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In re Detention of New

Supreme Court of Illinois

November 20, 2014

In re DETENTION OF JOHN NEW, JR. (The People of the State of Illinois, Appellant,
John New, Jr., Appellee)

Appellate court judgment affirmed. Cause remanded.


Experts' diagnoses of sexual attraction to adolescent males (referred to as paraphilia not otherwise specified or hebephilia) should not have been admitted at a jury trial for civil commitment under the Sexually Violent Persons Commitment Act without a Frye hearing to determine the general acceptance of this diagnosis in the relevant scientific community; and judicial notice was not appropriate where the record was inadequate for the making of this determination--remand for Frye hearing.

Lisa Madigan, Attorney General, of Springfield (Michael A. Scodro, Carolyn E. Shapiro, Solicitors General, Michael M. Glick, Erica Seyburn, Assistant Attorneys General, of Chicago, of counsel), for the People.

Stephen F. Potts, of Des Plaines, for Appellee.

JUSTICE THEIS delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Karmeier, and Burke concurred in the judgment and opinion.


Page 407


[¶1] At issue in this case is whether the circuit court of Cook County erred in admitting certain expert testimony regarding a diagnosis of hebephilia at respondent's civil commitment trial without first conducting an evidentiary hearing pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (" Frye hearing" ) to determine whether the diagnosis had been generally accepted as a valid mental disorder in the relevant scientific community. For the reasons that follow, we hold that the diagnosis of hebephilia is subject to the Frye standards for the admissibility of novel scientific evidence, and that a hearing is necessary in this case to determine its general acceptance.


[¶3] In March 2005, the State filed a petition to commit respondent, John New, Jr., to the Department of Human Services (DHS) as a sexually violent person under the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 et seq. (West 2004)). The petition alleged that respondent had a history of committing sexually violent offenses, citing respondent's 1987 conviction of two counts of aggravated criminal sexual assault against a 12-year-old boy, and his 1995 conviction of aggravated criminal sexual assault and two counts of criminal sexual assault against a 14-year-old boy. Respondent was sentenced to seven years in prison for the 1987 conviction, and was sentenced to two consecutive terms of seven and six years respectively for the 1995 conviction. The petition further alleged that respondent had been diagnosed with " paraphilia not otherwise specified, [paraphilia NOS], sexually

Page 408

attracted to adolescent males," that his condition affected his emotional or volitional capacity which predisposed him to commit acts of sexual violence, and that there was a substantial probability that he would engage in future acts of sexual violence.

[¶4] Prior to trial, respondent filed a motion in limine to bar the expert testimony from the State's evaluators regarding their diagnosis. Respondent contended that the experts' opinions failed to meet the Frye standards for the admissibility of novel scientific evidence. Specifically, respondent argued that in recent years the diagnosis, " parapaphilia NOS, sexually attracted to adolescent males," which is otherwise referred in the academic literature as hebephilia, has been applied in civil commitment proceedings as the basis for an accepted mental condition. Respondent maintained that the purported mental condition was not listed as an accepted mental disorder in an authoritative reference manual, was not grounded in sound scientific principles, and was not generally accepted as a valid diagnosis within the psychiatric and psychological communities. In support of his motion, he attached several exhibits, including numerous articles criticizing a proposal to include the diagnosis as a qualifying mental disorder in the next edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM).

[¶5] In response, the State argued that the diagnosis was made in reliance upon the DSM category for paraphilia NOS, that there was nothing novel about the use of the DSM as a methodology, that paraphilia NOS is a frequently diagnosed mental disorder in sexually violent persons commitment proceedings, and that it has gained general acceptance by professionals who assess sexually violent offenders. The trial court denied respondent's motion, concluding that the expert testimony was admissible without the need for a Frye hearing. The court did not preclude respondent from cross-examining the State's experts based upon any scientific disagreement regarding the validity of the diagnosis.

[¶6] At trial, Dr. Fogel testified that he is a licensed forensic psychologist. In that capacity, he conducted a clinical evaluation of respondent to determine if he was a candidate for commitment under the Act. As part of that evaluation, Dr. Fogel reviewed respondent's master file, which contained information regarding respondent's incarceration, his medical file, and police reports regarding his various criminal offenses. Additionally, Dr. Fogel interviewed respondent in 2004 and 2010.

[¶7] Dr. Fogel considered respondent's sexual offense history. In 1980, at the age of 17, respondent was convicted of contributing to the delinquency of a minor and received supervision. In 1987, he was convicted of aggravated criminal sexual assault of a 12-year-old boy. While on mandatory supervised release for that conviction, he was convicted for soliciting a young male prostitute in his early 20s. Thereafter, in 1995, he was convicted of one count of aggravated criminal sexual assault and two counts of criminal sexual assault of a 14-year-old boy. Respondent was 32 years old at the time. One month prior to his release from the Department of Corrections, respondent received a sexual misconduct ticket for soliciting a 19-year-old male for sex. This individual had recently been transferred from the juvenile detention facility and was reportedly young looking. While awaiting trial in DHS custody, respondent requested to share a room with a recently-arrived detainee whom he had known in prison. Dr. Fogel noted documentation indicating that respondent had been the detainee's basketball

Page 409

coach when the detainee was 11 years' old. Dr. Fogel was of the opinion that respondent continued to fixate on this individual.

[¶8] Dr. Fogel testified regarding respondent's admitted attraction to younger looking men and respondent's feelings of powerlessness over his urges and sexual fantasies about younger men. Dr. Fogel noted that respondent had a history of befriending younger males, often overestimating their actual ages, purchasing items for them, and having sexual fantasies about them. Respondent described himself to Dr. Fogel at times as a passive recipient of the advances, and at other times admitted that he sought out certain individuals with a history of sexual abuse or individuals that were underprivileged or vulnerable in some way. According to Dr. Fogel, respondent reported a preference for tall, athletic, African American, young-looking men without facial or chest hair.

[¶9] Following the evaluation, Dr. Fogel diagnosed respondent with paraphilia NOS, sexually attracted to adolescent males or alternatively sexually attracted to early pubescent males, ranging from age 11 to 14 years old. In formulating a diagnosis, Dr. Fogel relied upon the Diagnostic and Statistical Manual of Mental Disorders, 4th edition, Text Revision (DSM-IV-TR), which was the current version of the DSM at the time. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision, DSM-IV-TR (2000). The manual, which is published by the American Psychiatric Association, provides an authoritative categorical classification of mental disorders.

[¶10] Dr. Fogel explained that a paraphilia, as identified in the DSM, refers to a general class of sexual disorders. There are two general criteria for establishing a paraphilic disorder related to children or other nonconsenting persons. The first criteria requires that over a period of at least six months the individual experiences recurrent, intense, sexually arousing fantasies, urges or behaviors generally involving children or other nonconsenting persons. The second criteria requires either that the sexual urges or fantasies cause the individual clinically significant distress or impairment, or the individual has acted on the sexual urges.

[¶11] Dr. Fogel testified that a paraphilia NOS diagnosis indicates that the individual meets the general overall diagnostic criteria for a paraphilia, but the condition fails to fall into one of the specifically listed paraphilic disorders in the DSM, such as voyeurism, sadism, or pedophilia. Dr. Fogel then identified the specific target of the paraphilia in respondent's case as a sexual attraction to early pubescent males. Dr. Fogel expressed that respondent meets the criteria for that diagnosis based on his sexual conduct with the 12- and 14-year-old boys, and his admitted fantasies focusing on early pubescent individuals during his incarceration, as well as fantasies about those adolescents he observed on television.

[¶12] On cross-examination, Dr. Fogel agreed that there is a debate about how the paraphilia NOS diagnosis should be applied within his field. He acknowledged the controversy over whether there should be a category in the DSM for those individuals with a sexual arousal to early pubescent males within the age range of 11 to 14, which has been described as hebephilia. He explained that unlike hebephilia, pedophilia is a listed diagnosis in the DSM. Pedophilia requires an interest in pre pubescent children, and provides a ...

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