Court of Appeals of Illinois, First District, Fourth Division
Appeal from the Circuit Court of Cook County. No. 98 CR 80004 The Honorable Michael B. McHale, Judge Presiding.
JUSTICE LAVIN delivered the judgment of the court, with opinion. Justices Fitzgerald Smith and Epstein concurred in the judgment and opinion.
¶ 1 Respondent Enrique Rendon was civilly committed as a "sexually violent person" under the Sexually Violent Persons Commitment Act (the Act) (725 ILCS 207/1 et seq. (West 2012)) and subsequently institutionalized in a secure facility. The trial court later conditionally released respondent only to later revoke the release on the State's petition, concluding that the "safety of others, " a standard identified in the statute (725 ILCS 207/40(b)(4) (West 2012)), required such revocation. On appeal from the revocation order, respondent contends this undefined statutory standard is unconstitutionally vague. He alternatively contends the State failed to prove by clear and convincing evidence that his conditional release should be revoked. Finally, he contends the trial court improperly relied on his clinical psychologist's reexamination report at the revocation hearing, thus requiring reversal. For the reasons set forth below, we reverse the judgment of the circuit court and remand for further proceedings consistent with this opinion.
¶ 2 BACKGROUND
¶ 3 Respondent, now age 66, has been civilly committed to the control, care, and treatment of the Department of Human Services (DHS) since 2002, when he admitted the allegations in the State's petition and the court accordingly found he was a sexually violent person (SVP) diagnosed with pedophilia (sexually attracted to minor females), substance abuse problems, and later, paraphilia not otherwise specified (sexually attracted to nonconsenting females), frotteurism, and antisocial personality disorder. See 725 ILCS 207/5(f) (West 2012). Respondent's underlying offenses included a 1989 guilty plea conviction and 16.5-year sentence for aggravated criminal sexual assault, aggravated criminal sexual abuse, aggravated kidnaping, and kidnaping, which was imposed after respondent kidnaped and assaulted an eight-year-old girl. Respondent served six years and was released on parole. In 1997, respondent violated his parole by repeatedly attempting to lure children into his vehicle and also refused sex offender treatment. It was thereafter that the State sought to have respondent civilly committed under the then newly effective SVP law.
¶ 4 Following his adjudication as an SVP, respondent was institutionalized in a secure facility under the Act. Following psychological treatment and polygraph examinations, respondent self-reported having committed some 25 sexual offenses against females between the ages of 4 and 40. In one instance, respondent admitted climbing into bed next to his daughter's 17-year-old intoxicated girlfriend. Respondent's daughter found him naked from the waist down, and the victim's pants were pulled down. Although respondent was arrested following this offense, charges for the sexual offense apparently were never filed. Respondent also admitted repeatedly raping his own wife. He claimed to have participated in various grooming and stalking behaviors of young girls that culminated with rape or other sexual assaults. In addition, he said he raped two prostitutes after supplying them with drugs and alcohol, then threatened their pimp and had them "working for him" over the next several years, during which time he sexually assaulted them. Respondent used physical force and weapons to coerce sexual compliance. He also admitted to committing some 20, 000 frottage offenses where he targeted young women and rubbed against them for sexual gratification. His reevaluation revealed a consistent pattern of deception by respondent.
¶ 5 Two years after being formally adjudicated an SVP, respondent filed a petition to be conditionally released for reintegration into the community. Respondent was "reexamined" a number of times to determine whether he remained an SVP, i.e. was dangerous because he suffered from a mental disorder making it "substantially probable" that he would engage in acts of sexual violence. See 725 ILCS 207/5(f) (West 2002). According to the reports, reexamination consisted of reviewing his progress in treatment, psychological testing, clinical interviews, and risk analysis. In May 2010, Dr. Edward Smith, a licensed clinical psychologist, filed one such report noting respondent's sexual offense and DHS treatment history. Dr. Smith stated that respondent was participating in treatment, making progress, and had completed a relapse prevention plan, whereby he was to use techniques to manage and interrupt deviant sexual arousal. Respondent's most recent penile plethysmorgraph (PPG) test had indicated no deviant sexual arousal, and respondent demonstrated understanding of his cycle and plan. That, together with his decreased risk of reoffense based on respondent's advanced age, led Dr. Smith to recommend that respondent be reintergrated into the community on a "highly structured" conditional release program. Dr. Smith stated that respondent had demonstrated sufficient progress to lower his risk so that he could be safely managed in the community.
¶ 6 On the heels of this report and following a hearing, the court granted respondent conditional release on June 30, 2010, and he was released into the community on September 14, 2010. As per the statute, the court-approved "conditional release plan" was a detailed agreement between DHS and respondent severely limiting respondent's freedom and movement based on his status as an SVP. Relevant for this appeal, respondent was placed on home confinement. He was also ordered to refrain from contact with minor children absent DHS approval, and to refrain from entering into sexually intimate relationships unless he first gave notification to his conditional release agent. His plan required that respondent participate in sex offender treatment, behavioral monitoring, PPG testing and polygraph examinations. Respondent was to meet regularly with his conditional release agent to discuss "compliance with the conditions of his release and treatment progress" and also comply with other special conditions identified by his conditional release agent and case management team to restrict respondent from "high-risk situations" with "access to potential victims." Tracking the language of the statute, the plan provided that respondent's conditional release would be revoked if he "failed to abide by any condition of his release plan" or if "the safety of others" required revocation, at the recommendation of the conditional release agent. See 725 ILCS 207/40(b)(4) (West 2012). Respondent signed and initialed a certificate indicating that he understood the plan and that his conditional release would be revoked if he failed to abide by the stated conditions.
¶ 7 Respondent was on conditional release for less than a year before the State filed a revocation petition on July 5, 2011. This petition was based on admissions during a polygraph examination taken May 30, 2011, that respondent had masturbated to fantasies of rape more than 20 times while released, a fact which he failed to disclose to his treatment providers until faced with the polygraph. The State also alleged that respondent failed the polygraph examination in that deception was noted when he denied rubbing against anyone for sexual gratification, denied masturbating to fantasies of rape, and denied masturbating to phone sex. The State asserted respondent's deception threatened the safety of others and required revocation of his conditional release. A hearing followed in August. Respondent acknowledged in open court that he had not told his therapist about these fantasies and only disclosed them before his polygraph exam. While the court denied the State's petition, it specifically warned that any further incidents would justify revoking respondent's conditional release.
¶ 8 In October 2011, apparently in response to respondent's difficulty controlling deviant arousal, he was prescribed Eligard, a prescription medication thought to lessen sexual urges by lowering testosterone levels. A number of court status hearings also followed with the State representing that respondent had either failed or deliberately distorted the results of his polygraph exams and that he was not working with his treatment providers.
¶ 9 In June 2012, the State again filed a petition to revoke respondent's conditional release. In making its allegations, the State relied principally on the June 6, 2012, reexamination report filed by clinical psychologist Dr. Smith, which the State attached and incorporated into its petition. The State alleged respondent was having "significant difficulty managing his deviant sexual arousal" and had been "less than forthright with his case management team." In support, the State cited respondent's deviant sexual fantasies "prior to the initiation of Eligard" and respondent's denial of "masturbating to the deviant sexual arousal since the initiation of Eligard." In addition, the State noted respondent's failed polygraph examinations, his intentional interference with the examinations, and his admission that he contemplated having females in his apartment without his conditional release agent's knowledge. The State noted Dr. Smith's opinion that respondent's "lack of disclosure and the presence of secret keeping" suggested defendant's word could not be taken "at face value." Given respondent's "high risk behaviors" and lack of insight into the level of risk, the State urged the trial court to revoke respondent's conditional release to protect "the safety of others" in the community. The State noted that under the Act, conditional release may be revoked on that basis or if respondent violated any condition or rule of conditional release.
¶ 10 An evidentiary hearing was held June 29, 2012. The court noted that the statute was disjunctive; the State had to prove by clear and convincing evidence that a rule or condition was violated or that the safety of others required revocation of conditional release. Licensed clinical social worker Rhonda Meacham testified that she was on respondent's case management team and had been treating him since fall 2010. She met with respondent weekly for 90-minute group therapy sessions and had seen him individually for 60-minute sessions since February 2012. In addition, the State noted Meacham's semiannual report, dated October 2011 to March 2012. Meacham testified that respondent's primary issues were managing his deviant sexual arousal and being transparent in therapy so he could pass his polygraph examinations.
¶ 11 Between June 2011 and February 2012, respondent had been unreliable in self- reporting. Meacham testified he had failed his May 2011 polygraph examination and, in particular, apparently failed the question of whether he had "rubbed up against anybody." In September 2011, respondent's PPG test revealed no indication of arousal, but respondent also "engaged in behaviors that could have manipulated the outcome" which could invalidate the test and at the very least showed he was not following instructions. In November 2011, he was said to have distorted the polygraph results by shaking his legs during the test. In February 2012, respondent's polygraph examination was inconclusive on two questions, one regarding whether he masturbated to fantasies of rape, and he failed the question of whether or not he had women in his apartment. Meacham noted that up until February 2012, respondent continued to struggle with "fantasies of force" and would masturbate to thoughts of both force and frottage. Respondent reported he could continue to masturbate to deviant fantasies without increasing his risk of reoffending even though his reevaluation report indicated these types of fantasies preceded sexually ...