## I LLINOIS 

## O FFICIAL 

## R EPORTS Appellate Court

In re Detention of Lieberman , 2011 IL App (1st) 090796

Appellate Court Caption In re DETENTI ON OF B RAD L

IEB ERMAN (Th

e People of the State

o f Illinois, Petitioner-Appellee, v. Brad L ieberman, Responde nt

Appellant).

District & No. First District, Sixth Division Docket No. 1–09–0796

Filed June 30, 2011

Held ( Note: This syllabu s constitutes no part of

the opinion of the court but has been prepared by th e Reporter of Decisions for the convenience of

the reader. ) Respondent’s petition f or rele ase or c onditiona

l dischar ge fro m his commitmentto the Department of Human Services as a sexually violent person was prop erly

dismissed, sin ce the record disclose d a comple

te lack of any expert opinion that respon dent was no longe r a sexually violentperson or

that it wa s not substa

ntially probable that respondent woul d eng age in future acts of sexual violence, and the e vidence presented di d not establish probable cause to believe that respondent had made sufficient progress to be discharg ed or condition ally

released.

Decision Under Review Appeal from the Circuit Court of Cook County, No. 00–CR–80001; the Hon. D ennis J. P orter , Jud ge, pres idin g.

Judgment Affirmed.-2-

Counsel on Appeal Giel Stein, of Stein Law Group L LC, a nd Kimball

R. Anderson, Nathan Hoff man, an d Aesha Pallesen, all of Winston & Strawn LL P, of Chicag o, for ap

pellant.

Lisa Madiga n, Atto rney Ge

neral, of Chicago (Michael A. Scodro, Solic itor Gen eral, and Michael M. Glick and David H. I skowich, Assistant Attorneys Gener al, of counsel), for the People.

Panel JUSTICE McBRIDE delivered the judgment of the court, with opinion. Justice R. Gordon concurred in the judgment and opinion. Presiding Justice Garcia dissented, with opinion.

OPINION

¶ 1 In these pr

oceedings unde

r the Sexua

lly V iole nt P ersons Co mmitment Act (Act) (725 IL CS 207/1 et seq. (West 2008 )), res pondent, Brad L ieberma n, appea ls from an order of the circuit court of Cook Count y finding that there was not probable cause to believe that respondent

was no longer

a sexually violent

person. On appeal, respondent contends that the denial of his petition was an abuse of discretion and violated his right to due process of law. In our original decision issued on May 28, 2010, we f

ound no abu se of discretion and affirmed the trial court’s judgment. In re Detention of Lieberman , 401 Ill. App. 3d 903 (2010). On S ept emb er 2 9, 2 010 , t he Il linois Supr eme Court directed us to vacate that decision and to reconsider in light of In re Detention of Hardin
, 238 Ill. 2d 33 (2010). In re Detention of Lieberman , 237 Ill. 2d 557 (2010). After vac ating our original judgment and reviewing Hardin , we conc lude that a diffe rent re sult i s not warran ted and we therefore affirm t he circuit court’ s judgme nt. ¶ 2 The record shows that in 1980, respondent was convicted of multiple counts of rape and sentenced to a number of concurrent terms of imprisonment, the longest of which required him to serve 40 y ears in p

rison. I mmediately

prior to his release from the I llinois Department of Corrections (IDOC) in 2000, the State filed a petition pursuant to the Act seeking to have respondent

adjudica ted a sexua

lly violentperson and committed to the care and custody of the Illinois Department of Human S ervi ces (DHS). In 2006, a jury found respondent to be

a sexually violent person under the Act based primarily upon the e xpert testimony of t

w o clinical psychologists who d iag nosed respondent with paraphilia not otherwise specified, sexually attracted to nonconsenting persons (paraphilia NOS, nonconsent), a c ongenital or acquired disorder that aff ects re spondent’ s emotiona l or volitio nal capa

city and predisposes hi m to commit future acts of sexual violence. The expert witnesses also concluded that respondent’s mental dis orders c reated a substan tial proba bility that he wo

uld eng age in f

utu r e acts of sexual violence

if relea sed. Following a

subseque nt dispositi o nal hearing, the trial-3-

court ordered respondent committed to the DHS for institutional care in a secure facility

until further order of the court. This co urt affirmed that judgment on direct appeal. See In re Detention of Lieberman , 379 Ill. App. 3d 585 (2007). ¶ 3 On October 29, 2007, the State filed a motion in the

circuit c ourt of Coo

k County asking the cour t to find tha

t there w as no prob able ca use to believe that

respondent was no longer

a sexually violent

person and to order that respondent remain in a secure facility . The State’s motion was filed pursuant to section 55 of the Act, which states that after a person has been committed to institutio nal car e, th e DHS i s required to conduct an examination of that person’s mental condition within 6 months of the initial confinement and again thereafter at least every 12 months. T

he purpo se of the reexamination is to determine whether the person has made suf

ficient p rogre ss to be co nditionall y r elease d or disch arged . See 725 I LCS 207/55(a) (West 2008). Here, the State’s motion for a finding of no probable cause was based upon th e firs t annual (18-month) evaluation of respondent. Attached to the State’s motion

was the October 19, 2007, report of licensed clinical psy chologist Dr. David Sui re

. According to Dr. Suire’s report, respondent refused to participate in a clinical interview for purposes of his annual reexamination. The d octor’s rep ort also noted that respondent had maintained his innocence as to all the sexual offenses with which he had been charged o r convictedand h ad r efused to participate in any formal sexual offender treatment progra m while in th e IDO C an d wh il e in th e DH S t rea tm ent and det ent io n fa cil it y. In his report, Dr. Suire stated that, to a reasonable degree of psycholog ical certainty , respo ndent met the diagno stic criteria under

the Diagnostic and Statistical Manual of Mental Di sorders(DSM) for the following diag

noses: (1) par

aphilia N OS, nonconsenting females; (2) cannabis abuse ; (3) antisocia

l persona lity dis order; and (4) narcissistic personality disorder. Dr. Suire concluded

that, in hi s prof essio nal op inio n and t o a reas onabl e degr ee o f psychological

ce rt ai nt y, i t was su bstantially probable that re spondent would engage in acts of se xual violence in the futu

re. He th erefor e recom m e nded that respondent continue to be found a sexually violent person and remain c ommitted to the DHS treatme nt and det ention fa cility for further secure care and sexual offende r treatment

until he demonstrated that he had made substantial progress in sexual offense treatment to be safe ly manag ed in the community on conditio nal releas e. Base d upon Dr. Suire’s r eport, the State ma

intained that ther e was n o probable cause to warrant a full hearing on whether respondent should be conditiona ll y released or discha

rged a nd asked the cour t to enter an order contin uing respondent’s confine ment. ¶ 4 On Ju ly 1 5, 20 08 , r es po nd en t f il ed a p et it io n f or re le as e f ro m t he cu st od y of the DHS. Respondent

claimed t

h at he lacked the requisite mental abnormality to be confined in the DHS facility and that his mental hea lth since the time of his civil commitment demonstrated that he was entitled to immediate discharge. Respondent soug ht two alternative forms of relief: immediate discharge pursuant to sec tion 65 of the Act ( 725 I LCS 207 /65 (West 2008)); and conditional release pursuant to section 6 0 of the Act ( 725 I LCS 207 /60 (West 2008)). ¶ 5 The trial cou

rt appointed Dr. Eric Ostrov to conduct an independent examination of respondent

and granted respondent’s reque st for an e xaminat ion by Dr. Chest

er Schmid

t. Both experts pr

epared reports that were submitted to the court. On September 17, 2008, the1 Dr. Buck and D r. Leavitt were t

he State’s expert witnesses at the 2006 trial to determ ine whether respondent was

a sexually v

iolent person.

2 Necrophilia

is defin ed as an “obses sion with and usually erotic interest in or stimulation by

c orpses,” while zoophilia is defined as “an erotic fixation on animals that m ay result in sexual excitement

through real or fan

cied contact .” Merria

m-Webster Medical Dictionary (2010 ), availab le
at http://www.m erriam-w ebster.com/m edlineplus/necrophilia; ht tp://www.merriam

webster.com/m

edlineplus/zoophilia.

-4- trial court held a probable cause hear ing where the following evidenc e was presented. ¶ 6 Dr. Schmidt described himself as a “phy sician psychiatrist,” a professor of psychiatry at Johns Hopkins Un

iversity Sc hool of Medicine, and a founder and member of the sexual behavior consultation unit atJohns Hopkins Hospital. In 1995, he was appointed chairman

o f a work group for psychosexual disorders and paraphilias, and that group was one of a number of grou ps charg ed with re

vision of th

e DSM-I II -R t o the current DSM-IV. At that

s ame t ime, Dr. Schmidt was a member of the American Psy chiatric Association’s (APA) boardof trustees and he participated in the vote to approve his committee’s recommendation regar ding inc lusion of th

e diagnosis of pa

raphilia NOS, nonc onsent in t

he DSM. ¶ 7 In preparat ion for his work in this case, Dr. Schmidt reviewed, among other thi ngs , articles on civi l com mitment and the diagnosis of paraphilia NOS, the transcript from respondent’s 2006 sexua

lly violent pe

rson tria l, police reports , IDO C mental he alth reports , respondent’s DHS master treatment plans, and expert reports from Dr. Jacqueline Buck, Dr. Barry Leavitt, Dr. Suire, and Dr. Ostrov. 1 He also interviewed res pondent f or appro ximately two hours on April 6, 2008. ¶ 8 Dr. Schmidt rendered two opinion s followin g his review o f this info rmation. F

irst, that the diagno sis of par

aphili a NOS, nonconsent does not exist in the DSM-IV. Second, that respondent does not have a disorder known as a par aphilia. ¶ 9 Alth ough the State did not objec t to Dr. Schmidt’s qualifications as an expert witness, specific ally

in regard to the DSM and sexual disorders, the State did object when he began
to te st ify regar

ding his s econd op inion that r esponde nt does not

suffer from a pa

raphili a

. Sp ec if ic al ly, the prosecutor indicated that it was her understanding that the doctor was being offered “merely a s an expert in diagnosis and sexual disorde rs and not the evaluation of sexual offenders.” The trial court overruled the objection. ¶ 10 As to his first opinion, Dr. Schmidt explained that the DSM-IV contains a disorder called paraphi lia no t other wise specified and that this section provides examples, such as necroph ilia and zoophilia. 2 However, the disorder of parap hilia NOS, nonconsent is not containedwithin this s ection. T he doctor further explained

that in another section, the DSM
states that the c entral d

iagnost ic featu res of pa raphilia include “recurrent, intense, sexually arousing fantasies, sexual urges or behaviors ge nerally involving *** nonc onsenting persons.” Paraphil

ia NOS, ho wever, cannot b e combine d with the diagnostic feature of “nonconsenting persons” in order to conclude that the DSM contains a disorder c alled paraphi lia NOS, nonconse

nt. There isa forma

l proces s by

which dia

gnosesare inc luded in3 Paraphi li a is defined as “a pattern of recurring sexually arousing m

ental imagery

or behavior that invol ves un usua l and espe cia lly s oci all y unac cept abl e sex ual prac tic es (a s sad ism,

masoc his m, fetishis m, or pedophilia).”Merriam -Web ster Med

ical Dic tionary

(2010), available at http://www.merriam

-webster.com

/medlineplus/paraphilia.

-5- the DSM and that process has not taken place with paraphilia NOS, nonconsent. Moreover,

a mental he alth prof

essional cannot c reate a diagno sis base d on his or her own personal interpretation of the DSM. Rather, the use of only officially recognized

diagnoses is essential for purposes of

treatment, research, and the “integ rity of the leg al system itself.” Fur ther, rape is specific ally

dealt wit h in other

sectio ns of the DSM . Rapes th at conta in a para philic element are covere d in the pa

raphilia section o f the DSM

on sexual sadism, which lists rape

as a behavior sometimes assoc iated wit h sadistic behavior . Rapes t

hat do not contain a paraphi lic element are found in asection called “other conditions that may be the focus of clinical attention.” The conditions and behaviors in t his sect ion are “of interest to mental health profession als” but “do n ot rise to the threshold of being mental illnesses in and of themselves.” This sect

ion of the DSM contains “V-codes,” and the conti ngenc y of

rape wit h

no paraphi lic element is covered in the section of V-codes entitled “sexual abuse of adults.” ¶ 11 In 1986, Dr. Schmidt was the chairma

n of a com

mittee tha t was con vened by the APA
to consider whether the disorder of para philia NOS, nonconsent should b e include d in the DS M-III. The committee vote d again st recomm ending inclusion

of that dia

gnosis i n the DSM for two reasons. First, there was “no scientific suppor t for the diagnosis” but

instead onl y “expert o pinion[,] whi ch is one o f the lowe st forms of resear ch to suppo

rt any th ing. ” Second, various organi zations ra ised the c oncern t

hat inclu ding the

diagno sis in the D SM could be misuse d as an ins anity

defense in rape trials. The committee’s recommendation was submitted t

o the APA

board of trustees, of

which Dr. Schmidt was also a member, and the boardvoted tonot include the diagnosis in the DSM-II I-R. During his later w ork from 1995
to 200 0 on the revi sion of the DSM-II I-R to the DSM-I

V, there were no requests that the disorder be included in that edition of the DSM. To Dr. Schmidt’s knowledge, th ere is no
current reconsiderationof

this decis ion, whic h meant th at “the f ield in g eneral

is essenti ally satisfied with the *** diagnostic format that exists within the DSM-IV.” ¶ 12 Dr. Schmidt’ s second opinion was that respondent does not suffer from any type o f paraphilia. 3 Dr. Schmidt reviewed the 15 evaluations of respondent conducted during the 20 yearshe was in the IDOC, none of w hich diagnosed respondent with any type of par

aphilia. Dr. Schmidt testified that the me ntal hea lth profess ionals who

evaluat ed respo ndent would have been required to indicate any such diagnosis on their evaluation forms and that it was “hard to believe that any me ntal health professional wort h hi s or her salt given the circumstances that he was in ja il for raping” would not have found paraphilia if it in fact existed. ¶ 13 Dr. Schmidt also stated that respondent’s psychose xual history “up to the

time of the 1979 crimes”did not revea l paraphilic urges or behaviors but, rather , “a fairly normal heterosexual development during” his adolescent y

ears. Moreover, based

upon respondent’s self- reported

infor mati on, Dr . Schm idt s aw no ev idenc e of rec urrent paraph ilic urge s o r-6-

fantasie s. With respect to paraphilic behavior, there were no r eported behaviors of any coercivesexual activity with either f e male staff or prisoners. I f respondent had paraphilia, it would be e

xpected th at he would have found an outlet to act out that paraphilia, including within th e p ri so n’ s h om os ex ua l c om mu ni ty. This would be true even though respondent was otherwis e a hete

rosexual. ¶ 14 Dr. Schmidt als o believe d that re spondent’ s symptom seve rit y and f unctional capaci

ty since he enter

ed the DH S treatme

nt and det ention fa cility in 2000 did not i ndicate

that h e suffered from par aphilia N OS, nonco nsent. Specifically, Global Asse ssmentof Functioning (GAF) scores, which are determined by the DHS treat ment t eam and which can ran ge from 1 (worst) to 100 (be st), are a measur

e of a pe

rson’s sy mptom sever ity and level of funct ioni ng. Dr. Schmidt testified tha t re spondent’ s curre nt GAF sc ore indic ates tha t his symptom severity and func tional c apacity a

re “pretty close to normal at this time.” According to Dr. Schmidt, respondent’s GAF scores from 1999 to 2005 were in the area of 45, which indicates serious symptoms or impairment. During his three most recent

re views, respondent’s treatme

nt team g ave him

a GAF score

of 71. Thi s score indicate s that sy mptoms

are present

but are “transien

t and expectable re actions to psy cho-soc ial st

resso rs” and that respondent

has “no mor e tha n slight impairment in social, occupational, or school functioning.” Ultimately, assuming that re spondent suffer ed from a paraphilia when he was giventhat diag

nosis in 1999 or 2000, the upward trending of his GAF scor e indicated to Dr. Schmidt that those who have observed respondent believe that he has dramatically

improved in te rm s o f s ymp to m s ev er it y an d f un ct io na l c ap ac it y. ¶ 15 Dr. Schmidt explained that respondent having committed multiple rapes did not estab lish that he had a

menta l disorde

r. First , rape isnot in itself a menta l disorde r or nec essarily paraphilic, an d o nl y a

small fraction of rapists suffer from paraphilia. Second, D r. Schmidt b el ievedthat respondent’s pre-rape history may be re

levant to explaining respondent’s commission of multiple rapes. Accordingto the materials Dr. Schmidt reviewed, respondent reported that, as a teenager, he ha d a sexual experience in which a woman that he was attempting to have in

tercour se with “initially resisted, resisted, and then allo wed, the

n said yes.” Respondent indica

ted that this was “a very

importantexperience” bec ause as a result he believe d at th e t ime that “ when wome n say no they really meant y es.” Res pondent a

lso reported that his first rape was very sexually gratify

ing. According to Dr. Schmidt, at that time respondent was acting selfishly for his own sexual gratification and had no regard for the law. When

responde

nt was ap

prehend ed and the

n relea se d on bond, he committed additional rapes because he thought that “the la w had no teeth” and that he “was immune from the law.” Dr. Schmidt opined that these experiences provide “as plaus ible an explanation as maybe we’ ll ever get from the facts of the c ase.” ¶ 16 On cross-e

xamination, Dr. Schmid

t te stifie d that he has never been a member of any professional organ

ization who se focusis the eva luation a nd treat me nt o f sexual offenders and that, prior to respondent’s case, he had never been qualified as an expe rt in a sexually violentpersons case or

in the evaluation of sexual offenders. Dr. Schmidt acknowledged that he made an application to be on the Illinois Sex Offender Ma nagement Board

but that he was
notaccept

ed beca use he did not meet the “technical requirements with reg ard to the number4 We believ e Dr. S chmid t could not sub mit an

applica tion to be a m

embe r of the Illinois Sex Offender Management Board. Board m embers are appoin

ted to the position. See generally 20 ILCS 4026/1 et seq. (West 2010). Howev er, a person

can be approve d as an evaluator b y the Board. See,
e.g. , 20 I LCS 40 26/16 (

West 201 0); 725 ILC S 207/5 5, 60, 65 (Wes t 2008)

.

-7- of treatment of sexual offenders.” 4 Other than respondent, Dr. Schmidt has never evaluate d

a person who has been

found to be a s exually violent person by the laws of any

state. The doctor testified, however, that he has evaluated people who are convicted sexual offenders and who have

been ch arged

with sexual

offense s. Dr. Schmid

t testifie d that he d

id not review the original police reports or t he transcripts from the trials resulting in respondent’s rape

conv ictions. He also acknowledged that he did not speak to a ny of the trea

ting staff at the DHS facility

where r esponde nt has been de tained and that the only DH S information he reviewed was that provided by re spondent’s counsel. Dr. Schmidt testified that he did not “know any

thing” a bout commit

ment lawsfor sexua

lly violent persons until the pr esent ca se and that h e therefore ha

d no perso nal opinio n of them. ¶ 17 Dr. Schmid

t acknow ledged

that the d iagnosi s of para

philia NO S, noncons ent is “widely used” and that that there has been an ongoing debate in the psychiatric fie

ld over the last 20 yearsas to the v alidity

of the dia gnosis of paraphi lia

NOS, nonc onsent. Dr. Schmidt believed that paraphilia NOS, nonconsent is not a valid disorder despite reports suggesting that there is “appar ent w idespre ad acceptance” of the diag nosis “by forensic e

xperts in the field.” When askedif ever

y di a gnosis in the DSM is universally ac cepted by e very clinic that use s the DSM, Dr. Sc

hmidt resp onded tha

t “all of us have

someobjectio ns or fault with diag noses, butthe diagnoses are universally used by the medica

l insurance industry

and are strictly required to be used

for reim burseme nt, if for no other reason, not to mention science.” They

are also used for diagnosis, for managing patients, and for

resear ch. “I t is absolutely essential that there be a consensus with regar d to the diagnosis, irrespec tive of any difficulties or problems any prof

essional has with any aspect of the DSM-IV.” ¶ 18 Responde

nt testified on his own behalf that since he has been committed to the custody of the DHS, he has married, founded a “facility ba

nd,” taken computer classes, obtained an Occupational S afety and He alth Administration (OSHA) certification, and participated in the “institutional newslett

er.” Re spondent a

lso testif ie d that residents at the DHS detention facility are ass i gned to various s tatus leve ls based u pon their behavior and that, like most oth ers, he began in “admission status.” For the last sever al year s, he has been i n “intermediate

A status,” which is the “hig hest statu s attaina

ble.” I n order t o attain tha

t status, respondent

was req uired to c omply

with the in st itutional rul es and to be involved in the “respon sibleliving program,” which requires completion of certain tasks and jobs in order
to “demonstrate that y ou are able to accept responsibility and

eventua lly r einteg rate y ourself into the community.” ¶ 19 Respondent testified that since his commitment he has refused to participate in the DHS
treatm ent and detention facility’ s formal sexual offender treatment progra m. Participation in the program requires admission t hat a per son lacksvolitional control a nd, acc ording t

o responde nt, “I don’t lack control of my self.” Respondent also has not participated

in formal-8-

treatment because he does not want to listen to fellow detainees descr ibe the cri m es they have committed. Respondent testifie d that, “I don’t need [therapists] to tell me how to think,” and that he “knows what is right and what is wrong.”Respondent ha s , however, spoken openly to his primary

therapist at the detention center. ¶ 20 Respondent

further testified that he has been in physical proximity to women in

the detention center, including therapists, but that he has not had any beh aviora l inciden

ts. Accord ing torespondent, if he was conditionally released, hewould live with his wife and that an a ttorney has offe red him e mploy ment in a law fir m. Respondent also indicated that if re le as ed , h e w ou ld pa rt ic ip at e i n d ru g a nd al co ho l t es ti ng as we ll as co un se li ng or th er ap y. ¶ 21 On cross-examination, respondent testified that until recently he ha

d deniedcommitting the r apes of w hich he was convicted. I n early 2008, Dr . Eric Ostrov was appointed by the
court to evaluate respondent and at that time respondent admitted that he was in fa ct guilty of those crimes. Respondent testified, however, that it was “not exactly ” true that he ha d been deny

ing his g uilt for the past 28 years. He explained that in 1983, “Judge Berkos” took responde nt, respondent’s father, a public defender and a prosecutor into his chambers and told responde nt that if h

e li ed to the judge he would never “see the lig ht of day ag ain.” Respondent

then took responsibility for his crimes and his sub sequent d enials we re base d in part on “strategic advice” fr

om his attorneys. Respondent furthe r explained that he admitted his guilt to Dr. Ostrov

because after his 2006 sexually violent person trial, he “ didn’t have any rights th at had to be protected.” Respondent concluded by testifying that he

has taken responsi bility for his actions and learned

from his mistakes and that he is not the same person today that he wa s at the a

ge of 1 9 and 20 wh

en he co mmitted the

rapes. ¶ 22 The parties stipulated that if called as a witness, Dr. Mark Babula would testify that he

was respondent’s primary therapist at the DHS treatment facility and that any c ontact he had wit h respondent did not constitute sexual offender treatment. Dr. Babula w ould further testif y that respondent has not participated in sexual offender treatment at the DHS treatment and de te nt io n f ac il it y. ¶ 23 The State’s first witness was Dr. Ostrov, who testified that he r eceive d a Ph.D. in

clinical psycholo gy

and a J.D. from the University of Chica go and is board certified

by the America

n Board o f P rofessional Psycholog y. Dr. Ostrov is also on the I llinois Sex Offender Manag eme nt Board

approved list of evaluators. Since the sexually violent persons (SVP) law

was pass ed in

1998, Dr. O strov

has c onducted o ver 1 00 ev alua tions of ap

proxi m ately 40 people who were accused of be ing sexually violent persons pursuant to cour t order. ¶ 24 Dr. Ostrov diagnosed respondent, within a reasonable degree of

psychologic al ce rt ai nt y, withparaphilia NOS, nonconsent and a personality

disorder with antis ocial an d narcis sistic featur es. These disorders, including paraphi lia, pre dispose r esponde nt to commit

future a cts of sexual violence, and therefore Dr. Ostrov d id not r ecommend that respondent be conditionally released. ¶ 25 Dr. Ostrov te stified th at he use d the DSM when he evaluated respondent and that, under certain circumstances, paraphilia NOS, nonconsent is an appropr iatediagnosis. Dr. Ostrov

was aware that some experts believe that the di agnosis is inappropriate because it is not specific ally

enumerated in the DSM’s examples of paraphilia NOS, and because of concerns-9-

that it could be used to exculpate rapists. Ho w ever, Dr. Ostrov did not agree with the principle that if a d

iagnosi s is not con

tained in the DSM i t is not a widely rec ognized diagno sis. The examples given in the DSM of paraphilia NOS are “simply examples” that

are “not mea nt to be exhaustive.” Dr. Ostrov believed that “nonconsenting per se ” is not listed as an example

under the paraphilia NOS category due to the concern that it could be used to exculpate a rapist. Dr. Ostrov further explained that the DSM is a

standard reference work for mental health professionals so they have a common reference point when the y us e termi nolo gy

in the mental health field. Dr. Ostr ov ackno wledge d that not a ll rapists have a paraphi lia but thi s did not mea

n that “there ar

e not othe

r person s who have

sex with nonconsenting persons who do have a para philia.” ¶ 26 Dr. Ostrov further testifie d that the

DSM contains guidance for a diagnosis of paraphi lia N OS, nonconse

nt. The DSM

states tha

t the per son must ha

ve “rec urrent a nd intense ” sexually arousing fantasie s, sexual urg es, or behaviors. The DSM then gives examples of the

o bjects of these fantasies, urges or beha viors, including “children or other nonconsenting persons.” The DSM provides additional criteria, such as a rec urrenc e of the f

antasie s, urges

or behavior s over a p eriod of six months, an age requirement, and a requirement that it “has
to have caused clinically

significant distress or impairment in social, occupational, or other important areas of functioning.” ¶ 27 Dr. Ostr ov’s paraphilia diagnosis was informed by several aspec ts of

respondent’ s behavior. A cc ording to Dr. Ostrov, the police reports, convictions, and responde nt’s own testimony showed “repeated instances of non-c on sensual sex directed to different women

over a period of time longer than six months.” Moreover, these instances of nonconsensual

sex caused

respondent clinically sig

nificant distress or impairment in that they “cause d him

enormous impairment in social and occupational and other areas of functioning.” Further, respondent

was over 16 y ears old

at the time

of the ra pes and h is victims were not children. ¶ 28 Dr. Ostrov did not believe respondent’s position that he c ommitted the rapes“becau se he was basic ally

you ng, ig norant, stupid *** and really didn’t under stand the repercussions of his behavior.” The police reports revea led that respondent was often very concerned about being apprehe

nded. Thu s, responde

nt’s acti ons were

not simply

“youthful capr

ice” but more akin to “driven behavior” in that “despite his fear, the dr ivenness overcame that fear” a nd led hi m t o c om mi t r ap es an ywa y. ¶ 29 Dr. Ostrov disagreed that resp ondent ha s taken f ull respo nsibility

for his pa st actions

. For example, when respondent was asked how his pot

ential re lease might affect his victims, he answered in a“caval

ier” man ner that , to his know ledge, none of th e victims r

emained in the

area. This response showed a lack of empat hy t oward hi s victims because it failed to address that his victimswould

almost certainly be c oncerned about his release, regardless of where they currently lived , an d becau se some of those vic tims might

have fa mily members s till living in the area. ¶ 30 In arriving at his opinions, Dr. Ostrov also considered respondent ’s statements that he has been on good behavior and has not enga ged in nonconsensual intercourse while detained in the IDOC and the DHS treatment and detention facility . According to Dr. Ostrov, some people act ou t in pr ison and some do not. In the case of those w ho do not, this may be-10-

because those persons have changed

or it may be beca use they do not “ha

ve the opp ortunity
to commit the crime they a re predisposed to commit.” In re spondent’s case, there is no past instance of him having an inter est in men so his a

ccess to other pr isoners w as not relevant. Moreover, although respondent claimed to have acc ess to women while he has been detained
, it was “ce rtainly not the kin d of acc ess he ha d when he

was out in t

he commun

ity” because “there was alway s some level of surveillance. ” Dr. Ostrov fur ther explained that respondent’s claim that he ha s not “ac ted out se xuall y” whi le he has

been de tained mu st be view ed in
cont ext of the fa ct that he has not be en around his pref erred s exual stimul

i. People with paraphi lia act much differently

when they are

aroused by

being in contact with their preferred sexual stimuli than they do when that stimuli is not available. When someo ne with pa raphilia is aroused, his ability to control himself and to consider the consequences of his actions is “markedly”

decreased. ¶ 31 Dr. Ostrov also administered an actuarial called the “Static-99,” and respondent’s score indicatedthat he posed a high risk of reoffending . Dr. Ostrov further believed respondent was
at a high risk of reoffending because he has not shown an interest in participating in formal sexual offender treatment and because he has not had the benefit of compl eting that
treatme nt, which ha s been em

piricall y shown to decre ase the r

isk that a p erson will sexually reoffend. Dr. Ostrov considered respondent’s statemen t that he did not attend therapy because he did not want to listen to the stor ies of othe r sexual offenders. However, one aspect of treatment is taking responsibility for your a

ctions and if respo ndent is not willing
to listen to others discuss their past crimes, Dr. Ostrov que st ioned how responde nt could reflect on the crimes he has committed. ¶ 32 Dr. Ostrov acknowl edged that resp ondent’sage (4 8 ye ars old) would hav e some impact

on his likelihood

of reci divism

but “not a very sig

nificant impact” because the likelihood of recidivism

“doesn’ t reach

a very sig nifica nt level of decrease until about age 60.” The likelihood of recidivism does decrease as a per son approaches 50 years old, however, and there for e respondent posed a “moderately severe risk,” rather than a seve re risk, of committing a future act of sexual violence. Dr. Ostrov characterized this as an “appre ciable risk ” such that

he did not b elieve r

esponde nt was an appropr iate ca ndidate f or condit iona l release. According to Dr. Ostrov, the question is whethe r respondent has d

ecrea sed that r

isk
to the point that it would be to lerable for him to be on conditional release and, other tha n respondent’s age and the fact that he has not a cted o ut se xu al ly w hile incarcerated or detained, Dr. Ostrov did not see evidence that respondent has signific antly decrea sed the r

isk that he would sexually reoffe nd. ¶ 33 The State’s next witn ess was Dr. Suire , who per forms ev aluation s relating to sexually violent pe rson comm

itments fo

r the DHS. Dr. Suire

is a licensed clinical psyc

hologist and has worked i n the past

at the Wisc onsin sexua

lly v iolent pe rso n facil ity, at a Texasstate mental health facility whe re he performed evaluations relating to competency to stand tr

ial, and as clinic al direc tor of the Missouri Se

xual Offe nder Prog ram. The doctor has performed approxima

tely 120 evalu ations in I

llinois pur suant to the Act. ¶ 34 Dr. Suire evaluated respondent in 2007 and prepared a report pursuant to the A ct. Dr. Suire diagnosed respondent, to a reasonable degree o f psych ologica l certainty , with “parap hilia not otherwise specified, sexually a ttracted to nonconsenting person-11-

nonexclusive,” cannabis abuse, antisocial personality disorder
, and narcissistic pe rsonality disorder. Dr. Suire used the DSM to arrive at these diagnoses and testified tha t he was aware of the disagreement rega

rding the diagno sis of para philia NO S, noncons ent. Howe ver, this didnot preve

nt him from diagnosing respondent with the disorder because “there is probab ly

no t hing in the field of psycholog y that doesn’t have

some degree of disagr

eement.” The disagreement

over the disorder is primarily due to “political factors” and the gene ral belief that not all rapists have a paraphilia. ¶ 35 Dr. Suire testified that respondent met all of the diagno stic crit eria fo r this diag nosis. He committed or attempted to commit a large number of rapes within a 10-month period, which satisfied the 6-mon

th requirement

and spoke

to the inte

nsity of respo ndent’s u

rges. B ecause respondent

refuse d to be inter

viewed, Dr. Suire

could not s peak to

respondent’s fantasy

life. However, the doctor

stated that “its difficult for me to imagine that y ou can have this type of pattern without having fantasies attached to it.” Finally , the fact that respondent has spent
most of his adult

life either in prison or a secure commitment facility spoke to the difficul

ty his urge s, fanta sies or be

haviors h ave cau sed him. ¶ 36 Dr. Suire also considered the nature of the rapes that respondent committed and the fact that he posed as a plumber to gain acce ss to his victims. The doctor ex plained t hat not all rapes are due to paraphilic urgesand therefore it is important to determine if the driving force behind the rape-ty

pe behavior is an underly ing specific urge towar

d n onconse nting sexual
contact

. In making this determination, considera tions include the use of

a kind of “stereoty

pe repetitious pattern,” whether the rape-ty pe behaviors were occurring while the person ha d

accessto co nsen

ting sexu al partners , the frequency of the acts of sexual misconduct, and whether the pers on was co mmitting o ther cr imes while

committing

rapes. ¶ 37 Dr. Suire also performed a risk assessment as part of his evaluation of respondent. The first part of the assessment consisted of file review, information gathering , and his attempt
to interview respondent. The second step involved the use of actuarial instrumen ts to attain

a “baseline estimate of the risk.” In this case, Dr. Suire used the Static-99and the Minnesota Sex Offender Screening Tool Revised (MNSOST-R), both of which are well-accepted
actuar ials. Respondent scored in the “high-risk” on the Static-99 and in the “refer

risk” range

on the MNSOST -R. The final step in performing a risk assessment involved consideration of “agg ravate d” and “

protect ive” fa ctors, which can increase or decrease a risk level above

or below that as indicated by the actuaries. Respondent had a “fairly large number” o f aggravating

factors, including deviant sexual arousal, two perso nalit y disorde rs, a h igh score

on the “Harris psy chopathy checklist, which, while not a specif ic predi ctor of s exual off

ense recidivism, is correl ated w ith an ele vated ri sk,” and

a high sc ore on the

violence risk
assessment

guide, which also correlates with an ele vated risk. The three m ai n protective factors Dr. Su ire con sider ed were treat ment p rogress , medi cal con diti on, an d age

. Respondent

did not have any medic al conditions that were of any rele vance to his risk of committing a sex ual of fense. Age is negatively correlated with the risk of sexual recidivism but, with respect to high-risk offenders such a s respondent, Dr. Suire didnot think that “we

are at the point where we can say that with any

level of confidence.” Theref ore, the doctor didnot consid

er resp ondent’sage to b e a sign ificant p rotecti ve factor. Finally, responde nt has never participated in core sexual offender treatment, whichcan “substantially reduce the-12-

risk of sexually reoffe

nding.” Dr. Suire did n ot b elieve that this risk was reduced by respondent’s particip ating in “ancillary

treatment-type ” programs at the DHS treatment and de te nt io n f ac il it y. ¶ 38 Based u

pon his con siderati on of all these factors, Dr. Suire

opined that, to a

reasona ble degree of psychological certainty , it is substantially probable that respondent will co mmi t

new acts of sexual viol ence, th at he remains a sexually violent per son, and that he has not

ma de su ff ic ie nt pr og re ss to al lo w h im to be sa fe ly m an ag ed in th e c om mu ni ty. ¶ 39 Following closing arguments, the trial court denied respondent’s petition and found that there was not probable cause to war ran t a hearing on the issues of whether re spondent remained a sexu a lly violent person or whether it was not substantially probable that respondent

would engage in acts of sexual violence if released. The c our t acknowledged disagreement

among mental health professionals as to the validity of the diagnosis of paraphi lia N OS, nonc onsent and stated that the question could not be answered simply by testimony that the disorder

is not spec ifically

listed in the DSM. The court then stated that Dr. Schmidt had “impressive credentials” but that there was something “very troubling about his testimony and his evaluation of sexually violent pers ons, which thisis the fir st, ap pa re nt ly, he’s done.” The court noted that Dr. Schmidt’s explanation as to why respondent committed multiple rapes if he did not suffer from a me

ntal disor der, spe cifically h

is testimony regarding responde

nt having had intercourse at a y oung age with a girl who initially told him no and that having led him to believe that no me an t ye s, “w as ab so lu te ly,
to ta ll y, completely absurd, quite frankly.”On the other hand, the court stated that Dr. Suire and Dr. Ostrov were “quite credible” wi tnesses. The court found that the diagnosis of paraphi lia NOS, nonc onsent wa s a menta l disorde r that sat isfied the require ments of the Act. The court further noted that although i t was “not impressed with the credibility of [responde nt’s] testimony,” the evidence did show that respondent had made “an improvement

to some extent.” However, the court observed that respondent had refused to particip ate in formal

sexual off

ender tr eatment, claiming he did not need it, and that “when you add that to the whole mix of what I observe d,” ther

e was not probable cause to believe that respondent

had made sufficient progress to be condition ally

releas ed or disc

harge d. This appeal followed. ¶ 40 The respondent in this case filed a petition seeking either a di scharge or a conditional release. When a pet

ition for d

ischarg e is filed , the cour t must set a

probable ca use hearing to determine whether facts exist that warrant a hearing on whether the re spondent remains

a sexually violent person. 725 IL CS 207/65(b)(1) (West 2008). If the court finds that ther e is probable

cause to believe that the r esponde nt is no longer a sexua

lly violentperson, i

t must set a hearing on the issue. 725 I LCS 207/65(b)(2) (Wes t 2008). When a petition for conditional release is filed, the cour t must hold a hea

ring to d etermine whether probable

cause exists to believe that it is not substantially probable that the pe rson w ill e ngage in acts of sexual violence if released or conditionally discharg ed. 725 IL CS 207/60(c) (West 2008). Under section 60( c) of the Act: “Within 20 days afte

r receipt of the petition, upon the request of

the committed person or on the court’s own motion, the court may appoint an examiner having the specialized knowledge determined by the cour t to be appropriate, who shall examine5 Althou gh there have been minor changes to the statute since respondent filed h is petition forrelease in 2008, the version of the statute applicable to these proceedings also requires that any examination

“conducted

under this [s]ection shall b e in conformance with the standards dev

eloped under the Sex Offender Management Board A ct and conducted by an eva luator approved by the Board. ” 725 I

LCS 207/60(c) (West 20 08).

-13- the mental condition of the person and furnish a written report of the examina

tion to the court wit

hin 30 day s after a

ppoin tment. Th e examine rs shall ha

ve reas onable

accessto the person f

or purpos es of exam

ination a nd to the pe

rson’s pa st

and present
treatment record s and pati ent heal

th care r ecords. If any

such examiner believes that the person isappropriate for conditional release, the e xaminer shall

report on the type of treatment and services that the person may need w hile in the community on conditional release. The

State has the right

to have th

e person evaluat ed by experts chosen by t

he State. Any

examinati on o r evaluation conducted under this Section shall be in conformance with the standards developed unde r the Sex O ffender Management

Board Act and conducted by an evaluator approved by the Board. The
court shall set a probable cause hearing as soon as prac tical af

ter the e xaminers’ reports are filed. The probable cause he aring shall consist of a review of the examining evaluat

ors’ re ports and arguments on behalf of the parties. I f the court determines at the probable cause hearing that cause exists to believ e that it is not substantia lly probable that the person will engage in acts of sexual violence if on releas e or conditional release, the court shall set a hearing on the issue.” (

Emphasis added.) Pub. Act

96–1128 ( eff. Jan. 1, 2011) ( amending 725 I LCS 207 /60(c) (

West 2008)). 5 Respo ndent

carries the burden of proof under e ither standard. See In re Detention o f Stanbridge
, 408 Ill. App. 3d 553 (2011). We review the ultimate question of whe ther respondent

established probable cause de novo . See State v. Watson , 595 N.W.2d 403 (Wis. 1999). ¶ 41 I n Hardin , 23 8 Ill. 2d at 36, our supreme court conside red the quantum of

evidence necessary to support

a sexually

violent pe

rson comm

itme n t petition a

t a proba ble caus e hearin g. The respondent in Hardinhad beenconvicted of various sexually violent offenses and, immediate

ly p rior to hislatest

scheduled mandatory

supervis ed rele ase per

iod, the Sta

te filed a petition

seeking to commit

the respondent under

the Act. The petition was supported by a writte n report by a license d clinica

l psy cholog ist w ho de termined that the respondent
met the criteria for

civil comm

itment as a

sexually violent pe

rson. Tha t psy cholog ist

was the only witness c alled at t

he subseq uent prob able

cause he aring. He testif

ied that h is opinions

were based on materials customarily relied on by eva

luators of sexually violent persons. The doctor testified that the respondent suffered from the mental disorder s of para ph ilia, not otherwis e specified, nonconsenting persons, and personality disorder. Left untrea

ted, these diseases made re spondent l ikely to reoffe nd, a conclusion su

pported b y the respondent’s te st results and “repeated rejection of off ers for sex of

fender treatme nt while in

prison.” Hardin
, 238 Ill. 2d at 37. ¶ 42 Th e tri al court found no p

robable cause to believe that the r esponde nt was a sexually-14-

violentperson who was likel y to reoffen d and therefore ordered that he be released and placed on mandat

ory supervis ed rele ase. The

trial cou rt agr eed with the responde

nt that his
current convicti ons alone

could not b e used to m

eet the s tatutory

criteri a and found that no testimony had bee n presen ted as to a ny b ehavior

by t he respo ndent tha

t would g ive proba

ble

cause to believe that he suffered from a mental disorder

. Hardin , 23 8 Ill. 2d at 37-38. The
court also found that there was no basis for the State’s p etition oth er than r esponde nt’s past convictions because the State had presented no evidenc e that respondent continued to have “an unusu al int erest in tee nage girls.” Hardin , 238 Ill. 2d at 38. The State appealed the trial court’s finding of no probable cause and the appellate c ourt reversed that finding and remanded for further proceedings. Hardin , 238 Ill. 2d at 38. ¶ 43 On appeal, our supreme court considered “ whether the appellat e co urt gavesufficient deference to the trial court’s credibility a nd probable cause determinations in reversing the finding of no probable cause to believe respondent is a SVP.” Hardin , 238 Ill. 2d at 43. The
court began by notin g that t o supp ort a f indi ng of pr obabl e cause in a S VP pro ceedin g, the evidence must establish that the subject of the petiti on “has b een found guilty , delinque nt,

or not guilty by

reason of insanity, me

ntal disorder, or mental defect of a s exually violent offense,” “has a mental disorder,” a nd “is a danger to others because the mental disorder

causes a substan

tial proba bility that the su

bject will c ommit acts of sexual violence.” (In ternal q uotation marks omitted.) Hardin , 238 Ill. 2d at 43 (quoting 725 I LCS 207/5(f), 15(b) (West 2006)). ¶ 44 The court resolved the question of the proper quantum

of evide nce in a p robable cause hearing by

adopting the evidentiary

standardestablished by the Wisconsin Supreme Court in Watson . It observed that in Watson , the court addressed the quantum of evidenceneeded
to su pport a fi nding tha

t a respo ndent is a

sexually violent pe

rson unde

r the Wisco nsin sexually violent person sta tute. Hardin , 238 Ill. 2d at 46 (noting that the Wisconsin SVP
statute is substan

tially similar to t

he Illinois SVP statute). The court in Watson explained that “the purpose of a probable cause hear ing in a SVP p roceed ing is ‘to show that ther e is a substantial basis for going forward with the commitmen

t, when it i s virtuall

y certain that if probable cause isfound, the

person w ill remain

in custody

until’ the endof the procee ding, thus providing ‘a barrier to improvident or insubstantial commitment petitions which are not likely to succeed

on the merits.’ ” Hardin , 238 Ill. 2d at 46-47 (quoting Watson , 595 N.W.2d
at 418). Further, the Watson court not ed that “ a probab le cause hearing *** is mere ly a ‘summary procee ding to de

termine e ssentia

l or basi c facts as to prob ability ’ and ‘is concerned

with the practical and nontechnical probabilities of everyda y life in determining whether there is a substantial basis for bring ing the prosecution and further deny ing the accused his right to liberty.’ ”(Internal quotation marks omitted.) (Emphasis omitted.) Hardin , 238 Ill . 2d at 47 (qu otin g Watson , 595 N.W.2d at 420). ¶ 45 Our supreme court concluded its review of Watson by observ ing:

“In a SVP probable cause hearing, the Watson court me rely require d the State

to ‘establi sh a plausible account on each of the required elements to assure the court that there is a substantial basis for the petition.’ Watson , 227 Wis. 2d at 205, 595 N.W.2d
at 420. I n making th at deter

min ation, the

trial judg e must con sider ‘a ll reason able inferences that can be drawn from the facts in evidenc e.’ Watson
, 227 Wis. 2d at 205,-15- 595 N.W.2d at420. The requirement that the evidence supporting e ach element be ‘plausible’ indicates that trial judges n eed not ig nore bla tant cre dibility

problems
, but the Watson court str

essed tha t this typ e of hea

ring wa s ‘not a pr

oper for um to choos e betweenconflicting facts or inference s.’ Watson , 227 Wis. 2d at 205, 595 N.W.2d
at 420. Consequently if after hearing the evidence, the trial judg e decides th e probable cause determination is supported by a reasonable inferenc e, the ca use should be held over for a full trial.” (Emphasis omitted.) Hardin , 238 Ill. 2d at 48. ¶ 46 Apply

ing thes e princi

ples, our supreme court found that th

e trial c ourt did no t apply

the
correct evidentiary standa

rds in finding that the State had failed to establish probable cause. Hardin
, 238 Ill. 2d at 48. Specifically , the trial court “relied on a full and inde pendent evaluation of [the State’s expert’s] credibility and methodology ” and “weighed the conflicting evidence presented duri ng bo th the direct and cross-examination of the State’s sole witness, *** as well as delving extensively into the credibi lity

of his expert testimony.” H ardi n , 238 Ill. 2d at 48-49, 53. The court stated that these factors “are well bey

ond the scope of th e l im it ed in qu ir y in a proba ble cause he aring”

and that “ [a]s long a s the State prese nted enoug h evidence at the hearing to ‘e stablish a plausible account on each of the required elements ,’ provid

ing ‘a s ubstantia

l basi s for the p etition’ when all reasonable factual inferences are con sidered , probab le cause is established.” Hardin , 238 I ll. 2d at 49 (quoting Watson , 595 N.W.2d at 420). ¶ 47 Our

supreme court also found that the State presented t estimony on

each of thethree required elements from its expert witness, who “unquestionably ha d extensive experienc e

as a clinician, a SVP evaluator, and an expert witne ss in SVP cases.” Hardin , 238 Ill. 2d at 49. The State ’s expert d iagnosed resp on dent with t wo mental

disorder s based up on his interview with resp ondent, his review of the respondent’s criminal records a nd master file, and the diagnostic criteria of the DSM-I V. The court noted that the State was not required
t o show mor e than a “

plausible accoun t” on this e

lement and that, at

a probab le cause hearin g, “the cou

rt should not attempt to determine definitively whe ther each element

of the State’s claim can withstand close scrutiny a s long assome ‘pla usible’ e vidence , or rea sonable inferencebased on that evidence, supports it.” Hardin , 238 Ill. 2d at 51-52. The court

found that the testimony of the State’s expert on the DSM-IV criteria and the

evidentiary ba ses for his diagno sis were

“adequ ate to sur

vive that relative ly lo w thresho ld standard.” Hardin
, 238 Ill. 2d at 52 . R eg ar di ng th e r eq ui re me nt th at th e r es po nd en t b e s ub st an ti al ly l ikel y to reoffend, the court addressed the respondent’s co ncern th at the State could use

his past convictions in every

case to claim that he had a mental disorder and that it wassubstantia lly probable that he would engage in future acts of sexual violence. It obser ved: “Alth ough probable

cause de als with

practical probabilities rather than abso lute certain ties, more is required

of the Sta te than me

re arg ument. The

Statemust provide actual evidenc e, even

if based at least in part on behaviors and traits reflected in prior convicti ons, to support

a finding that the r esponde nt meets each of

the thre e probab le

cause ele ments. Tha

t evident iary burden includes a

showing that the r esponde nt is substantia lly likely to re-off

end based on the presence of a menta l disorder.” Hardin
, 238 Ill. 2d at 52-53. The court found that this element was satisfied by the testim

ony of the Sta

te’s expe rt as to-16-

the respondent’s scores on psychological tests and his unique ty pe of victims as support for his opinion that the respondent presented a substantial risk of

reoffending. Hardin , 238 I ll. 2d at 53. Thu s, the cou

rt found t hat the Sta

te had me t its burden a

nd it there

fore uph eld the appella te court’s reversal of the trial court’s finding of no probable ca use. Hardin , 238 I

ll. 2d at 54. ¶ 48 Respondent

asserts that the evidentiary sta ndards set forth in Hardingovern thetrial court’s probable cause determination in this case. Respondent also asserts that the trial court exceede d the s cope of the inquiry set forth in Hardinbecause it “engag ed in a full and independent

eva luation of

the exper

t witnesse s’ testimo ny a nd an in-d

epth cre dibility analysis.” Finally , respond ent claim s th at w hen the proper evidentiary standard is applied, Dr. Schmidt’s testimony established that prob able ca

use exists to

dischar ge or c onditiona

lly releas e responde

nt and th at th e case s hould be r emanded to the tria

l court fo

r a full evide ntiar y hearing. ¶ 49 Under Hardin , respondent was req uired to establish a “plausible account” on each of the required elements. With respect

to apetition for conditional release, this includes evidence that “it is not s ubst antia lly proba ble th at [r espon dent] will engage in acts of sexual violence if on rel ease or con ditional release.” 725 IL CS 207/60(c) (West 2008). For purposes of a petition for discharge, respondent wa s required to provi de evidence that he is no longer a sexually violent pe

rson. See 725 I LCS 207/65(b)(1) (West 2008). The Act d efines a sexually violentperson as an individual who “has been convicted of a sexually violent offense *** and who is danger ous because he or she suf fers fr om a menta

l disorde r that mak

es it substantia lly probable that the person will engage in acts of sexual vi ole nce.” 7 25 IL CS 207/5(f) (West 2008). ¶ 50 Ini ti al ly, it must be pointed out that after a ca reful review of the record a nd sections 60(b)(1) and (c) of the Act, it is cle ar that Dr. Schmidt di d not and could not offer any opinion concer ning a conditional release for two reasons. First, Dr. Schmidt never provided the statutori ly

requi red report or any

testimony whatsoever on “the type of tre atment and services that the p erson ma y need while

in the commu

nity on conditi onal rel ease.”725 I LCS 207/60(c) (West 2008). Second, Dr. Schmidt is no t and has never been an “evaluator approved by the [I llino is Sex Of

fender Manag ement] Bo ard.” 72 5 IL CS 207/60(c ) (West 2008). ¶ 51 Ad di ti on al ly, and again contrary to the requ irements of the Act, D r. Schmidtnever offered any expert opinion on

two cr itic al ele ments . Firs t, alt hough Dr. Schmidt testified that respondent

does not suffer from

a paraphilia, he offered no testimony that respondent does
notsuffer from any

ment al disorder as defined by the Act. Second, Dr. Schmidt did not testify that it was not substantially probable that responde nt would engage in acts of sexual violence if released. Dr. Schmidt never testified that respondent wa s a suitable candidate for disch arge or condit

ional release. I

n fact, n one of the

testimony

he offe red was to a rea sonable degree of medical, psy cholog ical, or psychiatric c ertainty. Althoug h we recognize that there is no magic to the phrase “to a reasonable deg ree of medical, psy cholog ical, or psy chiatric certainty,”an expert’s testimony must reveal that his opinions are “based upon specialized knowl edge and experience and grounded in rec ogni zed” medical, psycholog ical, or psy chiatric

thought. See Dominguez v. St. John’s Hospital
, 260 Ill. App. 3d 591, 595 (1994).-17-

Respondent’s fa il ur e t o o ff er ex pe rt te st im on y on the required elements alone justifies the trial court’s finding of no p robable cause. I n contrast to the omissions in Dr. Schmidt’s
tes ti mo ny, the State presented the testimony of two expert witnesses who testified that respondent

suffer s from a me

ntal disor der that makes it su

bstantially p

robable that he wo

uld commit acts of sexual violence if released. These witnesses also testified that respondent had
notsignific antly

reduce d his risk o f sexually reoffending or made sufficie nt progress to be safely managed in the community, that he remaine d a sexually violent person, and that he should not be conditionally release d or discharged. ¶ 52 Respondent

neverth eless a sserts t

hat he established probable cause to believe that the “alleged disorder” upon which his commitment rests does not exist. Dr. Schm idt testif ied that the diagno sis of paraphilia NOS, nonconsent is not contained in the DSM. On the other hand, Dr. Ostrov and Dr. Suire tes tified tha t the diag nosis is va

lid and finds support

in the DSM,

even though it

is not listed as a specific disorder in that manual. In dismissing respondent’s petition, the trial court acknowledged the “dispar ity of opinions” on the issue but stated that the question of whether the diagnosis could justify civil commitment under the Act could not be resolved by the f

act that the diagnosis is not specifically listed in the DSM. The court ultimately

concluded that the diagnosis could support respond ent ’s contin ued civil commitmen

t. ¶ 53 Alth ough responde nt a rgues t hat the tr

ia l court’s ruling was error, he providesno authority in which a court has found that paraphilia NO S , noncons ent does not support a finding that

a person is a sexuall

y vi olent per son under

the Act be

cause th at disord

er is not specific ally

listed in the DSM or because not all mental health e xperts ag ree on th e validity of the diagnosis. He cites no authority in which a cour thas found that due process is violated when a person is committed under a sexually violent per son statu te based upon a mental disorder that is not s pecific ally

li sted in the DSM. Although respondent claims that no Illin ois court has ruled that par aphilia N OS, nonco nsent existsin the DSM, the ultima te inquiry is no t whether

the diagnosis exists in the DSM. Ra ther, the ultimate in

quiry is whether responde nt continues to suff

er from a mental dis order th at crea tes a sub stantial probabil ity that he will engage in acts of sexual violence if released. Indeed, the Act

does not require that the me

ntal disor der be li sted spec ifically

in the DSM in order

for the d isorder to support a sexually violent person finding. See 725 IL CS 207/1 et seq. (West 2008 ); McGee

v. Bartow , 593 F.3d 556, 576 (7th Cir. 201 0) (whe re a com mitted per son chall enged his commitmentunder the Wisconsin sexually violent person statute on the g roun d that paraphi lia NOS, nonc onsent is not containedin the DSM, the court rejected that claim and stated, “[t]he Supreme Court’s cases on this point teach that civil commitment upon a finding of a ‘menta l disorde r’ does n ot violate

due proc ess even though thepredicate diagnosis is not found within the *** DSM”). Further, the very diag nosis that Dr. Schmidt challenges as nonexistent is the diagnosis given by the expert witness in Hardin , who the court observed “unques tionably

had extensive exper ie nce as a clinician, a SVP evaluator, and an expert witness in SVP cases.” Hardin , 238 I ll. 2d at 49 . Addit

ionally, the diagno sis of par aphilia NOS, nonconsent has been thebasis for numerous probable cause or sexually violentperson findi ngs in this state and other jurisdictions outside of this state. See, e.g. , Hardin , 238 Ill. 2d at 49-50; Stanbrige , 408 Ill. A pp. 3d at 5 54; In re Comm itment of S andry , 367 Ill. App.-18-

3d 949, 953 ( 2006); Watson , 595 N.W.2d at 420 (diagnosis of paraphilia supported finding of probable cause under Wisconsin SVP statute). ¶ 54 We disagree with respon dent’s as sertions that the trial court improperly rejected Dr. Schmidt’s testimony and crede ntials and that

the disparity of

opinions on the issue, including the opinion of Dr. Schmidt, established probable cause to believe the disorder did not exist. The trial court acknowl edged Dr. Schmidt’s te stimony and crede ntials but nevertheless found that the issue could not be resolved simply by testimony as to whether the diag nosis existed in the DSM. In mak

ing this determination, the trial court did not engage in improper weighing of comp eting testimony but, rathe r, found that the diagnosis support ed responde nt’ s status as a sexually violent person eve n tak ing as true Dr. Schmidt’s testimony that the diagno sis does not exist in the DSM. In this respect, we note that Dr. Schmidt only testified that the diagnosis did no t exist in the DSM and he offere d no opinion

on the ultimate question o f whethe

r the dia gnosis c ould suppo

rt civil c ommitment u

nder the Act. ¶ 55 Respondent next contends that eve n if he suf fers fr om paraphilia NOS, nonconse nt, it is

no longer severe eno ugh to justify his civil confinement. Responde nt relies upon Dr. Schmidt’s testimonythat resp ondent do es not suf fer fro m a para

philia of any kind and upon evidence which he

claims es tablishesthat h is GAF score, which measures his sy mptom severity and le

vel of functioning, indicates that his paraphilia is not severe. ¶ 56 Respondent’s evidence on this issue came primarily from the testimony of Dr. Schmidt. However, we reite

rate tha t notwithsta

nding the doctor’ s testimony

and his re

li ance upon respondent’s GAF score , Dr. Schmidt never off ered an expert opinion that r

esponde nt did
notsuffer from any

mental disorder or that it was not substantially proba ble that respondent would engag e in acts of sexual viole nce if he was released into the community . These are required elementsunder the

statute and respondent was required to offer testimony

on these issues. ¶ 57 Moreover, althoug h Dr. Schmidt testified that respondent does not suffer from a paraphilia, we believe that the trial court could consider the lack of a basis for Dr . Schmidt’s opinion on this issue

without exc eeding

the stand ards set forth in Hardin . Contrar y to respondent’s suggestion, Hardindoes not preclude a trial court from making any

credibi lity determinations or from c onsidering th e qu ality of the evidenc e presented. Instea d, Hardin expressly states that a “plausible account” on each ele ment must be presented and that the trial court therefore “need not ig nore blatant credibility pr oblems.” Hardin , 238 Ill. 2d at 48 (citi ng Watson , 595 N.W.2d at420). Moreover, the requirement that a “plaus ible acc ount”

on ea ch el em en t b e p re se nt ed me an s t ha t e ac h e le me nt mu st be su pp or te d b y “a ctual evidence” or a “reasonable inferenc e” based on that evid ence and that “me

re arg ument” is insufficient

to meet this burden. Hardin , 238 Ill. 2d at 51-52. I t follows that in or d er to determine whether the evidence presented is “pla usible,” or based upon a “rea sonable” in ference, t he trial court must necessarily consider, to some extent, the quality of that evidence. For this reason, we do not believe that respondent’s burden in this case could be
met simply by

presenting the testimony of an expert witnes s who b ased his opinions primaril y on information provided by def ense counsel and who has never been qualified as

an expertin a sexually violent persons case or in the evaluation of

sexual offenders. Rather, the expert’s opinion must be based upon actual evidence or a reasonable inference

from that-19-

evidence and, if it is not, the opinion is no more than “mere arg ument.” See, e.g., Kleissv. Cassida
, 297 I

ll. App. 3d

165, 174 ( 1998) (“ An expert o pinion is on

ly as valid as the reasons for the opinion.”). Thus, while Hardinstates that a trial court may not choose between competing infere nces or delv e extensiv ely into the credibilit

y of a witness , the cour

t still
must be able t o evalua te the ba sis of an e

xpert’s op inion to determine whether it constitutes “actual” or “plausible” evidence and not simply “mere a

rgument.” ¶ 58 In this case, it is apparent from the record that the trial court essentially de terminedthat respondent’s evidenc e suffe red fro m the ty

pe of “bl atant cr

edibility problems ” that a tr

ial
court “need not ignore.” See Hardin
, 238 Ill. 2d at 48. Dr. Schmidt testified that respondent does not suffer from any

type of par

aphilia and that, instead, respondent’s pre-rape history provided the most “plausible” explanatio n of why he committ

ed multiple

ra pe s. Sp ec if

ic al ly, Dr. Schmidt testified that respondent reported having an experience as a teenager in which

a woman he was attempting to have intercourse with initially resisted and then consented. Accord ing t o Dr. Schmidt, respondent thereafter believed that “w hen women say no the

y really mea

n yes.” Dr . Schmidt further explained that respondent was acting selfishly when he committed his first rape and that he committed additional rapes because he thought that “the law had no teeth.” Dr. Schmidt, however, provided no foundation to support his opinion

on this issue. See Kleiss , 297 Ill. App. 3d at 174. He cited no authority, study , or treatise of any kind to opine that the se were the rea so ns wh y r

esponde nt committe d multiple r

apes. Instead, he simply

stated tha

t t hese ex periences provided “as plausible an explanation as maybe we’ll ever get

from the facts of the case.” The tria l court found that Dr. Schmidt’s explan ation “was ab solutely , totally , complet ely absurd, q

uite fra nkly .” The c ourt also observed that there was something “very troubling about his testimony and his evalua tion of sexually violent persons, which is the first, appare ntly, he’s done.” ¶ 59 We need not de cide, however, whether these “blata nt credibility problems” justify the dismissal of re sponden t’s petitio n becau se we ha ve alre ady

concluded that re spondent d id
notoffer a

ny t estimony to support

the statut ory require ments of th

e Act. Th is is not a c ase of conflic ting fa

cts and inferences or of expert witnesses who reac hed opposite conclusions regarding whether

respondent should be discharged or conditionally relea sed. Instead, this is a case ab out the fa

ilure to of

fer any testimony

to satisfy

the statut

ory ele ments. An d altho ugh responde

nt claims t

hat the tr ial cour t improper

ly c redited the testi m ony of the State’s expert witnesses, we note that respondent carried the burden of

proof at the proba ble

cause hearing . Thus, if t

he trial c ourt found that re spondent’ s evidenc e was insufficien t to meet his burden o f proof, dis missal of his petition was proper regardless of the evide nce presented by

the State. ¶ 60 We also find

that, con trary to respondent’s assertion, the trial court did not disregard the evidence of respondent’s improved GAF scores. The State’s e xperts acknowledged the improvement

and the tr

ial c ourt stat ed that there wa s “an impr ovement t

o some exte

nt in [resp ondent’s ] condition,” pointing to respondent’s GAF scores and to re spondent ’ s acknowledgment

that he ha

d committ

ed some of the crimes with which he was charg ed. However, the ultimat e ques tion before the trial court was not whether responde nt’s GAF

scores had improved. The ultimate question was wh ether respondent had made sufficient progre ss to be released

into the commu

nity and specifically

whether an expert witness c ould-20-

say to a reasonable degree

of psy cholog ical or p syc

hiatric certainty that r

espondent did not suffer from a me

ntal disor der and t hat i t w as not substantially probable that re spondent would engag e in acts of sexual violence if relea sed intothe community. While an improved GAFscore w as relevant to the se issues , it was not disposi tive as to the ultimate question before the trial court and was only one of man y f actors th at the tri al could c onsider in determining whether there was probable ca use to believe that respondent had made sufficient progress to be discharge d or conditionally relea sed. ¶ 61 For e xample, whi le ackno wledgi ng the im proved G AF scor e, the tr ial cour t also o bserve d that responde nt had refused to

particip ate in an

y f ormal sexua

l offend er trea tment while

in the DHS. Dr. Suire and D r. Ostrov each te stified th at such tr eatment c an signi ficantly decrea se the likelihood that a person will sexually reoff end. In contrast, Dr. Schmidt offe red

no expert testimony on the issue of respondent’s refusal

to partic ipate in tr

eatment a nd he did
notexplain how

that ref usal f actored i nto the opinions he did offer. Nor did he ever opine that based upon the GAF scor es, it wasnot substa ntially probable that resp ondent wo

uld commit acts of sexual violence if he were released into the c ommunity. We do not believe that the trial court wa s requir

ed to disr egard this unrefuted ev

idence w hen makin g a pro

bable

cause determination, particularly because respondent’s failure to participa te in formal
treatment exists independent of any credibility determinations or weighing of evidence . See,
e.g. , In re Detention of

Cain , 341 Ill. App. 3d 480, 483 (2003) (trial court consider ed that the respondent

“remain ed excee dingly

resistive to clinical

treatme nt” in mak

ing prob able

cause determination); In re Commitment of Blakey , 382 Ill. App. 3d 547, 552 (2008) (considering that the respondent had

not yet participated in a

ny sex-offender

-specific treatment program). ¶ 62 Fi na ll y, we obser ve th at in St anbridge , the appellate court recently considered a

trial court’s finding of no probable cause in light of the standards set forth in Hardin . In that case, the evidence at the probable cause h earing con sisted of two written reports prepared by expertwitnesses that presented conflicting opinions as to whether the respo ndent wa s a suitable candida te for re lease from DHS c

ustody and car e. The r esponde nt’s exper t, Dr. Kirk Witherspoon, was of the opinion that the respondent did not present any historic or current antisocial tendencies or any form of deviant sexual psychopa thology, and tha

t he presented

a low risk of recidivism based upon actuarial assessments. Stanbridge , 408 Ill. App. 3d at 555-56. Dr. Witherspoon recommended that the respondent be discharg ed from DHS care and control based on his expert opinion that the respondent did not demonstrate significant emotiona l, interpe rsonal, b ehavior

al, or co gnitive

problems

. Stanbridge , 408 Ill. App. 3d at 556. The State’s expert diagnosed respondent with a mental disorder , found him

to be at a high risk of recidivism, andidentified additional aggravating factors. The expert opined that it was substa

ntially probable that the respondent would engage in future acts of sexual violence and that the respondent had not made sufficie nt progr ess to be saf

ely managed in the community. Stanbridge , 408 Ill. App. 3d at 557. The appellate c ourt rev erse d the trial court’s finding of

no probable cause, concluding that the trial court had improperly weighed the conflic ti ng evid ence instead of determining whether the respondent’s evidence that he

was no longer a sexually

violent person was plausible. The appellate court noted that the trial
court relied upon the State’s expert, discounted the evidence presented by

the respondent’s expert, and placed greater e mphasis on the State’s expert evidence. Stanbridge , 408 I ll. App.-21-

3d at 563. ¶ 63 We agree with the Stanbridge decision. However, we find that the facts in Stanbridge are distinguishable from those in the present case. The trial court in Stanbridge was presented only withwritten reports, whereas the trial court in this case heard testimony from the expert witnesse s. In addition, t he expert in Stanbridge , Dr. Withe rspoon, a qualifie d expert, provided a plausible account on each of the required elements by way of a written report and offered an evidentiary

basis for his opinions. Dr. Schmidt, however, did not offer expert testimo ny that re spondent did not suffer from any mental disorder or that it was not substantial lypro bable that respondent would commit acts of sexual violence if he was discharged

or condit

ionally releas ed. Unlik

e Dr. Withe

rspoon, Dr. Schmidt

o ffere d no testimony that respondent in this case could besafely mana ged in the community or

that he

was a suitable candidate for conditional release or discharge. Had responden t offered any experttestimony

to establish the statutory elements for discharge or

conditional release, we would not h esita te to r emand for a fu ll evi denti ary hearin g. ¶ 64 Alth ough the dissenting justice s uggests that a probable cause hearing should be conducted

under these facts, he does not set out any testimony supportin g a comp lete disch arge of respondent under section 65. Nor does he respond to the statute’s requirement for a conditional release under section 60(c) that

mandates expert testimony to establish the conditions for release or t he type of treatment and services that person may need. In any event, we have already

concluded that Dr. Schmidt was not qualified to give such an opinion because of his failure to be approved by the Illinois Sex Offender

Management Board, which was likel y du e to his comple

te lack o f experie

nce in tr eating sexually violent persons. The dissentagrees that Dr. Schmidt’s explanation for re spondent’s “criminal serial behavior” was “prep osterous o n its face.” And he opines that Dr. Schmidt’s contention that respondent

never suffer ed from p araphilia

is foreclosed by

the jury’s ver

dict in 2006. And yet the dissent sugge sts that respondent’s improved GAF score and the f act that respondent was no t diagnosed

with para philia whi le in pri son a

mount s to pr

obab le ca use. We disagr

ee that th is establishes probable cause to believe that respondent is no longer a sexually violent person

or that it is not substantia

lly p robable that resp ondent wi ll commit acts of s exual viole

nce if discharged or conditionally released. ¶ 65 We conclude that respondent’s petition for release or condi tion al dis charge was properl y dismissed. We base this conclusion upon our de novo review of the entire rec ord, which discloses the complete lack of an expert opinion that respondent is no l onger a sexually violentperson or that it is not substantially probable that re spondent w ill engage in future
acts of sexual violen ce . Responde nt was required to

provide p lausible e

vidence of these statutory requirements and

his failure to do so requires us to find that the evidence presented
to the trial court did not establish probable cause to believe that respondent had mad e sufficient progre ss to be discharged or conditionally released. Accordingly , the judgment of the circuit court of Cook County is aff irmed. ¶ 66 Affirmed.

¶ 67 PRES IDING JUST ICE GARC IA, diss entin g:-22-

¶ 68 To give co ntext to my dissent, I begin with the petitions filed by r espondent

Lieberman. When the supreme court directed we vacate our original dec ision and reconsider in light of In re Deten tion of Hard

in , 238 I ll. 2d 33 (201 0), we pe

rmitted the partie s to file supplemental briefs to inform us of the impact of Hardinon this case. According to L ieberman’s supplemental brief, he filed petitions under sections 60 and 65 o f the Sexually Violent P ersons Commitment Act (Act). 725 IL CS 207/60, 65 (West 2008). Under section 60, the petition seeks conditional release; under section 65, the petition seeks dischar ge. Each section provides for a probable cause hea ring to determine whether the merits of the petition should be reached. T he probable cause issue differs under e ach section, as does the nature of the hearing on

the merits. I find it doubtful that the Act contemplated the simultaneous consideration of petitions under both section 60 and section 65. ¶ 69 Under section 60, before a hearing on the merits will ensue, the committing court must determine that “ca

use exists to believe that it is not substantially probable that the person will engag e inacts of sexual violence if onrelease or conditional release.” 725 I LCS 207/60(c) (West 2008). Section 60 is silent on whether the respondent may be present at the probable

cause hearing . Regar

ding the hearing on the mer

its, secti on 60 p rovides t

hat “[t]he c ourt, without a jury , shall hear the petition.” (Emphasis added.) 725 I LCS 207/60(d) (West 2008). At the hearing on the merits, the State must prove by clear and convincing evidence that the respondent

“has not made suff

icient pr ogress to be cond itionally releas ed.” 725 IL

CS 207/60(d) (West 2008). ¶ 70 Under section 65(a)(1), a committed person may reque st permission to fil e a dis charge petition. “If the Secre

tary determines at any

time that a

person c ommitted under this Act is no lon ger a sexu ally

viole nt pe rson , the Secr etar y s hall a uthor izethe person to petition the committing court fo

r discha rge.”725 I

LCS 207 /65(a)( 1) (West 2 00 8). Under section 65(b)(1), a petition may be filed without the Secr etary of Human Services’s permission, as Lieberman

did here. 725 IL

CS 207/65(b)(1) (West 2008). Should a petition be filed without permission, the respondent may be required to plead additional facts in a successive pe tition for discharge. “[I ]f a person has previous ly filed a petition for discharge without the Secretary ’s approva

l and the c ourt dete

rmin ed, e ither upon a review of the petition or fol lowing a hearing, tha

t the per son’s pet

ition was f

rivolous o

r that the person w as still a sexually violent person, then the court shall deny any subsequent

petition under this Section withouta hearing unless the petition contains facts upon which a c ourt could find that the condition of the person had so changed that a he aring was warranted.” 725 IL CS 207/70 (West 2008). Section 65 expressly provides : “The committed person has a right to have an attorney represent him or her at

the probable cause hearing, but the perso n is not ent itled to be present

at the probable cause hearing .” (Emphasis added.) 725 IL CS 207/65(b)(1) (West 2008). The ques tion at the probable cause hearin g is whethe

r “proba ble caus e exists to believe that the committed pers on is no long er a sexua lly v iolent pe rson.” 72 5 IL

CS 207/65(b)(2) (West 2008). Under section 65, the hearing on the merits of the petition differs

as well. “The committed person or the State may elect to have a hearing under this Section before a j ury .” (Emphasis added.) 725 IL CS 207/65(b)(2) (West 2008). ¶ 71 Based

on th e diff erences in th e proce edings under sections 60 and 65, it seems clear that the committing court should addres s a section 60 petition before considering a section 656 That parties are still sorting o ut the differences between the two petitions is reflected in the circuit court proceedings in In re Detention of Stanbridge , 408 Ill. App. 3d 553 (20 11). In that case, Stanbr idge filed only a petition seeking discha rge under section 7 0 of the Act, sup ported by an evaluation

by the court ap

pointedexpert. Id. at 554. S ectio n 70 provi des for “addit ional discha rge petitions” to those filed under sectio n 65. 725 I LCS 207/70

(West 20 08). The

State c ountere d with

an evaluation by

its own expert that

concluded: “(1) responde nt’s risk assessm

ents coupled with the additional risk f

actors suggeste d that a substa ntial probab ilit y existe d that r espond ent wou ld engage in further acts of sexual violence and (2) respondent has not made sufficient progr ess in lowering h is sexual-offense-

recidivism risk

to conclude that he is safe to be mana ged in the com

munity on conditional release .” (Em phasis added. ) Stanbridge
, 408 Ill. App . 3d at 55 7. Based on that summary, the State’s expert addressed the respondent’s petition, at least in part, as if it had

been filed

under section 60. See 725 ILCS 207/60(d) (West 2008).

-23- petition. See 725 IL

CS 207/65(b)(1) (West 2008 ) (co mmitted person is barred from being present at sectio n 65 proba

ble caus e hearing). I

f probab le cause

exists to permit a

hearing under section 60, the commitment court will hear the petition without a jury . If the section 60 petition f

ails eithe r at the p robable cause or the merit s stage, it follows that the section 65 petition cannot su cceed. Conseque ntly , I a ddress th e probab le cause

issue in the cont ext of th e s ec ti on 60 pe ti ti on on ly. 6 ¶ 72 In light of Hardin , I submit the proceedings be low far exceede d a secti on 60 “pr obable cause” hearing. 725 I

LCS 207/60(c) (West 2008). What transpired below was more in the
nature of a full evidentiary hearing that reached the me rits of the respondent’s petition, a determination which our supreme court ruled should not be made at

a SVP proba

ble caus e hearin g. Hardin , 238 I

ll. 2d at 48 -49 (“tr

ial cour t [improper

ly] w eig hed the c onflicting evidence *** as we

ll as delvin g extensi vely

into the credibility” of the e xpert’s testimony);

see also Stanbridge , 408 Ill. App. 3d at 561 (at probable cause hearing ther e should be “[no] weighing of conflicting expert opinions but , inste ad, dete rmining whether reasona ble grounds exist”). Given the state of the record before

us, we should remand to the circuit court
to formally

permit a f

ull hearing. A ruling on the merits of the section 60 petition can issue on this record, supplemented by the parties as the circuit court may allow at its discretion. ¶ 73 At the probable cause hearing in this case, no objection was raised to Liebe rman’s expert, Dr. Chester Sc

hmidt, pro viding e

xpert testi mony . In f

act, the Statestipu lated “to

his expertise.” D r. Schmidt is a professor of psyc hiatry at Johns Hopkins University and a founding member of the sexual behavior consul t ati on u ni t at Jo hns Hop ki ns H osp it al. In addition to Dr. Schmidt’s testimony, the respondent testified and the parties stipulated

to the testimony of Dr. Mark Babula, the respondent’s pr imary thera

pist at the Dep artment of Human Se rv ic es (D HS ) t re at me nt fa ci li ty. On the State’s side, the circuit court heard from Dr. Eric Ostro v, board certified in clinical psychology by the America

n Board of Professional Psychol ogy and a University of Chicago trained lawy

er, and from Dr. David Suire, a

licensed clinical psy cholog ist. ¶ 74 In Hardin , the circuit court conducted a SVP probable cause he aring pursuant to section 30 of the Act on the State’s petition. Hardin , 391 Ill. App. 3d 211, 217 (2009); 725 IL CS 207/30(a) (We s t 2008). Notably, a sing le witness was presented. Hardin , 238 Ill. 2d at 37-24-

(the State’s expert “was the only witness a t the probable cause hearing” ). After hearing the testimony of the expert, the circuit court in Hardin“concluded that ‘there has not been any testimony of any behavior on the par

t of [respo ndent] whic

h would give pr obable c ause to believe that he suffers f

rom any kind of dis order, a

perso na lity disorder. The lac k of any evidence and testimony of any disciplina

ry matters o r any thing el se that wo

uld indica te an antisocial pe rsonality

really belies my

ability to make a

finding that he suffers f

rom this classified disorder.’ ” Hardin , 238 Ill. 2d at 38. ¶ 75 I

find the conclusion drawn by the circuit court in Hardinto be strikingly similar to the conclusion the majority draws he re, though on the opposite end of the spectrum from the perspective of the committed person. “[T]his is a case about the failu re to off er testim ony to satisfy the statutory elements. And althoug h respondent claims that the trial court improper ly

cre dited the testimony of the State’s expert witnesses, we note that respondent carried the burden of proof at the probable cause he aring.” Supra ¶ 59. ¶ 76 While the ma

jority correctly notes “that respondent carried the burden of proof,” as our supreme court made clear in Hardin
, there is little to this “burden of proof” at the pr obable
cause st age. I n a SVP prob able

cause hearing, probable c ause requires nothing “more than ‘a plausible account’ on [each] element based on all reasonable inference s from the facts. At

a p robable cause hearing in a SVP ca se, the court should not attempt to determine definitiv ely

whether each el ement of

the State ’s claim

can withstand close scrutiny as long as some ‘plausible’ evidence, or reasona ble inference based

on that evidence, supports it.” Hardin
, 238 Ill. 2d at 51-52; see Stanbridge , 408 I ll . App. 3d at 562 (the circuit court improperly weig

hed “the conflicting testimony of the parties’ respective experts instead of determining only w

hether the evidence presented established probable c ause to warrant an evidentiary he aring”). ¶ 77 Nor

do I a gree t hat the a bsence o f explicit te stimony at the prob able ca use hearing inv okin g the standard “to a reasona ble deg ree of m edical, psy cholog ical, or

psy chiatric

ce rt ai nt y” dooms Lieberman’s section 60 petition as the majority con t ends. Supra ¶ 51. I submi t the “reasonable degree of certainty ” standard applies only when the merits are reached. See Petre v. Cardiovas cular Cons ultants, S. C. , 373 Ill. App. 3d 929, 943 (2007). ¶ 78 I

also cannot agree that the supreme court’s statement that trialjudges “ ‘need not ignore blatant credi bility problems’ ( Hardin , 238 I

ll. 2d at 48 )” should

be read as a basi s to disregard all of the testimony of L ieberman’s highly

credentialed expert as the major ity appears to suggest. Supra ¶ 57. While blatant c redibilit y pr oble ms of an expert may a rise, those pr ob le ms sh ou ld be ad dr es se d b y a challen ge to the qualific ations of

the exper

t to testify rather than as a basis to c ompletely

disregard the testimony

of an expert witness. See Stanbridge
, 408 I

ll. App. 3d

at 561 (qu oting wit

h approva l In re Deten tion of Cain , 402 I ll. App. 3d 390, 400 (2010) (Stewart, J., dissenting) (“ ‘Surely , the written opinion of a qualified expert that a detainee should be discharged mee ts the probable cause standard.’ ”)). ¶ 79 The State did not challen ge Dr. Schmidt’s q ualifica tions to testify; the State’s objection
to a certain portion of Dr. Schmidt’s expert testimony as beyond his expertise wasoverruled. Also, if the State found significance in the denial of Dr. Schmidt’s application to be named
to the I llinois Sex Of

fender Manag ement Bo ard, it

should hav e sough

t a ruling on whether-25-

t hat denial impacted his role as an expert. See People v. Owen , 299 Ill. App. 3d 818, 82 2 (1998). I see

no reaso n to resolve this ap peal, even partly, on tha

tdenial when the State failed
to challenge Dr. Schmidt’s qualifications to testify at the pr obable c ause

hearing. See Lundell

v. Citrano , 129 Ill. App. 3d 390, 397 (1984) (“T imely objections to the competency of a witness *** are necessary to give the opposing

party an opportunity to remedy the defect.”). ¶ 80 In a ny event, Dr. Schmidt pre sented his expert testimony, without qualification, to th e circuit court. As the majority sets out, “Dr . Schmidt rev iewed the 15 evaluations of respond en tconducted during the 20 y ears he was in the I

DOC, none of which diagnosed respondent

with any typ e of par

aphilia. Dr. Schmid

t testifie d that *** it was ‘hard to believe that any mental he alth prof

essional worth his o

r her sa lt giventhe circumstances that he was in jail for raping’ would not have found para philia if it in fact existed.” Supra ¶ 12. While I question the conclusion reached by Dr. Schmidt, as I make

clear below, the most recent of the 15 evaluations certainly permitted an infer

ence fa vorable to Lieberman to be drawn. D r. Schmidt also noted that Lieberman’s cur rent Global Assessment of Functioning sco r es placed him “pre tty c loseto normal a

t this time.” The trial judge recognized something like this as well: “[Lieberman has made] an improveme nt to some extent.” Thes e findings, I submit, constitute “ some ‘plau sible’ evidence” to meet the relatively low standard of probable cause. Hardin
, 238 Ill. 2d at 51-52. Under Hardin , Lieberman is entitled to a hear ing on the merits on his section 60 petition on whether he “has *** made sufficient progre ss to be conditionally relea sed.” (Emphasis added.) 725 I LCS 207/60(d) (West 2008); Hardin , 238 Ill. 2d at 52. ¶ 81 To be clear, were this a review of a full hearing on

the merits of Lieberman’ssection 60 petition, I would agree with the circuit court’s assessment of certain portions of Dr. Schmidt’s te st im on y. My ag reement with the circuit court stems from the different posture of this case than in Hardin . Lieberman wa s f ou nd to be a s ex ua ll y vi ol en t p er so n b y a j ur y,

w h ich necessarily

included a finding beyond a reasonable doubt that he had the mental disorder of “paraphilia nos” at

the time. In re Detention of Lieberman , 379 Ill. App. 3d 585, 601-02 (2007). D

r. Schmidt ’s conte

ntion th a t Lieberman never suffered from the disorder known as paraphilia is foreclosed by the jury’s ver

dict in 2006. ¶ 82 Also, Dr. Schmidt’s contention that Lieberman’ s criminal serial behavior may be explained by his early

sexual experience leading him to the conclusion that “no”means “y

es” is, as the circuit court judge described it, “a bsolutely, totally, completely absurd.” Setting aside the troubling applica tion of “n o” means“y es” in any dating

relationship, the rapes that the respondent committedhad no semblance to a dating relationship. The respondent, using subterfuge, raped a

t least ei ght wome

n that wer e comple tely unknown to him. The proffered explan ation by Dr. Schmidt of the responde nt’s criminal behavior is, as Judge Port e r concluded, preposterous on its face. ¶ 83 Notwithstanding that some o f the cir cuit cour t’s over all conc lusions ar

e well founded
, I submit our supreme court’s decision in Hardincompels that we reverse the circuit court’s finding of no prob able ca

use just a s the supr

emecourt did in the case before it. I submit the circuit court’s ruling in the SVP proceedings in this case was based “on a f ull and independent

evaluation of [Dr. Schmidt’s] c redibilit y a nd [his expert opinion].” Hardin , 238 Ill. 2d at 53. Such matters “are inappropriate at the probable c ause stage of the SVP-26-

proceedings.” Hardin , 238 Ill. 2d at 53. I n other w ords, a pr

obable c ause

fi nd in g m er el y sa ys th at a hear ing on the merits should ensue. See Cain , 402 Ill. App. 3d at 400 (Stewart, J., diss entin g) (“[Wh ere] [t ]he pleadi ngs and written reports of the two evaluators ra ised

numerous questionsof fact ,” “the d etainee is entitle d to a trial where a trier of fact weighs the credibility of witnesses, not re ports, and determines the ultimate issue”). ¶ 84 Fi na ll y, I note my sub stant ial di sagr eement with severa l of the Sta te’s cla ims inits supplemental brief. F

irst, the St

ate cont ends that “ Hardindid not purport to change the methods by w

hich tria l courts measure probable cause at the post-commitment stag e of SVP procee dings, butinstead involved only the standar ds applic able to pr

e-commit ment prob able

cause heari ngs.” No t surprisingly , the State cites no a

uthority for its cl aim that “

probable

c ause” means som

ething d iffere nt in a precommitmen

t procee ding tha

n it does i n a postcommit

ment proc eeding . For thisclaim to be entitled to any cr edence, theState had

to demonstr ate that the legislature meant something differe nt eachtime it used the identical
termin the Act. See People v . Maggett e , 195 Ill. 2d 336, 350 (2001) (“Where a w ord is used in different sections of the same statute, the pr esumption

is that the word is used with the

samemeaning throughout the stat ute, unle ss a contr ary legisla tive inten

t is clear ly expressed.”). The State offered nothing. The Four th District’s recent decision of Stanbridge stands as c ontra ry authority to the State’s bald contention, where the court made no suggestion

that probable cause meant something differ ent in its review of a postcommitment

case than probable cause meant in Hardin . Second, the State ’s conte ntion th at “the tr

ial court’s credibi lity

finding s were not agains t the m anifest weight of the evidence” ove rextends

our supreme court’scompari son of a SVP probable cause he aring t

o a motion to

quash ar rest and suppress evidence. In the context of a suppression motion, the manifest weight of the evidence standard applies because an I llinois statute compels the circuit court to issue findi ngs of

fact, which may

include credibility deter

minations that are entitled to deference on review. See 725 IL

CS 5/114–12(e) (West 2006) (order granting or deny ing a mot ion to suppress“shall state the findings of fact and conclusions of law upon w hich the order *** is based”). As the supreme court made cle ar in Hard in , credib ility determin ations should have little role in a SVP proba ble cau se hear ing. Hardin , 238 Ill. 2d at 53 (the circuit court imp roperly

made a full and independent evaluation of the expert’s credibility, w hich i s “inappr opriate at the probable cause stage of the SVP pr oceedings”). Third and last, the State’s contention that the trial court’s probable cause determination can be upheld “on the [application of] ‘blata

nt credi bility problems’ of Respondent’s evidence” say s nothing more than the circuit court found the State’s experts more credible than Dr. Schmidt. I submit the

case that properly a

pplies the “blatant

credibility problems” standa rd should be very r

are and, in any event, thi s is not such a case . Certain ly it is true the

“blatan t credib ility

problems ” stand ard was unkno wn to t he circ uit co urt wh en it i ssued its r ulin g. ¶ 85 I respectfully

dissent from my colleag

ues’ decision to affirm the finding of no probable

caus e by the committing court. How ever, I ag ree with my collea

gues that the i ssue o f probable cause is subject

to de novo review. See Ornelas v. United States , 517 U.S. 690, 699 (1996) (“determinations of *** probable cause should be r eviewed de novo on appeal”).