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In re Commitment of Bushong

August 30, 2004


[6] Appeal from the Circuit Court of Du Page County. No. 98--MR--381. Honorable Edward R. Duncan, Jr., Judge, Presiding.

[7] The opinion of the court was delivered by: Justice Byrne

[8]  The trial court found respondent, Eugene Bushong, to be a sexually violent person pursuant to the Sexually Violent Persons Commitment Act (SVPA) (725 ILCS 207/1 et seq. (West 2000)) and ordered him committed to a Department of Human Services (DHS) treatment facility indefinitely. Respondent did not appeal the adjudication or his commitment to DHS. Instead, respondent petitioned alternatively for conditional release (725 ILCS 207/60 (West 2000)) or discharge (725 ILCS 207/65 (West 2000)). The trial court denied the petition, and respondent timely appeals.

[9]  On appeal, respondent alternatively asks us to vacate the trial court's finding of sexual violence and the dispositional order, or to remand the cause for a new hearing on his petition for conditional release. Respondent argues that (1) his due process rights were violated at the original commitment hearing because the SVPA did not require the trial court to expressly find that his mental disorder makes it difficult for him to control his urge to commit sexually violent acts; (2) he was denied his right to equal protection at the conditional release hearing because the SVPA requires the State to prove its case by only clear and convincing evidence rather than by proof beyond a reasonable doubt, as is required by the Sexually Dangerous Persons Act (SDPA) (725 ILCS 205/1.01 et seq. (West 2000)); and (3) he received ineffective assistance of counsel at the conditional release hearing when his attorney did not (a) challenge the admissibility of actuarial instruments that the State's expert used to assess respondent's risk of recidivism or (b) move to exclude the testimony of the State's expert as a sanction for the DHS treatment providers' refusal to discuss the case with the defense expert. We reject respondent's arguments and affirm the judgment.

[10]   FACTS

[11]   Following a hearing on February 23, 1999, the trial court found beyond a reasonable doubt that respondent was a sexually violent person. The court found that respondent had been convicted of aggravated criminal sexual abuse in 1986 and 1991; the offenses involved boys who were less than 17 years old; and respondent suffered from the mental disorder of paraphilia, not otherwise specified, attracted to males, nonexclusive type. The court found that respondent was dangerous because the "mental disorder makes it substantially probable that [respondent] will engage in acts of sexual violence." Following a dispositional hearing on August 16, 1999, the court ordered respondent committed to DHS for care and treatment.

[12]   On December 12, 2000, defense counsel filed a petition seeking respondent's conditional release. The petition alleged that respondent's time would be better spent in employment and outpatient treatment. The court heard the petition more than 18 months later, on June 24, 2002. Dr. Leavitt, the State's expert, testified that he conducted 6-, 18-, and 30-month evaluations in which he interviewed respondent, reviewed his treatment progress, administered psychological tests, and updated his risk analysis. Dr. Leavitt reported that respondent had been charged with seven sex offenses over 40 years. Respondent was convicted six times and showed no evidence of stopping his criminal sexual behavior.

[13]   Dr. Leavitt stated that the DHS treatment providers were treating respondent for paraphilia, sexually attracted to males, nonexclusive type. Respondent also exhibited narcissistic personality disorder. His treatment consisted of a five-phase core sex-offender-specific program, as well as an individual plan. Respondent was assigned a case manager and a primary therapist. Respondent had shown some progress by participating in treatment and admitting to some of his past sexual offenses. Respondent first participated in a disclosure group because he initially resisted treatment. At the time of the hearing, respondent was in the second phase of the program, which focused on accepting responsibility for his sexual deviance. Before progressing to phase three, respondent submitted to a polygraph test, but his results were inconclusive because he responded erratically. Following the polygraph test, respondent admitted to abusing five additional victims. This delay in disclosure caused his treatment providers to doubt whether respondent could discuss his past honestly and openly. The providers also expressed concern that respondent could not focus and participate in group treatment.

[14]   Dr. Leavitt administered the Multiphasic Sex Inventory, which showed that respondent remained defensive but was also becoming increasingly open about his past behavior. The Millon Clinical Multiaxial Test showed that respondent felt depressed, insecure, and personally inadequate. Dr. Leavitt's most recent interview indicated that respondent had a more positive outlook and was open about the progress he had made. Respondent indicated that his risk of reoffending had decreased because he was more comfortable with his sexuality.

[15]   Dr. Leavitt administered several actuarial instruments to assess respondent's potential for recidivism. The Static-99, the Hanson-Bussiere meta-analysis, and the Hanson and Harris instruments showed that the following significant dynamic factors must be addressed: respondent's deviant sexual interests, cognitive disorders, and resistance to personal change. Dr. Leavitt opined that respondent's progress in treatment did not reduce his risk of reoffending.

[16]   Dr. Leavitt testified that the DHS program was the only inpatient sex-offender-specific program in Illinois. Respondent's treatment at the time of the hearing included 10 to 12 hours of weekly group therapy, as well as other treatment. If respondent were granted conditional release, he would likely participate in weekly 1½-to 2-hour treatments. Respondent was 60 years old at the time of the hearing, and his age was not necessarily a mitigating factor, because the research is inconclusive as to whether recidivism decreases over time. Dr. Leavitt also believed that respondent's erectile dysfunction necessitated a second plethysmograph analysis.

[17]   Respondent told Dr. Leavitt that his behavior was caused by the sexual confusion with which he had struggled for many years. However, Dr. Leavitt believed that respondent was minimizing the intensity and severity of his sexual deviance and that respondent's 40-year pattern of behavior suggested that his paraphilic urges would not dissipate simply upon his acceptance of his homosexuality.

[18]   Respondent testified that, if he were granted conditional release, he would reside with his 85-year-old mother, who lived two blocks from respondent's sister and brother-in-law. His sister's parish pastor also offered to assist respondent. Respondent agreed to cooperate with any treatment requirements, but he was unaware of what types of outpatient programs were available, because DHS barred him from corresponding with those facilities. Respondent did not direct his sister to investigate treatment alternatives, because he expected DHS to coordinate his treatment by providing information. Respondent admitted that he disclosed the additional victims after submitting to the first polygraph test, and he insisted that he repeatedly volunteered to retake the test.

[19]   Psychologist Hollida Wakefield, respondent's expert, testified that she evaluated respondent in April 2001 and reviewed his DHS records. She administered two psychological tests as well as three actuarial instruments: the Minnesota risk assessment tool that was used at the original commitment hearing, the Static-99, and the Sex Offender Risk Appraisal Guide. Respondent scored in the high risk category on the Static-99 because it gives more weight to offenses against boys. The actuarial instruments incorporate documentation and cannot be completed with only an interview. Wakefield could not assign a percentage to the likelihood that respondent would reoffend, because the instruments are unreliable and useful only as aids. She stated that polygraphs and plethysmographs are also unreliable.

[20]   Like Dr. Leavitt, Wakefield diagnosed respondent with paraphilia, not otherwise specified, sexually attracted to males, nonexclusive type. Wakefield opined that respondent's pattern of offending against adolescent males manifested his struggle to acknowledge his homosexuality. However, while living in California, respondent came to terms with his sexual identity and had "mainly adult" sexual partners. There was no evidence that respondent had reoffended since 1991. Wakefield testified that paraphilia is a mental disorder that "affects" a person's ability to control his deviant sexual behavior, but "not everyone acts on their impulses."

[21]   A DHS attorney barred Wakefield from discussing the case with respondent's treatment staff. However, Wakefield was permitted to review the staff's progress notes, which indicated that respondent was in phase three of the program, even though his polygraph was inconclusive. Wakefield believed that the test was inconclusive because respondent gets anxious easily and was unsure of how many boys he had victimized. Wakefield opined that there is no research that associates a delay in ...

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