ILLINOIS OFFICIAL REPORTS

Supreme Court

In re Detention of Stanbridge, 2012 IL 112337

Caption in Supreme

Court:

In re DETENTION OF STANBRIDGE (The People of the State of

Illinois, Appellant, v. Kevin Stanbridge, Appellee).—In re DETENTION

OF LIEBERMAN (The People of the State of Illinois, Appellee, v. Brad

Lieberman, Appellant).

 

Docket Nos. 112337, 112802 cons.

Filed November 29, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

One petitioning for discharge or conditional release from civil

commitment as sexually violent bears the burden of presenting a plausible

account as to each required petition element so as to show a change in the

circumstances which led to the initial commitment—probable cause

standard.

Decision Under 

Review

No. 112337—Appeal from the Appellate Court for the Fourth District;

heard in that court on appeal from the Circuit Court of Adams County,

the Hon. William O. Mays, Judge, presiding.

No. 112802—Appeal from the Appellate Court for the First District;

heard in that court on appeal from the Circuit Court of Cook County, the

Hon. Dennis J. Porter, Judge, presiding.
Judgment No. 112337—Appellate court judgment reversed.

 Circuit court judgment affirmed.

No. 112802—Affirmed.

Counsel on

Appeal

No. 112337—Lisa Madigan, Attorney General, of Springfield (Michael

A. Scodro, Solicitor General, and Michael M. Glick, Sheri L. Wong and

Davis H. Iskowich, Assistant Attorneys General, of Chicago, of counsel),

for the People.

Betsy Bier, of Bier & Bier, of Quincy, for appellee.

No. 112802—Kimball R. Anderson, AnthonyD. Pesce,Daniel Braun and

LauraWhitneyLee, of Winston & Strawn LLP, of Chicago, for appellant.

Lisa Madigan, Attorney General, of Springfield (Michael A. Scodro,

Solicitor General, and Michael M. Glick and David H. Iskowich,

Assistant Attorneys General, of Chicago, of counsel), for the People.

Justices JUSTICE THEIS delivered the judgment of the court, with opinion.

ChiefJusticeKilbride and Justices Freeman, Thomas, Garman, Karmeier,

and Burke concurred in the judgment and opinion.

OPINION

¶ 1 In these consolidated appeals, we are asked to clarify the quantum and scope of evidence

needed to establish probable cause in a postcommitment discharge or conditional release

proceeding pursuant to the Sexually Violent Persons Commitment Act (725 ILCS 207/1 et

seq. (West 2008)). In both cases, the trial court found a lack of probable cause and dismissed

the individual petitions for discharge or conditional release. In Stanbridge, the appellate court

reversed, finding that the trial court improperly weighed contradictory evidence of the

parties’ respective experts. Stanbridge, 408 Ill. App. 3d 553. In Lieberman, the appellate

court affirmed, over a dissent, finding that the expert did not present sufficient evidence on

the relevant statutory elements to warrant a further hearing and did not comply with the

statutory requirements for conditional discharge. Lieberman, 2011 IL App (1st) 090796.

¶ 2 We allowed petitions for leave to appeal in both cases (Ill. S. Ct. R. 315 (eff. Feb. 26,

2010)) and consolidated the appeals for review. For the following reasons, we reverse the

appellate court judgment in Stanbridge and affirm the appellate court judgment in

Lieberman.

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¶ 3 I. BACKGROUND

¶ 4 A. No. 112337, Kevin Stanbridge

¶ 5 The history of Kevin Stanbridge’s civil commitment is detailed in the appellate court

opinion. We will repeat here only those facts necessary to our analysis. Following a jury trial

in 2005, Stanbridge was convicted of aggravated criminal sexual abuse (720 ILCS 5/12-16(d)

(West 1998)), and his conviction was affirmed on direct appeal. People v. Stanbridge, No.

4-05-0585 (2007) (unpublished order under Supreme Court Rule 23).

¶ 6 In May 2005, during the pendency of Stanbridge’s appeal, the State filed a petition to

involuntarily commit him as a sexually violent person under the Sexually Violent Persons

Commitment Act (the Act) (725 ILCS 207/1 et seq. (West 2004)). Following a trial on the

State’s petition, in October 2007, a jury found Stanbridge to be a sexually violent person as

defined by section 5(f) of the Act (725 ILCS 207/5(f) (West 2004)). Thereafter, in February

2008, the trial court ordered him committed to a secure facility for institutional care and

treatment until such time as he is no longer a sexually violent person. His commitment was

affirmed on direct appeal. In re Kevin S., No. 4-08-0163 (2008) (unpublished order under

Supreme Court Rule 23).

¶ 7 Within six months after his initial commitment, the Department of Human Services

(Department) submitted its required evaluation report to the court on Stanbridge’s mental

condition to determine whether he had made sufficient progress to be conditionally released

or discharged pursuant to section 55 of the Act (725 ILCS 207/55 (West 2008)). The report

was prepared by Dr. Edward Smith. Stanbridge did not retain or request that the court

appoint an expert to examine him at that time. He did not file a petition for discharge, but did

not affirmatively waive his right to do so under the Act. Accordingly, the State then filed a

motion for a finding of no probable cause based on Dr. Smith’s evaluation report. On

October 31, 2008, the trial court granted the State’s motion, finding that no probable cause

existed to warrant a hearing on the matter.

¶ 8 In March 2009, Stanbridge filed a petition for discharge under section 70 of the Act (725

ILCS 207/70 (West 2008)), which did not coincide with the periodic-evaluation process. The

trial court appointed clinical and forensic psychologist Dr. Kirk Witherspoon to evaluate

Stanbridge’s mental condition to determine whether he was still a sexually violent person.

Dr. Witherspoon submitted his amended psychological evaluation report to the court in

January 2010.

¶ 9 While Stanbridge’s petition for discharge was pending, in August 2009, the Department

submitted its required periodic-reexamination report on Stanbridge’smental condition, which

was conducted again by Dr. Smith. The State again filed a motion for a finding of no

probable cause, attaching Dr. Smith’s written report in support of the motion.

¶ 10 In January 2010, by agreement of the parties, the trial court held a joint probable cause

hearing on both Stanbridge’s petition for discharge and the State’s motion for a finding of

no probable cause based on the periodic reexamination. At the hearing, the court considered

the two psychological evaluation reports submitted by Drs. Smith and Witherspoon and

heard arguments of counsel.

¶ 11 Dr. Witherspoon’s report indicated that his evaluation was based primarily upon his

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interview with Stanbridge, a review of Stanbridge’s prior psychological evaluations, and

various diagnostic tests designed to measure deviant sexual attitudes and behavior and to

predict sexual offense recidivism rates. Based on this information, and consistent with his

prior findings, Dr. Witherspoon’s clinical impression was that Stanbridge’s test results did

not reveal ongoing evidence of deviant sexual psychopathology of any form and did not

evince historic or current antisocial tendencies.

¶ 12 In determining Stanbridge’s risk of reoffending, Dr. Witherspoon administered several

actuarial assessment instruments, including the Static 2002R. He indicated this test was a

revised version of the Static 99, which provides a more accurate measure of risk by better

accounting for risk decline due to age and by providing more current demographic trends.

Dr. Witherspoon stated that Stanbridge’s scores showed that his antisocial tendencies were

akin to that of average nonincarcerated males, and placed Stanbridge in a low relative sexual

reoffense risk in comparison to other convicted sexual offenders. Dr. Witherspoon’s opinion

that Stanbridge’s risk of reoffense was low was also based on other factors, including

Stanbridge’s age and his denial that he committed the offenses for which he was convicted.

Dr. Witherspoon based his opinion on research showing that all forms of criminalitydecrease

with advancing age, and that denial of sex crimes against minors is not a universally negative

indicator relative to the risk of reoffending. In conclusion, Dr. Witherspoon’s opinion was

that Stanbridge did not meet the diagnostic criteria minimally necessary for involuntary

commitment under the Act and that his risk of reoffending was not in the range necessary for

such commitment.

¶ 13 Dr. Smith’s evaluation was based on Stanbridge’s Department records, a peer

consultation and his prior six-month psychological examination. In Dr. Smith’s report, he

noted that Stanbridge declined to participate in the reexamination. Dr. Smith recounted

Stanbridge’s criminal and sexual offense history, including charges, convictions and other

allegations of sexual offenses. He also recounted his personal history, education and

employment, and his history of mental health and medical treatment, substance abuse,

behavioral tendencies, and treatment. Dr. Smith concluded that Stanbridge met the criteria

for the following diagnoses based on the guidelines in the Diagnostic and Statistical Manual

of Mental Disorders, Fourth Edition, Text Revision (DSM-IV-TR): “(1) Paraphilia, not

otherwise specified, sexually attracted to adolescent males, nonexclusive type; (2) alcohol

abuse in a controlled environment; (3) personality disorder, not otherwise specified, with

antisocial traits; and (4) rule out pedophelia, sexually attracted to males, nonexclusive type.”

¶ 14 In considering Stanbridge’s risk of reoffending, Dr. Smith conducted two assessments

not administered byDr. Witherspoon, namely, the Static 99 and the Minnesota Sex Offender

Screening Tool-Revised. Based on these assessments, Dr. Smith placed Stanbridge in the

moderate to high category of recidivism risk on one assessment and in the high-risk category

on the other assessment. Dr. Smith also considered other empirical risk factors based on

scientific research that would likely contribute to Stanbridge’s risk of reoffense, and

concluded that he met those aggravating risk factors due to his personality disorder,

substance abuse, intoxication during the offense, intimate relationship conflicts, and deviant

sexual interest.

¶ 15 Dr. Smith also considered factors that might lower one’s risk of sexual recidivism,

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including sex-offense-specific treatment, a serious and debilitating medical condition, and

increased age. According to Dr. Smith, no medical issues warranted a decreased risk, and

treatment-based risk reduction was not warranted because Stanbridge refused treatment.

Additionally, because the research indicated no universal agreement on how age impacts

recidivism rates, Dr. Smith opined that some age-based risk reduction was present, but that

age was not currently a protective factor for Stanbridge. Accordingly, Smith concluded that

a substantial probability existed that Stanbridge would engage in further acts of sexual

violence due to his mental disorders.

¶ 16 After considering the expert reports and the parties’ arguments, the trial court made the

following findings:

“[T]he court found [respondent] to be a sexually violent person[—]had the

appropriate diagnosis and findings [in February 2008]. [The court does not] see

where the [State’s] expert, *** Smith, has found that there is anything different than

that, based on what has occurred between now and the time of the original finding.

Witherspoon, if [the court] remembers correctly, came up with many of the same

conclusions at the time of the original hearing, and that’s in fact what was determined

by the jury. So it seems to [this court that] at this point[,] there is no probable cause

to proceed with a full hearing on the matter, and the court would so rule.”

The trial court denied Stanbridge’s petition for discharge and granted the State’s motion for

a finding of no probable cause. The court order indicated that the court had considered both

evaluations prepared by Drs. Smith and Witherspoon, but found that based upon a review of

the reports related to the 18-month reevaluation of respondent, no probable cause existed to

warrant further proceedings to determine whether respondent remained a sexually violent

person.

¶ 17 On appeal, Stanbridge argued that the trial court improperly weighed the conflicting

testimony of the parties’ respective experts instead of determining whether the evidence

presented established probable cause to warrant further proceedings. 408 Ill. App. 3d at 558.

The appellate court agreed and reversed and remanded for further proceedings, concluding

that the evidence presented was sufficient to establish probable cause. Id. at 563. We granted

the State’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010).

¶ 18 B. No. 112803, Brad Lieberman

¶ 19 The history of Brad Lieberman’s commitment relevant to this appeal is detailed in the

appellate court opinion and will be recounted here to the extent necessary to our disposition.

In 1980, Lieberman was convicted of numerous counts of rape and sentenced to multiple

concurrent terms of imprisonment. Shortly before his scheduled release date from prison in

2000, the State sought to have Lieberman involuntarily committed as a sexually violent

person pursuant to the Act (725 ILCS 207/1 et seq. (West 2000)).

¶ 20 In February 2006, a jury found Lieberman to be a sexually violent person within the

meaning of the Act. The mental disorders that formed the basis for Lieberman’s commitment

included paraphilia, not otherwise specified, sexually attracted to nonconsenting persons

(paraphilia NOS-nonconsent). The State’s experts described this type of disorder as one

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premised on intense recurring rape behaviors with nonconsenting adults that cause distress

or impair one’s ability to function in society. Thereafter, in April 2006, the trial court ordered

Lieberman committed to the Department for institutional care and treatment in a secure

facility until further order of the court.

¶ 21 Lieberman appealed, arguing, inter alia, that the State failed to prove that he suffers from

a serious lack of volitional control resulting from a current mental disorder, and failed to

prove beyond a reasonable doubt that he suffers from a mental disorder or that he presents

any risk to reoffend. In re Detention of Lieberman, 379 Ill. App. 3d 585, 597-98 (2007).

Specifically, he maintained that the State’s expert’s opinions and diagnoses did not meet the

diagnostic criteria of the Diagnostic and Statistical Manual of Mental Disorders (DSM). Id.

at 602. His commitment was affirmed on direct appeal. Id. at 611.

¶ 22 The record reflects that in October 2006, the Department conducted its mandated sixmonth reexamination to determine whether Lieberman had made sufficient progress to be

conditionally released or discharged. In conjunction with the mandated six-month

reexamination, Lieberman filed a petition for discharge or conditional release, which the

court denied in December 2006. The following year, in October 2007, Dr. David Suire, an

evaluator with the Department, conducted Lieberman’s mandated periodic psychological

reexamination to again determine whether Lieberman had made sufficient progress to be

conditionally released or discharged. Dr. Suire reported that in his clinical judgment

Lieberman continued to suffer from paraphilia NOS-nonconsent, cannabis abuse, antisocial

personality disorder, and narcissistic personality disorder. He believed it was substantially

probable that Lieberman would engage in future acts of sexual violence. He also noted that

Lieberman had not participated in any core sex-offender treatment offered by the

Department.

¶ 23 In conjunction with this annual reevaluation, the State filed a motion for a finding of no

probable cause. Lieberman did not affirmativelywaive his right to petition for discharge and,

simultaneously with the State’s motion, exercised his right to file a petition for discharge

under section 65(b)(1) of the Act (725 ILCS 207/65(b)(1)(West 2006)). Thereafter, the court

granted Lieberman leave to amend his petition to alternativelypetition for conditional release

under section 60(c) of the Act (725 ILCS 207/60(c) (West 2006)). The court appointed Dr.

Eric Ostrov to conduct an evaluation of Lieberman under this section. The court also granted

Lieberman’s motion to allow Dr. Chester Schmidt to perform an independent examination

of him.

¶ 24 The following testimony was presented by Dr. Schmidt at the probable cause hearing on

the petition for discharge or alternatively conditional release. Dr. Schmidt testified that he

was a physician psychiatrist, a professor of psychiatry at Johns Hopkins University School

of Medicine, and founder and member of the sexual behavior consultation unit at Johns

Hopkins Hospital. Dr. Schmidt rendered two opinions: (1) the diagnosis of paraphilia NOSnonconsent does not exist in the DSM; and (2) Lieberman does not have a paraphilia.

¶ 25 With respect to the first opinion, Dr. Schmidt explained that the DSM identifies a general

class of disorders called “paraphilias,” which the DSM defines as having the following

essential diagnostic features: “recurrent, intense sexually arousing fantasies, sexual urges,

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or behaviors generally involving *** nonconsenting persons that occur over a period of at

least 6 months.”1

¶ 26 Dr. Schmidt explained that the DSM specifically identifies nine common paraphilic

conditions and lists the diagnostic criteria for each condition. In addition, the DSM includes

a residual category of “paraphilia not otherwise specified” for paraphilias that do not meet

the criteria for any of the nine specifically listed categories. That residual section provides

a nonexhaustive list of examples that fall under this catch-all NOS category. Dr. Schmidt

testified that paraphilia NOS-nonconsent is not contained within either the section that lists

the nine common paraphilic conditions or within the examples listed in the residual NOS

category.

¶ 27 Dr. Schmidt acknowledged that there are those in the profession that believe paraphilia

NOS-nonconsent is a valid disorder that falls under the catch-all NOS category, and that they

apply the general diagnostic features of paraphilias to diagnose this particular rape-related

paraphilia. However, Dr. Schmidt disagreed with this approach and disagreed that the DSMIV contains a mental disorder known as paraphilia NOS-nonconsent without the proper

formal vetting of that diagnosis.

¶ 28 Dr. Schmidt explained that there is a formal process by which diagnoses are included in

the DSM. In 1986, he was the chairman of a committee convened by the American

Psychiatric Association (APA) to consider whether to include a diagnosis for paraphilia

NOS-nonconsent in the DSM-III-R. The committee voted against inclusion of a rape-related

paraphilia diagnosis for two reasons: (1) there was “no scientific support for the diagnosis”;

it was based solely on “expert opinion which is one of the lowest forms of research to

support anything”; and (2) there were numerous organizations within the legal, social work,

and psychiatric communities that voiced concern that the diagnosis would be misused to

create an insanity defense in rape trials. As a result, the board of trustees of the APA, of

which Dr. Schmidt was also a member, voted to exclude the diagnosis in the DSM-III-R.

¶ 29 During his later work as chairman between 1995 and 2000 on the revision of the DSMIII-R to the DSM-IV, there were no requests that the disorder be included in the new edition.

To Dr. Schmidt’s knowledge there is no current reconsideration of that decision, which in

his opinion means that “the field in general is essentially satisfied with the *** diagnostic

format that exists within the DSM-IV.” It was his opinion that the use of officially

recognized diagnoses in the DSM is essential for purposes of patient care, valid research and

the integrity of the legal system, and failure to adhere to it may have an impact on the

treatment process.

¶ 30 On cross-examination, Dr. Schmidt recognized that the diagnosis of paraphilia NOSnonconsent is widely accepted by forensic experts in the medical field, and that the debate

regarding the use of this diagnosis has been ongoing for about 20 years. He also

This section of the DSM also identifies additional diagnostic features for some paraphilias

1

which can include a requirement that “the behavior, sexual urges, or fantasies cause clinically

significant distress or impairment in social, occupational, or other important areas of functioning.”

DSM at 566.

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acknowledged that Lieberman’s experts did not raise this issue at his original commitment

trial.

¶ 31 Dr. Schmidt further testified regarding the bases for his conclusion that Lieberman does

not suffer from a paraphilia, assuming the diagnosis exists. In preparing his opinions, Dr.

Schmidt relied upon Lieberman’s Department of Corrections (DOC) mental health reports,

his Department master treatment plans, police reports, articles on civil commitment and the

diagnosis of paraphilia, the transcript from Lieberman’s 2006 commitment trial, expert

evaluations from other evaluators, including Dr. Jacqueline Buck, Dr. Barry Leavitt, Dr.

Suire, Dr. Ostrov, and an interview with Lieberman in April 2008.

¶ 32 Dr. Schmidt considered that in the 15 evaluations done of Lieberman during his 20 years

in the DOC, he was never diagnosed with paraphilia, and that the evaluators were required

to record that diagnosis if in fact it existed. In considering Lieberman’s psychosexual history

prior to 1979, when he committed the rapes, Dr. Schmidt testified that his opinion that

Lieberman had a “fairly normal heterosexual development during his teen years and

adolescent years” was reasonably consistent with the other evaluations. Dr. Schmidt was of

the opinion that Lieberman has had no paraphilic fantasies or urges in the past 29 years based

upon Lieberman’s own self-reporting.

¶ 33 With respect to paraphilic behavior, Dr. Schmidt found that there were no reported

behaviors of any coercive sexual activity with either female staff or prisoners. It was his

opinion that Lieberman would have found an outlet to act out his paraphilia, including with

the prison’s homosexual community even though he was otherwise heterosexual. One who

has a paraphilia would have a heightened degree of impulsivity that is sexually driven and

compulsive, and one would expect that even in an incarcerated situation that such a person

could find outlets to act out the paraphilia. One would expect that in over 29 years of

incarceration there would be some evidence of attempts to act out the behavior and that the

acting out would have caused some difficulty.

¶ 34 Dr. Schmidt also based his opinion that Lieberman did not suffer from a paraphilia on

the Global Assessment of Functioning (GAF) scale, as determined by his treatment team.

The scale measures a person’s symptom severity and level of functioning. Assuming

Lieberman had a paraphilia, Dr. Schmidt believed that one could measure change in

Lieberman’s symptom severity by looking at his GAF scores over time. Lieberman’s GAF

scores from 1999 to 2005 were in the range of 45, which indicated serious symptoms or

impairment. His most recent score of 71 indicated, according to the DSM, that symptoms are

present, but that they are “transient and expect[ed] reactions to psycho-social stressors,” and

that Lieberman has “no more than slight impairment in social, occupation, or school

functioning.” Dr. Schmidt testified that Lieberman’s score indicated that those who have

observed and scored Lieberman believe that his symptoms and functional capacity have

dramatically improved. However, Dr. Schmidt acknowledged on cross-examination that he

did not speak to anyone at the Department as to how they use those scores.

¶ 35 Dr. Schmidt was asked to explain how Lieberman could have committed the numerous

rapes in 1979 but for the fact that he was driven by some type of mental disorder. Dr.

Schmidt testified that rape is not a mental disorder, nor is it necessarily paraphilic. Less than

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10% of rapists suffer from a paraphilia. Additionally, Dr. Schmidt believed that Lieberman’s

immediate prerape historymay be relevant to explaining his multiple rapes. According to the

materials Dr. Schmidt reviewed, Lieberman reported a sexual experience in which a woman

that he was attempting to have intercourse with “initially resisted, resisted, and then allowed,

then said yes.” Lieberman reported this as being very important because it led him to believe

when he was 19 that “when women said no they really meant yes.” He reports that his first

rape was “very sexually gratifying,” and that “motivated him to engage further.” At that time

he had “absolutely no regard for the law” and was “acting selfishly for his own sexual

gratification.” When Lieberman was apprehended and then released on bond, he committed

the additional rapes because he thought “the law had no teeth,” and that he was “immune”

from it. Dr. Schmidt believed that these experiences provided “as plausible an explanation

as maybe we’ll ever get from the facts of the case.”

¶ 36 On cross-examination, Dr. Schmidt testified that he is not a member of any professional

organization focusing on the evaluation and treatment of sexual offenders and has never been

previously qualified as an expert in a sexually violent person’s commitment proceeding. He

has never evaluated a person who has been found to be a sexually violent person by the laws

of the state, but has evaluated and treated convicted sex offenders. With regard to the records

he reviewed, he stated that he did not review the trial transcripts or police reports from the

trials resulting in Lieberman’s rape convictions. Other than the mental health records from

the DOC, Dr. Schmidt did not review any other documents in the DOC file regarding

Lieberman’s behavior.

¶ 37 The parties stipulated that Dr. Mark Babula would testify that he was Lieberman’s

primary therapist at the treatment facility. Any contact he had with Lieberman did not

constitute sexual offender treatment. Dr. Babula would furthertestify that Lieberman has not

participated in any sexual offender treatment at the facility.

¶ 38 The court-appointed expert, Dr. Ostrov, testified that he diagnosed Lieberman based

upon the DSM with paraphilia NOS-nonconsent and a personality disorder with antisocial

and narcissistic features. It was his opinion that these disorders predispose Lieberman to

commit future acts of sexual violence and, therefore, Dr. Ostrov did not recommend

conditional release.

¶ 39 Dr. Ostrov testified that his diagnosis of paraphilia was informed by guidance from the

DSM general criteria for paraphilias, including recurrent and intense sexual behaviors over

a period of six months that caused clinically significant distress or impairment in social,

occupational, or other important areas of functioning. Dr. Ostrov further testified that his

diagnosis was based upon several aspects of Lieberman’s behavior. Based upon his review

of the relevant materials, Lieberman evinced repeated instances of nonconsensual sex

directed at different women over a period of more than six months which caused him

clinically significant distress and impairment in functioning. Lieberman’s actions were

“driven behavior” in that “despite his fear, the drivenness overcame that fear” and led him

to commit the numerous rapes. Dr. Ostrov found Lieberman evinced a lack of empathy for

his victims, and explained that Lieberman’s claim that he has not “acted out sexually” during

his detention must be viewed with the understanding that he has not been around his

preferred sexual stimuli.

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¶ 40 Dr. Ostrov furthertestified that Lieberman’s results on various diagnostic tools indicated

that he posed a high risk of reoffending. Dr. Ostrov believed that Lieberman’s failure to

participate in sex-offender treatment contributed to his high risk because he has not shown

an interest in and has not had the benefit of completing formal sexual offender treatment,

which has been empirically shown to decrease the risk of reoffending. Dr. Ostrov believed

that other dynamic factors such as age would have some impact on Lieberman’s likelihood

of recidivism, but not a very significant impact. Dr. Ostrov did not find evidence that

Lieberman had significantly decreased the risk that he would sexually reoffend.

¶ 41 Dr. Suire testified that he diagnosed Lieberman using the DSM criteria with paraphilia

NOS-nonconsent, cannabis abuse, antisocial personality disorder, and narcissistic personality

disorder. He acknowledged the disagreement regarding the diagnosis of paraphilia, but

believed it was primarily due to “political factors” and the understanding that not all rapes

are paraphilic. In diagnosing Lieberman, Dr. Suire considered the nature and pattern of the

rapes, whether the behaviors were occurring while he had access to consenting partners, the

frequency of the conduct, and whether he was committing other crimes at the same time.

¶ 42 Dr. Suire further testified regarding Lieberman’s risk assessment, relying on his file, and

the use of actuarial instruments to achieve a “baseline estimate of the risk.” Lieberman

scored in the high-risk category on these tests. Additionally, Dr. Suire considered other

aggravating and protective factors which could increase or decrease his risk levels.

Lieberman had several aggravating factors, including deviant sexual arousal, two personality

disorders, and high scores on other diagnostic tools, which correlate with an elevated risk.

Dr. Suire did not consider Lieberman’s age to be a significant protective factor, and noted

that Lieberman did not participate in anycore sex-offender treatment, which can substantially

reduce his recidivism risk. Dr. Suire did not believe that Lieberman’s risk was reduced by

participation in “ancillary treatment-type” programs at the treatment facility. Accordingly,

it was Dr. Suire’s opinion that it was substantially probable that Lieberman would commit

new acts of sexual violence and that he had not made sufficient progress to allow him to be

safely managed in the community.

¶ 43 The trial court denied Lieberman’s petition for discharge or conditional release.The court

acknowledged the debate among mental health professionals as to the validity of the

diagnosis of paraphilia NOS-nonconsent, but found the question could not be answered

simply by testimony that the disorder is not specifically listed in the DSM. The court

ultimately found it was a mental disorder that satisfied the requirements of the Act. The court

further found Dr. Schmidt’s explanation for why Lieberman may have committed the rapes

to be absolutely lacking in credibility and found the State’s experts to be credible. Although

the court found that Lieberman had made some improvements, he also noted his refusal to

participate in formal sex-offender treatment, claiming that he did not need it, and found that

when viewed in totality, there was no probable cause to believe that Lieberman had made

sufficient progress to be conditionally released or discharged.

¶ 44 On appeal, Lieberman contended that the denial of his petition was error and violated his

right to due process. In its original decision, the appellate court found no error, finding that

the trial court was “free to accept the opinion of one expert witness over another or accept

part and reject part of each expert’s testimony,” and affirmed the trial court’s judgment. In

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re Detention of Lieberman, 401 Ill. App. 3d 903, 923 (2010). We subsequently directed the

appellate court to vacate its judgment and to reconsider in light of In re Detention of Hardin,

238 Ill. 2d 33 (2010).

¶ 45 On remand, the appellate court concluded that a different result was not warranted after

reviewing Hardin and, therefore, affirmed the circuit court’s judgment. 2011 IL App (1st)

090796, ¶ 65. The majority found that the expert did not present sufficient evidence on the

relevant statutory elements to warrant a further hearing and did not complywith the statutory

requirements for conditional discharge. Id. Justice Garcia dissented with respect to the

petition for conditional release. He believed that the decision in Hardin compelled the court

to reverse the circuit court’s finding on probable cause where the circuit court improperly

based its ruling on a “ ‘full and independent evaluation of [Dr. Schmidt’s] credibility and [his

expert opinion].’ ” Id. ¶ 83 (Garcia, P.J., dissenting) (quoting Hardin, 238 Ill. 2d at 53). We

allowed Lieberman’s petition for leave to appeal and consolidated his appeal with

Stanbridge’s appeal.

¶ 46 II. ANALYSIS

¶ 47 A. Overview of the Sexually Violent Persons Commitment Act

¶ 48 We begin our analysis with an overview of the Act. The Act authorizes the involuntary

civil commitment of “sexually violent persons” for “control, care and treatment.” 725 ILCS

207/40(a) (West 2008). The Act defines a “sexually violent person” as an individual who has

“been convicted of a sexually violent offense” and who “is dangerous because he or she

suffers from a mental disorder that makes it substantially probable that the person will

engage in acts of sexual violence.” 725 ILCS 207/5(f) (West 2008). A “mental disorder” is

defined under the Act as a “congenital or acquired condition affecting the emotional or

volitional capacity that predisposes a person to engage in acts of sexual violence.” 725 ILCS

207/5(b) (West 2008). If the State proves beyond a reasonable doubt that an individual is a

sexually violent person, that individual may be indefinitely committed “until such time as

the person is no longer a sexually violent person.” (Emphasis added.) 725 ILCS 207/35(f),

40(a) (West 2008).

¶ 49 After an individual has been committed to institutional care under the Act, the

Department is responsible for evaluating the individual’s mental condition within six months

of the initial commitment and again thereafter at least annually. 725 ILCS 207/55 (West

2008). The stated purpose of these periodic examinations is to determine “whether the person

has made sufficient progressto be conditionally released or discharged.” (Emphasis added.)

725 ILCS 207/55 (West 2008); People v. Botruff, 212 Ill. 2d 166, 171 (2004) (purpose of

reexamination is to determine whether person has “progressed enough to be conditionally

released or discharged”).

2

We note that since the relevant periodic evaluations in these consolidated cases, the 2

legislature has amended this section to provide that the purpose of these evaluations is to determine

“whether: (1) the person has made sufficient progress in treatment to be conditionally released and

(2) whether the person’s condition has so changed since the most recent periodic reexamination (or

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¶ 50 Although commitment is potentially indefinite in nature, a committed individual may

challenge his continued commitment under the Act through a petition for discharge or a

petition for conditional release. A committed person may seek a discharge under three

available mechanisms. The first mechanism applies if the Secretary of Human Services

determines, at any time, that the individual is no longer a sexually violent person. In that

case, the Secretary must authorize the committed individual to petition the court for

discharge. 725 ILCS 207/65(a)(1) (West 2008).

¶ 51 The second mechanism for discharge is triggered whenever the committed individual

undergoes one of the periodic examinations required by section 55 of the Act. At the time

of each such examination, the committed person must be given written notice that he has the

right to petition for discharge over the Secretary’s objection. 725 ILCS 207/65(b)(1) (West

2008). If the committed individual does not affirmatively waive that right, the court must set

a probable cause hearing to determine whether facts exist that warrant a hearing on whether

the defendant is “still a sexually violent person.” Id. If the committed person does not file 3

a petition for discharge, but nonetheless does not waive his right to do so, then the probable

cause hearing consists only of a review of the reexamination reports and arguments of the

parties. Id.

¶ 52 If the court finds that there is probable cause to believe that the committed individual “is

no longer a sexually violent person,” it must set a hearing on the issue and the State has the

burden of proving by clear and convincing evidence that the committed individual is “still

a sexually violent person.” 725 ILCS 207/65(b)(2) (West 2008).4

¶ 53 In addition to these procedures, under a third mechanism, the committed individual may

initial commitment, if there has not yet been a periodic reexamination) that he or she is no longer

a sexually violent person.” (Emphases added.) Pub. Act 97-1075 (eff. Aug. 24, 2012) (amending 725

ILCS 207/55).

The amended statute currently provides that “the court shall set a probable cause hearing 3

to determine whether facts exist to believe that since the most recent periodic reexamination (or

initial commitment, if there has not yet been a periodic reexamination), the condition of the

committed person has so changed that he or she is no longer a sexually violent person. However, if

a person has previously filed a petition for discharge without the Secretary’s approval and the court

determined, either upon review of the petition or following a hearing, that the person’s petition was

frivolous or that the person was still a sexually violent person, then the court shall deny any

subsequent petition under this Section without a hearing unless the petition contains facts upon

which a court could reasonably find that the condition of the person had so changed that a hearing

was warranted.” Pub. Act 97-1075 (eff. Aug. 24, 2012) (amending 725 ILCS 207/65(b)(1)).

The amended statute currently providesthat “[i]f the court determines at the probable cause 4

hearing *** that probable cause exists to believe that since the most recent periodic reexamination

(or initial commitment, if there has not yet been a periodic reexamination), the condition of the

committed person hasso changed that he or she is no longer a sexually violent person, then the court

shall set a hearing on the issue.” Pub. Act 97-1075 (eff. Aug. 24, 2012) (amending 725 ILCS

207/65(b)(2)).

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petition for discharge at times other than the periodic examinations and may do so without

the approval of the Secretary. 725 ILCS 207/70 (West 2008). If the person has not 5

previously filed a petition for discharge without the Secretary’s approval, the court must set

a probable cause hearing and, if appropriate, proceed in accordance with the same procedures

governing unapproved petitions for review filed at the time of the statutorily mandated

periodic examinations. Id. If, however, the person did previously file a petition for discharge

without the Secretary’s approval and the court determined, based on review of the petition

or following a hearing, that the petition was frivolous or that the defendant was still a

sexually violent person, then an important limitation applies to this section. The court is

required to dismissthe petition without a hearing unless the petition contains facts that would

support a finding that the defendant has so changed that a hearing is warranted. Id.

¶ 54 A committed individual may also petition the court to modify the commitment order by

authorizing conditional release. The Department may recommend that a committed person

is appropriate for conditional release at any time and file a petition on the person’s behalf.

725 ILCS 207/60(a) (West 2008). Alternatively, if certain statutoryrequirements aremet, the

committed person mayfile a petition without the Department’s approval. The trial court must

hold a hearing to determine whether probable cause exists “to believe that it is not

substantially probable that the person will engage in acts of sexual violence if on release or

conditional release.” 725 ILCS 207/60(c) (West 2008). If the court finds probable cause,

6

then it must hold an evidentiary hearing on the issue, and grant the petition unless the State

shows by clear and convincing evidence that the person has not made sufficient progress to

be conditionally released. 725 ILCS 207/60(d) (West 2008).7

¶ 55 B. Applicable Standard of Proof

¶ 56 We are initially asked in these consolidated appeals to consider the proper standard for

assessing the evidence at a postcommitment probable cause hearing on a petition for

discharge or conditional release. Initially, we address whether the quantum of proof for

probable cause in postcommitment proceedings is the same standard we adopted in In re

The legislature has since repealed this section of the statute. Pub. Act 97-1075, § 10 (eff. 5

Aug. 24, 2012).

The amended statute currently provides that the court must determine whether there is 6

“probable cause to believe the person has made sufficient progress in treatment to the point where

he or she is no longer substantially probable to engage in acts of sexual violence if on conditional

release.” (Emphasis added.) Pub. Act 97-1075 (eff. Aug. 24, 2012) (amending 725 ILCS 207/60(c)).

Additionally, “[t]he probable cause hearing shall consist of a review of the examining evaluators’

reports and arguments on behalf of the parties.” Id.

The amended statute currently provides that the State must prove by clear and convincing 7

evidence that “the person has not made sufficient progress in treatment to the point where he or she

is no longer substantially probable to engage in acts of sexual violence if on conditional release.”

(Emphasis added.) Pub. Act 97-1075 (eff. Aug. 24, 2012) (amending 725 ILCS 207/60(d)).

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Detention of Hardin, 238 Ill. 2d 33 (2010). The resolution of this question involves a legal

issue to be reviewed de novo. Id. at 44.

¶ 57 In Hardin, this court considered the quantum of evidence needed to support a finding of

probable cause to believe that a person is a sexually violent person under the Act. Id. In

establishing the appropriate standard, this court rejected the respondent’s argument that a

reasonable doubt standard was proper. Rather, this court gave the term “probable cause” its

ordinary and popularly understood meaning. Id. at 48. In doing so, we looked to the concepts

applicable to probable cause determinations in the criminal context. We ultimately adopted

the evidentiary standard employed in the Wisconsin case of State v. Watson, 595 N.W.2d

403, 420 (Wis. 1999), to guide probable cause hearings in sexually violent person

proceedings. Id. We noted that we had previously found the Wisconsin statute to be

substantially similar to our own state statute, and found the Watson court’s rationale to be

consistent with this court’s approach to probable cause proceedings in criminal cases. Id. at

46, 48. The Watson court likened the probable cause hearing to a preliminary hearing in a

felony case, which “is designed to prevent ‘hasty, improvident or malicious prosecution’ and

‘to discover whether there is substantial basis for bringing the prosecution and further

denying the accused his right to liberty.’ [Citation.]” Watson, 595 N.W.2d at 418.

¶ 58 Under the standard we enunciated in Hardin, the moving party is merely required to

“ ‘establish a plausible account on each of the required elements to assure the court that there

is a substantial basis for the petition.’ ” (Emphasis in original.) Hardin, 238 Ill. 2d at 48

(quoting Watson, 595 N.W.2d at 420). “In making that determination, the trial judge must

consider ‘all reasonable inferences that can be drawn from the facts in evidence.’ ” Id.

However, at this stage of the proceedings, the role of the trial judge is not to “ ‘choose

between conflicting facts or inferences’ ” (id.) or to engage in a “full and independent

evaluation of [an expert’s] credibility and methodology” (id. at 53). The trial court “should

not attempt to determine definitively whether each element of the [movant’s] claim can

withstand close scrutiny as long as some ‘plausible’ evidence, or reasonable inference based

on that evidence, supports it.” Id. at 51-52.

¶ 59 Although the facts in Hardin dealt with a precommitment probable cause hearing under

section 30 of the Act, we find that these same principles equally apply to postcommitment

probable cause hearings on petitions for discharge or conditional release. “[T]he hearing is

intended to be preliminary in nature, a ‘summary proceeding to determine essential or basic

facts as to probability’ *** remaining cognizant of the respondent’s liberty rights.” Id. at 52

(quoting Watson, 595 N.W.2d at 420). Thus, no compelling reason exists to treat those

proceedings differently for purposes of the probable cause standard.

¶ 60 We reject the State’s contention that the circuit court’s role in assessing the evidence in

the postcommitment probable cause hearing is different than in a precommitment

proceeding. The general presumption is that words in a statute are given their ordinary and

commonly understood meanings. People v. Phelps, 211 Ill. 2d 1, 15 (2004). “Where a word

is used in different sections of the same statute, the presumption is that the word is used with

the same meaning throughout the statute, unless a contrary legislative intent is clearly

expressed.” People v. Maggette, 195 Ill. 2d 336, 349 (2001).

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¶ 61 The State asserts that in a postcommitment probable cause hearing, the Act presupposes

that there may be conflicting expert opinions and the court should weigh those conflicting

opinions against each other in determining whetherthere is a reasonable basis for the petition

to proceed to an evidentiary hearing or trial. The State maintains that in a precommitment

probable cause hearing, in contrast, the detainee is not entitled to present an expert and,

therefore, the court would never be in a position to weigh competing opinions, warranting

a different assessment.

¶ 62 We reject the State’s premise. Nothing in the Act precludes an individual from presenting

evidence at a precommitment probable cause hearing, whether the evidence be presented

from cross-examination or from the presentation of a witness. Section 25(c) of the Act

expressly provides that, with exceptions not relevant here, at anyhearing, any individual who

is the subject of a petition for commitment has the right “[t]o present and cross-examine

witnesses.” 725 ILCS 207/25(c) (West 2008). The court’s role in assessing the evidence

remains the same throughout the various probable cause hearings; that role is to determine

whether the movant has established “ ‘a plausible account on each of the required elements

to assure the court that there is a substantial basis for the petition.’ ” (Emphasis in original.)

Hardin, 238 Ill. 2d at 48 (quoting Watson, 595 N.W.2d at 420). Thus, the State has not

demonstrated that the legislature meant something different when it used the identical term

in sections 30(b), 60, 65 and 70 of the Act.

¶ 63 A similar argument was made by the State and rejected in the Wisconsin case of In re

Commitment of Kruse, 2006 WI App 179, 296 Wis. 2d 130, 722 N.W.2d 742. There, the

State asserted that at the probable cause hearing on a petition for discharge, the circuit court

should decide which of two conflicting reexamination reports is more persuasive. The

appellate court rejected that argument, finding instead that the purpose of the probable cause

hearing was similar to the purpose of a preliminary examination in that it “performs a

‘gatekeeping function’ by ‘provid[ing] an opportunity for the committing court to weed out

frivolous petitions by committed persons alleging that they are no longer dangerous and are

fit for release.’ ” Id. ¶ 31 (quoting In re Commitment of Paulick, 570 N.W.2d 626, 629 (Wis.

Ct. App. 1997)). The court found that the purpose of the hearing was to determine if there

was an adequate basis for an evidentiary hearing, but was not a substitute for an evidentiary

hearing. Id. Accordingly, the court held that the circuit court’s role was to determine whether

there was a plausible expert opinion that, if believed, would establish probable cause to

believe the individual was no longer a sexually violent person within the meaning of the

statute. Id. ¶ 32.

¶ 64 To allow the trial judge to weigh conflicting evidence and choose between expert

opinions at this “summary proceeding” would be beyond the scope of the limited inquiry

intended at a probable cause hearing and would render meaningless and unnecessary the

subsequent sections of the Act providing for a full hearing or trial. The probable cause

hearing is not a substitute for a full evidentiary hearing where disputed questions of fact can

be resolved by the trier of fact, and where the basis for the opinions and credibility

determinations can be fully explored. See In re Detention of Cain, 402 Ill. App. 3d 390, 397

(2010) (Stewart, J., dissenting) (to allow the court to choose between conflicting opinions

at a probable cause hearing would “allow[ ] the court to bypass all of the truth-seeking

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functions and protections of our rules of evidence”). Accordingly, for all of the foregoing

reasons, we hold that the quantum of proof and the circuit court’s role in assessing the

evidence at a postcommitment probable cause hearing is the same as that expressed by this

court in Hardin.

¶ 65 C. Scope of the Probable Cause Hearing

¶ 66 We next consider the parties’ dispute regarding the scope of evidence that is relevant to

these proceedings and whether the evidence adduced at the probable cause hearings was

sufficient to meet the probable cause standard.

¶ 67 At the outset, we stress that our consideration of this issue is dependent upon the relevant

statutory scheme at the time of these proceedings only, and does not address the scope of the

postcommitment proceedings under subsequent amendments. Under the relevant statute

applicable to these cases, to support a finding of probable cause on a petition for conditional

release under section 60(c), the committed person bears the burden to show sufficient

evidence “to believe that it is not substantially probable that the person will engage in acts

of sexual violence if on release or conditional release.” 725 ILCS 207/60(c) (West 2008). To

support a finding of probable cause on a petition for discharge under section 65(b)(1) or on

a first petition for discharge under section 70, the movant bears the burden to show sufficient

evidence to warrant a hearing on whether the person is “still a sexually violent person.”

(Emphasis added.) 725 ILCS 207/65(b)(1), 70 (West 2008). To make that determination, the

court must find that there is a plausible account that “the committed person is no longer a

sexually violent person.” (Emphasis added.) 725 ILCS 207/65(b)(2) (West 2008).

¶ 68 Given the statutory definition of a “sexually violent person,” it follows that in a discharge

proceeding, the committed individual must present sufficient evidence that he no longer

meets the elements for commitment: (1) he no longer “has a mental disorder”; or (2) he is

no longer “dangerous to others because the person’s mental disorder [no longer] creates a

substantial probability that he *** will engage in acts of sexual violence.” (Emphasis added.)

725 ILCS 207/5(f), 15 (West 2008).

¶ 69 The State maintains in both of these consolidated appeals that the experts’ opinions do

not address the relevant statutory elements under the Act. Specifically, the State argues that

the legislature intended the statutoryterms “no longer” and “still” in section 65(b)(1) to mean

that theremust be some plausible evidence of changed circumstances since the jury’s original

finding to warrant an evidentiary hearing or jury trial. The State argues that the legislature

did not intend to permit relitigation of the determination that these individuals have already

been adjudicated sexually violent persons.

¶ 70 Whether the experts’ opinions in these cases are relevant to establishing probable cause

to believe that the petitioners are “no longer” or are not “still” sexually violent requires a

construction of the statutory terms, which we review de novo. People v. Johnson, 2011 IL

111817, ¶ 15. The primary goal of statutory construction is to ascertain and give effect to the

intent of the legislature. People v. Marshall, 242 Ill. 2d 285, 292 (2012). We must construe

the statute as a whole and afford the language its plain and ordinary meaning. Id. We must

also avoid rendering any part meaningless or superfluous, and consider words and phrases

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in light of other relevant provisions of the statute. Id. In construing the statute, we may also

consider the consequences of construing the language one way as opposed to another and,

in doing so, we presume the legislature did not intend the statute to have absurd,

inconvenient, or unjust consequences. Id. at 293. The court may also properly consider the

reason and necessity for the law, the evils sought to be remedied and the purpose to be

achieved. Botruff, 212 Ill. 2d at 175.

¶ 71 The statutory terms “no longer” and “still” have not previously been construed in Illinois.

However, we find the Wisconsin case of In re Commitment of Combs, 2006 WI App 137,

295 Wis. 2d 457, 720 N.W.2d 684, to be instructive. In Combs, the court construed the “no

longer” and not “still” language under a similar statutory scheme and concluded that:

“[I]n order to provide a basis for probable cause to believe a person is no longer

sexually violent *** an expert’s opinion must depend upon something more than

facts, professional knowledge, or research that was considered by an expert testifying

in a prior proceeding that determined the person to be sexually violent. By way of

example, an opinion that a person is not sexually violent based at least in part on

facts about the committed person that did not occur until after the prior adjudication

would meet this standard, as would an opinion based at least in part on new

professional knowledge about how to predict dangerousness. These examples are not

exhaustive.” Id. ¶ 32.

The court rejected the proposition that probable cause may be established “without regard

to whetherthat opinion is based on matters that were already considered by experts testifying

at the commitment trial or a prior evidentiary hearing.” Id. The court reasoned that requiring

a change in the person’s condition or new research or methodology “serves the purpose of

ensuring that a person who is not sexually violent does not continue in commitment, while

avoiding continual relitigation of issues.” Id. ¶ 33. As a result, the court concluded that a

reevaluation which reached a conflicting opinion regarding the likelihood that the petitioner

would reoffend, but which relied on the same historical facts and methodologies already

adjudicated at trial, was insufficient to establish probable cause to believe that the individual

was no longer a sexually violent person. See also In re Commitment of Kruse, 2006 WI App

179, ¶¶ 35-41, 296 Wis. 2d 130, 722 N.W.2d 742 (affirming the trial court’s finding of no

probable cause where the expert report did not rely on any new facts, professional

knowledge, or research not previously adjudicated at the initial commitment proceeding).

¶ 72 The construction in Combs comports with the plain meaning of our statute when read as

a whole. By using the terms “no longer” and “still,” the legislature intended that the relevant

inquirymust begin with the premise that the individual has been adjudicated in the past with

a mental disorder that makes it substantially probable that he will reoffend. The legislature

intended that in postcommitment proceedings for discharge, the individual must present

some plausible evidence that demonstrates a change in the circumstances that led to this

finding. To hold otherwise would render the terms “no longer” or “still” superfluous. Under

the relevant statutory scheme, a change in circumstances could include a change in the

committed person, a change in the professional knowledge and methods used to evaluate a

person’s mental disorder or risk of reoffending, or even a change in the legal definitions of

a mental disorder or a sexually violent person, such that a trier of fact could conclude that

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the person no longer meets the requisite elements.

¶ 73 1. Stanbridge

¶ 74 Applying these principles, we address each case in turn to determine whether the experts

presented a plausible account that these individuals were “no longer” sexually violent

persons. At the outset, we note that this court may affirm a trial court’s judgment on any

grounds which the record supports even if those grounds were not argued by the parties.

Studt v. Sherman Health Systems, 2011 IL 108182, ¶ 48. At Stanbridge’s probable cause

hearing, the trial court recalled that Dr. Witherspoon previously gave an opinion at the

commitment trial that Stanbridge was not a sexually violent person in need of institutional

care. The trial court, having presided over that proceeding, found that Dr. Witherspoon’s

amended report rendered many of the same conclusions at the time of the original trial. The

trial court further noted that these opinions were rejected by the jury. Therefore, the trial

court concluded that Dr. Witherspoon had not presented sufficient evidence of changed

circumstances to warrant a full hearing on his petition.

¶ 75 Although the record does not include Dr. Witherspoon’s prior evaluation at the initial

commitment proceedings, based upon the unpublished orderfrom Stanbridge’s direct appeal,

Dr. Witherspoon previously testified that his evaluation of Stanbridge did not reveal any

sexual psychopathologyor sexual deviant tendencies and that Stanbridge presented a low risk

of reoffending. In re Kevin S., No. 4-08-0163 (2008) (unpublished order under Supreme

Court Rule 23). In Dr. Witherspoon’s amended psychological evaluation report, he renders

the same conclusions and continues to believe that Stanbridge’s risk remains low.

¶ 76 There is no indication that the bases for Dr. Witherspoon’s new diagnoses are predicated

upon any new facts or professional knowledge or research that was not already considered

by the experts testifying at the commitment trial and rejected by the jury. Stanbridge

concedes that “Dr. Witherspoon did not address factors related to Mr. Stanbridge’s progress,

change in condition or treatment as it relates to diagnosis.” Furthermore, there is no

indication that Dr. Witherspoon’s scoring of the actuarial instruments was based on any

events or factual information that was not already considered and rejected at the commitment

trial. Although Dr. Witherspoon considered denial as a dynamic risk factor that he believes

may now be considered as a protective factor in evaluating risk of recidivism, Dr.

Witherspoon did not opine that such a change could alone support a finding that Stanbridge

is no longer a sexually violent person. Nor has he represented that the 2002R revised

actuarial instrument yielded remarkably different scores for Stanbridge than the Static 99,

previously administered. Without some evidence of sufficient progress or other relevant

changed circumstances, the opinion was insufficient to establish probable cause. Therefore,

the trial court properly concluded that Stanbridge had not presented a plausible account that

he was “no longer a sexually violent person.” 725 ILCS 207/65(b)(2) (West 2008).

¶ 77 2. Lieberman

¶ 78 Dr. Schmidt’s first opinion that paraphilia NOS-nonconsent is not a valid mental disorder

is not directed at the statutory relevant criteria as to whether Lieberman is no longer a

sexually violent person. Dr. Schmidt testified that the diagnosis does not exist in the DSM.

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Dr. Ostrov and Dr. Suire testified that the diagnosis is valid and finds support in the DSM,

although not specificallylisted as a disorder in the manual. Dr. Schmidt’s opinion recognized

a controversyin the profession regarding the validity of the diagnosis and acknowledged that

it has been an ongoing debate in the field and literature for the last 20 years. Indeed, we are

cognizant that the conflicting professional views on the subject have been vigorously argued

by others committed under the same diagnosis. See McGee v. Bartow, 593 F.3d 556, 580 (7th

Cir. 2010) (addressing the debate regarding the validity of the diagnosis in a habeas

challenge and ruling that the diagnosis of a rape-related paraphilic disorder is “not so

unsupported by science that it should be excluded absolutely from consideration by the trier

of fact”).

8

¶ 79 Nevertheless, the purpose of these proceedings is to raise a plausible account that

Lieberman no longer has the disorder. Lieberman has already been found beyond a

reasonable doubt by a jury to meet the legal definition of having a valid mental disorder.

Lieberman cannot relitigate the fact that, in 2006, he was diagnosed with the disorder. Thus,

the properissue before the court applying the statute should be whether there was a plausible

account of changed circumstances such that he no longer has the mental disorder for which

he was already adjudicated in 2006. Dr. Schmidt’s repeated explanation of an acknowledged

20-year-long debate in the medical community is not evidence of changed circumstances

since Lieberman’s commitment. Accordingly, Dr. Schmidt’s testimony on the validity of the

mental disorder is not relevant in this discharge proceeding.

¶ 80 Furthermore, Dr. Schmidt’s opinion that Lieberman does not currently have the mental

disorder of paraphilia was insufficient to establish probable cause to believe that he is no

longer sexually violent. The opinion was based upon historical facts, professional

knowledge, and research alreadydebated bythe experts testifying in the prior proceeding and

rejected by the jury. Dr. Diane Lytton testified on behalf of Lieberman at his commitment

trial. In support of her finding that Lieberman did not have a paraphilia, she based her

opinions on Lieberman’s family and social upbringing, his psychosocial development, and

the 15 mental health evaluations compiled while he was incarcerated, which did not diagnose

a paraphilia. She also relied upon Lieberman’s behavior while in prison, the fact that he was

allowed to be around women, his attitudes toward women in his past relationships, and the

fact that rape is not necessarily paraphilic. The jury rejected these same opinions. See In re

Detention of Lieberman, 379 Ill. App. 3d at 594-97.

¶ 81 Additionally, Dr. Schmidt offered no opinion on whether, assuming Lieberman had a

mental disorder, he was no longer substantially likely to reoffend if released into the

community. Dr. Schmidt offered no testimony directed at Lieberman’s future risk of

reoffending. The only opinion he offered related to this criteria was that those individuals

that have administered and scored Lieberman on the GAF scale believe that his symptom

Dr. Schmidt noted that the American Psychiatric Society has formed a task force to study 8

this issue and they have reported their opposition to the misuse of nonofficial diagnoses as applied

to these sexually violent persons commitment laws, finding that they “threaten to undermine the

legitimacy of the medical model of commitment.”

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severity and functioning capacity had improved substantially since he was detained in 1999.

However, Dr. Schmidt offered no opinion on whether he believed Lieberman would no

longer be substantially likely to reoffend based upon the GAF score alone if released into the

community. Accordingly, we cannot infer that based upon the testimony regarding his GAF

score alone, Dr. Schmidt was of the opinion that Lieberman would no longer be a danger to

the community. Accordingly, the trial court properly concluded that Lieberman had not

presented a plausible account that he was “no longer a sexually violent person.” 725 ILCS

207/65(b)(2) (West 2008).

¶ 82 We also reject Lieberman’s contention that he established probable cause to warrant a

hearing on his conditional release under section 60(c) of the Act. Dr. Ostrov, the court’s

appointed expert on conditional release, reported that there was insufficient evidence to

believe that it is not substantially probable that Lieberman will engage in acts of sexual

violence if released or conditionally discharged. 725 ILCS 207/60(c) (West 2008). As stated

previously, we find nothing in Dr. Schmidt’s testimony that, if believed, would support a

plausible account that Lieberman had made sufficient progress to show that he was

substantially unlikely to reoffend if released into the community. Accordingly, the trial court

properly denied Lieberman’s petition for conditional release.

¶ 83 D. Violation of Due Process and Ex Post Facto Clause

¶ 84 Lastly, we consider Lieberman’s contention that his continued confinement violates both

the due process and ex post facto clauses because it is premised solely on his past criminal

conduct. We disagree. The ex post facto clause, under article I, section 10, of the United

States Constitution, prohibits the states from passing any law that retroactively alters the

definition of a crime or increases the punishment for a criminal act. Collins v. Youngblood,

497 U.S. 37, 43 (1990). Only penal statutes may implicate federal ex post facto protection.

Kansas v. Hendricks, 521 U.S. 346, 370 (1997). “An Act, found to be civil, cannot be

deemed punitive ‘as applied’ to a single individual in violation of the *** Ex Post Facto

Clause[ ] and provide cause for release.” Seling v. Young, 531 U.S. 250, 267 (2001). Thus,

the constitutional principles prohibiting ex post facto laws apply only to criminal

proceedings. Hendricks, 521 U.S. at 361.

¶ 85 Furthermore, due process permits an individual to be held as long as he or she is both

mentally ill and dangerous, but no longer. Foucha v. Louisiana, 504 U.S. 71, 77 (1992). The

State’s experts opinion was that Lieberman continues to have a mental disorder and that he

continues to be dangerous. To the extent that the experts relied on prior criminal conduct to

make that determination, the experts opinions when viewed in context used “such conduct

*** solely for evidentiary purposes, either to demonstrate that a ‘mental abnormality’ exists

or to support a finding of future dangerousness.” Hendricks, 521 U.S. at 362. The evidence

presented did not seek to “affix culpability for prior criminal conduct.” Id. Rather, it used the

prior acts “solely for evidentiary purposes” to support a finding of Lieberman’s mental

disorder and future dangerousness. Id. at 371. As Dr. Suire testified, he considered not

merely the convictions, but the pattern of behaviors, the frequency, and other related

considerations to determine if the driving force behind the rape-type behavior was a specific

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urge toward nonconsenting sexual contact. As Hendricks explained, evidence of a prior

criminal act in a civil commitment proceeding may represent an “ ‘important indicator of

future violent tendencies.’ ” Id. at 358 (quoting Heller v. Doe, 509 U.S. 312, 323 (1993)).

Both experts explained that Lieberman’s past behaviors were important predictors of future

sexual violence. Accordingly, we find no merit to Lieberman’s constitutional contentions.

¶ 86 III. CONCLUSION

¶ 87 To summarize, we hold that the quantum of proof and the circuit court’s role in assessing

the evidence at a postcommitment probable cause hearing is the same as that expressed by

this court in Hardin. We further hold that based upon the relevant elements applicable to

these proceedings, the legislature intended that to present a plausible account, the committed

individual bears the burden to present sufficient evidence that demonstrates a change in the

circumstances that led to the initial commitment. Applying these principles to these

consolidated cases, we hold that the trial court properly dismissed the petitions for discharge

and conditional release.

¶ 88 No. 112337—Appellate court judgment reversed.

¶ 89 Circuit court judgment affirmed.

¶ 90 No. 112802—Affirmed.

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