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In re Detention of New

Court of Appeals of Illinois, First District, Third Division

June 12, 2013

In re THE DETENTION OF JOHN NEW JR.
v.
John New Jr., Respondent-Appellant. The People of the State of Illinois, Petitioner-Appellee,

Appeal from the Circuit Court of Cook County No. 05 CR 80002 Honorable Michael McHale, Judge Presiding.

JUSTICE HYMAN delivered the judgment of the court, with opinion. Presiding Justice Neville and Justice Pierce concurred in the judgment and opinion.

OPINION

HYMAN, JUSTICE

¶ 1 Involuntary commitment under the Illinois Sexually Violent Persons Commitment Act (SVP Act) (725 ILCS 207/1 et seq. (West 2010)) is not punishment for the respondent's past crimes, nor should it be. The proceeding under the SVP Act is a statutorily created civil action that considers the respondent's current mental state to determine the likelihood of respondent engaging in further acts of sexual violence on his or her release. Essentially, the respondent's liberty is tied to an assessment of the mental disorder and the risk of future sexual offenses. These cases turn on expert testimony.

¶ 2 Respondent John New Jr. appeals his commitment raising four issues: (i) whether the court should have held a Frye hearing to determine whether the State's expert testimony regarding his diagnosis was admissible; (ii) whether the State improperly presented evidence of certain psychological conditions not asserted in its petition; (iii) whether the SVP Act is constitutional as applied to New; and (iv) whether the evidence at trial supported New's commitment as a sexually violent person. Finding the trial court erred by failing to conduct the Frye hearing, we reverse and remand.

¶ 3 I. BACKGROUND

¶ 4 A. New's Life and Criminal History

¶ 5 New did not testify, and the trial consisted of expert testimony only. We review the expert testimony with the understanding that none of the experts had personal knowledge of the events to which they testified.

¶ 6 New was born on April 29, 1963. He was diagnosed with bipolar disorder as a child. When he was seven, he began consuming alcohol. In his teens, he smoked marijuana. When he was young, a male neighbor sexually abused New, holding him at knife point and forcing New to perform oral sex. In 1980, New, 17, was caught performing oral sex on a 15-year-old boy. It is unclear whether this sex was consensual. New was convicted of contributing to the sexual delinquency of a child and received supervision.

¶ 7 When New was 23 he had a sexual encounter with an 11-year-old boy in an abandoned warehouse. A few months later, New met the boy, who was then 12, and his friend, also age 12, on the street and bought them dinner. The three went to the same warehouse and the boy performed anal sex on New. The friend declined New's invitation to participate. New later stated that he believed the friend was 17 and the boy was 15. As a result of these encounters, New pleaded guilty to two counts of aggravated criminal sexual assault, and was given seven years in prison.

¶ 8 In 1992, New was placed on mandatory supervised release. During his release, New was arrested for soliciting prostitution from an undercover male police officer whom New described as young-looking. New's parole was revoked, and he returned to the Illinois Department of Corrections. New again received mandatory supervised release in 1994.

¶ 9 Thereafter, New took a job as a camp counselor for the Chicago park district. Watching the children in the locker room aroused New. Occasionally, after observing the children, New would go to a bar and pick up an adult male to perform oral sex on while fantasizing about the children. New solicited sex from one of the children attending the camp. The child refused but took $35 from New to help find a willing partner. The boy identified another camper who was willing to have sex with New for money. In July 1995, in a swimming pool locker room, New performed fellatio and anally penetrated the 14-year-old camper and then had the camper perform oral sex on him. New was charged and convicted of one count of aggravated criminal sexual assault and two counts of criminal sexual assault. Certified as a "habitual sexual offender or child sexual offender, " New was sentenced to nine years in prison. Later New said that he believed the camper, who was a ward of the state, was 15 years old.

¶ 10 In prison New underwent limited substance abuse and sex-offender treatments. The sex- offender treatment consisted of six months of group therapy. New reported that he quit participating in the treatment because he felt he was not learning much, and because he was uncomfortable with the female therapist's suggestion to masturbate.

¶ 11 New was scheduled for release in 2004. But 37 days before his release date, New was accused of fondling the genitalis of a 19-year-old inmate who had recently arrived from the youth facility. The inmate was a 6-foot 3-inch, athletic, black male with no facial or chest hair. New later stated that this inmate made him "thirsty" and aroused. New requested the inmate be transferred into his cell. He sexually fantasized about the inmate, imagining that the inmate had no pubic hair. As a result of the fondling incident, New pleaded guilty before the prison's adjustment committee and received a sexual misconduct ticket, delaying his release until March 2005. New later claimed that the inmate welcomed his advances.

¶ 12 In March 2005, the State filed a petition to have New committed as a sexually violent person. The trial court held a probable cause hearing in December 2005 and found probable cause to detain New at a facility of the Illinois Department of Human Services. While there, New met a young-looking, bearded 20-year-old whom New had coached in 1994, when the man was around 11 years old. New requested to room with the man, and also admitted he was attracted to him. Additionally, New requested to room with several residents at the facility, and became angry when his requests were denied. At the human services facility, New successfully completed the orientation group, the introduction to thinking errors groups, and the anger management group. He participated in the tactics group and the life stressors group, but did not participate in sex offender treatment.

¶ 13 B. The SVP Act Trial

¶ 14 The SVP Act trial occurred in November 2010 before a jury. Three experts testified: Drs. Fogel and Brucker for the State, and Dr. Witherspoon for New.

¶ 15 1. Dr. Fogel's Testimony

¶ 16 Dr. Michael Fogel is a forensic psychologist. Based on his education and experience, Fogel was qualified as an expert in clinical psychology in the area of assessing the risk that a sex offender will re-offend.

¶ 17 Fogel reviewed New's master file, including his mental health evaluations, records of his current and previous medical issues, statements of facts from the State's Attorney's office, and police reports of various criminal offenses. Clinical psychologists generally rely on and accept these documents in evaluation of sex offenders. Fogel interviewed New twice, in 2004 and 2010. He also conducted two psychological tests, called the Hare Psychopathy Checklist Revised and the Static 99.

¶ 18 Referring to the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, Text Revision (DSM-IV-TR) (published by the American Psychiatric Association, the manual provides the definitions of psychiatric diagnoses and is considered the definitive reference for the categorical classification of mental disorders), Fogel testified that New suffers from "paraphilia, not otherwise specified, sexually attracted to early pubescent males." Fogel defined early pubescence as between 11 and 14 years old. Paraphilia, a general class of sexual disorders, is characterized by current, intense sexually arousing fantasies involving sexual urges or behaviors generally involving (i) nonhuman objects, or (ii) the suffering or humiliation of oneself or another, or children or other nonconsenting persons that occurs over a period of six months. Further, the person must have acted on his or her sexual urges, or the sexual urges or fantasies must have caused the person marked distress or inner-personal difficulty. The "not otherwise specified" diagnosis indicates that New meets the paraphilia diagnostic criteria in the DSM-IV-TR, but he does not fall neatly into one of the named categories, such as voyeurism, sadism, or pedophilia. The "sexually attracted to early pubescent males" is the specific diagnosis, the type of paraphilia.

¶ 19 The DSM-IV-TR describes paraphilias as "mental disorders [that] are characterized by sexual fantasies, urges, or behaviors involving non-human objects (coprophilia, fetishism, transvestic fetishism), suffering or humiliation (sexual sadism, masochism), children (pedophilia) or other non-consenting person (voyeurism, frotteurism, exhibitionism)." There is a debate whether to include a diagnosis of hebephilia in the upcoming DSM-V, and according to Fogel, the proposed definition for hebephilia in the DSM-V is the same as New's diagnosis of paraphilia not otherwise specified, sexually attracted to early pubescent persons. (Hebephilia refers to sexual attraction to pubescent children, that is to say, those early in their sexual development, around the ages of 11 to 14. Pedophilia, unlike hebephilia, involves sexual attraction to prepubescent children, generally younger than 11.)

ΒΆ 20 Fogel testified that New also suffered from antisocial personality disorder involving a pervasive pattern of disregard for or violation of the rights of others. Fifty to eighty percent of individual that are incarcerated suffer from antisocial personality disorder. Fogel admitted that New's antisocial ...


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