## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Suprem e Court

In re Detention of St

anbridge , 2012 IL 112337

Caption in S upreme Court: In r e DE TENTI ON OF STANBRI DGE (The People of the State of I llinois
, Appellan

t, v

. Kevin Stanbridg e, Appellee ).— In re DETENTI ON OF L I EBE RMAN (The People of the State of I llinois
, Appellee
, v. Br ad L ieber man, Appellant)

.

Docke t Nos. 112337, 112802 cons.

Filed November 29, 2012

Held ( Note : Thi s syl lab us

con st it ute s no par t o

f the opi nio n of the cour t but has bee n pre

par ed by the Repo rt e r of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) One petitioning for discharg e or condit i o n al rele ase from civil

c o mmitment as sexually violent bear s the burden of prese nting a pla u s ib le

acc ount as to eac h require d petition element so as to show a chang e in the circ umstances which led to the initial commitment—prob able cause standard.

Dec ision Under Review No. 112337—App ea l fr om the Appellate Court for the Four th District; hear d in t h at court on appea l from the Circuit Court of Adams County
, the Hon. Willi am O. May s, J udg e, pre siding.

No. 112802—Appea l from the Appellate Court for the First District; hear d in that court on appea l from the Circuit Court of Cook County
, the Hon. Dennis J. P orter, Judge , presiding

.J udg ment No. 112337—Appellate court judg ment reve rsed. Circuit court judg ment aff irmed.
No. 112802—Aff

irmed.

Counsel on Appea l No. 112337—L isa Madig an, Attorney Gene ral, of Spring field (Micha el A. Scodro, Solicitor Gene ral, and Michae l M. Glick, Sheri L

. Wong and Davis H. I skowich, Assistant Attorney s Gene ral, of Chicag o, of counsel), for the People

.

Be tsy Bie r, of B ier & Bie r, of Quinc y , for a ppellee.

No. 112802—Kimball R. Ander son, Antho n y D

. Pe s c e , D a

n iel Br aun and L aura Whit ney L ee, of Wins ton & Strawn L L P, of Chicag o, for appellant.

L isa Madig an, Attorney Gene ral, of Springf ield (Michae l A. Scodro, Solicitor Gene ral, and Michae l M. Glick and David H. I skowich, Assistant Attorney s Gene ral, of Chica g o, of counse l), for the People.

J ustices J USTI CE THEI S delivered the judgme nt of the cour t, with opinion. Chie f Ju s ti c e K ilb r id e a

n d J ustices Fr eema

n, Thomas, Gar

man, Kar meier, and B urke c oncurr ed in the judg ment and opinion.

OP INION

¶ 1 I n these consolidated appea ls, we are asked to clar ify the quantum and scope of evidenc e neede d to establish probable cause in a postcommitm ent discharg e or condit i o n al rele ase proce eding pursuant to the Sex ually Violent Persons Commi tment A ct (725 I L CS 207/1 et seq. (West 2008)). I n both case s, the trial court found a lack of probable cause and dismiss ed the individual petitions for discharg e or c o n d it io n a l r e le ase. In Stanbridge
, the appellate court

reve rsed, finding that t h e t rial court improperly weig hed contra dictory evidenc e of the parties’ respe ctive experts. Stanbridge
, 4 08 I ll. App. 3d 553. In Lieberman
, the appellate
court aff irmed, over a dissent, finding that the expert did not prese nt sufficie nt evidenc e on the rele vant statutory elements to war rant a further hear ing and did not comply with the statutory require ments for c onditional discharg e. Lieberman , 2011 I LApp (1st) 090796. ¶ 2 We allowed petitions for leave to appea l in both case s (Ill

. S. Ct. R. 315 (ef f. Fe b. 26, 2010 )) and consolidated the appea ls for revie w. For the following rea sons, we reve rse the appellate court judgme nt in Stanbridge and aff irm the appellate court judgme nt in Lieberman

.

-2-¶ 3 I . BA CKGROUND

¶ 4 A. No. 112337, Ke vin Stanbridge ¶ 5 The history of Kevin Stanbrid ge’ s ci v i l comm itment is detailed in the appellate court opinion. We will repe at here only those fac ts nece ssary to our analy sis. Following a jury trial in 2005, Stanbridg e was convicted of ag g rava te d c r im in a l s e xual abuse (720 I L CS 5/12-16(d) (West 1998)), and his c onviction was af firmed on dire ct appea l. People v. Stanbridge
, No. 4-05-0585 ( 2007) (unpublished orde r under Supreme Court Rule 23). ¶ 6 I n May 2005, du ri n g t h e pendenc y of Stanbridg e’s appea l, the State filed a petition to involuntarily commit him as a sexually violent person und er the S exually Violent Persons Commi tment Act (the A ct) (725 I L CS 207/ 1 et seq. (West 2004)). F ollowing a trial on the State’s petition, in October 2007, a jury found Stanbridg e to be a sexually violent person as define d by section 5(f) of the Act (725 I L CS 207/5(f) (West 2004)). There afte r, in Fe bruar y 2008, the trial court order ed him committed to a secur e fac ility for instit uti o n al car e and
treatment until such time as he is no longe r a sexually violent person. His commitment was aff irmed on direc t appea l. In re Kevin S.
, No. 4-08-0163 (2008 ) (u n published order under Supreme Court Rule 23). ¶ 7 Wit hin six months afte r his initial co m m i t m en t , the Depa rtment of Human Servic es (De partment) submitt ed its require d evaluation re p o rt to the court on Stanbridg e’s mental condition to deter

mine whether he had made sufficie nt prog ress to be conditionally rele ased

or discharg ed pursuant to section 55 of the Act (725 I L CS 207/55 (West 2008)). The repor t

was prepa

red by Dr. Edwar d Smit h. Stanbridg e did not reta in or reque st that the court appoint an expert to examine him at that time. He did not file a petition for discharg e, but did
not a ffirma

tively waive his r ight to do so under the Act. Acc ording ly , the State then filed a motion for a finding of no probable ca u s e b as ed on Dr. Smit h’s evaluation repor t. On October 31, 2008, the trial court g rante d the State’s motion, finding that no probable cause exis ted to war

rant a hear ing on the matter. ¶ 8 I n Marc h 2009, Stanbridg e filed a petition for discharg e under section 70 of the Act (725 I L CS 207/70 (West 2008)), which did not coincide with the periodic- evaluation proce ss. The trial court appointed clinical an d fo re n sic psy cholog ist Dr. Kirk Wit herspoon to evaluate Stanbridg e’s mental condition to determine whe ther he was still a sexually violent person. Dr. Wit herspoon submitt ed his amende d psy cholog ical evalua tion repor t t o t he court in J anuar y 2010. ¶ 9 Whil e Stanbridg e’s petition for discharg e was pending
, in August 2009, the Depa rtment submitt ed its requ ir e d p e r io d ic

- r e e xa mi n a ti o n r e p o r t o n St a n b r idg e ’ s mental condition, which

was conducte d ag ain by Dr. Smit h. Th e S t at e ag ain filed a motion for a finding of no probable cause , attachingDr. Smith’s written repor t in support of the motion. ¶ 10 I n J anuar

y 2010, by ag ree ment of the parties, the trial court he ld a joint probable c ause hear ing on both Stanbridg e’s petition for discharg e and the S tate’s moti on for a finding of

no probable cause based on the periodic ree x amination. At the hear ing, the court considere d the two psycholog ical evaluation repor ts submitt ed by Drs. Sm i t h and Wit herspoon and hear d arguments of counse l. ¶ 11 Dr. Wit herspoon’ s rep o rt i n d i cated that his evalua tion was based primarily upon his

-3-interview wi t h S t anbridg e, a revie w of Stanbridg e’s prior psy cholog ical evaluations, and

various diag nostic tes t s desig ned to measure deviant sexual attitudes and behavior and to predic t sex u al offe nse recidivism rate s. Ba sed on this information, and consistent with his prior finding s, Dr. Wit herspoon’ s clinical impression was that Stanbridg e’s test results did
not reve al ong oing evidenc e o f d eviant sexual psychopatholog y of any form and did not evince historic or cur

rent a ntisocial tendenc ies. ¶ 12 I n deter

mining Stanbridg e’s risk of reof fending
, Dr. Wit herspoon administered se vera l
actua rial assessment instruments, including the Static 2002R. He indicated this test was a revised version of the S tatic 99, which pr o v i d es a m o re acc urate measure of risk by better

acc ounting for risk decline due t o ag e a n d b y providing more curre nt demog raphic trends. Dr. Wit herspoon stated that Stanbridg e’s score s showed that his antisocial tendenc ies wer e akin to that of aver ag e nonincar cer ated males, and place d Stanbridg e in a low relative sexual reof fense risk in compar ison to other convicted sexual offe nders. Dr. Wit herspoon’ s opinion that Stanbridg e’s risk of reof fense was low was also base d o n o t h er fac tors, including Stanbridg e’s ag e and his denial that he committed the offe nses for which he was convicted. Dr. Wit herspoon based his opinion on rese arc h showing that all forms of crim in a lity decr ease with advanc ing ag e, and that denial of sex crimes ag ainst minors is not a universally neg ative indicator relative to the risk of reoffe nding. I n conclusion, Dr. Witherspoon’s opinion was that Stanbridg e did not meet the diag nostic cri teria minimally nece ssary for involuntary commitment under the Act and that his risk of reof fending was not in the rang e nece ssary for such commitment. ¶ 13 Dr. Smit h’s evaluat i o n wa s b as ed o n S t an b ri d ge’ s De p ar t ment rec ords, a pee r consultation and his prior six -month psy cholog ical exam ination. In Dr. Smit h’s repor t, he noted t h at Stanbridg e declined to participate in the ree x amination. Dr. Smit h rec ounted Stanbridg e’s c riminal and sexual offe nse hi story , including char g es, convictions and other all ega t i o n s of sexual offe nses. He also rec ounted his persona l history
, education and employ ment, and his history of mental health and medical treatment, substance abuse, behavior al tendenc ies, and tre atment. Dr. Smith concluded that Stanbridge met the criter ia for the following diag noses based on the g uidelines in the Diag nostic and Statist ical Manual of Mental Disorder s, Four t h E d i t ion, Text Revision (DSM-IV-TR): “(1) Paraphilia, not otherwise specified, sex ually attrac ted t o adolesc ent m ales, nonex clusive t y pe; (2) alcohol abuse in a controlled environment; (3) persona lity disorder, not otherwise specif i ed
, with antisocial traits; and (4) rule out pedophelia, sexually attrac ted to males, nonexclusive ty pe.” ¶ 14 I n considering Stanbridg e’s risk of reoffe nding, Dr. S mith conducte d two as s es sments not administered by Dr. Wit herspoon, namely
, the Static 99 and the Minnesota Sex Offe nder Scree ning Tool-Revised. Ba sed on t h es e assessments, Dr. Smit h place d Stanbridg e in the moderate to high cate g ory of rec idivism risk on one assessment and in the high- risk cate g ory

on the other assessment. Dr. Smit h also consider ed o t h er empirica l risk fac tors based on scientific rese arc h that would likely contribute to Stanbri d g e’s risk of reof fense
, and conclude d that he met those ag g ravating risk fac tors due to his persona lity disorder, substance abuse, intox ication during the offe nse, intimate relationship conflicts, and deviant sexual int ere st. ¶ 15 Dr. Smit h also considere d fac tors that might l o we r o n e’ s ri s k o f sexual recidivism,

-4-including se x -off ense- specific treatment, a serious and debilitating medical c ondition, and incre ased ag e. Acc ording to Dr. Smit h, no m ed i ca l issues war rante d a decr ease d risk, and
treatment-based risk reduc t i o n was not war rante d beca

use Stanbridg e ref

used treatment. Additionally
, beca

use the rese arc h indicated no universal agr ee m ent on how ag e impacts

rec idivism rate s, Dr. Smit h opined that some ag e-ba sed risk reduc tion was prese nt, but that
ag e was not curr ently a protec tive fac tor for Stanbridg e. Acc ording ly
, Smit h conclude d that

a substantial p ro b ab i l i ty exis ted that Stanbridg e would eng ag e in further acts of sexual violence due to his mental disorders. ¶ 16 After considering the expert repor ts and the parties’ arguments, the trial court made the following finding s: “[T] he court found [respondent] to be a sexually violent person[—]had the
ap p ro p ri ate diag nosis and finding s [i n Fe bruar y 2008]. [The court does not] see wher e the [S tate’s] expert, *** Smit h, has found that there is any thing differ ent than that, based on what has occur red betwee n now and the time of the orig inal finding

. Wit herspoon, if [t he court] reme mbers corr ectly
, came up with many of the same conclusions at the time of the orig inal hear ing, and that’s in fac t what was deter mined by the jury

. So it seems to [t his c ourt that] at this point[ ,] there is no probable cause to proce ed with a f

ull hearingon the matter, a nd the cour

t would so rule.”
The trial court denied Stanbridg e’s petition for discharg e and g rante d the State’s motion for

a finding of no probable cause

. The court order indicated that the court had considere d both evaluations prepa

red by Drs. Smit h and Wit herspoon, but found that based upon a revie w of the repor ts related to the 18-month ree valuation of responde nt, no probable cause exis ted to

war rant further proce ed i n g s to deter mine whether responde nt rema ined a sexually violent
person. ¶ 17 On ap p ea l
, Stanbridg e argued that the trial court improperly weig hed the conf l i ct i n g t estimony of the parties’ respe ctive experts instead of deter mining whether the evidenc e prese nted established probable cause to war rant further proce eding s. 408 I ll. App. 3d at 558. The appellate court ag ree d and reve rsed and rema nded for further proce eding s, concluding that the evidenc e prese nted was sufficie nt to establish probable cause

. Id. at 563. We g rante d the State’s petition for lea ve to appe al. I ll. S. C t. R. 315 (eff. F eb. 26, 2010).

¶ 18 B. N o. 112803, Br ad L ieber man ¶ 19 The hist ory o f Br ad L i eberman’s commit ment rele vant t o this appea l is detailed in the appellate court opinion and will be rec ounted here to the extent nece ssary to our dispositi on. I n 1980, L ieberm an was convicted of numerous counts of rape and sentenc ed to multipl e

concur rent terms of imprisonment. Shortly befor e his schedule d rele ase date from prison in 2000, the S t at e soug ht to have L ieber man involuntarily committed as a sexually violent
person pur suant to the Act (725 I L CS 207/ 1 et seq. (West 2000)). ¶ 20 I n Fe bruar

y 2006, a jury fo u n d L i eb er man to be a sexually violent person within the meaning of the Act. The mental disorders that formed the basis for L ieber man’s commitment included para

philia, not other wi se specifie d, sexually attrac ted to nonconsenting persons (par aphilia NOS-nonconse nt). The S t at e’ s experts descr ibed this ty pe of disorder as one

-5-premised on intense rec urring rape behavior s with nonc onsenting adults that cause distress

or impair one’s ability to function in society

. There afte r, in April 2006, the trial court order ed L ieber man committed to th e De p artment for instit utional car e and treatment in a secur e fac ility until further orde r of the c ourt. ¶ 21 L ieber

man appea led, arguing, inter alia
, that the State failed to prove that he suffe rs from

a s er i o u s lack of volitional control resulting from a curr ent mental disorder, and failed to prove bey ond a reasonable doubt that he suffe rs from a mental disorder

or that he pr esents any risk to reof

fend. In re Detention of Lieberman
, 379 I ll. App. 3d 585, 597-98 (2007). Specifica lly
, he maintained that the State’s expert’s opinions and diag noses did not meet the diag nostic criter ia of the Diag nostic and Statist ical Manual of Mental Disorder s (DSM). Id. at 602. His commitment was af firmed on dire ct appe al. Id . at 611. ¶ 22 The re cord ref lects that in October 2006, the Depa rtment conducte d its mandated sixmonth ree x amination to deter mine whether L ieber

man had made sufficie nt prog ress to be conditionally rele ased or discharg ed. In conjunction wit h t he mandated six -month

re examination, L ieber

man filed a petition for discharg e or conditional rele ase, which the court de nied in Dec ember 2006. The followingy ear , in October 2007, Dr. David Suire, an

eva l u at o r with the Depa

rtment, conducte d L ieber man’s mandated periodic psy cholog ical

re examination to ag ain deter mine whether L ieber

man had made sufficie nt prog ress t o b e conditionally rele ased or discharg ed. Dr. Suire repor ted that in his cl inical judgme nt L ieber man continued to suffe r from para philia NOS-nonconse nt, canna bis abuse, antisocial
persona lity

disorder, and narc issist ic personality disorder. He believed it was substantially probable that L ieber

man would eng ag e in future acts of sexual violence. He also noted that L ieber man had not participated in any core sex-offende r treatment offe red by t he Depa rtment. ¶ 23 I n conjunction with this annual ree valuation, the State filed a motion for a finding of no probable cause

. L ieber

man did not aff

irmatively waive his rig ht to petition for discharg e and, simult aneously with the State’s motion, ex er ci s ed h i s rig ht to file a petition for discharg e under section 65(b)( 1) of the Act (725 I L CS 207/65(b)(1) (West 2006)). There afte r, the court g rante d L ieber

man leave to am e n d h is petition to alternatively petition for conditional rele ase under section 60(c) of the Act (725 I L CS 207/60(c) (West 2006) ). The court appointed Dr. Eric Ostrov to conduct an evaluation of L ieber man under this section. The court also g rante d L ieber man’s motion to allow Dr. Chester Schmidt to perform an independe nt e x amination of him. ¶ 24 The following testimony was prese nted by Dr. Schmidt at the probable cause hear ing on the petit ion for discharg e or alternatively conditional rele as e. Dr. S chmidt testified t hat he

was a phy sician psy chiatrist, a profe ssor of psychiatry at J ohns Hopkins University School of Medicine, and founder and member of the sexual behavior consultation u n i t at J ohns Hopkins Hospital. Dr. Schmidt rende red two opinions: (1) the diag nosis of para philia NOSnonconsent doe s not ex ist in t he DSM; and (2) L ieber man does not have a par aphilia. ¶ 25 Wit h respe ct to the first opinion, Dr. Schmidt explained that the DSM identifies a g ener al class of disorders called “par aphilias,” which the DSM define s as having the following essential diag nostic features: “re curr ent , i ntense sexually arousing fanta sies, sexual urg es,

-6-or behaviors g ener ally involving *** nonconsenting persons that occur over a period of at

least 6 months.” 1 ¶ 26 Dr

. S ch m i d t ex plained that the DSM specific ally identifies nine common para ph i l i c conditions and lists the diag nostic criter ia for eac h condition. In addition, the DSM includes

a re sidual cate g ory

of “pa raphilia not otherw ise specif ied” f or par aphilias that do not meet the criteria for any of t he nine specifica lly listed categ ories. That residual section provides

a nonexhaust i v e list of examples that fall under this catc h-all NOS cate g ory

. Dr. Schmidt testified that para

philia NOS-nonconse nt is not contained within either the section that lists the nine common para

philic conditions o r wi thin the examples listed in the residual NOS
cate g ory

. ¶ 27 Dr. Schmidt acknow ledg ed that there are those in the profe ssion that believe para philia NOS-nonconse nt is a valid disorder that falls under the catc h-all NOS cate g ory , and that they apply the gene ral diagnostic feature s of paraphilias to diag nose t his particula r r ape- related
para philia. Howeve r, Dr. Schmidt disag ree d with this approa ch and disag ree d that the DSMI V contains a mental disorder known as para philia NOS-nonc o n s ent without the proper formal ve tting of that diag nosis. ¶ 28 Dr. Schmidt explained that there is a formal proce ss by which diag noses are included in the DSM. I n 1986, he was the chair man of a committee convene d by the Americ an Psy chiatric Association (APA) to consider whether to include a diag nosis for para philia NOS-nonconse nt in the DSM-I I I -R. The committee voted ag ainst inclusion of a rape -re lated
para philia diag nosis for two rea sons: (1) there was “no scientific support for the diag nosis”; it was based so l el y on “expert opinion which is one of the lowest forms of rese arc h to support any

thing” ; and (2) there wer e numerous org anizations within the leg al, social work, and psy chiatric communities that voiced conce rn that the diag nosis would be mis u sed to

cr ea te an insanity defe nse in rape trials. As a result, the board of trustees of t h e AP A, o f which Dr . Schmidt was also a member , voted to exclude the diag nosis in the DSM-I I I -R. ¶ 29 During his later work as chair man betwee n 1995 and 2000 on the revision of the DSMI I I -R to the DSM-I V, there wer e no reque sts that the disorder be included in the new edition. To Dr. S ch midt’s knowledg e there i s no curr ent reconsideration of t hat decision, which in h i s o p inion means that “the field in g ener al i s essentially satisfied wit h the *** diag no s t i c format that exis ts wi t h i n t h e DSM-I V.” I t was his opinion that the use of officia lly

rec og nized diag noses in the DSM is essential for purposes of patient car e, valid rese arc h and the integri t y o f the leg al sy stem, and failure to adher e to it may have an impact on the
treatment proce ss. ¶ 30 On cross-e x amination, Dr. Sc h m i d t re cognized that the diag nosis of paraphilia NOSnonconsent is widely

acc epted by fore nsic experts in the medical f ield, and that the de bate
reg arding the use of this diagnosis has b ee n o n go ing for about 20 y ear s. He also

T his sec ti on of the DSM al so ide nti fi es add it ion al dia gnosti c fe at ure s for some par aph il ia s 1 whic h can inc lud e a re qui re m ent tha t “t he beh avior
, sex ual urges, or fa nta si es c aus e cl ini cal ly si gnifi can t dis tr ess or impair m ent in soc ia l, occ upa ti ona l, or oth er import ant ar eas of fun ct ion ing.” DSM at 566

.

-7-acknow ledg ed that L ieber man’s experts did not r aise this issue at his orig inal commitment trial. ¶ 31 Dr. Schmidt further testified reg arding the bases for his conclusion that L ieber man does
not suffe r from a para

philia, assuming the diagnosis exis ts. I n p repa ring his opinions, Dr. Schmidt relied upon L ieber man’s Depa

rtment of Correc tions (DOC) mental health repor ts, his Depa rtment master trea

tment plans, police repor

ts, article s on civil commitment and the diagno s i s o f para

philia, the transcr ipt from L ieber man’s 2006 commitment trial, expert evaluations from other evaluators, including Dr. J acque line Buc k, Dr. Ba rry L eavitt, Dr. Suire, Dr. Ostrov, a

nd an intervie w with L ieber man in April 2008. ¶ 32 Dr. Schmidt considere d that in the 15 evaluations done of L ieber man during his 20 y ear s in the DOC, he was never diag nosed with para philia, a nd that the evalua

tors wer e require d
to rec ord that diag nosis if in fac t it exis ted. In considering L ieber man’s psy chosexual history prior to 1979
, wh en h e committed the rape s, Dr. Schmidt testified that his opinion that L ieber man had a “f

ai rl y n o rmal heter osexual development during his teen y ear s and adolesc ent y ear s” was rea sonably consistent with the other evaluations. Dr. Schmidt was of the opinion that L ieber

man has had no para

philic fanta sies or urg es in the past 29 y ear s based upon L ieber

man’s own se lf-re porting

. ¶ 33 Wit h respe ct to para philic behavior
, Dr. Schmidt fo u n d t h at t h ere wer e no repor ted behavior s of any coer cive sexual activity with either femal e s t aff or prisoners. I t was his opinion that L ieber

man would have found an outlet to act out his para philia, including with the prison’s homosex ual community even though he was otherwise heter osexual. One who has a para philia would have a heig htened de g ree of impulsivit y that is sex ually driven and compulsive, and one would expect that even in an incar cer ated situation that such a person could find outlets to act out the para philia. One would expect that in over 29 y ear s of incar cer ation there would be some evidenc e of attempts to act out the behavior and that the actingout would have c aused some dif ficulty

. ¶ 34 Dr. S chmidt also based his opinion that L ieber man di d not suffe r from a p ar aphil ia on the Global Assessment of Func tioning (GAF ) scale
, as deter m i ned by his treatment team. The scale measure s a person’ s sy mptom sever ity and l ev el of functioning

. Assuming L ieber man h ad a para

philia, Dr. Schmidt believed that one could measure chang e in L ieber man’s sy mptom severity

by looking at his GAF scor es over time. L ieber man’s GAF

score s from 1999 to 2005 wer e in the rang e of 45, which indicated serious sy m p t o m s o r impairment. His most rec ent score of 71 indicated, acc ording to the DSM, that sy mptoms are prese nt, but that they are “tra nsient and expect[ed] rea ctions to psy cho-soc ial stressors,” and that L ieber

man has “no more than slight impairment in social, occupation, or school functioning. ” Dr

. Schmidt testified that L ieber man’s score indicated that those who have observe d and score d L ieber man believe that his sy

mptoms an d functional capa city have dramatically improved. Howeve r, Dr. Schmidt acknow ledg ed on cross-e x amination that he did not speak to anyone at the D epar tment as to how they

use those scor es. ¶ 35 Dr. Schmidt was asked to explain how L ieber man could have committed the numerous
rape s in 1979 but for the fac t that he was driven by some ty pe of mental disorder. Dr. Schmidt testified that rape is not a mental disorder, nor is it nece ssarily para philic. L ess than

-8-10% of rapists suffe r from a para philia. Additionally
, Dr. Schmidt believed that L ieber man’s immediate prer ape history may be rele vant to explaining his multipl e rape s. Acc ording to the materia ls Dr. Schmidt revie wed, L ieber man repor

ted a sexual experience in which a woman that he was attempting to have intercour se with “initially resisted, resisted, and then allowed, then said y es.” L ieber

man repor

ted this as being very important beca use it led him to believe when he was 19 that “whe n women said no they rea lly meant y es.” He repor ts that his first
rape was “ver

y sexually g ratify

ing,” and that “motivated him to eng ag e further .” At that time he had “absolu t el y n o reg ard for the law” and was “ac ting selfishly for his own sexual
g ratification.” When L ieber man was appre hended and then rele ased on bond, he committed the additional rapes because he thoug ht “the law ha d no teeth,” a nd that he wa s “immune” from it. Dr. Schmidt believe d that these experience s provided “as pla usible an explanation
as may be we ’ll ever

g et from the f

acts of the case .” ¶ 36 On cross-e x amination, Dr. Schmidt testified that he is not a member of any profe ssional
org anization focusing on the evalua tion and trea

tment of sexual offe nders and has never been previously qualified as an expert in a sexually violent person’ s commitment proce eding

. 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 offe nders. Wit h reg ard to the rec ords he re viewed, he stated that he did not revie w the trial tra nscripts or police r eports fr om the trials resulting in L ieber

man’s rape convictions. Other than the mental health rec ords from the DOC, Dr. Schmidt did not revie w any other document s in the DOC file reg arding L ieber man’s beha

vior. ¶ 37 The parties stipulated that Dr. Mark Ba bula woul d t es t i fy t h at h e was L ieber man’s primary thera

pist at the treatment fac ility

. Any contac t he had with L ieber man did not constitute sexual offe nder treatment. Dr. Ba bula would further testify that L ieber man has not participated in any

sexual offende r treatment at the fa cility

. ¶ 38 The court-a

ppointed expert, Dr. Os t ro v , t estified that he diagnosed L ieber man base d upon the DSM with para

philia NOS-nonconse nt and a pe rsonality disorder w ith antisocial and narc issist ic features. I t was his opinion that these disorders predispose L ieb er m an to commit future acts of sexual violence and, there fo re, Dr. Ostrov did not rec ommend conditional rele ase. ¶ 39 Dr. Ostrov testified that his diag nosis of para philia w as informed by g uidance from the DSM g ener al criter ia for para philias, including rec urre nt and intense sexual behavior s over

a peri o d o f s i x months that cause d clinically signific ant distress or impairment in social,
occupational, or other important are as of functioning

. Dr. Ostro v fu rther testified that his diag nosis was based upon sever al aspec ts of L ieber man’s behavior

. Ba sed upon his r eview of the rele vant material s , L ieber man evince d repe ated instances of nonconsensua l sex direc ted at differ ent women over a p eriod of more than six months which cause d him clinically signific ant distress and impairment in fun ct ioning. L ieber man’s actions wer e “drive n behavior ” in that “de spite his fear , the drivenne ss overc ame that f ear ” and led him to commit the numerous rape s. Dr. Ostrov found L ieber man evince d a lack of empathy for his victims, and explained that L ieber man’s claim that he has not “ac ted out sexually ” during his detention must be viewed with the understanding t h at h e has not been around his pref err ed sexual stimul i.

-9-¶ 40 Dr. Ostrov further testified that L ieber man’s results on various diag nostic tools indicated that he posed a high ri sk of reof fending

. Dr. Ostrov believed that L ieber man’s failure to participate in se x -off

ender treatment c ontributed to his high risk beca use he has not shown

an interest in and has not had the benef it of completing formal sexual offe nder treatment, which has been empirica lly shown to de cre ase the risk of re offe nding. D r. Ostrov believed that other dy

namic fac tors such as ag e would have some impact on L ieber man’s likelihood of rec idivism
, but not a very signific ant i m p ac t

. Dr. Ostrov did not find evidenc e that L ieber man had sig nificantly

decr ease d the risk that he would se x ually reof fend. ¶ 41 Dr. Suire testified that he diag nosed L ieber man using the DSM c riteria w ith paraphilia N O S- n o n c o n s e nt, c a

nn a b is abuse, antisocial persona lity disorder, and narc issi s ti c p e r s o n a li ty disorder. He acknow ledg ed the disag ree ment reg arding the diag nosis of para philia, but believed it wa s primarily due to “political factors” a nd the under standing that not all rape s

are para philic. I n diag nosing L ieber

man, Dr. Suire considere d the nature and pattern of the
rape s, whether the behavior s wer e occur ring while he had acc ess to consenting partne rs, the fre quency of the c onduct, and whe ther he was c ommitt ing othe r cr imes at the same time. ¶ 42 Dr. Suire further testified reg arding L ieber man’s risk assessment, rely ing on his file, and the use of actua

rial instruments to achie ve a “base line estimate of the risk.” L ieber man

s co re d in the high- risk cate g ory on these tests. Additionally
, Dr. Suire considere d other
ag g ravating and protec tive fac tors which could incre ase or decr ease hi s ri sk levels. L ieber man had sever a l ag g ravating fac tors, including deviant sexual arousa l, two persona lity disorders, and high scores on other diagnostic tools, which corre late with an eleva ted risk. Dr. S uire did not consider L ieber man’s age to be a signific ant protective fac tor, and noted that L ie b e r

ma n d id n o t p a

r ti cipate in any core sex-offende r treatment, which can substantially reduc e his rec idivism risk. Dr. S uir e did not believe that L ieber man’s risk was reduce d by participation in “anc illary trea tment-ty pe” prog rams at the t reatment fac ility . Acc ording ly
, it was Dr. Suire’s opinion that it was substantially probable that L ieber

man would commit

new acts of sexual violence and that he had not made sufficie nt prog ress to allow him to be safe ly manag ed in the community

. ¶ 43 The trial court denied L ieber man’s petition for discharg e or conditio n a l r e le a s e

. T h e court acknow ledg ed the debate am o n g m en tal health profe ssionals as to the validity of the diag nosis of para

philia NOS-nonconse nt, but found the question could not be answered

s i mply by testimony that the disorder is not specific ally listed in the DSM. T h e co u rt ultimately found it was a mental disorder that satisfied the require ments of the Act. The court further found Dr. Schmidt’s explanation for why L ieber man may have committed the rape s to be absolutely lacking in cre dibilit y and found the State’s experts to be cre dible. Although the cour t found that L ieber

man had made some improvements, he a lso noted his r efusa l to participate in formal sex-offende r treatment, claiming that he did not need it, and found that when viewed in totality
, ther e was no probable cause to believe that L ieber man had made sufficie nt prog ress to be c onditionally rele ased or

discharg ed. ¶ 44 On appea l, L ieber man contende d that the denial of his petition was err or and violated his rig ht to due proce ss. I n its orig inal decision, the appellate court found no err or, finding that the t rial court was “fre e to acc ept t he opinion of one e x pert witness ove r anothe r or acc ept part a nd reje ct par

t of ea ch expert’s testimony ,” and aff irmed the trial court’s judgme nt. In

-10-re Detention of Lieberman
, 401 I ll. App. 3d 903, 923 (2010). We subsequently direc ted the appellate court to vaca

te its judgme nt and to rec onsider in light of In re Detention of Hardin
, 238 I ll. 2d 33 (2010). ¶ 45 On rema

nd, the appellate court conclude d that a differ ent result was not war rante d afte r revie wing Hardin and, therefor e, affirmed t h e circ uit court’s judgment. 2011 I L App (1st) 090796, ¶ 65. The majority found that the expert did not prese nt suf ficient evidenc e on the rele vant statutory elements to war rant a further hearing and did not comply with the statutory require ments for conditional discharg e. Id

. J ustice Gar cia dissented with respe ct to the petition for conditional rele ase. He believed that the decision in Hardin compelled the court to reve rse the circ uit court’s finding on p ro b able cause wher e the circ uit court improperly based its ruling on a “ ‘full and independe nt evaluation of [Dr. Schmidt’s] cre dibilit y and [hi s expert opinion] .’ ” Id

. ¶ 83 (Ga rcia
, P.J
., dissenting) (quoting Hardin
, 238 I ll. 2d at 53). We allowed L ieber

man’s petition for leave to appea l and consolidated his appea l with Stanbridg e’s a

ppeal.

¶ 46 I I . ANALYSI S ¶ 47 A. Over view of the Sex ually

Violent Persons Commit ment Act ¶ 48 We be g in our analy sis with an overvie w of the Act. The Act authorizes the involuntary civil commitment of “sexually violent persons” for “contr ol, car e and treatment.” 725 I L CS 207/40(a) (West 2008). The Act define s a “sexually violent person” as an individual who has “bee n convicted of a sexually v i o l en t o ff ense” and who “is dang erous beca use he or she suffe rs from a mental disorder that makes it substanti al l y probable that the person will
eng ag e in acts of sexual violenc e.” 725 I L CS 207/5(f) (West 2008). A “mental disorder” is define d under the Act as a “cong enital or acquir ed condition aff ecting the em o t i onal or volitional capa city that predisposes a person to eng ag e in acts of sexual violence.” 725 I L CS 207/5(b) (West 2008)

. I f the State proves beyond a rea sonable doubt that an individual is a sexually v i o l en t p er son, that individual may be indefinitely committed “until such t ime as the person is no longer a sexually violent pe rson.” ( Emphasis added.) 725 I L CS 207/35(f)
, 40(a) (West 2008). ¶ 49 Af

t er an individual has been committed to instit utional ca re u n d er t h e Ac t , t h e Depa rtment is responsible for ev a lu a ti n g the individual’s mental condition within six months

o f t h e i n i tial commitment and ag ain there afte r at least annually

. 725 I L CS 207/55 (West 2008). The stated purpose of these periodic examinations is to deter mine “whe ther the p erson has made sufficient progress to be conditionally rele ased or discharg ed.” (Emphasis added.) 725 I L C S 2 0 7 / 5 5 (W est 2008); People v. Botruff
, 212 I ll. 2d 166, 171 (2004) (purpose of

ree x amination is to deter

mine whether person has “progresse d enoug h to be conditionally rele ased or

discharg ed”)

. 2

We not e tha t si n c e t h e re le vant per iod ic evalua ti ons in the se con sol ida te d cas es, the 2 le gisla tur e has amended thi s sec ti on to pro vide tha t the purpos e of the se evalua ti ons is to det er m ine “whe the r: (1) the per son has m ade suf fi ci ent pro gress in tr eat ment to be con dit ion al ly re le ase d and (2) whet her the per son ’s con dit ion has so cha nge d si nce the m ost re cen t per iod ic re exa m ina ti on (or

-11-¶ 50 Although commitment is potentially i n d ef inite in nature , a committed individual may ch alleng e his continued commitment under the Act throug h a petition for discharge o r a petition for conditional rele ase. A committed p er s o n may seek a discharg e under three available mecha

nisms. The first mecha

nism applies if the Secre tary of Human Service s deter mines, at any time, that the individua l i s n o l o n g er a sexually violent person. In that

case , the Secre tary must authorize the committed individual t o p et ition the court for discharg e. 725 I L CS 207/ 65(a) (1) ( West 2008). ¶ 51 The second m ec h an i s m for discharg e is trig g ere d whene ver the committed individual underg oes one of t he periodic examinations require d by section 55 of t h e Act. At the t ime of eac h such examination, the committed person must be g iven written notice that he has the rig ht to petition for discharg e over the Secre tary ’s objection. 725 I L CS 207/65(b)(1) (West 2008). I f the committed individual does not aff irmatively waive that rig ht, the court must set

a probable cause hear ing to deter mine whether fac ts exis t that war rant a hear ing on whether the def endant is “ still a sexually

violent person.” Id

. I f the c ommitt ed per son does not file 3

a petition for discharg e, but nonetheless does not waive his rig ht to do so, then the probable

cause h ea ri n g consists only of a revie w of the reexamination repor ts and arg uments of t he parties. Id

. ¶ 52 I f the court finds that there is probable cause to believe that the committed individual “is

no longe r a sexually violent person,” it must set a hear ing on the issue and the State has the burden of proving by

clea r and c onvincing evidenc e that the committ ed indi vidual is “still a sexually violent person.” 725 I L CS 207/ 65(b)( 2) (West 2008). 4 ¶ 53 I n addition to these proce dures, under a third mecha nism, the committed individual may

ini ti al comm it m ent , if the re has not yet bee n a per iod ic re exa mi n at ion ) tha t he or she is no lon ger

a sex ual ly viole nt per son .” (Emphase s add ed.) Pub. Act 97- 1075 (e ff

. Aug. 24, 2012 ) (a m end ing 725 I LCS 207 /55 ).

T he a m end ed s ta tut e c urr ent ly pro vides th at “t he c our t s hal l s et a p rob abl e c aus e he ar ing 3
to de t e r mi n e w h e t her fa ct s exi st to bel ie ve tha t si nce the m ost re cen t per iod ic re exa m ina ti on (or ini ti al comm it m ent , if the re has not yet b e e n a per iod ic re exa m ina ti on)
, the con dit ion of the

comm it te d per son has so cha nged tha t he or she is no lon ger a sex ual ly viole nt per son

. However, if

a per son has pre viousl y fi le d a pet it ion for dis cha rge wit hout the Sec re ta ry’s app roval and the cou rt det erm ine d, ei the r upon re view of the pet it ion or fol lowi ng a hea ri ng, tha t the per son ’s pet it ion was fr ivolo us or tha t the per son was st il l a sex ual ly viole nt per son , the n the cou r t s h a l l d e n y any sub seq uen t pet it ion unde r thi s Se c t ion wit hout a hea ri ng unl ess the pet it ion con ta ins fa ct s upon whic h a cou rt cou ld re aso nab ly fi nd t hat th e condi ti on of the per son had so chan ged tha t a heari ng

was war ra nte d.” Pub. Act 97- 1075 (e ff . Aug. 24, 2 012) (a m end ing 725 I LCS 207 /65 (b) (1) ).

T he amended st at ute cur re ntl y pro vides tha t “[ i] f the cou rt det er m ine s at the pro bab le cau se 4 hea ri ng *** tha t pro bab le cau se exi st s to bel ie ve tha t si nce the m ost re cen t per iod ic re exa m ina ti on (or ini ti al comm it m ent , if the re h a s n o t yet bee n a per iod ic re exa m ina ti on)
, the con dit ion of the

comm it te d per son has so cha nged tha t he or she is no lon ger a sex ual ly viole nt per son , the n the cou rt

s h a l l s e t a hea ri ng on the is sue .” Pub. Act 97- 1075 (e ff

. Aug. 24, 2012 ) (a m end ing 725 I LCS 207/ 65( b)( 2))

.
-12-petition f or discharg e at times othe r than the periodic e x aminations and may do so without the approva l of the Secre tary

. 725 I L CS 207/70 (West 2008). I f the person has not 5 previously filed a petition for discharg e without the Secre tary ’s approva l, the court must set

a probable cause hear ing and, if appropr iate, proce ed in acc ordanc e with the same proce dures
g overning unapprove d petitions for revie w filed at the time of the s t at u t o ri ly mandated periodic examinations. Id

. I f, howeve r, the person did previously file a petition for discharg e without the Sec reta

ry ’s appr oval and the c ourt deter mined, based on r eview of the petition

or following a hear ing, that the petition was frivolous or that the defe ndant was still a

s ex ually violent person, then an important limit ation applies to this section. The co u rt i s require d to dismiss the petition without a hear ing unless the petition contains fac ts that would support a findingthat the def endant ha s so chang ed that a he aringis warr anted. Id

. ¶ 54 A committed individual may also petition the court to modify the commitment order by authorizing conditional rele ase. The Depa rtment may rec ommend that a committed pe rson is appropriate for conditional rele ase at any time and file a petiti on on the per son’s beha lf. 725 I L CS 207/60(a) (West 2008). Alternatively
, if cer tain statutory require ments are met, the committed person may file a petition without the Depa rtment’s approva l. The trial court must hold a hear ing to deter

mine whether probable cause exis ts “to believe that it is not substantially probable that the person will eng ag e in acts of sexual violence if on rele ase or condi t i o nal rele ase.” 725 I L CS 207/60(c) (West 2008). I f the court finds probable cause , 6 then it must hold an evidentiar y hear ing on the issue, and g rant the petition unless the State shows by clea

r and convincing evidenc e that the person has not made sufficie nt prog ress to be conditionally

rele ased. 725 I L CS 207/ 60(d) ( West 2008). 7

¶ 55 B. A pplicable Standar d of Proof ¶ 56 We a

re initially asked in the se consolidated a ppeals to consider the proper standard for assessing the evidenc e at a postcommitm ent probable cause hear ing on a peti tion for disch ar ge or conditional rele ase. Initially
, we addre ss whether the quantum of proof for probable cause in postcommitm ent proce eding s is the same standard we adopted in In re

T he l egisl at ure has si nce re pea le d t his se ct ion of the st at ute . Pub . Act97- 1075 , § 1 0 ( ef f. 5 Aug. 24, 20 12)

.

T he amended st at ute cur re ntl y pro vides tha t the cou rt m ust det er m ine whet her the re is 6 “pr oba ble cau se to bel ie ve the per son has m ade suf fi ci ent pro gress in tr eat ment to the poi nt wher e he o r s he i s no lo nger s ubs ta nti al ly pro bab le to engage in act s of sex ual viole nce if on c ondi ti ona l

re le ase .” (Emphasi s add ed.) Pub. Act 97- 1075 (e ff

. Aug. 24, 2012 ) (a m end ing 725 I LCS 207/ 60( c) ). Addi ti ona ll y, “[t ]he pro bab le cau se hea ri ng s hal l con si st of a r eview o f t he e xaminin g ev al uat ors ’

re por ts and ar gum ent s on beh al f o f t he p ar ti es. ” Id.

T he amended st at ute cur re ntl y pro vides tha t the Sta te m ust pro ve by cl ear and con vinci ng 7 eviden ce tha t “t he per son has not m ade suf fi ci ent pro gress in tr eat ment to the poi nt wher e he or she is no lon ger sub st ant ia ll y pr oba ble to engage in act s o f sex ual viole nce if on con dit ion al re le ase .” (Emphasi s a dde d.) Pub. Act 97- 1075 (e ff . Aug. 24, 2 012) (a m end ing 725 I LCS 207 /60 (d) ).

-13-Detention of Hardin , 238 I ll. 2d 33 (2010). The resolution of this que stion involves a leg al

issue to be re viewed de novo

. Id. at 44. ¶ 57 I n Hardin
, this court considere d the quantum of evidenc e neede d to support a finding of
p ro b ab l e cause to believe that a person is a sexually violent person under the Act. Id

. I n

es t ab l ishing the appropr iate standard, this court reje cted the responde nt’s argument that a

rea sonable doubt standard was proper

. Rather, this court g ave the term “proba ble cause ” its ordinary and popularly understood meaning

. Id. at 48. In doing so, we looked to the conce pts applicable to probable cause deter minations in the criminal context. We ultimately adopted the evidentiar

y standard employ ed in the Wis consin case of State v. W a tson , 595 N.W.2d 403, 42 0 (Wis. 1999), to g uide probable cause hear ings in sexually violent person proce eding s. Id

. We noted that we had previously found the Wis consin statute to be substantially simil ar to our own state st atute, and found t he W a t s o n co urt’s rationale t o be consistent with this court’s approa ch to probable cause proce eding s in criminal case s. Id. at 46, 48. The W

atson court li kened the p ro b ab l e ca u se hearing to a preliminary hearing in a felony case , which “is desig ned to preve nt ‘hasty
, improvident or malicious prosec ution’ and ‘to discover whether there is substantial basis for bring ing the prosec ution and further denying the acc used his rig ht to liberty .’ [Ci tation.] ” W atson , 595 N.W.2d at 418. ¶ 58 Under the standard we enunci at ed i n Ha rdin
, the moving party is mere ly require d to “ ‘establish a plausible account on eac h of the require d elements to assure the court that there is a substantial basis for the petition.’ ” (Emphasis in orig inal.) Har d i n , 238 I ll. 2d at 48 (quoting W

atson , 595 N.W.2d at 420). “In m aking that deter mination, the t rial j udg e mus t consider ‘all rea sonable infere nces that can be drawn from the fac ts in ev i d en ce

. ’ ” Id

. Howeve r, at t h i s stag e of the proce eding s, the role of the trial judge is not to “ ‘choose betwee n conflicting fac ts or infere nces’ ” ( id .) or to eng ag e in a “full and independe nt evaluation of [an expert’s] cre dibilit y and methodology” ( id. at 53). The trial court “should
not attempt to deter

mine definitiv el y whether eac h element of the [m ovant’s] claim can withstand close scrutiny as long as some ‘plausible’ evidenc e, or rea sonable infere nce based on that evidenc e, supports it.” Id. at 51-52. ¶ 59 Although the fac ts in Hardin dealt with a prec ommitm ent probable cause hear ing unde r section 30 of the A ct, we find that these same principles equa lly apply to postcommit ment probable cause hear ings on petitions for discharg e or conditional rele ase. “[T] he hear ing is intended to be preliminary in nature , a ‘summary proce eding to deter mine essential or basic fac ts as to probability ’ *** rema ining cog nizant of the responde nt’s liberty rig hts.” Id. at 52 (quoting W

atson , 595 N.W.2d at 420 ). T h u s , no compelling rea son exis ts to treat those
proce eding s differ ently

for pur poses of the pr obable c ause standa rd. ¶ 60 We reje ct the State’s contention that the circ uit court’s role in assessing the evidenc e in the postcommitm ent probable cause hearing is differ ent than in a prec ommitm ent proce eding

. The g ener al presumption is that words in a statute are g iven their ordinary and commonly understood meaning s. People v. Phelps
, 211 I ll. 2d 1, 15 (2004). “Where a word is used in differ ent sections of the same statute, the presumption is that the word is used with the same meaning throug hout the statute, unless a contra ry leg islative in t en t i s clea rly expressed.” People v . Maggette , 195 I ll. 2d 336, 349 (2001).

-14-¶ 61 The State asser ts that in a postcommitm ent probable cause hear ing, the Act presuppose s that there may be conflicting ex pert opini ons and the court should weig h those conflicting opinions ag ainst eac h other in deter mining whether there is a rea sonable basis for the petition
to proce ed to an evidentiary hear ing or trial. The S tate ma i n t ai n s that in a precommitment probable cause hear ing, in contra st, the detainee is not entitled t o p re s en t an expert and, there fore
, the court would never be in a posi tion to weig h competingopinions, warra nting a diffe rent a ssessment. ¶ 62 We reje ct the State’s premise. Nothing in the Act prec ludes an individual f rom prese nting evidenc e at a prec ommitm ent probable cause hear ing, whether the evidenc e be prese nted from cross-e x am i n at i on or from the prese ntation of a witness. Section 25(c) of the Act expressly provides that, with exceptions not rele vant here
, at any hear ing, any individual who is the subject of a petition for commitment has the rig ht “[t] o prese n t an d cr oss-examine witnesses.” 725 I L CS 207 / 2 5 (c) (West 2008). The court’s role in assessing the evidenc e

rema ins the same throug hout the various probable cause hear ings; that role is to determine whether the movant has established “ ‘a plausible account on eac h of the require d elements
to assure the court that there is a substantial basis for the petition.’ ” (Emphasis in orig inal.) Hardin
, 238 I ll. 2d at 48 (quoting W atson , 595 N.W.2d at 420). Thu s , t h e State has not demonstrated that the leg islature meant something differ ent when it used the identical term in sections 30(b), 60, 65 a nd 70 of the Ac t. ¶ 63 A simil ar argument was made by the State and reje cted in the Wis consin case of In re Commitment of Kruse
, 2006 WI App 1 7 9
, 296 Wis

. 2d 130, 722 N.W.2d 742. There
, the State asser

ted that at the probable cause hear ing on a petition for discharg e, the circ uit court should decide which of two conflicting ree x amination repor ts is more persua sive. The appellate court reje cted that arg ument, finding instead that the purpose of the probable cause hea ri ng was simil ar to the purpose of a preliminary examination in that it “per forms a ‘g ateke eping function’ by ‘provid[ing] an opportunity for the committing court to wee d out frivolous petitions by committed persons alleg ing that they are no longe r dang erous and are fit for rele ase.’ ” Id. ¶ 31 (quoting In re Commitment of Paulick
, 570 N.W.2d 626, 629 (Wis. Ct. App. 1997)). The court found t hat t he purpose of t he hearing was to deter mine if there

was an adequate basis for an evidentiar y hear ing, but was not a substitut e for an evidentiar y hear ing. Id. Acc ording ly
, the court held that the circ uit court’s role was to deter mine whether there was a plausible expert opinion that, if beli ev ed
, woul d establish probable cause to believe the individual was no longe r a sexually vi o l en t p er son within the meaning of the
statute. Id. ¶ 32. ¶ 64 To allow the trial judge to wei gh co n fl i ct i n g ev i d en ce and choose betwee n expert opinions at this “summary proce edi n g ” would be beyond the scope of the limit ed inquiry intended at a probable cause hear ing and would re n d er m eaningless and unnece ssary the subsequent sections of the Act providing for a ful l hear ing or trial. The probable cause hear ing is not a substitut e for a full evidentiar y hear ing wher e disputed questions of fac t can be resolved by the trier of fac t, and wher e the basis for the opinions and cr ed i b ility deter minations can be fully explored. See In re Detention of Cain
, 402 I ll. App. 3d 390, 397 (2010) (Stewart, J
., dissenting) (to allow t h e court to choose betwee n conflicting opinions
at a probable cause h earing would “allow[ ] the court to by pass all of the truth-see king

-15-functions and protec tions of our rules of evidenc e”)

. Acc ording ly
, for all of the fore g oing

rea sons, we hold that the quantum of proof an d t h e circuit court’s role in assessing the evidenc e at a postcommitm ent probable cause hear ing is the same as that expressed by this court in Hardin

.

¶ 65 C. Scope of the Proba ble Cause He aring ¶ 66 We next consider the parties’ dispute reg arding the scope of evidenc e that is rele vant to these proce eding s and whether the evidenc e adduce d at the probable cause hear ings was sufficie nt to meet the proba ble ca use standar d. ¶ 67 At the outset, we stress that our consideration of this issue is depende nt upon the rele vant statutory scheme at the time of these proce eding s only
, and does not addre ss the scope of the postcommitm ent proce eding s under su b s equent amendments. Under the rele vant statute applicable to these case s, to support a finding of probable cause on a petition for conditional release under section 60(c)
, the committed person bear s the burden to show suff i ci en t evidenc e “to be lieve that it is not subst antially probable that the person will enga g e in ac ts of sexual violence if on rele ase or conditional rele ase.” 725 I L CS 207/60(c) (West 2008). To support a finding of probable cause on a petition for discharg e under section 65(b)( 1) or on

a first petition for discharg e under section 70, the movant bear s the burden to show sufficie nt evidenc e to war

rant a hear ing on whether the person is “ still a sexually vi olent person.” (Emphasis added.) 725 I L CS 207/65(b)(1)
, 70 (West 2008). To make that deter mination, the
court must find that there is a plausibl e acco u n t t h at “the committ ed person is no longer a sexually violent person.” ( Emphasis added.) 725 I L CS 207/ 65(b)( 2) (West 2008). ¶ 68 Given the statutory definition of a “sexually violent person,” it follows that in a discha rg e proce eding
, the committed individual must prese nt sufficie nt evidenc e that h e no longe r meets the elements for commitm ent: (1) he no longer “has a mental di sorder ”; or (2) he is

no longer “dang erous to others beca u se t he person’s m ental dis order [ no longer ] cre ates a substantial probability that he *** will eng ag e in acts of sexual violence.” (Emphasis added.) 725 I L CS 207/ 5(f) , 15 (West 2008). ¶ 69 The State maintains in both of these c onsolidated appea ls that the experts’ opinions do
not addre ss the rele vant statutory elements under the Act. Specifica lly
, the State argues that the leg islature intended the statutory terms “no longe r” and “still” in section 65(b)( 1) to mean th a t there must be some plausible evidenc e of chang ed circ umstances since the jury ’s orig inal finding to war

rant an evidentiar

y hear ing or jury trial. The S tate argues t hat t he legislature did not intend to permit relitig ation of the deter mination that these individuals have alre ady been a djudicated se x ually violent persons. ¶ 70 Whether the experts’ opinions in these case s are rele vant to establishing probable cause t o believe that the petitioners are “no longe r” or are not “still” sexually violent re q u i re s a construction of the s tatutory terms, which we review de n ovo

. People v. Johnson
, 2011 I L 111817, ¶ 15. The primary g oal of statutory construction is to asce rtain and g ive eff ect to the intent of the leg islature. People v. Marshall
, 242 I ll. 2d 285, 292 (2012). We must construe the statute as a whole a

nd aff ord the languag e its plain and ordinar y meaning

. Id

. We must also avoid re nderingany

part mea ningle ss or superf

luous, and consider words and phrase s

-16-in light of other rele vant provisions of the statute. Id

. In construing the statute, we may also

consider the conseque nces of construing the l anguag e one way as opposed to another and, in doing so, we presume the leg islature did not intend the statute to have absurd, inconvenient, or unjust c onsequenc es. Id. at 293. The c ourt may also proper ly consider the

rea son and nece ssity for the law, the evils soug ht to be reme died an d t h e purpose to be achie ved. Botruff

, 212 I ll. 2d at 175. ¶ 71 The statutory terms “no longe r” and “still” have not previously been construed in I llinois

. Howeve r, we find the W isconsin case of In re Commitment of Combs
, 2 0 0 6 W I Ap p 137, 295 Wis

. 2d 457, 720 N.W.2d 684, to be instructive. In Combs
, the court construed the “no longe r” a nd not “still” lang uag e under a similar statutory

scheme and conc luded that: “[I ]n order to provide a basis for probable cause to b el i ev e a person is no longe r sexual l y violent *** an expert’s opinion must depend upon something more than fac ts, profe ssional knowledg e, or rese arc h that was considere d by an expert testifying in a prior proce eding that determ i n ed t h e p erson to be sexually violent. By way of example, an opinion that a p er s on is not sexually violent based at least in part on fac ts about the committed person that did not occur until afte r the prior adjudication would m eet this standard, as would an opinion based at least in part on new profe ssional knowledg e about how to predic t dang erousne ss. These examples are not exhaustive.” Id. ¶ 32. The court reje cted the proposition that probable ca use m ay be established “without reg ard
to whether that opinion is based on matters that wer e alre ady considere d by experts testifying
at the commitment trial or a prior evidentiar y hear ing.” Id. The court rea soned that requiring a cha ng e in the per son’s condition or new rese arc h or m ethodolog y “ser ves t he purpose of ensuring that a person who is not sexually violent doe s not continue in c ommitm ent, while avoiding continual relitig ation o f i ssues.” Id. ¶ 33. As a result, the court conclude d that a

ree valuation which rea ched a conflicting opinion reg arding the likelihood that the petitioner would reof

fend, but which relied on t h e s ame historical fac ts and methodologie s alre ady adjudicate d at trial, was insufficient to establish probable cause to believe that the individual

was no longe r 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 (aff irming the trial court’ s finding of no probable cause wher e the expert repor t d i d n o t re ly on any new fac ts, profe ssional knowledg e, or r esea

rch not pre viously

adjudicate d at the initial commitment procee ding)

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

a whole. By using the terms “no longe r” and “still,” the leg islature intended that the rele vant inquiry must beg in with the premise that the individual has been adjudicate d in the past with

a mental disorder that makes it substantially probable that he will r eoff end. The leg islature int ended that in postcommitm ent proce eding s for discharg e, the individual must prese nt

some plausible evidenc e that demonstrates a chang e in the circ umstances t h at l ed to this finding

. To hold otherwise would rende r the terms “no longe r” or “still” superf luous. Under the rele vant s t at u t o ry scheme
, a chang e in circ umstances could include a chang e in the committed pe rson, a chang e in the profe ssional know ledg e and methods used to e valuate a person’ s mental disorder or risk of reof fending
, or even a chang e in the leg al definitions of a mental disorder or a sex ually violent per s o n , such t hat a trier of fac t could conclude t hat

-17-the per son no longe r mee ts the requisite ele ments.

¶ 73 1. Stanbridge ¶ 74 Applying these principles, we addre ss eac h case in turn to deter mine whether the experts prese nted a plausible acc ount that these individuals wer e “no longe r” sex u al l y v iolent
person s

. At t h e o u tset, we note that this court may aff irm a trial court’s judgme nt on any g rounds which the rec ord s upports even if those g rounds wer e not argued by the parties. Studt v. Sherman Health Sys t em s , 2011 I L 108182, ¶ 48. At Stanbridg e’s probable cause hear ing, the trial court rec alled that Dr. Wit herspoon pre v i o u s l y g ave an opinion at the commitment trial that St anbridg e wa s not a sexually violent person in ne ed of instit utional

ca re

. T h e trial court, having presided over that proce eding
, found that Dr. Wit herspoon ’s amende d repor

t rende red many of the same conclusions at the time of the orig inal trial. The trial court fu rt h er n o ted that these opinions wer e reje cted by the jury

. There fore
, the trial
court conclude d that Dr. Wit herspoon had not prese nted s u fficie nt evidenc e of chang ed circ umstances to wa

rra nt a full hea

ringon his petition. ¶ 75 Although the rec ord does n o t i n cl u d e Dr. Wit herspoon’ s prior evaluation at the initial commitment proce e d in g s , b a s e d u p o n th e u npublished order from Stanbridg e’s direc t appea l, Dr. Wit herspoon previously testified that his evaluation of Stanbridg e did not reve al any sexual psychopatholog y or sexual deviant te n d e n c ie s a n d th a t Stanbr idge prese nted a low risk of reof fending

. In re Kevin S.
, No. 4-08-0163 (2008) (unpublished order under Supreme Court Rule 23). I n Dr. Wit herspoon’ s amende d psycholog ical evaluation repor t, he rende rs the same c onclusions and continues to believe that Stanbridg e’s r isk remains low. ¶ 76 There is no indication that the bases for Dr. Wit herspoon’ s new diag noses are predic ated
upon any new f acts or pr ofessional knowledg e or rese arc h that was not alre ady considere d by the experts testifying at the commitment trial and reje cted by the ju ry

. Stanbridg e

conce des that “Dr

. Wit herspoon did not addre ss fac tors related to Mr. Stanbridg e’s prog ress, chang e in condition or treatment as it relates to d i agn osis.” Fur thermore
, there is no indication that Dr. Wit hers p o on’s scoring of the actua rial instruments was based on any events or fac tual information that was not alre ady considere d and reje cted at the commitment trial. Although Dr. Wit herspoon considere d denial as a dy namic risk fac tor that he believes
may n o w b e consi dere d as a protec tive fac tor in evaluating risk of rec idivism
, Dr. Wit herspoon did not opine that such a chang e could alone support a finding that Stanbridg e is no longe r a sexually violent person. Nor has h e re p rese nted that the 2002R revised
actua rial instrument yielded rema rkably differ ent scores for Stanbridg e than the Static 99, previously administered. Wit hout some evidenc e of sufficie nt progress or other rele vant chang ed circ umstances, the opinion was insufficient to establish probable cause

. There fore
, the trial court proper ly conclude d that Stanbridg e had not prese nted a plausible acc ount that he wa s “no long er a

sexually violent person.” 725 I L CS 207/ 65(b)( 2) (West 2008). ¶ 77 2. Lieberman ¶ 78 Dr. Schmidt’s first opinion tha t p a r a p hilia NOS-nonconse nt is not a valid mental disorder is not direc ted at the statutory rele vant criter ia as to whether L ieberm an i s no longe r a sexually violent person. Dr. Schmidt testified that the diag nosis does not exis t in the DSM.

-18-Dr. Ostrov and Dr. Suire testified that the diag nosis is valid and finds support in the DSM,

althoug h not specific ally listed as a disorder in the manual. Dr. Schmidt’s opinion rec og nized

a controve rsy in the profe ssion reg arding the validity of the diag nosis and acknow ledg ed that it has been an ong oing debate in the field and literature for the last 20 y ear s. Indeed, we are cog nizant that the conflicting profe ssional views on the subject have been vigor ously argued by others committed under the same diag nosis. See McG ee v. Bartow
, 593 F.3d 556, 580 (7th Cir. 201 0 ) (a d d ressing the debate reg arding the validity of the diag nosis in a habeas challeng e and ruling that the diag nosis of a ra p e- re l at ed para philic disorder is “not so unsupported by scienc e that it should be excluded absolutely from considera tion by the trier of fa ct”)

. 8 ¶ 79 Neve rtheless, the purpose of these proce eding s is to raise a p l au s i b l e ac co u n t that L ieber man no longe r has the disorder. L ieber man has alre ady been found beyond a

rea sonable doubt by a jury to meet the leg al definition of having a v al i d m en tal disorder. L ieber man cannot relitig ate the fac t that, in 2006, he was diag nosed with the disorder. Thus, the proper issue befor e the court applying the statute should be whether there was a plausible

acc ount of chang ed circ umstances such that he no longer has the mental disorder for which he was alre ady adjudicate d in 2006. Dr. Schmidt’s repe ated explanation of an acknow ledg ed 20-y ear -long debate in the medical community is not evi dence of chang ed circ umstances since L ieber

man’s commitment. Acc ording ly
, Dr. Schmidt’s testimony on the validity of the mental disorder

is not relevant in this discharg e proc eeding

. ¶ 80 Fur

thermore
, Dr. Schmidt’s opinion that L ieber man does not curr ently have the mental disorder of para

philia was insufficient to establish probable cause to believe that he is no longe r sexually violent. The opinion was based upon hist o ri ca l fac ts, profe ssional knowledg e, and rese arc h alre ady debate d by the experts testifying in the prior proce eding and reje cted by the j ury

. Dr. Di an e L y tton testified on behalf of L ieber man at his commitment trial. I n support of her finding that L ieber man did not have a para philia, she based her opinions on L ieber

man’s family and social upbring ing, his psychosocia l development, and the 15 mental health evalua tions compiled while he was incar cer ated, which did not diag nose

a para philia. She also relied upon L ieber man’s behavior while in prison, the fac t that he was allowed to be around women, his attitudes towa rd women in his past relationships, and the fac t that r ape is not nece ssarily para philic. The jury reje cted these same opinions. See In re Detention of Lieberman , 379 I ll. App. 3d at 594-97. ¶ 81 Additionally
, Dr. Schmidt offe red no opinion on whether
, as s u m i n g L ieber man had a mental disorder, he was no longe r substantially likely to reof fend if rele ased i n t o the community

. Dr. Schm i d t o ffered no testimony direc ted at L ieber man’s future risk of

re o ff ending

. The only opinion he offe red related to this criter ia was that those individual s that have administered and score d L ieber man on t h e GAF scale believe that his sy mptom

Dr. Schmidt not ed tha t the Am er ic an Psychi at ri c Soci et y has for m ed a ta sk for ce to st udy 8 thi s is sue and the y have re por te d the ir oppo si ti on to the m is use of nono ff ic ia l dia gnoses as app li ed
t o t h e se sex ual ly viole nt per son s comm it m ent la ws, fi ndi ng tha t the y “t hre at en to unde rmine t h e le giti m acy of

th e medic al m ode l o f c omm it m ent .”

-19-sever ity and functioning capa city had improved substantially since he was detained in 1999.

Howeve r, Dr. Schmidt offe red no opinion on whether he believed L ieber man would no longe r be substantially likely to reof fend based upon the GAF score alone if rele ased into the community

. Acc ording ly
, we cannot infer that based upon the testimony reg arding his GAF

score alone, Dr. Schmidt was of the opinion that L ieber man would no longe r be a dang er to the community

. Acc ording ly
, the trial court proper ly conclude d t h at L ieber man had not prese nted a plausible a ccount that he was “no longe r a sexually violent person.” 725 I L CS 207/65(b)(2) (West 2008). ¶ 82 We also reje ct L ieber man’s co n t en t ion that he established probable cause to war rant a hear ing on his conditional rele ase under section 60(c) of the Act. Dr. Os t rov, the court’s appointed expert on conditional rele ase, re p o rt ed that there was insufficient evidenc e to believe that it is not substantially p ro b ab l e that L ieber man will eng ag e in acts of sexual violence if rele ased or conditionally discharg ed. 725 I L CS 207/60(c) (West 2008). As stated previously
, we find nothing in Dr. Sc h m i d t ’s t est imony that, if believed, would support a plausible acc ount that L ieber m an h ad m ad e sufficie nt prog ress to show that he was substantially unlikely to reof fend if rele ased into the community

. Acc ording ly
, the trial court proper ly denied L ieber

man’s petition for c onditional relea se.

¶ 83 D. Violation of Due Process a nd Ex Post Facto Clause ¶ 84 L astly
, we consider L ieber man’s contention that his continued confine ment violates both the due proce ss a

nd ex post facto clause s beca use it is premised solely

on his past criminal conduct. We disag ree

. The ex p o s t f a ct o clause
, under article I
, section 10, of the United States Constit ution, prohibits the states from passin g any law that retroa ctively alters the definition of a crime or incre ases the punishment for a criminal act. Colli ns v. Y oungblood
, 497 U.S. 37, 43 (1990). Only penal statutes may implicate fe dera l ex post facto protec tion. Kansas v. Hendrick

s , 5 2 1 U. S

. 3 4 6, 370 (1997). “An Act, found to be civil, cannot be deeme d punitive ‘as applied’ to a single i n d i v i d u al in violation of the *** Ex Post Facto Clause[ ] a

nd provide cause for rele ase.” Seling v. Y oung , 531 U.S. 250, 267 (2001). Thus, the constitut i o nal principles prohibiting ex post facto laws apply only to criminal
proce eding s. Hendrick

s , 521 U.S. at 361. ¶ 85 Fu rt hermore
, due proce ss permits an individual to be held as long as he or she i s b o t h mentally ill and dang erous, but no longe r. Foucha v. Louisi ana , 504 U.S. 71, 77 (1992). The State’s experts opinion was that L ieber man continues to have a mental disorder and that he continues to be dang erous. To the extent that the experts relied on prior criminal conduct to make that deter

mination, the experts opinions when viewed in c ontext used “suc h conduct *** solely for evidentiar

y purposes, either to demonstrate that a ‘mental abnorma lity ’ exis ts

or to support a finding of future dang erousne ss.” Hendrick s , 521 U.S. at 362. The evidenc e prese nted did not seek to “af fix culpability for prior criminal conduct.” Id. Rather, it used the prior acts “solely fo r ev i d en tiary purposes” to support a finding of L ieber man’s mental disorder and future dang erousne ss. Id

. at 371. As Dr. Suire testif i ed
, h e considere d not

mere ly the convictions, but the pattern of behavior s, the fre quency , an d other related considerations to deter

mine if the driving forc e behind the rape -ty pe behavior was a specific

-20-urg e toward nonconsenting sexual contac t. As Hendrick s explained, evidenc e of a prior criminal act in a civil commitment proce ed i n g m ay repr esent an “ ‘important indicator of future viol en t t en d en cies.’ ” Id. at 358 (quoting Heller v. Doe
, 509 U.S. 312, 323 (1993))

. Both experts explained that L ieber man’s past behavior s wer e important predic tors of future sexual viol ence . Acc ording ly , we f ind no merit to L ieber

man’s constitutional contentions.

¶ 86 I I I . CONCL USI ON ¶ 87 To summarize, we hold that the quantum of proof and the circ uit court’s role in assessing the evidenc e at a

postcommitm ent probable cause hear ing is the sa me as that e x presse d by this court in Hardin. We further hold that based upon the rele vant elements applicable to these proce eding s, the leg islature intended that to prese nt a plausible acc ount, the committed individual bear s the burden to prese nt sufficie nt evidenc e that demonstrates a chang e in the circ umstances that led to the initial commitment. Applyin g these principles to these consolidated case s, we hold that the trial court proper ly dismiss ed the petitions for discharg e and conditional re lease

.

¶ 88 No. 112337—Appellate court judg ment reve rsed. ¶ 89 Circuit court judg ment aff irmed.

¶ 90 No. 112802—Aff irmed.

-21-