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In re Commitment of Rutherford

Court of Appeals of Illinois, Second District

August 8, 2019

Samuel Rutherford, Respondent-Appellant. The People of the State of Illinois, Petitioner-Appellee,

          Appeal from the Circuit Court of Du Page County. No. 07-MR-683 Honorable Paul M. Fullerton, Judge, Presiding.

          Attorneys for Appellant: William G. Worobec, of Law Office of William G. Worobec, P.C., of Wheaton, for appellant.

          Attorneys for Appellee: Lisa Madigan, Attorney General, of Chicago (David L. Franklin, Solicitor General, and Michael M. Glick and Lindsay Beyer Payne, Assistant Attorneys General, of counsel), for the People.

          JUSTICE McLAREN delivered the judgment of the court, with opinion. Justices Jorgensen and Spence concurred in the judgment and opinion.


          McLAREN, JUSTICE

         ¶ 1 Respondent, Samuel Rutherford, committed under the Sexually Violent Persons Commitment Act (725 ILCS 207/1 et seq. (West 2008)), appeals from the trial court's denial of his petition for discharge and the appointment of an independent evaluator. For the reasons that follow, we affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 In 2002, respondent, then 16 years old, was adjudicated a delinquent minor for committing attempted aggravated criminal sexual assault (720 ILCS 5/8-4(a), 12-14(b)(i) (West 2002)) and aggravated criminal sexual abuse (id. § 12-16(c)(2)(i)) against an 8-year-old girl. He was sentenced to five years of probation. In March 2005, respondent admitted to violating the conditions of his probation and was committed to the Department of Juvenile Justice (DJJ) for an indeterminate term under section 5-720 of the Juvenile Court Act of 1987 (705 ILCS 405/5-720 (West 2004)). He was released on parole in June 2006. In 2007, at the age of 20, respondent violated his parole conditions by committing frottage against a treatment center staff member on at least two occasions and was recommitted to the DJJ.

         ¶ 4 In May 2007, the State sought respondent's civil commitment under the Sexually Violent Persons Commitment Act. In June 2008, after consulting with his attorney, respondent stipulated to being a sexually violent person and to being committed to the care, control, and treatment of the Illinois Department of Human Services (DHS). After finding that respondent had waived his right to a jury trial, the trial court accepted his stipulation to commitment. In July 2009, the court heard evidence at a dispositional hearing, including testimony from respondent and two psychologists, and ordered respondent committed to institutional care in a secure facility.

         ¶ 5 In 2017, respondent received a statutorily required periodic reexamination to determine whether he had "made sufficient progress in treatment to be conditionally released" and whether his condition had so changed since his last periodic reexamination that he was "no longer a sexually violent person." 725 ILCS 207/55(a) (West 2016). The investigation was conducted by Dr. Richard Travis. Because respondent declined to participate in the investigation, Dr. Travis based his evaluation on respondent's criminal, DJJ, and DHS records.

         ¶ 6 In his evaluation report, Dr. Travis identified respondent's 2007 frottage offenses against a female counselor as his "predicate offense." The report explains that a predicate offense leads to a mental disorder diagnosis that becomes the basis for a subsequent legal determination, such as involuntary civil commitment.

         ¶ 7 Based on respondent's records and on generally accepted diagnostic criteria, Dr. Travis diagnosed respondent with "Pedophilic Disorder, Sexually Attracted to Both, Nonexclusive; Frotteuristic Disorder; Other Specified Paraphilic Disorder, Zoophilia; Bipolar I Disorder, In Full Remission; and Antisocial Personality Disorder." Noting that respondent was 31 years old at the time of the reexamination, Dr. Travis analyzed his likelihood of recidivism using actuarial assessment tools that incorporate the relationship between age at release and sexual recidivism. Respondent scored in the highest of five risk categories on these actuarial instruments. Because respondent also presented many dynamic risk factors and treatment needs based on psychological traits, he "remain[ed] at a substantial probability to engage in acts of sexual violence."

         ¶ 8 Dr. Travis noted that the risk of sexual recidivism can be lowered by "successful completion of sexual offense specific treatment." However, since respondent had not participated in sex offender treatment since 2009, when he withdrew consent for treatment, "[n]o treatment-based risk reduction [was] warranted."

         ¶ 9 In conclusion, Dr. Travis stated: "Due to his mental disorders and assessed risk, [respondent] remains substantially probable to engage in acts of sexual violence. His condition has not changed since the most recent periodic reexamination [in 2016] such that he is no longer a sexually violent person." He further concluded that respondent ...

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