ILLINOIS OFFICIAL REPORTS

Appellate Court

In re Detention of New, 2013 IL App (1st) 111556

Appellate Court

Caption

In re THE DETENTION OF JOHN NEW JR. (The People of the State

of Illinois, Petitioner-Appellee, v. John New Jr., Respondent-Appellant).

 District & No. First District, Third Division

Docket No. 1-11-1556

Filed June 12, 2013

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

The commitment of respondent as a sexually violent person was reversed

and the cause was remanded for a Frye hearing to determine whether the

expert testimony diagnosing respondent as suffering from paraphilia not

otherwise specified, sexually attracted to adolescent males, also known

as hebephilia, was sufficiently established to have gained general

acceptance in the field in which it belonged, since respondent raised

serious questions as to the validity and unorthodoxy of the diagnosis.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 05-CR-80002; the

Hon. Michael McHale, Judge, presiding.

Judgment Reversed and remanded.
Counsel on

Appeal

Stephen F. Potts, of Law Office of Stephen F. Potts, of Des Plaines, for

appellant.

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

Solicitor General, and Michael M. Glick and Erica Seyburn, Assistant

Attorneys General, of counsel), for the People.

Panel JUSTICE HYMAN delivered the judgment of the court, with opinion.

Presiding Justice Neville and Justice Pierce concurred in the judgment

and opinion.

OPINION

¶ 1 Involuntary commitment under the Illinois Sexually Violent Persons Commitment Act

(SVP Act) (725 ILCS 207/1 et seq. (West 2010)) is not punishment for the respondent’s past

crimes, nor should it be. The proceeding under the SVP Act is a statutorily created civil

action that considers the respondent’s current mental state to determine the likelihood of

respondent engaging in further acts of sexual violence on his or her release. Essentially, the

respondent’s liberty is tied to an assessment of the mental disorder and the risk of future

sexual offenses. These cases turn on expert testimony.

¶ 2 Respondent John New, Jr., appeals his commitment raising four issues: (i) whether the

court should have held a Frye hearing to determine whether the State’s expert testimony

regarding his diagnosis was admissible; (ii) whetherthe State improperly presented evidence

of certain psychological conditions not asserted in its petition; (iii) whether the SVP Act is

constitutional as applied to New; and (iv) whether the evidence at trial supported New’s

commitment as a sexually violent person. Finding the trial court erred by failing to conduct

the Frye hearing, we reverse and remand.

¶ 3 I. BACKGROUND

¶ 4 A. New’s Life and Criminal History

¶ 5 New did not testify, and the trial consisted of expert testimony only. We review the

expert testimony with the understanding that none of the experts had personal knowledge of

the events to which they testified.

¶ 6 New was born on April 29, 1963. He was diagnosed with bipolar disorder as a child.

When he was seven, he began consuming alcohol. In his teens, he smoked marijuana. When

he was young, a male neighbor sexually abused New, holding him at knife point and forcing

New to perform oral sex. In 1980, New, 17, was caught performing oral sex on a 15-year-old

boy. It is unclear whether this sex was consensual. New was convicted of contributing to the

-2-
sexual delinquency of a child and received supervision.

¶ 7 When New was 23 he had a sexual encounter with an 11-year-old boy in an abandoned

warehouse. A few months later, New met the boy, who was then 12, and his friend, also age

12, on the street and bought them dinner. The three went to the same warehouse and the boy

performed anal sex on New. The friend declined New’s invitation to participate. New later

stated that he believed the friend was 17 and the boy was 15. As a result of these encounters,

New pleaded guilty to two counts of aggravated criminal sexual assault and was given seven

years in prison.

¶ 8 In 1992, New was placed on mandatory supervised release. During his release, New was

arrested for soliciting prostitution from an undercover male police officer whom New

described as young-looking. New’s parole was revoked, and he returned to the Illinois

Department of Corrections. New again received mandatory supervised release in 1994.

¶ 9 Thereafter, New took a job as a camp counselor for the Chicago park district. Watching

the children in the lockerroom aroused New. Occasionally, after observing the children, New

would go to a bar and pick up an adult male to perform oral sex on while fantasizing about

the children. New solicited sex from one of the children attending the camp. The child

refused but took $35 from New to help find a willing partner. The boy identified another

camper who was willing to have sex with New for money. In July 1995, in a swimming pool

locker room, New performed fellatio and anally penetrated the 14-year-old camper and then

had the camper perform oral sex on him. New was charged and convicted of one count of

aggravated criminal sexual assault and two counts of criminal sexual assault. Certified as a

“habitual sexual offender or child sexual offender,” New was sentenced to nine years in

prison. Later New said that he believed the camper, who was a ward of the state, was 15

years old.

¶ 10 In prison New underwent limited substance abuse and sex-offender treatments. The sexoffender treatment consisted of six months of group therapy. New reported that he quit

participating in the treatment because he felt he was not learning much, and because he was

uncomfortable with the female therapist’s suggestion to masturbate.

¶ 11 New was scheduled for release in 2004. But 37 days before his release date, New was

accused of fondling the genitalis of a 19-year-old inmate who had recently arrived from the

youth facility. The inmate was a 6-foot 3-inch, athletic, black male with no facial or chest

hair. New later stated that this inmate made him “thirsty” and aroused. New requested the

inmate be transferred into his cell. He sexually fantasized about the inmate, imagining that

the inmate had no pubic hair. As a result of the fondling incident, New pleaded guilty before

the prison’s adjustment committee and received a sexual misconduct ticket, delaying his

release until March 2005. New later claimed that the inmate welcomed his advances.

¶ 12 In March 2005, the State filed a petition to have New committed as a sexually violent

person. The trial court held a probable cause hearing in December 2005 and found probable

cause to detain New at a facility of the Illinois Department of Human Services. While there,

New met a young-looking, bearded 20-year-old whom New had coached in 1994, when the

man was around 11 years old. New requested to room with the man and also admitted he was

attracted to him. Additionally, New requested to room with several residents at the facility

-3-
and became angry when his requests were denied. At the human services facility, New

successfully completed the orientation group, the introduction to thinking errors groups, and

the anger management group. He participated in the tactics group and the life stressors group,

but did not participate in sex-offender treatment.

¶ 13 B. The SVP Act Trial

¶ 14 The SVP Act trial occurred in November 2010 before a jury. Three experts testified: Drs.

Fogel and Brucker for the State, and Dr. Witherspoon for New.

¶ 15 1. Dr. Fogel’s Testimony

¶ 16 Dr. Michael Fogel is a forensic psychologist. Based on his education and experience,

Fogel was qualified as an expert in clinical psychology in the area of assessing the risk that

a sex offender will re-offend.

¶ 17 Fogel reviewed New’s master file, including his mental health evaluations, records of his

current and previous medical issues, statements of facts from the State’s Attorney’s office,

and police reports of various criminal offenses. Clinical psychologists generally rely on and

accept these documents in evaluation of sex offenders. Fogel interviewed New twice, in 2004

and 2010. He also conducted two psychological tests, called the Hare PsychopathyChecklist

Revised and the Static 99.

¶ 18 Referring to the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, Text

Revision (DSM-IV-TR) (published by the American Psychiatric Association, the manual

provides the definitions of psychiatric diagnoses and is considered the definitive reference

for the categorical classification of mental disorders), Fogel testified that New suffers from

“paraphilia, not otherwise specified, sexually attracted to early pubescent males.” Fogel

defined early pubescence as between 11 and 14 years old. Paraphilia, a general class of

sexual disorders, is characterized by current, intense sexually arousing fantasies involving

sexual urges or behaviors generally involving (i) nonhuman objects, or (ii) the suffering or

humiliation of oneself or another, or children or other nonconsenting persons that occurs over

a period of six months. Further, the person must have acted on his or her sexual urges, or the

sexual urges or fantasies must have caused the person marked distress or inner-personal

difficulty. The “not otherwise specified” diagnosis indicates that New meets the paraphilia

diagnostic criteria in the DSM-IV-TR, but he does not fall neatly into one of the named

categories, such as voyeurism, sadism, or pedophilia. The “sexually attracted to early

pubescent males” is the specific diagnosis, the type of paraphilia.

¶ 19 The DSM-IV-TR describes paraphilias as “mental disorders [that] are characterized by

sexual fantasies, urges, or behaviors involving non-human objects (coprophilia, fetishism,

transvestic fetishism), suffering or humiliation (sexual sadism, masochism), children

(pedophilia) or other non-consenting person (voyeurism, frotteurism, exhibitionism).” There

is a debate whether to include a diagnosis of hebephilia in the upcoming DSM-V, and

according to Fogel, the proposed definition for hebephilia in the DSM-V is the same as

New’s diagnosis of paraphilia not otherwise specified, sexually attracted to early pubescent

persons. (Hebephilia refers to sexual attraction to pubescent children, that is to say, those

-4-
early in their sexual development, around the ages of 11 to 14. Pedophilia, unlike hebephilia,

involves sexual attraction to prepubescent children, generally younger than 11.)

¶ 20 Fogel testified that New also suffered from antisocial personality disorder involving a

pervasive pattern of disregard for or violation of the rights of others. Fifty to eighty percent

ofindividuals that are incarcerated suffer from antisocial personality disorder.Fogel admitted

that New’s antisocial personality disorder alone would not determine him to be a sexually

violent person.

¶ 21 According to Fogel’s analysis, New had suffered under and acted on his sexual urges

toward adolescent males since his twenties. New chose his victims based on looks (preferring

tall, athletic, African American, young-looking men without facial or chest hair), and

vulnerability, typically, those who had a history of sexual abuse. Fogel noted that New

befriended younger boys, often overestimating their age, and would then fantasize about

them. Fogel said New described himself at times as a passive recipient of the boys’ advances,

and at other times admitted that he sought out certain individuals.

¶ 22 New told Fogel that he has sexual fantasies about adolescent males and felt somewhat

powerless over his urges. Specifically, that he masturbated while fantasizing about

performing oral sex on young-looking inmates and on adolescent television actors. Fogel

reported that, before being imprisoned, New used marijuana to alleviate his shame about

these fantasies, though the shame did not stop him from re-offending. New told Fogel that

he would not solicit minors again because he feared spending the rest of his life in prison.

¶ 23 On a standardized actuarial measure (similar to those developed byinsurance companies)

known as the Static 99, New scored in the high range. Fogel said the Static 99 evaluates a

man’s risk of committing future sex offenses based on objective data in 10 static categories,

including his age, his romantic partners, and whether his victim was male and unrelated to

him. The Static 99 is the most researched, cross-validated, and widelyused actuarial measure

for sexual recidivism. On the Static 99, New scored a seven, placing him at a high risk of reoffending when compared to other male sex offenders. Among others in the high risk

category, 26% committed a sexual offense within 5 years, 34% within 10 years, and 37%

within 15 years. But, because these percentages excluded unreported offenses, some reported

offenses that did not result in an arrest, and some reported offenses that did not result in

formal charges, the percentages underestimate the actual recidivism rate. Fogel admitted that

he did not use updated, more accurate actuarial measures, either the Static 99R or the Static

2002R. Fogel testified that New would have scored a six on the updated measures, a score

that still places him in a high risk category.

¶ 24 On the Hare Psychopathy Checklist, New showed a moderate range of psychopathic

personality traits. The checklist considers two factors: (i) an individual’s “personal affective

component of the psychological contract of psychopathy,” and (ii) antisocial personality

traits. In the later, New was in the twentieth percentile among the male prison population.

Psychopathic personality traits include callous, remorseless, and manipulative behaviors.

¶ 25 Fogel testified that, while a paraphilia diagnosis did not predispose a person to be

sexually violent, New’s paraphilia diagnosis did because of serious difficulty controlling his

sexual urges. In support, Fogel pointed to New’s history of sexual offenses, which continued

-5-
despite legal sanctions, and his continued sexual attraction to adolescent males.

¶ 26 New claimed during his interview with Fogel that he would be less likely to re-offend if

he had a community to support him. Fogel spoke with New’s mother and stepfather. Neither

of them was aware of New’s history of sexual offenses or the victims’ ages. Fogel said that

since New’s mother and stepfather did not know about his history, they would not be able

to offer the kind of support New needed.

¶ 27 Other risk factors associated with recidivism increased New’s risk that he would reoffend.These factors include: (i) never having completed sex-offender treatment; (ii) the lack

of a long-term romantic relationship; (iii) a history of establishing relationships with

vulnerable youth in an effort to sexually offend; (iv) poor control over his sexual impulses;

(v) the lack of concern for others; and (vi) his attitude of condoning or excusing his own

sexual offenses.

¶ 28 Fogel also considered factors that might mitigate New’s risk of re-offending: (i) New’s

age; (ii) his limited participation in sex-offender treatment; (iii) his claim that he suffered

from erectile dysfunction; and (iv) his family support system. Fogel felt neither New’s age

at trial, 42, nor the other factors mitigated the risk that New would sexually re-offend.

¶ 29 Fogel testified that New’s paraphilia would not go away without treatment, though he

admitted that treatment could be on an out-patient basis. Taking into account New’s

paraphilia, history of sexual offenses, and the results of the Static 99 measure, along with

New’s exposure to risk factors associated with recidivism, Fogel concluded that there was

a substantial probabilityNew would commit an act of sexual violence in the future, although

Fogel admitted no tests determine with absolute certainty whether a sex offender will reoffend.

¶ 30 2. Dr. Brucker’s Testimony

¶ 31 The State’s other expert, Robert Brucker, examined New, too. Brucker is a licensed

clinical psychologist. The court certified him as an expert in clinical psychology, specifically

relating to sex-offender evaluation, risk assessment, and treatment.

¶ 32 Brucker reviewed New’s master file and interviewed him in January 2006. Brucker

administered three written psychological tests: (i) the Minnesota Multiphasic Personality

Inventory II (MPPI-II), a psychological test designed to collect information about an

individual’s mental health issues and personality traits; (ii) the Millon Clinical Multiaxial

Inventory III (MCMI-III), a test similar to the first except that it focuses on chronic

personality traits; and (iii) the Multiphasic Sex Inventory III, which provides information

related to people and their tendencies and thoughts related to sex offending. Brucker updated

his report in December 2009 with additional medical and treatment documents, and

psychological evaluations.

¶ 33 Brucker noted that New’s history of sexual offenses and sexual misconduct showed that

his victims were typically between 12 and 15 years old, and that New’s behavior did not

change, even after being imprisoned. Brucker testified that New suffered from five mental

disorders. The first disorder was paraphilia not otherwise specified, sexually attracted to

adolescent males, nonexclusive type. Brucker defined paraphilia in the same way as Fogel,

-6-
and added that the diagnosis did not necessarily indicate criminal behavior, but did indicate

deviant sexual interest. Brucker found New’s paraphilia manifested in his recurrent sexual

interest in teenage boys, and his desire to room with young-looking people in the correctional

and mental health facilities. Brucker also noted that New acknowledged that teenage males

arouse him, and that he fantasizes about them while masturbating, though New denied this

attraction after 2005.

¶ 34 The second, third, and fourth disorders were alcohol dependence with physiological

dependence in a controlled environment, cannabis dependence without physiological

dependence in a controlled environment, and cocaine abuse. Brucker testified that New

began using alcohol and marijuana at the age of seven. New consistently abused alcohol up

until his 1995 incarceration, but reportedly stopped using marijuana at age 21. New began

to abuse cocaine around age 14 or 15, but could not afford the drug most of the time. Brucker

noted that while alcohol was not currently available to New, every time New was released,

he would rush back to using alcohol and was reportedly under the influence of substances

each time he committed a sexual offense. The fifth mental disorder was antisocial personality

disorder.

¶ 35 New’s paraphilia, according to Brucker, affected his volitional capacity in that he could

not stop himself from engaging in sexual conduct with boys between the ages of 12 to 15 and

predisposed him to commit acts of sexual violence. In reaching this conclusion, Brucker used

three actuarial instruments–the Static 99, the Static 99R, and the Minnesota Sex Offender

Screening Toll, Revised (MnSOST-R)–and considered otherrisk factors related to predicting

future sexual offenses. Brucker admitted that using multiple actuarial instruments may not

increase the prediction’s accuracy. Again, New scored a seven on the Static 99, placing him

in a high risk category. On the Static 99R, New scored a six, also placing him in a high risk

category. On the MnSOST-R, which considered additional risk factors not included in the

Static 99 or 99R, New scored a 14, the highest risk category.

¶ 36 Other risk factors Brucker considered included New’s deviant sexual interests, his

antisocial personalitydisorder, an elevation in the psychopathic deviant scale on the MPPI-II,

interpersonal relationship conflicts, and intoxication while offending. Brucker also

considered New’s age, sex-offender treatment, and any serious and debilitating medical

conditions. Brucker concluded that New’s age did not lower his risk of sexuallyre-offending,

and that New did not have a serious or debilitating medical condition that would prevent him

from offending.

¶ 37 Brucker opined New’s paraphilia, other diagnoses, and other risk factors increased New’s

likelihood of sexually re-offending, and that, due to his mental disorders, it was substantially

probable that New would commit future acts of sexual violence.

¶ 38 3. Dr. Witherspoon’s Testimony

¶ 39 Dr. Kirk Witherspoon, a licensed psychologist, testified on New’s behalf. The court

certified Witherspoon as an expert in forensic psychology with a specialty in consulting

evaluations.

¶ 40 Witherspoon conducted a clinical interview with New in January 2010 and reviewed

-7-
New’s criminal history, mental health records, Department of Corrections records, human

services records, and other evaluators’ reports regarding New’s condition. In addition,

Witherspoon conducted a mental status exam, a four-year structured sentence completion

test, a personal problems checklist, a personality disorder or psychopathology test called the

MCMI-III, the MnSOST, informal sexual attitude and interest questionnaires, and a sexual

history form.

¶ 41 Witherspoon interpreted these tests in the context of the same information considered by

Fogel and Brucker. Witherspoon testified that New’s substance abuse disorder was either in

remission or resolved, and that New had a personality disorder with mild antisocial and

histrionic traits. Witherspoon said that New’s history of sexual offenses did not indicate he

had a mental disorder because “it’s normal for adults to be sexually attracted to other adults

and also to sexually immature adolescents,” and while illegal to act on those feelings, it is

not considered a pathology. Witherspoon said that paraphilia not otherwise specified,

sexually attracted to adolescent males, is not a generally accepted diagnosis, unlike

pedophilia, where a person is sexually attracted to children who have not reached puberty.

¶ 42 As to risk assessment, Witherspoon used a structured risk assessment method called the

Sexual Violent Risk 20 (SVR 20), which evaluates a person’s deviant sexual attitudes and

interests, interpersonal relationships, and self-management difficulties. He also employed the

Static 2002R, and another tool that measured more dynamic variables. On the SVR 20, New

fell into a moderate category of risk. Comparing the Static 2002R with the Static 99 and

Static 99R, the Static 2002R is more accurate and uses more conceptually meaningful

categories than mere statistical correlation. On the Static 2002R, New scored in the moderate

high category, but Witherspoon adjusted that to low/moderate based on the SVR 20 and

New’s health problems. On cross-examination, Witherspoon admitted that he improperly

scored the Static 2002R, and that New was actually in a high risk category before the

adjustment. Witherspoon believed that New did not need sex-offender treatment and had

only a 15% chance of re-offending, and that chance would decrease each year until, after 10

years, there was almost no chance New would re-offend.

¶ 43 4. Verdict and New’s Posttrial Motion

¶ 44 The jury found New to be a sexually violent person under the SVP Act. The court

committed New to a treatment facility with the Illinois Department of Human Services. New

filed a motion for a new trial. The circuit court denied the motion, and this appeal followed.

¶ 45 II. ANALYSIS

¶ 46 A. New’s Diagnosis and Frye

¶ 47 Fogel diagnosed New with “paraphilia, not otherwise specified, sexually attracted to early

pubescent males.” Brucker diagnosed New with “paraphilia not otherwise specified, sexually

attracted to adolescent males, non-exclusive type.” New contends that the mental disorder

about which Fogel and Brucker testified should have been subjected to a Frye hearing to test

its admissibility. New contends the mental disorder is novel, not generally accepted in the

community of mental health professionals, and its diagnosis cannot produce reliable results.

-8-
The State responds that Frye does not apply to a diagnosis because a diagnosis does not

constitute a scientific principle or methodology. Our standard of review of the denial of a

motion in limine based on a Frye issue is de novo review. In re Commitment of Simons, 213

Ill. 2d 523, 531 (2004).

¶ 48 The SVP Act authorizes the involuntary civil commitment of “sexually violent persons”

for “control, care and treatment.” 725 ILCS 207/40(a) (West 2010). The SVP Act defines a

“sexually violent person” in two parts. First, as “a person who has been convicted of a

sexually violent offense, has been adjudicated delinquent for a sexually violent offense, or

has been found not guilty of a sexually violent offense by reason of insanity.” 725 ILCS

207/5(f) (West 2010). And second, as a person “who is dangerous because he or she suffers

from a mental disorder that makes it substantially probable that the person will engage in acts

of sexual violence.” 725 ILCS 207/5(f) (West 2010).1

¶ 49 The SVP Act defines a “mental disorder” as “a congenital or acquired condition affecting

the emotional or volitional capacity that predisposes a person to engage in acts of sexual

violence.” 725 ILCS 207/5(b) (West 2010). The courts have defined “substantiallyprobable”

to mean “ ‘much more likely than not.’ ” In re Detention of Bailey, 317 Ill. App. 3d 1072,

1085-86 (2000). If the court or jury is “satisfied beyond a reasonable doubt that the person

is a sexually violent person,” he or she may be indefinitely committed “until such time as the

person is no longer a sexually violent person.” 725 ILCS 207/35(f), 40(a) (West 2010).

¶ 50 Illinois has adopted the standard set forth in Frye v. United States(293 F. 1013 (D.C. Cir.

1923)) with regard to the admissibility of expert testimony. In re Commitment of Simons, 213

Ill. 2d 523, 529 (2004). The Frye standard is codified in the Illinois Rules of Evidence:

“Where an expert witness testifies to an opinion based on a new or novel scientific

methodology or principle, the proponent of the opinion has the burden of showing the

methodology or scientific principle on which the opinion is based is sufficiently established

to have gained general acceptance in the particular field in which it belongs.” Ill. R. Evid.

702 (eff. Jan. 1, 2011).

¶ 51 New contends that a diagnosis of paraphilia not otherwise specific, sexually attracted to

adolescents, is hebephilia. The State disagrees with this conclusion, but the State’s expert,

Dr. Fogel, agreed that his diagnosis was a hebephilia diagnosis. As part of his motion in

limine to exclude the diagnosis, New cited numerous academic articles that questioned the

validity of categorizing hebephilia as a mental disorder. A proponent of including hebephilia

in the upcoming DSM-V, Dr. Ray Blanchard, defined hebephilia as an erotic preference for

pubescent children, around the ages of 11 to 15. Ray Blanchard et al., Pedophilia,

Hebephilia, and the DSM-V, Archives of Sexual Behavior (2008). But opponents contend

the hebephilia diagnosis may dramatically expand or add “to the DSM diagnostic categories

of mental disorders without any evidence or reasoning that those who would be newly

After 2010, the Generally Assembly updated the definition of a sexually violent person to 1

include specific offenses, but because New conceded at trial that his criminal history satisfied the

first portion of section 5(f), those updates are not relevant. See Pub. Act 96-1551 (eff. July 1, 2011);

Pub. Act 97-1150 (eff. Jan. 1, 2013).

-9-
included under the mental disorder rubric can be properly categorized as mentally

disordered.” Philip Tromovitch, Manufacturing Mental Disorder by Pathologizing Erotic

Age Orientation: A Comment on Blanchard et al. (2008), Archives on Sexual Behavior

(2008) (letter to the editor); see also Karen Franklin, Hebephilia: Quintessence of Diagnostic

Pretextuality, Behavioral Sciences & the Law (2010) (“unlike the listed examples of

paraphilias not otherwise specified in the DSM-IV-TR, which are all extremely rare, adult

male attraction to adolescent children is common”); Gregory DeClue, Should Hebephilia Be

a Mental Disorder? A Reply to Blanchard et al. (2008), Archives on Sexual Behavior (2008)

(“The decision to classify a pattern of sexual attraction as a mental disorder (paraphilia)

inevitably entails more than (1) reliable differences in patterns of sexual attractions and (2)

checking law books to see which sexual activities are currently illegal in a particular

jurisdiction.” (letter to the editor)); Thomas K. Zander, Adult Sexual Attraction to EarlyStage Adolescents: Phallometry Doesn’t Equal Pathology, Archives on Sexual Behavior

(2008) (“Clinicians who are currently using the miscellaneous DSM diagnosis of paraphilia

not otherwise specified to pathologize adult sexual attraction to adolescents of all stages of

sexual development are creating a diagnosis on an ad hoc basis.” (letter to the editor)).

¶ 52 As a noun, “a diagnosis” is defined as the “determination of a medical condition (such

as a disease) by physical examination or by study of its symptoms. The result of such an

examination or study.” Black’s Law Dictionary 518 (9th ed. 2009). As a verb, “to diagnose”

indicates process and method, and is defined as the “art or act of identifying a disease from

its signs and symptoms.” Webster’s Third New International Dictionary 622 (1993). The

State’s argument conflates these two usages.

¶ 53 As these definitions indicate, diagnosing a medical condition, in this case a mental

disorder, by considering characteristic signs and symptoms presupposes a mental condition

exists as a matter of scientific evidence. Put another way, a prerequisite for a diagnosis is

scientific evidence that such a mental condition exists. Absent reliable scientific validation

or acceptance of the mental condition, its presence would be merely theoretical. Before

diagnosis comes identifying, naming, describing, and classifying the condition. A Frye

hearing is appropriate to determine whether an emerging diagnosis is an actual illness or

disorder. See Bernardoni v. Industrial Comm’n, 362 Ill. App. 3d 582, 594 (2005)

(“[G]enerally, if the proposed testimony concerns a syndrome that has not yet been admitted

in Illinois, then the trial court should conduct a Frye hearing to determine the scientific

validity, or invalidity, of the syndrome.”); People v. Taylor, 552 N.E.2d 131, 134-35 (N.Y.

1990) (applying Frye to validity of rape trauma syndrome); Kuxhausen v. Tillman Partners,

L.P., 197 P.3d 859, 863 (Kan. Ct. App. 2008) (applying Frye to determine validity of

emerging diagnosis accepted by only limited number of medical doctors); cf. In re Marriage

of Bates, 212 Ill. 2d 489, 519-20 (2004) (discussing application of Frye to validity of parental

alienation syndrome, though deciding case on other grounds).

¶ 54 If we were to accept the State’s arguments, litigants could proffer fictional conditions.

Justice does not put the fact finder in the position of culling good science from bad.

Moreover, the State’s distinction would so narrow the Frye test as to make it almost

meaningless. The purpose of a Frye hearing is to safeguard the court’s truth-finding role

(People v. Zayas, 131 Ill. 2d 284, 294 (1989)), ensuring that the fact finder cannot make

-10-
findings based on unsound science.

¶ 55 The State points to case law from other jurisdictions holding that psychological diagnoses

are not subject to Frye. We find their cases distinguishable. In In re the Detention of Berry

(248 P.3d 592 (Wash. Ct. App. 2011)), the Washington Court of Appeals held that the

diagnosis of a mental disorder was not subject to a Frye hearing because psychological

analysis is a generally accepted methodology, and because arguments as to the validity of a

diagnosis go to the weight of expert testimony, not admissibility. Berry, 248 P.3d at 595-97.

But this is beside the point. The issue here is the validity of the mental disorder. Unless

established, we expose the justice system to avenues of future regret, whereby a so-called

mental disorder that has not reached, and may never reach, a critical mass of general

acceptance yet forms the basis of an individual’s loss of liberty. A Frye hearing was meant

to preclude this kind of “junk science.”

¶ 56 In Westerheid v. State, 767 So. 2d 637, 657 (Fla. Ct. App. 2000), the court declined to

address the Frye issue, but noted in dicta that “neither expert used any psychological profile

or syndrome designed to identify violent sexual predators which may very well be subject

to a Frye analysis. Rather, both experts rendered their opinions in this case based on their

training and experience.” Westerheide, 767 So. 2d at 657. The Florida court in Westerheide

relied on the pure opinion exception to Frye. See Noakes v. National R.R. Passenger Corp.,

363 Ill. App. 3d 851, 858 (2006) (“Pure opinion testimony that does not involve a new or

novel scientific technique or procedures or depend upon new or novel scientific principles

to support its conclusion need not be subjected to a Frye test.”). But that exception does not

apply. Fogel and Brucker based their testimony on more than their training and experience.

Indeed, it is difficult to imagine a forensic psychologist testifying that a respondent is

substantially likely to commit acts of sexual violence in the future based on his or her

training and experience alone.

¶ 57 The third case, People v. Ward, 83 Cal. Rptr. 2d 828 (Cal. Ct. App. 1999), held that

under California law scientific evidence, but not expert medical opinion, is subject to Frye.

Id. at 831. The court reasoned “[n]o precise legal rules dictate the proper basis for an expert’s

journey into a patient’s mind to make judgments about his behavior,” and that psychological

evaluation is “a learned professional art” while Frye only applies to “exact sciences.”

(Emphasis omitted and internal quotation marks omitted.) Id. We do not find the

characterization of psychology as an art to be a meaningful one under Frye. “[T]he Frye rule

is meant to exclude methods new to science that undeservedlycreate a perception of certainty

when the basis for the evidence or opinion is actually invalid.” Donaldson v. Central Illinois

Public Service Co., 199 Ill. 2d 63, 78 (2002). It is not the purview of the courts to exclude

entire fields of study from the general acceptance test because those sciences are “softer,”

while allowing experts in those fields to present opinions that create a perception of scientific

certainty. Creating these exceptions opens the justice system to abuse.

¶ 58 Also of import, a liberty interest is at stake in proceedings under the SVP Act. Liberty

includes the right to “generally to enjoy those privileges long recognized at common law as

essential to the orderly pursuit of happiness by free men” and women. (Internal quotation

marks omitted.) Ingraham v. Wright, 430 U.S. 651, 673 (1977). “Because involuntary

commitment procedures implicate substantial liberty interests, the respondent’s interests

-11-
must be balanced against the dual objectives of involuntary admissions: (1) providing care

for those who are unable to care for themselves due to mental illness and (2) protecting

society from the dangerously mentally ill.” In re Lance H., 2012 IL App (5th) 110244, ¶ 21.

Thus, the purpose of civil commitment is treatment, not punishment. Id. As is noted in the

DSM-IV-TR, a “mental disorder” denotes the boundarybetween “normality and pathology.”

Am. Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders xxxi (4th ed.,

text rev. 2000).

¶ 59 This boundary in involuntary commitment proceedings is the difference between

treatment and impermissible retribution. See Kansas v. Hendricks, 521 U.S. 346, 373 (1997)

(Kennedy, J., concurring) (“[I]f it were shown that mental abnormality is too imprecise a

category to offer a solid basis for concluding that civil detention is justified, our precedents

would not suffice to validate it.”). That is, if a respondent in an SVP proceeding does not

suffer from an actual mental disorder, then there is nothing to cure, and commitment is

pointless. Accordingly, we hold that a diagnosis of a novel condition is subject to the general

acceptance test under Frye.

¶ 60 The State further argues that it sustained its burden of showing general acceptance. The

proponent of the evidence bears the burden of showing general acceptance. People v.

McKown, 236 Ill. 2d 278, 294 (2010); Ill. R. Evid. 703 (eff. Jan. 1, 2011). A proponent can

prove general acceptance through the “use [of] scientific publications, prior judicial

decisions, practical applications, as well as the testimony of scientists as to the attitudes of

their fellow scientists.” People v. Kirk, 289 Ill. App. 3d 326, 332 (1997). General acceptance

does not mean universal or even majority acceptance, but requires a showing of reasonable

reliance by experts in the relevant field. In re Commitment of Simons, 213 Ill. 2d 523, 529-30

(2004). Behind the general acceptance test is the idea that there is value in consensus.

¶ 61 In his motion in limine, New raised serious questions regarding the validity and

unorthodoxy of the State’s diagnosis of paraphilia not otherwise specified sexually attracted

to adolescent males, also known as hebephilia. In response, the State argued that because

paraphilia not otherwise specified was in the DSM-IV-TR, it was a generally accepted

diagnosis, but did nothing to show that the addendum to the diagnosis “sexually attracted to

early pubescent males” was generally accepted as a mental disorder. At the hearing before

the trial court, the State admitted that there was controversy regarding the addendum its

experts attached to the diagnosis. The State did not provide support showing that the

addendum was generally accepted. As the proponent, the State bore the burden of showing

general acceptance. Therefore, the court should have conducted a Frye hearing, and it is error

to fail to do so. See In re Detention of Hargett, 338 Ill. App. 3d 669, 675 (2003) (reversing

for refusal to hold a Frye hearing in SVP Act case).

¶ 62 Accordingly we reverse and remand for a Frye hearing, and, if necessary, a new trial.

¶ 63 B. Diagnoses Not Pleaded in the State’s Petition

¶ 64 Before trial, New requested an instruction that the jury could not commit him based on

any mental disorder other than the paraphilia diagnosis. The trial court denied this motion.

New argues that the trial court erred in permitting the State to elicit testimony and argue for

-12-
involuntary commitment based on mental disorders not pleaded in its petition. We review

the trial court’s decision for an abuse of discretion, which occurs where “the instructions

mislead the jury and result in prejudice to the litigant.” Taylor v. County of Cook, 2011 IL

App (1st) 093085, ¶ 79. We find no prejudicial or misleading variance between the pleadings

and proof.

¶ 65 The State’s SVP Act petition must allege, among other things, that the respondent “has

a mental disorder” and “is dangerous to others because [his or her] mental disorder creates

a substantial probability that he or she will engage in acts of sexual violence.” 725 ILCS

207/15(b)(4), (b)(5) (West 2010). A “mental disorder” is “a congenital or acquired condition

affecting the emotional or volitional capacity that predisposes a person to engage in acts of

sexual violence.” 725 ILCS 207/5(b) (West 2010). In other words, to state a cause of action,

the State needs to plead, among other things, the respondent’s mental disorder, its affect on

his or her volitional or emotional capacity, and a substantial probability that due to the

mental disorder the respondent will commit future acts of sexual violence.

¶ 66 Generally, in civil litigation, variance between the pleadings and the proof “will not be

deemed material unless it misleads the adverse party to his [or her] prejudice.” Cummings

v. Dusenbury, 129 Ill. App. 3d 338, 346 (1984); Tomlinson v. Dartmoor Construction Corp.,

268 Ill. App. 3d 677, 685 (1994).

¶ 67 The State’s petition alleged New suffers from the mental disorder paraphilia not

otherwise specified, listing no other mental disorders. At trial, Fogel and Brucker testified

that New suffered from (i) paraphilia not otherwise specified, sexually attracted to early

pubescent persons, (ii) antisocial personality disorder, and (iii) numerous substance abuse

disorders. In closing argument, the State urged that all of these mental disorders together

made it much more likely that New would commit sexual violence again.

¶ 68 “[F]or a variance between allegations and proof to constitute reversible error, the

variance must be shown to be material,” misleading one party to its prejudice. Tomlinson v.

Dartmoor Construction Corp., 268 Ill. App. 3d at 685. New fails to show any prejudice from

the variance between the State’s pleadings and the proof.

¶ 69 New submits that any variation between the pleadings and proof constitutes reversible

error. We disagree that this is the current standard in Illinois. Although case law states that

“proof without pleadings is as defective as pleadings without proof” (Colonial Inn Motor

Lodge ex rel. Cincinnati Insurance Co. v. Gay, 288 Ill. App. 3d 32, 40 (1997)), this is

tempered by the requirement that the party objecting to the variance show prejudicial effect.

Cummings v. Dusenbury, 129 Ill. App. 3d at 346. Prejudice often takes the form of surprise.

None appears here since New’s expert rebutted the State’s diagnosis of substance abuse

disorders and mitigated the antisocial personality disorder diagnosis. See Losurdo Bros. v.

Arkin Distributing Co., 125 Ill. App. 3d 267, 271 (1984) (holding objection to variance

waived where party introduces evidence rebutting unpleaded allegations). Thus, we find no

prejudice resulting from the variance.

¶ 70 C. As-applied Constitutionality of the SVP Act

¶ 71 Next, New argues that the Cook County circuit court applies the SVP Act in an

-13-
unconstitutional manner by treating a civil proceeding as a criminal case. New supports his

contention by noting that in Cook County, SVP Act cases: (i) are adjudicated by judges in

the criminal division, (ii) are given criminal case numbers, (iii) are assigned to the criminal

appeals division at the State’s Attorney’s office, and (iv) take place in the criminal court’s

building.

¶ 72 We find the issue procedurally defaulted and decline to address it. New provides no

framework, cites no law, and offers little guidance as to why the circuit court’s treatment of

SVP Act cases violates the due process or equal protection clause. Under Illinois Supreme

Court Rule 341(h)(7) (eff. Feb. 6, 2013), appellants must present fully developed arguments

with adequate legal and factual support or face procedural default. Housing Authority v.

Lyles, 395 Ill. App. 3d 1036, 1040 (2009). The challenging party has the burden to show a

statute is invalid over the strong presumption favoring constitutionality.People v. Masterson,

2011 IL 110072, ¶ 23. New has not met his initial burden to comply with the appellate rules.

Id.

¶ 73 D. New’s Commitment as a Sexually Violent Person

¶ 74 Because we reverse and remand this case for a Frye hearing and possibly retrial, we

decline to review the results of New’s first trial.

¶ 75 III. CONCLUSION

¶ 76 For the reasons stated above, we reverse and remand for a Frye hearing, and if necessary,

a new trial.

¶ 77 Reversed and remanded.

-14-