## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

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

Appellate Court Caption In re THE DETENTI ON OF J OHN NEW J R. (The People o f t h e State of I llinois
, Petitioner-Appellee
, v. J ohn New J r., Respondent-Appe llant).

District & N o. First District, Third Division Docke t No. 1-11-1556

Filed J une 12, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

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

f t h e

rea der

. ) The commitment of responde nt as a sexually violent person was reve rsed and the cause was rema

nded for a Frye hearing to deter mine whether the expert testimony diagnosing responde nt as suffe ring from para philia not

o therwise specified, sex ually attrac ted t o adolesc ent m ales, also kn o wn

as hebephilia, was sufficie ntly establ i s hed to have g ained g ener al

acc eptanc e in the field in which it belonged, since responde nt raised serious questions as to the validity and unorthodoxy

of the diagnosis.

Dec ision Under
Review Appea l from the Circuit Court of Cook County
, No. 05-CR-80 0 0 2 ; the Hon. Michae l McHale , J udg e, pre siding.

J udg ment Reverse d and re manded.Counsel on

Appea l Stephen F. Potts, of L aw Office of S tephen F. Potts, of Des Plaines, for appellant.

L isa M ad i gan, Attorney Gene ral, of Chicag o (Michae l A. Scodro, Solicitor Gene ral, and Michae l M. Glick and Erica Sey burn, As sistant Attorney s Gene ral, of c ounsel), for the People.

Panel J USTI CE HYMAN de livered the judgme nt of the cour t, with opinion.
Presidi n g J ustice Neville and J ustice Pierce concur red in the judgme nt and opinion.

OP INION

¶ 1 Involuntary

commitment under the I llinois Sex ually Violent Persons Commit ment Act (SVP Act) (725 I L CS 207/1 et seq. (West 2010)) is not punishment for the responde nt’s past crimes, nor sho uld it be. The proce eding under the SVP Act is a statutorily cre ated civil action that considers the responde nt’s curr ent mental state to deter mine the likelihood of responde nt eng ag ing in further acts of sexual violence on his or her rele ase. Essentially
, the responde nt ’s l i b erty is tied to an assessment of the mental disorder and the risk of future sexual offenses. The se ca ses turn on expert testimony

. ¶ 2 Respondent J ohn New, Jr., appea ls his commitment r aising four issues: ( i) whether the
court should have held a Frye hearing to deter mine whether the State’s expert testimony
reg arding his diag nosis was admissible; (ii) whether the State improperly prese nted evidenc e of cer tain psycholog ical conditions not asser ted in its petition; (iii) whether the SVP Ac t is

co n s t i tu tional as applied to New; and (iv) whether the evidenc e at trial supported New’ s commitment as a sexually violent person. Finding the trial court err ed by failing to conduct the Fryehear ing, w e re verse and re mand.

¶ 3 I . BA CKGROUND ¶ 4 A. New ’s L ife a nd Criminal History ¶ 5 New did not testify
, and the trial consisted of expert testimony only

. We re v i ew t h e expert testimony with the understanding that none of the experts had persona l knowledg e of the eve nts to which they

testified. ¶ 6 Ne w wa s b o rn on April 29, 1963. He was diagnosed with bipolar disorder as a chil d

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

. When he was young , a male neig hbor sexually abused New, holding him at knife point and forc ing New to perf

orm oral sex. In 1980, New, 17, was caught perf orming oral sex on a 15-year -old boy

. It is unclea

r whether this sex was consensua l. New was convicted of contributing to the

-2-sexual delinquency of a c hild and rec eived supe rvision. ¶ 7 When New was 23 he had a sexual e ncounter with a n 11-year -old boy in an abandone d

war ehouse. A few months later, New met the boy
, who was then 12, and his friend, also ag e 12, on the street and bought them dinner. The three went to the same war ehouse and the boy perf ormed anal sex on New. The friend declined New’ s invitation to participa te. New later stated that he believed the friend was 17 and the boy was 15. As a result of these encounte rs, New pleade d guilty to two counts of ag g ravated criminal sexual assault and was g iven seven y ear s in prison. ¶ 8 In 1992, New was place d on mandatory supervised rele ase. During his rele ase, New w as

arr ested for sol i ci t i n g prostitution from an underc over male police office r whom New descr ibed as youn g-l o o k i ng

. New’ s parole was revoke d, and he returne d to the I llinois Depa rtment of Corre ctions. New a g ain re ceive d mandatory supervised r elea se in 1994. ¶ 9 There afte r, New took a job as a camp counselor for the Chicag o park district. Watching the children in the locker room arouse d New. Occ asionally
, afte r observ in g th e children, New would g o to a bar and pick up an adult male to pe rfor m or al sex on while fanta siz ing about the children. New solicited sex from one of the children attending the camp. The chil d ref used but took $35 from New to h el p find a willing partne r. The boy identified another
campe r who was willing to have sex with New for money

. In J uly 1995, in a swimming pool locker room, New perf

ormed fellatio and anally penetr ated the 14-year -old campe r and then h ad t h e ca mper perform oral sex on him. New was charg ed and convicted of one count o f
ag g ravated criminal sexual assault and two counts of criminal sexual assault. Certified as a “habitual sexual offe nder or child sexual offe nder,” Ne w wa s s entenc ed to nine y ear s in
p ri s o n

. L at er New said that he believed the campe r, who was a war d of the state, was 1 5
y ear s old. ¶ 10 In prison New underw ent limit ed substance abuse and sex-offende r treatments. The sexo ffender treatment consisted of six months of g roup thera py

. New repor

ted that he qu i t participating in the treatment beca use he felt he was not lear ning much, and beca

use he was uncomforta

ble with the fe male ther apist’s sug g estion to masturbate. ¶ 11 New was sche du l ed for rele ase in 2004. But 37 day s befor e his rele ase date, New w as

acc used of fondling the g enitalis of a 19-year -old inmate who had rec ently arr ived from the
youth fac i l i t y

. T h e i nmate was a 6-foot 3-inch, athletic, black male with no fac ial or chest hair. New l ater stated t hat t h i s i n m ate made hi m “thirsty” and arouse d. New reque sted the inmate be transfe rre d into his cell. He sexually fanta siz ed about the inmate, imag ining that the inmate had no pubic hair. As a result of the fondling incident, New pleade d guilty befor e the prison’s adjustment committee and rec eived a sexual misconduct ti ck et , d elay ing his rele ase until Marc h 2005. New later c laimed that the inmate we lcomed his adva nces. ¶ 12 In March 2 0 0 5
, the State filed a petition to have New committed as a sexually violent
person. The trial court held a probable cause hearing in Dec ember 2005 and found probable

cause to detain New at a fac ility of the I llinois Depa rtment of Human Service s. Whil e there
, New met a young -looking
, bear ded 20-year -old whom New had coac hed in 1994, when the

man was around 11 y ear s old. New reque sted to room with the man and also admitted he was attrac ted to him. Additionally , New r equeste d to room with se vera l r esidents at the fa cility

-3-and beca me angry wh en h i s reque sts wer e denied. At the human service s fac ility
, New

succe ssfully completed the orientation g roup, the introduction to thinking err ors g roups, and the ang er manag ement g roup. He participated in the tactics g roup and the life stressors g roup, but did not participate in sex-offe nder tre atment.

¶ 13 B. The SVP Act Trial ¶ 14 The SVP Act trial occur red in November 2010 befor e a jury

. Three experts testified: Drs. Fog el and B rucke r for

the State, and Dr . Witherspoon f or Ne w.

¶ 15 1. Dr. F og el’s Te stimony ¶ 16 Dr. Michae l Fog el is a fore nsic psycholog ist. Ba sed on his educa t i o n an d ex p er i ence , Fog el was qualified as an expert in clinical psychology in the are a of assessing the risk that a sex offende r will re- offe nd. ¶ 17 Fog el revie wed New’ s master file, including his mental health evalua tions, rec ords of his

curr ent and previous medical issues, statements of fac ts f rom the State’s Attorney ’s office
, and police repor

ts of various criminal offe nses. Clini cal psycholog ists g ener ally rely on and

acc ept th e se documents in evalua tion of sex offe nders. Fog el interviewe d New twice, in 2004 and 2010. He also conducte d two psycholog ical tests, called the Har e Psy chopathy Checklist Revised and the Static 99. ¶ 18 Refer

ring to the Diagnostic and Statist ical Manual of Mental Disorder s, 4th Edition, Te x t Revision (DSM-IV-TR) (published by the Americ an Psy chiatric Association, the m an u al provides the de finitions of psychiatric diagnoses and is considered the de finitive ref ere nce for the cate g orica l classification of mental disorders)
, Fog el testified that New suffe rs from “par aphilia, not otherwise specifie d, sexually at t ra cted to ear ly pubesce nt males.” Fog el defin ed ea rl y pubesce nce as betwee n 11 and 14 year s old. Paraphilia, a g ener al class of sexual disorders, is char acte rized by curr ent, i ntense sex ually arousing fanta sies involving sexual urge s or behavior s g ener ally involving (i) nonhuman objects, or (ii) the suffe ringor humiliation of oneself or another
, or children or other nonconsenting persons tha t o c c u r s over

a period of six months. Fur ther, the person must have acte d on his or her sexual urg es, or the sexual urg es or fanta sies must have cause d the person marke d distress or inner-pe rsonal difficulty

. The “not otherwise specifie d” diagnosis indicates that New meets the para philia diag nostic criter ia in the DSM-IV-TR, but he do es n o t fa l l neatly into one of the named
cate g ories, such as voy eurism, sadism, or pedophilia. T h e “s ex u ally attrac ted to ear ly pubesce nt males” is the spec ific diagnosis, the ty pe of pa raphilia. ¶ 19 The DSM-IV-TR descr ibes para philias a s “mental disorders [t hat] a re char acte rized by sexual fanta sies, urg es, or behaviors invol ving non-human obj ects (coprophilia, fetishism
, transvestic fetishi sm), suffe ring or humiliation (sexual sadism, masochism), children (pedophilia) or other non-conse nting person (voyeurism, frotteur ism, exhibiti o n is m) .” There is a debate whether to include a diagnosis of hebephilia in the up co m i n g DSM-V, and

acc ording to Fog el, the proposed definition fo r h eb ephil ia in the DSM-V is the same as New’ s diag nosis of para

philia not otherwise specifie d, sexually attrac ted to ear ly pubesce nt persons. (He bephilia ref

ers to sexual att ra ct i o n to pubesce nt children, that is to say , those

-4-ear ly in their sexual development, around the ag es of 11 to 14. Pedophilia, unlike hebephilia,

involves sexual attraction to prepube scent c hildren, g ener ally young er tha

n 11.) ¶ 20 Fog el testified that New also suffe red from antisocial per s o n al i t y disorder involving a
perva sive pattern of disreg ard for or violation of the rig hts of others. Fifty to eighty perc ent

o f in d iv idua ls that are incar cer ated suffe r from antisocial persona lity dis o r d e r

. F o g e l a d mi tt e d that New’ s antisocial personality disorder alone would not deter mine him t o be a sexually violent person. ¶ 21 Acc ording to Fog el’s analy sis, New had suffe red under and acte d on h i s s ex u al urge s toward ado le s c e nt males since his twenties. New chose his victims based on looks (pre fer ring tall, athletic, Afric an Americ an, youn g-l o oking men without fac ial or chest hair), and vulnera bility
, ty pically
, those who had a h i story of sexual abuse. Fog el noted that New befr iended young er boy s, often overe stimating their ag e, and would th en fanta siz e about them. Fog el said New descr ibed himself at times as a passive rec ipient of the boy s’ advanc es, and at other

times admitted that he soug ht out certa in individuals. ¶ 22 New told Fog el t hat he has sex ual fantasi es about adolescent m ales and felt somewhat power less over his urg es. Specifi ca lly
, that he masturbated while fanta siz ing about perf orming oral sex on young -looking inmates and on adolesc ent television ac t o rs. Fog el
repor ted that, bef

o re being imprisoned, New used marijuana to alleviate his shame about these fa ntasies, thoug h the shame did not stop him from re-off ending . New told F og el that he would not solicit minors ag ain bec ause he fea red spe nding the rest of his life in prison. ¶ 23 On a standardized actua rial measure (similar to those d e v e lo p e d by insurancecompanies) known as the S tatic 99, New s co red in the hi g h rang e. Fog el s aid t he S tatic 99 evaluates a man’s risk of committing future sex offe nses based on objective data in 10 static cate g ories, including his a g e, his romantic pa rtners, a nd whether his vic tim wa s male and unr elated to him. The Static 99 is the most rese arc hed, cross-va lidated, and widely used actua rial measure for sexual rec idivism

. On the Static 99, New score d a seven, placing him at a high risk of reo ffending when compar ed to other male sex offe nders. Among others in the high risk
cate g ory , 26% committed a sexu al offe nse within 5 year s, 34% within 10 y ear s, and 37% within 15 y ear s. But, beca

use these perc entag es excluded unrepor ted offe nses, s o me repor

ted offe nses that did not result in an arr est, and some repor ted offe nses that did not result in formal char g es, the perc entag es undere stimate the actua l rec idivism rate

. Fog el admitted that he did not use updated, more acc urate actua rial measure s, either the Static 99R or the Static 2002R. Fog el testified that Ne w would have sc ored a six on the updated me asure s, a scor e that still place s him in a high risk c ateg ory

. ¶ 24 On the Har e Psy chopathy Checklist, New showed a mod er at e ra n ge o f psy chopathic
persona lity traits. The chec klist considers two fac tors: (i) an individual’s “per sonal aff ective component of the psycholog ical contra ct of psychopathy ,” and (ii ) an t i s ocial persona lity traits. In the l ater , New was i n the t wentieth perce ntile among the m ale p ri s o n population. Psy chopathic pe rsonality

traits include ca llous, remorseless, a nd manipulative beha

viors. ¶ 25 Foge l t es t i fi ed that, while a para philia diagnosis did not predispose a person to be sexually violent, New’ s para philia diagnosis did beca

use of serious difficulty controlling his sexual urg es. In support, Fog el pointed to New’ s history of sexual offe nses, which continued

-5-despite leg al sanc tions, and his continued sexual attraction to adolesc ent males.

¶ 26 New claimed during his interview with Fog el that he would be less likely to re- offe nd if he had a community to support him. Fog el spoke with New’ s mother and stepfathe r. Neither of them was awa

re of New’ s history of sexual offe nses or the victims’ ag es. Fog el said that since New’s mot her and stepfathe r di d not know about his history
, they would not be able to offer the kind of support Ne w nee ded. ¶ 27 Other ris k fa ct o rs as s ociated with rec idivism incre ased New’ s risk that he would reo f f e n d

. T h e s e f

a c tors include: (i) never having completed sex-offende r treatment; (ii) the la c k of a long- term romantic relationsh ip; (iii) a history of establishing relationships with vulnera ble youth in an eff

ort to sexually offe nd; (iv) poor control over his sexual impulses; (v) the lack of conce rn for other s ; an d (vi ) his attitude of condoning or excusing his own sexual offenses. ¶ 28 Fog el also considere d fac tors that might mitigate New’ s risk of re- offe nding: (i) New’ s ag e; (ii) his limit ed participation in sex-offende r treatment; (i i i ) h i s claim that he suffe red from er ectile dy sfunction; and (iv) his f amily support sy stem. Fog el fe lt neither Ne w’s ag e at trial, 42, nor the othe r fa ctors mitigated the risk that Ne w would sexually re- offe nd. ¶ 29 Fog el testified that New’ s para philia would no t go aw ay without treatment, though he admitted that treatment could be on an out- p at i en t basis. Taking into acc ount New’ s para philia, history of sexual offe nses, an d t h e re s ults of the Static 99 measure , along with New’ s exposure to risk factor s associate d with rec idivism
, Fog el concluded t hat t here was

a substantial probability New would commit an act of sexual violence in the future, althoug h Fog el admitted no tests deter mine with absolute cer

tainty whether a sex o ff

en d er wi ll reoffe nd.

¶ 30 2. Dr. B rucke r’s Te stimony ¶ 31 The State ’s o t h er ex p ert, Robert Br ucker
, examined New, too. Br ucker is a license d clinical psycholog ist. The court cer tified him as an expert in clinical psychology , specific ally relating to sex-offe nder e valuation, risk assessment, a nd treatment. ¶ 32 Bru ck er revie wed New’ s master file and interviewe d him in J anuar y 2 0 0 6

. Bru ck er administered three written psycholog ical tes t s: (i) the Minnesota Multiphasic Personality Inventory I I (MPPI -I I ), a psycholog ical test desig ned to collect information about an individual’s mental health issues and persona li t y t raits; (ii) the Millon Clini cal Multiax ial Inventory I I I (MCMI -I I I ), a test simil ar to the first except that it focuse s on chronic
persona lity traits; and (iii) the M u l t i p hasic Sex Inventory I I I
, which provides information related to people and their tendenc ies and thoughts related to sex offe nding. Br ucker updated his repor t in Dec ember 2009 with additional medical and treatment document s, and
psycholog ical eva luations. ¶ 33 Br

ucker noted that New’ s history of sexual offe nses and sexual misconduct showed that his victims wer e ty

pically b et ween 12 and 15 y ear s old, and that New’ s behavior did not chang e, eve n afte r beingimprisoned. Br ucker testified that New

suffe red f

rom five mental disorders. The first disorder was para philia not otherwise specifi ed
, s exually attrac ted to adolesc ent males, nonexclusive ty pe. Br ucker define d para

philia in the same way as Fog el,

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

deviant sexual interest. B rucke r found Ne w’s par aphilia manife sted in his rec urre nt se x ual interest in teena g e boy s, and his desire to room with young -looking people in the corr ectional and mental health fac iliti es. Br ucker also noted that New acknow ledg ed that teena g e males

arouse him, a

nd that he fanta siz es about them while masturbating
, though New denied this
attrac tion after 2005. ¶ 34 The second, third, and fourth dis o rd er s we re al cohol depende nce with phy siologica l depende nce in a co ntrolled environment, canna bis depende nce without phy siologica l depende nce i n a co n trolled environment, and coca ine abuse. Br ucker testified that New beg an using alcohol and marijuana at the ag e of seven. New consistently abused alcohol up until his 1995 incar cer ation, but repor tedly stopped using marijuana at ag e 21. New beg an to abuse coca ine around ag e 14 or 15, but could not aff ord the drug most of the time. Br ucker noted that while alcohol was not c urre ntly available to N ew, ever y time New was rele ased, he would rush back to using alcohol and was repor tedly under the influenc e o f s ubstance s

eac h time he committed a sexual offe nse. The fifth mental disorder was antisocial persona lity disorder. ¶ 35 New’ s para

philia, acc ording to Br

ucker
, aff ecte d his volitional capa city in that he could
not stop himself from eng ag ing in sexual conduct with boy s betwee n the ag es of 12 to 15 and predisposed him to commit acts of sexual violence. In rea ching this conclusion, Br ucker used three actua

rial instruments–the Static 99, the Static 99R
, and the Minnesota Sex Offe nder Scree ning Toll, Revised (MnSOST-R)–and con s id e r e d o th e r ris k fac tors related to predic ting future se x ual offe nses. B rucke r admitted that using multipl e actua rial instruments may

not incre ase the predic tion’s acc urac y

. Ag ain, New score d a seven on the Static 99, placing him in a high risk cate g ory

. On the Static 99R, New score d a six
, also placing him in a high risk
cate g ory

. On the MnS OST-R, which cons i dere d additional risk fac tors not included in the Static 99 or 99R, New sc ored a 14, the hig hest risk categ ory

. ¶ 36 Other risk fac tors Br ucker consid er ed i n cl u d ed Ne w’s deviant sexual interests, his antiso c ial p e rsonality disorder, an elevation in the psychopathic deviant scale on the MPP I -I I
, interper sonal re lationship conflicts, and intox ication while offe nding. Br ucker also considere d New ’s age, sex-offende r trea tment, and any serious and debilitating medical conditions. Br

ucker conclude d that New’ s ag e did not lower his risk of sexually re- offe nding, and that New did not have a serious or debilitating medical condition that would preve nt him from off ending

. ¶ 37 Br

ucker opined New’ s para

philia, o th e r d iagn o s e s , a

n d other risk fac tors incre ased N ew’ s likelihood of sexually re- offe nding, and that, due to his mental disorders, it was substantially probable that New w ould commit future ac ts of sexual viol ence

.

¶ 38 3. Dr. Witherspoon’s Testimony ¶ 39 Dr. Kirk Wit herspoon, a licensed psycholog ist, testified on New ’s b eh al f. T h e court

cer tified Wit herspoon as an ex p ert in fore nsic psychology with a specia lty in consulting evaluations. ¶ 40 Wi t h er s p o o n conducted a clinical interview with New in J anuar y 2010 and re viewed

-7-New’ s criminal hi story , mental health records, Depar tment of C orre ctions rec ords, hum an service s rec ords, and other evaluators’ repor ts reg arding New ’s condition. In addition, Wit herspoon conducte d a m en t al status exam, a four- y ear structure d sentenc e completion test, a persona l problems chec klist, a persona lity disorder or psychopathology test called the MCMI -I I I
, the MnSOST, informal sexual attitude a nd interest questionnaires, and a sexual history form. ¶ 41 Wit herspoon interpre ted these tests in the context of the same information considere d by Fog el and Br

ucker

. Wit herspoon testified that New’ s substance abuse disorder was either in remission or resolved, and that New had a p er s o nality disorder with mild antisocial and histrionic traits. Wit herspoon said that New’ s history of sexual offe nses did not indicate he had a mental disorder beca use “it’s normal for adults to be sexually attrac ted to other adults and also to sexually immature ado lesce nts,” and while illega l to act on those fee lings, it is
not considere d a patholog y

. Wit herspoon said that para phili a n o t otherwise specifie d, sexuall y attrac ted to adolesc ent males, is not a g ener ally acc epted diagnosis, unlike pedophilia, wher e a pe rson is sexually attrac ted to children who have not r eac hed puber ty

. ¶ 42 As to risk assessment, Wit herspoon used a structure d risk assessment method called the Sex ual Violent Risk 20 (SVR 20), which evaluates a per son’s deviant sexual attitudes and in te r e s ts , in te rper sonal rela

tionships, and self-ma

nag ement difficulties. He a ls o e mp lo ye d th e Static 2002R, and another tool that measure d more dy namic varia

bles. On the SVR 20, New fell into a m o d er at e categ ory of risk. Comparing the Static 2002R with the Static 99 and Static 99R, the St at i c 2 0 0 2 R is more acc urate and uses more conce ptually meaning ful
cate g ories than mere statistical corr elation. On the Static 2002R, New score d in the moderate high cate g ory , but Witherspoon adjusted that to low/moderate based on the SVR 20 and New’ s health problems. On cross-e x amination, Wit herspoon admitted that h e i m p roper ly

score d the Static 2002R, and that New was actua lly in a h i gh ri s k categ ory befor e the adjustment. Wit herspoon believed that New did not need sex-offende r treatment and had only a 15% chanc e of re- offe nding, and that chanc e would decr ease eac h year until, afte r 10
y ear s, there w as almost no chanc e Ne w would re -off end.

¶ 43 4. Ver dict and Ne w’s Posttrial Motion ¶ 44 T h e j u ry fo und New to be a sexually violent person under the SVP Act. T h e co u rt committed New to a treatment fac ility with the I llinois Depa rtment of Human Service s. New filed a motion for a new trial. The circ uit court denied the motion, and this appea l followed.

¶ 45 I I . ANALYSI S ¶ 46 A. New ’s Diagnosis and Frye ¶ 47 Fog el diag nosed New w it h “p a r a p h il ia
, n o t o th e r

w is e specifie d, sexually attrac ted to ear ly pubesce nt males.” Br

ucker diagnosed New with “par aph il ia n o t o th e r w is e specifie d, sexually
attrac ted t o adolesc ent m ales, non-exclusi ve ty pe.” New cont ends t hat t he mental disorder about which Fog el and Br ucker testified should have been subjected to a Frye hearing to test its admissibili ty

. New contends t he mental disorder is novel, not gen erally acc epted in the community of mental health profe ssionals, and its diagnosis cannot produce reliable results.

-8-The State responds that Frye d o es n o t apply to a diagnosis beca use a diagnosis does not constitute a scientific principle or methodology

. Our standard of revie w of t h e d en i al of a motion in limine based on a Frye issue is de novo revie w. In re Commitment of Simons
, 213 I ll. 2d 523, 531 (2004). ¶ 48 The SVP Act authorizes the involuntary civil commitment of “sexually violent persons” for “contr ol, car e and treatment.” 725 I L CS 207/40(a) (West 2010). The SVP Act define s a “sexually violent person” in two parts. First, as “a person who h as b ee n co nvicted of a sexually violent offense , has bee n adjudicate d delinquent for a sexually violent offense , or has been fo u n d n o t guilty of a sexually violent offe nse by rea son of insanity .” 725 I L CS 207/5(f) (West 2010). And second, as a person “who is dang erous beca use he or she suffe rs from a mental disorder that makes it substantially probable that the person will eng ag e in acts of sexual violence.” 725 I L CS 207/ 5(f) (West 2010). 1 ¶ 49 The SVP Act define s a “mental disorder” as “a cong enital or acquir ed condition affe cting the emotional or volitiona l cap acity that predisposes a person to eng ag e in acts of sexual violence.” 725 I L CS 207/5(b) (West 2010). The courts h a ve define d “substantially probable ”
to mean “ ‘much more likely than not .’ ” In re Detention of Bailey
, 317 I ll. App. 3 d 1 072, 1085-86 (2000) . I f the c ourt or jury is “satisfied beyond a re asonable doubt that the person is a sexually violent person,” he or she may be indefinitely committed “until such time as the person is no long er a

sexually violent person.” 725 I L CS 207/ 35(f) , 40(a) (West 2010). ¶ 50 I llinois has adopted the standard set forth in Frye v. United States (293 F. 1013 (D.C. Cir. 1923)) with reg ard to the admissibili ty of expert testimony

. In re Commitment of Simons
, 213 I ll. 2d 523, 529 (2004). The Frye standard is codi fi ed i n the I llinois Rules of Evidence : “Where an expert witness tes t i fi es to an opinion based on a new or novel scientific methodology o r p rinciple, the proponent of the opinion has the burden of showing the methodology or scientific principle on which the opinion is based is sufficie ntly established
to have ga ined gene ral acce ptance in the particular field i n wh i ch i t belong s.” I ll. R. Evid. 702 (ef f. Jan. 1, 2011). ¶ 51 New contends that a diag nosis of para philia not otherwise specific
, sexually attrac ted to adolesc ents, is hebephilia. The State disag ree s with this conclusion, but t he State’s e x pert, Dr. Fog el, agree d that his diagnosis was a hebephilia diagnosis. As part of his motion in limine to e x clude the diag nosis, New cited nume rous ac ademic article s that questioned the validity of cate g orizing hebephilia as a mental disorder. A proponent of including hebephilia in the upcoming DSM-V, Dr. Ray Bla nchard, define d hebephilia as an erotic pref ere nce for pubescen t ch i ldren, around the ag es of 11 to 15. Ray Bla nchar d et al.
, Pedophilia, Hebe philia, and the DSM-V

, Arc hives of S exual Be havior (2008). But oppone n t s contend the hebephilia diag nosis may dramatically expand or add “to the DSM diagnostic cate g ories of mental disorders without any evidenc e or re as o n i n g that those who would be newly

Aft er 2010
, the Gene ra ll y Asse m bly upda te d the def

ini ti on of a sex ual ly viole nt per son to 1 inc lud e s pec if

ic of fe nse s, b ut bec aus e New con ced ed at tr ia l tha t his cr iminal hi st ory sa ti sf ie d t he fi rs t por ti on of sec ti on 5(f ), tho se upda te s ar e not re le vant. See Pub. Act 96- 1551 (e ff

. J uly 1, 2011 ); Pub. Act97- 1150 (e ff

. J an. 1, 20 13)

.
-9-included under the mental disorder rubric can be proper l y ca t ego rized as mentally

disordere d.” P h i l i p Tromovitch, Manufacturing Mental Disorder by Pathologizing Erotic Age Orientation: A Comment o n B l a n chard et al. ( 2008)
, Arc hives on Sex ual Be havior (2008) (letter to the editor); see also Kar en Fr anklin, Hebe philia: Quintessence of

Diagnostic Pretex tuality
, Be haviora l Science s & the L aw (2010) (“unlike the listed examples of
para philias not otherwise specified in the DS M-IV-TR, which a re a ll ex tremely

rar e, adult male attrac tion to adolesc ent children is common”); Gre g ory DeClue, Should Hebe philia Be

a Mental Disorder? A Reply to Blanchard et al. ( 2008)
, Arc hives on Sex ual Be havior (2008) (“ The decision to classify a pattern of sexual attrac tion as a mental disorder (par ap h i l i a) inevitably entails more than (1) reliable differ ence s in patterns of sexual attrac tions and (2) chec king law books to see which sexual activities are curr ently illega l in a p articular jurisdiction.” (letter to the editor)) ; Thomas K. Z ander
, Adult Sexual A t traction to EarlyStage Adolesce nts: Phal l o me t ry Doesn’t Equal Pathology
, Arc hives on Sex ual Be havior (2008) (“Clinicians who are curr ently using the miscellaneous DSM diagnosis of para philia
not otherwise specifie d to patholog ize adult sexual attrac tion to a dolesce nts of all stag es of sexual development are cre atinga diagnosis on an ad hoc basis.” (le tter to the editor) ). ¶ 52 As a noun, “a dia g nosis” is defined a s the “de termination of a me dical condition (such

as a disease) by p h y s i cal examination or by study of its sy mptoms. The result of such an examination or study .” Bla ck’s L aw Dictionary 518 (9th ed. 2009). As a verb, “to diag nose” indicates proce ss a

nd method, and is define d as the “ar t or act of identifying a disease from its signs and sy

mptoms.” Webster’s Third New International Dictionary 6 2 2 (1993). The State’s ar gument conflates these two usa g es. ¶ 53 As these definitions indicat e, d i agn o s i n g a m ed i cal condition, in this case a mental disorder, by considering char acte ristic signs and sy mptoms presuppose s a mental condition exis ts as a matter of scientific evidenc e. Put another way , a prer equisite for a diagnosis is scientific evidenc e that such a mental condition exis ts. Absent reliable scientific validation

or acc eptance o f the mental condition, its prese nce would be mere ly theore tical. Be fore diag nosis com es i dentifying, naming
, descr ibing, and classify ing the condition. A Frye hear ing is appropr iate to deter mine whether an emergi n g d i agnosis is an actua l illness or disorder. See Bernardoni v. Industrial Comm’n
, 362 I ll. App. 3d 582, 594 (2005) (“[G]enera lly
, if the proposed testimony conce rns a sy ndrome that has not y et been admitted in I llinois
, then the trial court should conduct a Frye hearing to deter mine the scientific validity
, or invalidity
, of the sy ndrome.” ); People v. Taylor
, 552 N.E.2d 131, 134-35 (N.Y. 1990) (applying Frye to validity of rape trauma sy ndrome); Kuxhausen v. Tillman Partners, L.P.
, 197 P.3d 859, 863 (Ka n. Ct. App. 2008) (apply ing Frye to deter

mine validity of

emer g ing diag nosis acc epted by only limit ed number of medical doctors); cf

. In re Marriage of Bates
, 212 I ll. 2d 489, 519-20 (2004) (discussing application of Frye to validity of pare ntal alienation sy

ndrome, though decidingcaseon other grounds). ¶ 54 I f we were to acc ept the S tate’s arguments, litigants could proff er fictional conditions

. J ustice does not put the fac t finder in the position of culling g ood science fr o m b ad

. M o re o v er, the State’s distinction would so narr ow the Frye test as to make it almost meaning less. The purpose of a Frye hearing is to safe guard the court’s truth-finding role ( People v. Zayas
, 131 I ll. 2d 284, 2 9 4 (1 9 8 9 ))
, ensuring that the fac t finder cannot make

-10-finding s based on unsound scie nce.

¶ 55 The State points to case law from other jurisdictions holding that psyc h o lo g ic a l diagn oses

are not subje ct to Frye

. We f ind the ir case s distinguishable. In In re the Detention of B erry (248 P.3d 592 (Wash. Ct. App. 2011)), the Washington Court of Appeals held that the diag nosis of a mental diso rder was not subject to a Frye hearing beca use psycholog ical analy sis is a g ener ally acc epted methodology
, and beca use arguments as to the validity of a diag nosis g o to the weight of expert testimony
, not admissibili ty

. Berry
, 248 P.3d at 595-97. But this is beside the point. The issue here is the validity of the mental dis o rd er. Unless established, we expose the justice sy stem t o av en ues of future regret, wher eby a so-ca lled mental disorder that has not rea ched, and may n ev er re ac h, a critica l mass of g ener al

acc eptanc e y et forms the basis of an individual’s loss of liberty

. A Frye hearing was meant to prec lude this kind of “junk scienc e.” ¶ 56 In W

esterheid v. State
, 767 S o

. 2d 637, 657 (F la. C t. App. 2000), the court declined to addre ss the Frye issue, but noted in dicta that “neither expert used any psycholog ical profile
or sy ndrome designe d to identify viole n t s ex ual predators which may very well be subject
to a Frye analy sis. Rather, both experts rende red their opinions in this case based on their training and experience .” W esterheide
, 767 So. 2d at 657. The Florida court in W esterheide relied on the pure opinion exception to Frye

. See Noakes v. National R.R. Passenger Corp.
, 363 I ll. App. 3d 851, 858 (2006) (“Pure opinion testimony that does no t i n v olve a new or novel scientific te chnique or proce dures or

depend upon new or novel scientific princ iples
to support its conclusion need not be subjected to a Frye test.”). But that exception does not apply

. Fog el and Br

ucker based their testimony on more than their training and experience

. Indeed, i t is difficult to imag ine a fore nsic psycholog ist testifying that a responde nt is substantially likely to commit acts of sexua l v i o l en ce in the future based on his or her trainingand experienc e alone

. ¶ 57 The third case , People v. W ard
, 83 Cal. Rptr. 2d 828 (Cal. Ct. Ap p

. 1 9 9 9 )

, h el d t hat under California law scientific evidenc e, but not expert medical opinion, is subject to Frye

. Id. at 831. The court rea soned “[n] o prec ise leg al rules dictate the proper basis for an expert’s journey into a patient’s mind to make judgme nts about his behavior ,” and that psycholog ical evaluation is “a lear

ned profe ssional art” wh ile Frye only applies to “exact scienc es.” (Emphasis omitted and internal quotation marks omitted.) Id

. We do not fi n d the char acte rization of psycholog y as an art to be a meaning ful one under Frye

. “[T] he Frye rule is meant to exclude methods new to scienc e that undeser vedly cre ate a perc eption of cer tainty when the basis for the evidenc e or opinion is actua lly invalid.” Donaldson v. Central Illinois Public Servic e Co. , 199 I ll. 2d 63, 78 (2002). I t is not the purview of t he courts to ex clude entire fields of study from the g ener al acc eptanc e test beca use those scienc es are “softer
, ” while allowing experts in those fields to prese nt opinions that cre ate a perc eption of scientific

cer tainty . Creatingthese e x ceptions opens the justice sy stem to abuse. ¶ 58 Al s o of i mport, a li berty interest is at s take in proce eding s under the SVP Act. L iberty includes the rig ht to “g ener ally to enjoy those privileg es long rec og nized at common law as

es s ential to the order ly pursuit of happiness by fre e men” and women. (Interna l quotation marks omitted.) Ingraham v. W right
, 430 U.S. 651, 673 (1977). “B eca use involuntary commitment proce dures implicate substantial liberty interest s , the responde nt’s interests

-11-must be balanc ed ag ainst the dual objectives of involuntary

admissions: (1) providing car e for those who are unable to car e for them s elves due to mental illness and (2) protec ting society from the dang erously mentally ill.” In re Lance H.
, 2012 I L App (5th) 110244, ¶ 21. Thus, the purpose of

civil commitment is treatment, not punishm ent. Id . As is noted in the DSM-IV-TR, a “mental disorder” denotes the boundary betwee n “norma lity and patholog y .” Am. Psy chiatric Ass’n, Diagnostic & Statist ical Manual of Mental Disorder s x x x i (4th ed.,
textrev. 2000)

. ¶ 59 This boundary in involuntary commitme n t p ro ce ed i n gs i s t h e d i fferenc e betwe en treatment and impermissible retribution. See Kansas v. Hendrick s , 521 U.S. 346, 373 (1997) (Ke nnedy
, J

. , concurring ) (“[I ]f it wer e shown that mental abnorma lity is too imprecise a cate g ory to offe r a solid basis for concluding that civil detention is justified, our prec edents woul d n o t s u ff

i ce to validate it.”). That is, if a responde nt in an SVP proce eding does not suffe r from an actua l mental disorder, then there is nothing to cure , and com m i t m en t is pointless. Acc ording ly
, we hold that a diagnosis of a novel condition is subject to the g ener al

acc eptanc e test under Frye

. ¶ 60 The State further argues that it sustained its burden of showing g ener al acc eptanc e. The proponent of the evidenc e bear s the burden o f showing g ener al acc eptanc e. People v. McKown
, 236 I ll. 2d 278, 294 (2010); I ll. R. Evid. 703 (ef f. J an. 1, 2011). A proponent can prove g ener al acc eptanc e throug h the “use [of] scientific publicatio ns, prior judicial decisions, pra ctical a

pplications, as well as the testimony of scientists a s to the attitudes of their fellow scientists.” People v. Kirk
, 289 I ll. App. 3d 326, 332 (1997). Gene ral acc eptanc e does not mean universal or even majority acc eptanc e, but require s a showing of rea sonable relianc e by experts in the rele vant field. In re Commitment of Simons
, 213 I ll. 2d 523, 529-30 (2004). B ehind the g ener al ac cepta nce te st is the idea that there is value in consensus. ¶ 61 I n h i s m o t ion in limine
, New raised serious questions reg arding t h e v al i d i t y an d unorthodox y of the State’s diag nosis of para philia not otherwise specifie d sexually attrac ted
to adolesc ent mal es , al s o known as hebephilia. In response , the State argued that beca use para philia not otherwise specifie d was in the DSM-IV-TR, it was a gener ally acc epted diag nosis, but did nothing to show that the addendum to the diagnosis “sexually attrac ted to

ear ly pubesce nt males” wa s g ener ally acc epted as a mental disorder. At the hea ringbefor e the trial court, the State admitted that th ere was controve rsy reg arding the addendum its experts attache d to the diag nosis. The State did not p ro v ide support showing that the addendum was g ener ally acc epted. As the proponent, the State bore the burden of showing
g ener al acc eptanc e. There fore
, the court should have conducte d a Frye hearing, and it is err or to f ail to do so. See In re Detention of Hargett
, 338 I ll. App. 3d 669, 675 (2003) (re versing for r efusa l to hold a Fryehear ing in SVP Act ca se). ¶ 62 Acc ording ly

we r ever se and r emand f or a Fryehearing, a

nd, if nec essar

y , a new trial.

¶ 63 B. D iag noses Not Pleaded in the State’ s Petiti on ¶ 64 Be fore trial, New reque sted an instruction that the jury could not c ommit him based on any mental disorder

other than the para

philia dia g nosis. The trial court de nied this moti on. New argues that the trial court err ed in permitting the State to elicit testimony and argue for

-12-involuntary commitment based o n m en tal disorders not pleade d in its petition. We revie w

the trial court’s decision for an abuse of discretion, which occur s wher e “t h e i n s t ru ctions mislead the j ury and re sult in prejudice to the l itigant.” Taylor v. County of Cook
, 2011 I L App (1st) 093085, ¶ 79. We find no prejudicia l or misleading varia nce betwee n the pleading s and proof

. ¶ 65 The State’s SVP Act petition must alleg e, among other things, that the responde nt “ has a mental disorder” and “is dang erous to othe rs beca use [hi s or her ] m ental disorder cre ates

a substantial p ro bability that he or she will eng ag e in acts of sexual violence.” 725 I L CS 207/15(b)(4)
, (b)( 5) (West 2010). A “mental disorder” is “a cong enital or acquir ed condition aff ecting the emotional or volitional ca pacity that predisposes a person to eng ag e in a cts of sexual violence.” 725 I L CS 207/5(b) (West 2010). In other words, to state a cause of action, the State needs to plead, among other things, the responde nt’s mental disorder, its aff ect on his or her volitional or emotional capa city
, and a substantial p robabili ty that due to the mental disorder

the re spondent will commit future ac ts of sexual viol ence

. ¶ 66 Gene rally , in civil lit igation, va rianc e betwee n the pleading s and the proof “will not be deeme d materia l unless it misleads the adverse party to his [or her] prejudice .” Cummings

v. Dusenbury
, 129 I ll. App. 3d 338, 346 (1984); Tomlinson v. Dartmoor Construction Corp.
, 268 I ll. App. 3d 677, 685 (1994). ¶ 67 The S t at e’ s p et i t i o n al l ege d New suffe rs from the mental disorder para philia not otherwise specified, list ing no other mental disorders. At trial, Fog el and Br ucker testified that New suffe red from (i) para philia not otherwise specifie d, sex u all y attrac ted to ear ly pubesce nt persons, (ii) antisocial persona lity disorder, and (iii) numerous substance abuse disorders. In closing argument, the State urg ed that all of these mental di s o rd er s t o gether made it much more likely that New w ould commit sex ual violence ag ain. ¶ 68 “[F]or a varia nce bet we en al l ega t i o n s and proof to constitute reve rsible err or, the varia nce must be shown to be materia l,” misleading one party to its prejudice

. Tomlinson v. Dartmoor Construction Corp.
, 268 I ll. App. 3d at 685. New fails to show any prejudice from the var iance betwee n the State’s plea dings a nd the proof. ¶ 69 New submit s that any variation betwee n the pl eading s and proof constitu t es re versible

err or. We disa g ree that this is the curr ent standard in I llinois

. Although case law states that “proof without pleading s is as defe ctive as pleading s withou t proof” ( Colonial Inn Motor Lodge ex rel. Cincinnati Insurance Co. v. Gay
, 288 I ll. App. 3d 3 2
, 40 (1997))
, this is tempere d by the require ment that the party objecting to the varia nce show prejudicia l eff

ect. Cummings v. Dusenbury
, 129 I ll. App. 3d at 346. Prejudice often takes the form of surprise. None appea

rs here since New’ s expert rebutted th e State’s diagnosis of substance abuse disorders and mitigated the antisocial per sonality disorder dia g nosis. See Losurdo Bros. v. Arkin Distributi ng Co.
, 125 I ll. App. 3d 267
, 2 71 (1984) (holding objection to varia nce waived wher e party introduces evidenc e rebutting unpleade d alleg ations). Thus, we find no prejudice resultingfrom the va rianc e.

¶ 70 C. As-applied Constituti onality of the SVP Act ¶ 71 Nex t , Ne w ar gu es t h at t h e C o ok County circ uit court applies the SVP Act in an

-13-unconstitutional manner by trea ting a civil proce eding as a criminal case

. New supports his contention by

noting that in Cook County
, SVP Act cases: (i) are adjudicate d by judge s in the criminal division, (ii) are g iven criminal case numbers, (iii) are assig ned to the criminal
appea ls divisi on at t he S tate’s Attorney ’s office, and (iv) take place in the criminal cour t’s building. ¶ 72 We find the issue proce durally defa ulted and decline to addr es s i t

. Ne w provides no framework, cites no law, and offe rs littl e guidance as to why the circ uit court’s trea tment of SVP Ac t c ases violates the due proc ess or e qual protec tion clause. Unde r I llinois Supreme Court Rule 341(h)( 7) (ef

f. Fe b. 6, 2013), appellants must prese nt fully develope d arguments with adequate leg al and fac tual support o r fac e proce dural defa ult. Housing Authority v. Lyles , 395 I ll. App. 3d 1036, 1040 (2009). The challeng ing pa rty has the burde n to show a statute is invalid over the strong presumption favor ing constitutio n a li ty

. Pe o p le v

. M a s te rson , 2011 I L 110072, ¶ 23. New has not met his initial burden to comply with the appellate rules. Id

.

¶ 73 D. New ’s Commit ment as a Sexually Violent Person ¶ 74 Be ca u s e we re v erse and rema nd this case for a Frye hearing and possibly retria l, we decline to r eview the results of Ne w’s first trial.

¶ 75 I I I . CONCLUSI ON ¶ 76 For the rea sons stated above, we reve rse and rema nd for a Frye hearing, and if nec essar y , a new trial.

¶ 77 Reverse d and re manded.

-14-