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In re Detention of Bolton

November 13, 2003


Appeal from Circuit Court of Champaign County No. 01MR134 Honorable John G. Townsend, Judge Presiding.

The opinion of the court was delivered by: Justice Cook


Defendant, Paul B. Bolton, appeals an April 16, 2002, jury verdict finding him to be a sexually violent person pursuant to Illinois's Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 through 99 (West 2000)). We reverse and remand.


On April 7, 1994, defendant pleaded guilty to criminal sexual assault (720 ILCS 5/12-13(b) (West 1994)), a Class X felony, for molestation and oral sex upon a child, his stepsister, which he admitted began when she was 6 years old and he was 12 years old. (Defendant was born in 1976.) Defendant was sentenced to four years' intensive probation. On June 19, 1995, defendant was found in violation of his probation for attempting to lure a five-year-old girl to an area secluded by a tarp for a sexual offense. He was accordingly sentenced to 12 years' imprisonment in the Illinois Department of Corrections (DOC). Defendant was scheduled for mandatory supervised release on February 27, 2001.

Prior to defendant's release, Dr. Jacqueline N. Buck, a licensed clinical psychologist working for the special evaluation unit of DOC, reviewed defendant's DOC file to determine whether he met the criteria for a sexually violent person under the Act and was therefore in need of a clinical interview. The purpose of a clinical interview is to identify sex offenders who are leaving DOC and have a high risk to reoffend in order to civilly commit them to the Department of Human Services for sex- offender treatment.

On December 22, 2000, Dr. Buck interviewed defendant and decided not to refer defendant for commitment under the Act because he had completed almost two years of sex-offender treatment at the Big Muddy Correctional Facility. In January 2001, Amanda Swope, defendant's ex-girlfriend and mother of his child, telephoned DOC and expressed concern for the safety of herself and her child after defendant's release. Due to this call, Dr. Buck reevaluated defendant using information she did not have when making her initial decision. Dr. Buck found this information significant and referred defendant for commitment. On February 26, 2001, the State filed a petition seeking a finding that defendant was a sexually violent person and should be committed pursuant to the Act.

At trial, the State presented Dr. Buck and Dr. Phil Reidda, a licensed clinical psychologist working for Affiliated Psychologists Limited, an organization independently contracted by the State to perform evaluations on persons for whom an Act probable-cause determination has been made. Both Dr. Buck and Dr. Reidda found defendant met the DSM-IV-TR (American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders DSM-IV-TR, at xxxiii (4th rev. ed. 2000)) diagnostic criteria for (1) pedophilia, sexually attracted to females, nonexclusive type; (2) paraphilia, not otherwise specified, sexually attracted to non-consenting females, nonexclusive type; (3) voyeurism; (4) antisocial personality disorder, severe; and (5) narcissistic personality disorder, severe.

They testified defendant has a mental disorder such that he has a serious difficulty in controlling his behavior, and there is a substantial probability defendant will engage in acts of sexual violence in the future unless significant intervention has taken place. See 725 ILCS 207/5(f) (West 2000). They based their opinions on the results of psychological tests and actuarial tools, as well as a clinical interview and a review of defendant's juvenile and adult criminal, sexual, and treatment history.

Defendant presented Dr. Larry M. Davis, a licensed physician specializing in psychiatry who had examined defendant for the purpose of this litigation. Dr. Davis diagnosed defendant with pedophilia, sexually attracted to females, nonexclusive type, and voyeurism. He did not believe there was a substantial probability defendant would sexually reoffend. He based his opinion on evidence of defendant's treatment at the Big Muddy Correctional Facility. Due to defendant's high intelligence, further education activity, ongoing therapy, and direct experience of DOC punishment, he felt that defendant's behavior is controllable. In addition, Dr. Davis contended that the experts in the field agree that the reoffense rate for incestuous sexual molesters is lower than nonincestuous molesters. The fact that defendant's victims are female also lowers his likelihood of reoffending. Dr. Davis did not rely on actuarial tools to assess defendant's risk for recidivism.

Defendant also presented Dr. Terence Campbell, a licensed clinical psychologist who reviewed defendant's psychological evaluations. Dr. Campbell testified at length regarding the history and criticisms of the actuarial tools used in this case. He based many of his opinions on two articles published after Dr. Buck and Dr. Reidda analyzed defendant. Dr. Campbell argued the correlation between the risk factors used by Dr. Buck and Dr. Reidda and recidivism was not statistically significant; the correlation could occur by chance alone. On cross-examination, Dr. Campbell admitted that one of the articles he relied on concluded that the VRAG (Violence Risk Appraisal Guide) and Static-99 tools were found to predict violent and sexual recidivism. He admitted that the actuarial tools used in this case are the best available. He testified that although the tools are used all over the nation, they are not necessarily being used accurately.

The State called rebuttal witness Dr. Dennis Doren, a licensed psychologist, to testify regarding the actuarial tools. He testified that the concept of actuarial tools goes back in psychology almost 100 years with the first intelligence test. In 14 of the 15 states that have sex-offender civil-commitment statutes, at least some of the evaluators use actuarial tools as part of their assessment process. The Association for the Treatment of Sexual Offenders (ATSA) has a policy that evaluators should use validated actuarial risk-assessment tools. He did not consider actuarial tools to be experimental because they are nationally and internationally well tested. Each instrument is complete, but the research continues to improve upon that product.

A jury returned a verdict in favor of committing defendant as a sexually violent person pursuant to the Act. On June 4, 2002, the trial court found commitment to institutional care in a secure facility, the Department of Human Services, to be the least-restrictive treatment ...

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