 2d at 254; see also Simons, 213 Ill. 2d at 531 (we may “consider not only the trial court
record but also, where appropriate, sources outside the record, including legal and scientific
articles, as well as court opinions from other jurisdictions”). General acceptance does not
require unanimity, consensus, or even a majority, but does require something more than a
scientific principle, technique or methodology that is experimental or of dubious validity.
Donaldson, 199 Ill. 2d at 88. The proponent of the evidence bears the burden of establishing
general acceptance. Ill. R. Evid. 702 (eff. Jan. 1, 2011).
¶ 40 We first consider whether we can determine that hebephilia is generally accepted as a
valid diagnosable mental condition by taking judicial notice of unequivocal and undisputed
writings on the subject. In the trial court, the State offered no literature in response to
respondent’s supporting documentation revealing a lack of scientific support and widespread
opposition to the validity of this particular diagnosis from those in the psychology and
psychiatric communities.
¶ 41 In this court, the State now asserts that, despite the controversy, scientific publications
unequivocally show that hebephilia is generally accepted as a valid diagnosable mental
condition. The State relies upon research by Blanchard and others that supported Blanchard’s
own proposal for the inclusion of the diagnosis in the DSM-5. Blanchard, Pedophilia, supra,
at 347; Ray Blanchard, The Fertility of Hebephiles and the Adaptionist Argument Against
Including Hebephilia in DSM-5, 39 Archives of Sexual Behav. 817, 818 (2010); Robert
Prentky & Howard Barbaree, Commentary: Hebephilia—A Would-be Paraphilia Caught in
the Twilight Zone Between Prepubescence and Adulthood, 39 J. Am. Acad. Psychiatry & L.
506, 509 (2011).
¶ 42 Noticeably absent from the State’s discussion is the fact that Blanchard’s proposal to
include hebephilia as a diagnosis was rejected in the DSM-5. As an undisputed authoritative
reference manual in the field of psychology and psychiatry, it is necessary to address the
rejection in our consideration of whether we can take judicial notice that hebephilia is
generally accepted as the basis for a mental condition. In doing so, we recognize that an
expert in a civil commitment proceeding is not required to rely upon the DSM or establish a
consensus in the scientific community to establish that an individual has “a mental disorder”
as a predicate to civil commitment. The DSM has cautioned that psychiatry is not “an exact
science.” See American Psychiatric Association, Diagnostic and Statistical Manual of Mental
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Disorders, 5th Edition, DSM-5 25 (2013). Nevertheless, numerous experts do apply and rely
upon the DSM as an authoritative source to support civil commitment. See, e.g., In re
Commitment of Fields, 2014 IL 115542, ¶ 22; In re Commitment of Dodge, 2013 IL App
(1st) 113603, ¶ 9; In re Detention of Ehrlich, 2012 IL App (1st) 102300, ¶ 25.
¶ 43 The DSM diagnostic criteria and classification of mental disorders are applied by experts
to legitimize a diagnosis as being grounded at some level in sound scientific principles. See,
e.g., Hendricks, 521 U.S. at 360 (the diagnosis of pedophilia, what the “psychiatric
profession itself classifie[d] as a serious mental disorder,” helped legitimize the diagnosis
and distinguish between a dangerous sexual offender whose mental abnormality subjects him
to civil commitment from the dangerous, but typical, recidivist who is more properly dealt
with through the criminal laws). As the DSM recognizes, “when the presence of a mental
disorder is the predicate for a subsequent legal determination (e.g., involuntary civil
commitment), the use of an established system of diagnosis enhances the value and reliability
of the determination.” American Psychiatric Association, Diagnostic and Statistical Manual
of Mental Disorders, 5th Edition, DSM-5 25 (2013).
¶ 44 Indeed, despite the State’s attempt to distance itself now from the DSM in assessing
general acceptance, the State relied upon the experts’ use of the DSM to establish general
acceptance before the trial court. The State argued “[t]he methodology in question is the use
of the DSM-IV-TR to make a diagnosis and that is generally accepted.” The State asserted
that the DSM is an “an authoritative reference manual that has long gained general
acceptance by professionals who assess sexually violent offenders.”
¶ 45 Most importantly, the experts in this case relied upon the DSM to support their opinion
that respondent has a valid diagnosable mental condition. Regardless of the terminology and
labels used by the experts, Dr. Fogel acknowledged that the diagnosis the experts relied upon
at trial in evaluating respondent mirrored the proposal by Blanchard to expand the diagnosis
of pedophilia to cover sexual attraction to early pubescent youngsters. See Blanchard,
Pedophilia, supra. As illustrated by the materials presented by respondent, the proposal
appears to have had more critics than supporters. Its rejection for inclusion in the very
authoritative manual upon which the State sought to rely in the trial court to establish general
acceptance raises more questions than it settles. The conflicting literature and the DSM lead
us to conclude that we cannot take judicial notice of the general acceptance of the hebephilia
diagnosis.
¶ 46 Alternatively, the State maintains that the issue of general acceptance has been resolved
in prior judicial decisions. In support, it cites cases that have admitted a paraphilia NOS
diagnosis, but where the expert specified a target or preference other than hebephilia as a
basis for civil commitment. See, e.g., In re Detention of Lieberman, 2011 IL App (1st)
090796, ¶ 53 (stating that the diagnosis of “paraphilia NOS, nonconsent has been the basis
for numerous probable cause or sexually violent person findings in this state and other
jurisdictions”); In re Detention of Stenzel, 827 N.W.2d 690, 702 (Iowa 2013) (paraphilia
NOS, nonconsent); In re D.H., 797 N.W.2d 263, 266 (Neb. 2011) (same).
¶ 47 With respect to the paraphilia NOS cases cited by the State, we find these cases do not
provide a basis for this court to take judicial notice that the specifically diagnosed condition
here is generally accepted. The experts in this case did not rely on merely a paraphilia NOS
diagnosis but, rather, identified a specific sexual attraction to early adolescent males. Part of
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the debate here involves whether that diagnosis fits within the rubric of paraphilia NOS or
whether the paraphilia NOS diagnosis is being misused in this context.
¶ 48 Additionally, the State cites other cases in which experts have relied upon a paraphilia
diagnosis specifically related to sexual attraction to early adolescents as a basis for civil
commitment, but where the court has not subjected the diagnosis to a Frye hearing. See, e.g.,
In re Commitment of Hardin, 2013 IL App (2d) 120977, ¶ 9 (diagnosed with paraphilia, NOS
with a preference for young teenage girls); In re Commitment of Curtner, 2012 IL App (4th)
110820, ¶ 7 (diagnosed with hebephilia, described as a sexual disorder whereby the person is
aroused by pubescent females); In re Care & Treatment of Williams, 253 P.3d 327, 330
(Kan. 2011) (diagnosed with paraphilia NOS, with hebephilia tendencies). As has been
repeatedly observed in the context of Frye, relying solely on prior judicial decisions to
establish general acceptance can be a “hollow ritual” if the underlying issue of scientific
acceptance has not been adequately litigated. (Internal quotation marks omitted.) Simons, 213
Ill. 2d at 537.
¶ 49 Furthermore, neither Illinois case that has addressed the admissibility of a paraphilic
diagnosis under a Frye analysis specifically concerned the particular paraphilia diagnosed
here. See In re Detention of Melcher, 2013 IL App (1st) 123085, ¶¶ 60-61 (paraphilia, NOS
sexually attracted to nonconsenting females otherwise known as a paraphilic disorder related
to rape); In re Detention of Hayes, 2014 IL App (1st) 120364, ¶ 35 (relying on Melcher to
establish that it was appropriate to take judicial notice that paraphilia NOS, nonconsent is
generally accepted). Notably, in holding that the diagnosis of paraphilia NOS, nonconsent
met the Frye standard, these cases relied upon McGee v. Bartow, 593 F.3d 556 (7th Cir.
2010). After describing the diagnosis as a paraphilic disorder related to rape, and reviewing
the relevant literature, the court in McGee concluded, “the diagnosis of a paraphilic disorder
related to rape is not so unsupported by science that it should be excluded absolutely from
consideration by the trier of fact.” McGee, 593 F.3d at 580. As this case does not involve the
same diagnosis, these cases do not provide a basis for this court to take judicial notice that
the particular diagnosis in this case is generally accepted.
¶ 50 Additionally, the State cites federal cases brought pursuant to the Adam Walsh Child
Protection and Safety Act of 2006 (18 U.S.C. § 4248 (2006)) in which the respondents were
diagnosed with hebephilia. See United States v. Caporale, 701 F.3d 128 (4th Cir. 2012);
United States v. Carta, 592 F.3d 34 (1st Cir. 2010). In those cases, the courts considered
whether the diagnosis was legally sufficient to support a finding that hebephilia constituted a
“serious mental illness, abnormality, or disorder” under the federal statute, and not the
scientific acceptance of the diagnosis in the mental health community. Caporale, 701 F.3d at
136-37; Carta, 592 F.3d at 39-40. The circuit courts were not asked to rule on the
admissibility of the expert’s testimony and, if they were, the courts would be held to a
different standard under the Federal Rules of Evidence. See Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993).
¶ 51 We are also particularly mindful that all of these opinions were issued prior to the court
having the opportunity to address the impact of the current status of the DSM, and its
consideration and rejection of this proposed diagnosis as a specific category of paraphilia or
as an extension of pedophilia. Thus, we find that these cases do not represent the unequivocal
or undisputed viewpoint necessary for us to take judicial notice here. As the State conceded
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at oral argument, where the court has an insufficient basis to determine general acceptance, a
Frye hearing is necessary. McKown, 226 Ill. 2d at 254.
¶ 52 CONCLUSION
¶ 53 In sum, we hold that the diagnosis of hebephilia is subject to Frye. Additionally, we hold
that this court has an inadequate basis to determine whether this diagnosis has gained general
acceptance in the psychological and psychiatric communities, and that this determination
cannot be resolved on judicial notice alone. As explained, we do not purport to decide the
issue of whether the diagnosis has been generally accepted. Rather, we affirm the judgment
of the appellate court, which remanded the case to the circuit court for a Frye hearing to
determine if hebephilia is a generally accepted diagnosis in the psychiatric and psychological
communities and, if necessary, for a new trial.
¶ 54 Appellate court judgment affirmed.
¶ 55 Cause remanded.
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