APPEAL from the Circuit Court of Champaign County; the Hon.
FREDERICK S. GREEN, Judge, presiding.
MR. JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:
After a bench trial, defendant Gordon Glenn Oliver was found to be a sexually dangerous person and was committed to the custody of the Department of Corrections of the State of Illinois. He appeals from the judgment of the trial court and the commitment order contending: (1) That the Sexually Dangerous Person Act deprived him of the equal protection of the laws; (2) that said act, as applied, deprived him of due process of law; (3) that the petition which originated these proceedings was not sufficient to support a commitment order under the Act; (4) that the psychiatrists' reports and testimony were insufficient to establish a prima facie case for the State; (5) that one of the physicians appointed by the court to examine defendant was not a qualified psychiatrist as defined in the Sexually Dangerous Persons Act; (6) that the State failed to establish a prima facie case by reason of the fact that only one report was filed by court-appointed psychiatrists; and (7) that the court erred in ruling in favor of the State by reason of the fact that the preponderance of the evidence was in favor of defendant.
• 1 It is our opinion that the petition filed in this cause is adequate to support a commitment under the Act. Section 3 of the Sexually Dangerous Persons Act provides that the petition filed under the provisions of the Act shall set forth "facts tending to show that the person named is a sexually dangerous person." (Ill. Rev. Stat. 1971, ch. 38, par. 105-3.) The defendant was tried on an amended petition alleging that defendant was then charged with the crime of attempted rape and the crime of aggravated battery, that he was suffering from a mental disorder which had existed for not less than one year, and that he then had criminal propensities to the commission of sex offenses and sexual assault, which propensities had been demonstrated by defendant during several instances of misconduct. Although defendant concedes that in criminal cases charges phrased in the language creating the offense are normally sufficient, he argues that the statutory language of the Sexually Dangerous Persons Act is too general to permit the filing of a petition reciting the language of the statute. We do not agree. Defendant was specifically informed of all allegations required by said act, and it cannot be said that he was not reasonably informed of the nature of the claim he is called upon to meet as the court held was required in People v. McDonald, 44 Ill. App.2d 348, 194 N.E.2d 541, cited by defendant in his brief.
• 2 Defendant further contends that the psychiatrists' reports and testimony were not sufficient to establish a prima facie case. We find no merit in this contention. Defendant was examined by Dr. Harry Little and Dr. Lawrence Richards, both of whom filed a report on defendant's mental condition and both of whom testified on behalf of the State. Dr. Little testified that the defendant possessed a feeling of racial oppression and would desire a closeness with white females, that he would probably approach and possibly frighten them, that this tendency would probably continue absent treatment of some kind, and that defendant's mental condition was probably of two years' duration. Dr. Little testified on cross-examination that although defendant's threatening sexual behavior was likely to continue, he did not think defendant would carry the threat to actual completion. Dr. Richards testified that in his examination of defendant, he exhibited varying amounts of personality disorder and sexual deviancy; and although he testified he was not sure whether defendant had a mental disorder when he compiled his report, he stated that if defendant were, in fact, guilty of the offenses for which he had been charged and convicted in the past and guilty of the offense for which he was then charged, then the defendant could be considered sexually dangerous. Considering by itself the testimony of the two doctors called to testify by the State, one must conclude that a prima facie case was established by the reports and testimony of the doctors.
• 3 The question as to whether Dr. Lawrence Richards was a qualified psychiatrist as defined in section 4.01 of the Sexually Dangerous Persons Act (Ill. Rev. Stat. 1971, ch. 38, par. 105-4.01) is also raised by defendant in his appeal. Dr. Richards is shown by the record to have treated and diagnosed mental disorders for seven and one-half years and to have spent three of those years in residency. Defendant contends that excluding his residence period, Dr. Richards' specialized experience totals only four and one-half years of practice and not the five years required by the Sexually Dangerous Persons Act. We can find no cause for disregarding Dr. Richards' three years' residency in the treatment and diagnosis of mental disorders in computing the five years referred to in the statute as determinative of whether or not a physician is a "qualified psychiatrist" as defined in the Act.
We find defendant's contention that only one report was filed by a court-appointed psychiatrist to be without foundation. The supplemental record indicates a docket entry by the presiding judge appointing Dr. Lawrence Richards to make a personal examination of the defendant and to file reports in writing of the results of their examinations which reports were filed.
• 4 Further, we find that the preponderance of the evidence was not in defendant's favor as contended by him. The testimony of the three psychiatrists, together with evidence of defendant's convictions of attempted rape and burglary with intent to commit a deviate sexual assault in Cook County on a plea of guilty and the testimony concerning threatening sexual advances at knifepoint in Champaign, Illinois, on two separate occasions, certainly create a preponderance of evidence in favor of the State and not the defendant.
• 5 Finally, the remaining issues raised by defendant's appeal present similar questions, in that they raise the constitutionality of the Sexually Dangerous Persons Act as enacted by the legislature and its constitutionality as applied in this case. Defendant first asserts that psychiatric reports were introduced in violation of his privilege against self-incrimination and that there is no showing in the record that he knowingly waived such right. The privilege was held to be applicable to the Sexually Dangerous Persons Act in People v. Potter, 85 Ill. App.2d 151, 228 N.E.2d 238; however, there is nothing in the record to indicate that the defendant asserted this privilege during his examination by the doctors, when the psychiatric testimony was presented or during the remainder of the trial or in his post-trial motion. In People v. Bruckman, 33 Ill.2d 150, 210 N.E.2d 537, the court stated that the privilege against self-incrimination can be waived as any other constitutional right and is waived unless asserted at the trial. The court there stated that testimony was received by psychiatrists at the trial without objection and that there was nothing in the record to indicate that the defendant asserted his privilege during the examination by the psychiatrist.
Defendant acknowledges that the statute in question and its predecessors have generally withstood constitutional challenges in the past, citing People v. Sims, 382 Ill. 472, 47 N.E.2d 703; People v. Ross, 344 Ill. App. 407, 101 N.E.2d 112; People v. Studdard, 51 Ill.2d 190, 281 N.E.2d 678; and Minnesota ex rel. Pearson v. Probate Court (1940), 309 U.S. 270, 84 L.Ed. 744, 60 S.Ct. 523, 126 A.L.R. 530. Defendant would distinguish the Pearson decision by pointing out that the United States Supreme Court quoted and accepted the State court's interpretation that the Act was intended to include those persons who by a habitual course of misconduct in sexual matters have evidenced an utter lack of power to control their sexual impulses, while the Illinois Sexually Dangerous Persons Act is applicable to persons with a propensity towards acts of sexual assault. Further, the Illinois act requires commitment of sexually dangerous persons to the Illinois Department of Corrections while the Minnesota act applied equally to insane persons and those adjudged to have a psychotic personality.
Defendant contends that although proceedings under the Sexually Dangerous Persons Act are expressly specified to be civil in nature, they have long been recognized to bear a strong resemblance to criminal prosecutions. People v. Bruckman; People v. English, 31 Ill.2d 301, 201 N.E.2d 455.
He further contends that recent decisions have held that constitutional safeguards may not be voided by the simple act of branding an act to be civil in nature, citing In re Gault (1967), 387 U.S. 1, 18 L.Ed.2d 527, 87 S.Ct. 1428, and In re Winship (1970), 397 U.S. 358, 25 L.Ed.2d 368, 90 S.Ct. 1068, both dealing with juvenile delinquency proceedings, and Specht v. Patterson (1967), 386 U.S. 605, 18 L.Ed.2d 326, 87 S.Ct. 1209, dealing with a sexual-offender statute, which held: "These commitment proceedings whether denominated civil or criminal are subject both to the Equal Protection Clause of the Fourteenth Amendment * * *, and to the Due Process Clause. * * *" 386 U.S. 605, 608, 18 L.Ed.2d 326, 329.
Finally, defendant relies on the decision in People v. Burnick (1975), 14 Cal.3d 306, 535 P.2d 352, 121 Cal.Rptr. 488, holding that in a mentally disordered sex offender proceedings under the California Welfare and Institutions Code, the standard of proof beyond a reasonable doubt is required by the California constitution and the fourteenth amendment to the United States Constitution.
We do not agree with the defendant that the authorities cited by him require the reversal of the judgment of the trial court and the commitment order. The statute upon which this appeal is based is expressly stated to be civil in nature. While we realize that simply because such a recital is contained in the Act is not controlling, it is our opinion that the proceedings are, in fact, civil in nature. The object of the proceedings is to determine the status of defendant, not to punish him for his actions. The defendant is given the right to jury trial and the right to counsel if he so desires. This defendant does not complain that he was not afforded the constitutional safeguards in the two criminal charges he previously faced in Cook County. To the contrary, he pleaded guilty to attempted rape on March 21, 1967, and on November 9, 1971, he entered a plea of guilty to burglary with intent to commit a deviate sexual assault.
It was alleged in the amended petition that defendant was then suffering from a mental disorder which had existed for a period of not less than one year. The medical evidence was uncontroverted and constituted proof of such allegation. The petition further alleged that defendant's propensities to the commission of sex offenses and sexual assault had been demonstrated by him during several ...