Appeal from the Circuit Court of Kane County. No. 98--MR--456 Honorable Philip L. DiMarzio, Judge, Presiding.
The opinion of the court was delivered by: Justice Bowman
Respondent, Thomas Traynoff, appeals from a trial court order finding him to be a sexually violent person pursuant to the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 et seq. (West 1998)). On appeal, respondent argues that (1) the Act is unconstitutional under the United States Supreme Court's decision in Kansas v. Crane, 534 U.S. 407, 151 L. Ed. 2d 856, 122 S. Ct. 867 (2002); (2) the trial court erred in finding that respondent lacked control of his sexually violent behavior; and (3) the trial court erred in ordering respondent to submit to a mental evaluation by the Department of Human Services (DHS). In a supplemental brief, respondent also argues that the trial court erred in allowing expert testimony regarding certain actuarial instruments utilized to predict the likelihood that respondent would reoffend. We affirm in part and remand with directions.
On December 16, 1998, the State filed a petition to commit respondent pursuant to section 40 of the Act (725 ILCS 207/40 (West 1998)). The petition alleged as follows: on November 4, 1993, respondent, age 49, pleaded guilty to aggravated criminal sexual abuse. Respondent engaged in sexual intercourse with his girlfriend's niece, age 14. Prior to intercourse, respondent placed his penis on her vagina, his mouth on her vagina, his finger on her vagina, and his penis in her mouth. These acts were videotaped and occurred after respondent gave the girl alcohol until she became intoxicated. For this offense, respondent was sentenced to six years in prison.
Respondent's criminal history also included one conviction of unlawful delivery of a controlled substance, two convictions of burglary, one conviction of delivery of cannabis, and a federal conviction of possession of firearms. The six-year prison term imposed for unlawful delivery ran consecutive to the six-year term imposed for the sex offense involving the girlfriend's niece. In addition, respondent was sentenced to one year in a federal prison, consecutive to the above terms.
The petition further alleged that respondent was convicted twice of contributing to the sexual delinquency of a child. At age 22, he was sentenced to 364 days in jail. At age 24, respondent was sentenced to one year of probation and 90 days in jail.
According to the petition, respondent did not participate in sexual offender treatment and suffered from mental disorders including paraphilia not otherwise specified, alcohol abuse, and antisocial personality disorder. The State alleged that respondent was dangerous to others because his mental disorders created a substantial probability that he would engage in further acts of sexual violence. A mental health evaluation, prepared by psychologist Dr. Jacqueline N. Buck, accompanied the petition.
On December 22, 1998, the court determined that there was probable cause to believe respondent was eligible for commitment. On January 11, 1999, Dr. Phil Reidda and Dr. Paul Heaton, DHS psychologists, attempted to evaluate respondent pursuant to the Act. Respondent, however, refused to participate in the evaluation process. On February 10, 1999, the State filed a motion to compel respondent to submit to a mental evaluation. On May 27, 1999, the court granted the State's motion to compel respondent to cooperate with DHS psychologists. Respondent's request for appointment of an independent psychologist to evaluate him was also granted.
A bench trial commenced on June 7, 2000. DHS psychologist Dr. Buck testified that respondent suffered from three mental disorders: (1) paraphilia not otherwise specified; (2) alcohol abuse; and (3) severe antisocial personality disorder with narcissistic features. Dr. Buck defined paraphilia as a sexual disorder in which an individual is sexually aroused in a deviant manner by persons or things. Dr. Buck found respondent to be sexually attracted to minor females. Dr. Buck also found that respondent showed no remorse for his criminal conduct, failed to accept blame for it, and transferred blame instead to the victim. Dr. Buck opined that, if respondent were released, he would be at high risk to reoffend with acts of sexual violence.
Dr. Buck based her opinion, in part, on two actuarial instruments known as the Minnesota Sex Offender Screening Tool-Revised (MnSost-R) and the Static 99. Dr. Buck testified that a landmark study developed by Dr. Hanson in 1996, referred to as a "meta-analysis," identified risk factors that distinguish sex offenders who reoffend from those who do not. Dr. Buck further testified that, because the meta-analysis does not provide a percentage of risk of sexual reoffense, actuarial tools such as the MnSost-R, the Static 99, and the Rapid Risk Assessment of Sexual Offense (RRASOR) were developed to weight the risk factors and predict the likelihood of sexual offender recidivism.
The Static 99, also developed by Dr. Hanson, contains 10 factors designed to assess the probability that a sexual offender will reoffend. Using the Static 99, Dr. Buck scored respondent an 8, which put him in the high risk category. When asked whether Static 99 is reasonably relied upon by members of the field, Dr. Buck stated that it was a "work in progress" but strongly relied upon. Dr. Buck indicated that the predictive accuracy of this instrument was moderately high.
The second actuarial tool utilized by Dr. Buck was the MnSost-R, which contains 16 factors designed to predict the probability percentage of sexual recidivism. Using the MnSost-R, Dr. Buck determined that there was a 92% probability that respondent would reoffend.
On cross-examination, Dr. Buck admitted that the risk factors listed in Dr. Hanson's meta-analysis in 1996 had changed due to more research and studies in 1998. In 1996, Dr. Hanson found that factors such as low self-esteem, anger, denial, and general life stress did not impact the rate of recidivism. Dr. Buck explained that the reason she used these factors to evaluate respondent was that the 1996 study was out of date in some aspects and that Dr. Hanson had changed his mind about a number of things since that time.
When asked why she did not utilize the Rapid Risk Assessment of Sexual Offense (RRASOR), Dr. Buck responded that Dr. Hanson, who had created the instrument, now discouraged its use. She further testified that she could not, in good faith, apply a four-item test to predict recidivism. Dr. Buck also testified that she considered the MnSost-R to be more reliable than the RRASOR. She stated that "that's what makes this field exciting because you have folks duking it out over the subtleties."
Based on her clinical opinion, her experience, her clinical judgment, plus the actuarial tools, Dr. Buck opined that respondent was dangerous due to mental disorders making it substantially probable that he would commit future acts of sexual violence.
The State also called Dr. Paul Heaton, a private practitioner whose professional group did psychological evaluations for the DHS in similar cases. Dr. Heaton determined that respondent's IQ was in the high to superior range. He also concluded that respondent had a pattern of chronic psychic maladjustment, including severe defensiveness, suspicion, insecurity, evasiveness, and narcissistic personality traits. Dr. Heaton found that respondent was in strong denial of wrongdoing and had little empathy for the victim. Dr. Heaton's diagnosis matched that of Dr. Buck, and he also noted that respondent had not participated in any treatment program. Dr. Heaton opined that respondent's mental disorders predisposed him to commit more acts of sexual violence.
In forming his assessment, Dr. Heaton utilized the RRASOR and MnSost-R. Dr. Heaton explained that actuarial tools were screening devices that a layperson could use without advanced training or special licensing. These instruments could also be used without any personal interview with the subject. Dr. Heaton stated that the RRASOR was a very quick way of assessing a person's potential for reoffense with only four factors. Dr. Heaton also stated that he had some concern over the limited nature of the tool since several factors had now been added to it. Using the RRASOR, Dr. Heaton scored respondent a four, which indicated that there was a 33% probability that respondent would reoffend.
Dr. Heaton also utilized the MnSost-R when it became available because he wanted to make sure that the results that he had obtained from the RRASOR had not changed significantly due to new information in the field. According to Dr. Heaton, the MnSost-R had been cross-validated and was considered a state-of-the-art study. Dr. Heaton scored respondent a 16 on the MnSost-R, which put him in the high risk category.
Dr. Heaton stated that he would never rely on actuarial studies alone and that they were a way to support or corroborate the information obtained through other means. Based on his interview with respondent, his professional experience and education, as well as the actuarial tools, Dr. Heaton opined that respondent's mental disorders made it substantially probable that he would reoffend.
Defense witness Dr. Timothy Brown, a clinical psychologist and director of the Kane County Diagnostic Center, reviewed the reports of Drs. Buck and Heaton and diagnosed respondent as suffering from an adult antisocial behavior disorder and paraphilia not otherwise specified. Dr. Brown testified that respondent did not accept full responsibility for his criminal acts. While Dr. Brown concluded that there was no substantial probability that respondent would reoffend as a result of his mental disorders, he acknowledged that he was not experienced in performing risk assessments under the Act. Dr. Brown also admitted that he did not access all of the information reviewed by Drs. Buck and Heaton. Dr. Brown opined that respondent posed a moderate risk to reoffend.
Dr. Brown utilized the RRASOR and the MnSost-R in order to assess respondent. Using the RRASOR, Dr. Brown scored respondent a four, which indicated that there was a 33% probability that respondent would reoffend. Using the MnSost-R, Dr. Brown determined that there was a 42% probability that respondent would reoffend, putting him in the moderate risk category.
Dr. Brown testified that there was controversy within the field regarding the use of actuarial tools to predict sexual recidivism. Dr. Brown stated that they were not tests but research instruments, meaning that there were no manuals to accompany them. Dr. Brown further stated that, although they could be used to buttress testimony, they could not definitively determine whether a person should be committed under the Act.
On October 16, 2000, respondent was found to be a sexually violent person pursuant to the Act. Following a dispositional hearing on July 18, 2001, the court ordered that respondent be released based upon compliance with numerous conditions. Respondent filed a timely notice of appeal.
Respondent first argues that the Act is unconstitutional because it is contrary to the due process standard established by the Supreme Court in Crane. Specifically, respondent contends that the Act is unconstitutional because it allows the civil commitment of a person as sexually violent without a finding that the person lacks control over his or her behavior. Respondent relies on the language in Crane, which states that "there must be proof of serious difficulty in controlling behavior." Crane, 534 U.S. at ...