In re Detention of New

2014 IL 116306
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 116306)
In re DETENTION OF JOHN NEW, JR. (The People of the State of Illinois,
Appellant, v. John New, Jr., Appellee).
Opinion filed November 20, 2014.
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,
“parapaphilia NOS, sexually attracted to adolescent males,” which is otherwise
referred in the academic literature as 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
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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 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
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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
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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 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
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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,
“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).
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¶ 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 Frye test. In Donaldson, this court explained that the Frye test does not concern an
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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
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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 particular condition. Rather, the science
behind the condition is at issue, as evidence by the supporting documentation presented
by respondent regarding flawed methodology. See, 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.
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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) (“the 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”).
¶ 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
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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 Disorders, 5th Edition,
DSM-5 25 (2013). Nevertheless, numerous experts do apply and rely upon the DSM as
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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
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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 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
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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 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
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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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