In re Commitment of Rendon

2014 IL App (1st) 123090

FOURTH DIVISION
August 21, 2014
No. 1-12-3090

IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT

In Re COMMITMENT OF ENRIQUE RENDON, ) Appeal from the
a Sexually Violent Person (The People of the
) Circuit Court of
State of Illinois, Petitioner-Appellee, ) Cook County.
v. Enrique Rendon, Respondent-Appellant). )
) No. 98 CR 80004
)
) The Honorable
) Michael B. McHale,
) Judge Presiding.
_____________________________________________________________________________

JUSTICE LAVIN delivered the judgment of the court, with opinion.
Justices Fitzgerald Smith and Epstein concurred in the judgment and opinion.

OPINION

¶1 Respondent Enrique Rendon was civilly committed as a "sexually violent person"

under the Sexually Violent Persons Commitment Act (the Act) (725 ILCS 207/1 et seq.

(West 2012)) and subsequently institutionalized in a secure facility. The trial court later

conditionally released respondent only to later revoke the release on the State's petition,

concluding that the "safety of others," a standard identified in the statute (725 ILCS

207/40(b)(4) (West 2012)), required such revocation. On appeal from the revocation

order, respondent contends this undefined statutory standard is unconstitutionally vague.
No. 1-12-3090

He alternatively contends the State failed to prove by clear and convincing evidence that

his conditional release should be revoked. Finally, he contends the trial court improperly

relied on his clinical psychologist's reexamination report at the revocation hearing, thus

requiring reversal. For the reasons set forth below, we reverse the judgment of the circuit

court and remand for further proceedings consistent with this opinion.

¶2 BACKGROUND

¶3 Respondent, now age 66, has been civilly committed to the control, care, and

treatment of the Department of Human Services (DHS) since 2002, when he admitted the

allegations in the State's petition and the court accordingly found he was a sexually

violent person (SVP) diagnosed with pedophilia (sexually attracted to minor females),

substance abuse problems, and later, paraphilia not otherwise specified (sexually attracted

to nonconsenting females), frotteurism, and antisocial personality disorder. See 725

ILCS 207/5(f) (West 2012). Respondent's underlying offenses included a 1989 guilty

plea conviction and 16.5-year sentence for aggravated criminal sexual assault, aggravated

criminal sexual abuse, aggravated kidnaping, and kidnaping, which was imposed after

respondent kidnaped and assaulted an eight-year-old girl. Respondent served six years

and was released on parole. In 1997, respondent violated his parole by repeatedly

attempting to lure children into his vehicle and also refused sex offender treatment. It

was thereafter that the State sought to have respondent civilly committed under the then

newly effective SVP law.

¶4 Following his adjudication as an SVP, respondent was institutionalized in a secure

facility under the Act. Following psychological treatment and polygraph examinations,

respondent self-reported having committed some 25 sexual offenses against females

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between the ages of 4 and 40. In one instance, respondent admitted climbing into bed

next to his daughter's 17-year-old intoxicated girlfriend. Respondent's daughter found

him naked from the waist down, and the victim's pants were pulled down. Although

respondent was arrested following this offense, charges for the sexual offense apparently

were never filed. Respondent also admitted repeatedly raping his own wife. He claimed

to have participated in various grooming and stalking behaviors of young girls that

culminated with rape or other sexual assaults. In addition, he said he raped two

prostitutes after supplying them with drugs and alcohol, then threatened their pimp and

had them "working for him" over the next several years, during which time he sexually

assaulted them. Respondent used physical force and weapons to coerce sexual

compliance. He also admitted to committing some 20,000 frottage offenses where he

targeted young women and rubbed against them for sexual gratification. His reevaluation

revealed a consistent pattern of deception by respondent.

¶5 Two years after being formally adjudicated an SVP, respondent filed a petition to

be conditionally released for reintegration into the community. Respondent was

"reexamined" a number of times to determine whether he remained an SVP, i.e. was

dangerous because he suffered from a mental disorder making it "substantially probable"

that he would engage in acts of sexual violence. See 725 ILCS 207/5(f) (West 2002).

According to the reports, reexamination consisted of reviewing his progress in treatment,

psychological testing, clinical interviews, and risk analysis. In May 2010, Dr. Edward

Smith, a licensed clinical psychologist, filed one such report noting respondent's sexual

offense and DHS treatment history. Dr. Smith stated that respondent was participating in

treatment, making progress, and had completed a relapse prevention plan, whereby he

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was to use techniques to manage and interrupt deviant sexual arousal. Respondent's most

recent penile plethysmorgraph (PPG) test had indicated no deviant sexual arousal, and

respondent demonstrated understanding of his cycle and plan. That, together with his

decreased risk of reoffense based on respondent's advanced age, led Dr. Smith to

recommend that respondent be reintergrated into the community on a "highly structured"

conditional release program. Dr. Smith stated that respondent had demonstrated

sufficient progress to lower his risk so that he could be safely managed in the community.

¶6 On the heels of this report and following a hearing, the court granted respondent

conditional release on June 30, 2010, and he was released into the community on

September 14, 2010. As per the statute, the court-approved "conditional release plan"

was a detailed agreement between DHS and respondent severely limiting respondent's

freedom and movement based on his status as an SVP. Relevant for this appeal,

respondent was placed on home confinement. He was also ordered to refrain from

contact with minor children absent DHS approval, and to refrain from entering into

sexually intimate relationships unless he first gave notification to his conditional release

agent. His plan required that respondent participate in sex offender treatment, behavioral

monitoring, PPG testing and polygraph examinations. Respondent was to meet regularly

with his conditional release agent to discuss "compliance with the conditions of his

release and treatment progress" and also comply with other special conditions identified

by his conditional release agent and case management team to restrict respondent from

"high-risk situations" with "access to potential victims." Tracking the language of the

statute, the plan provided that respondent's conditional release would be revoked if he

"failed to abide by any condition of his release plan" or if "the safety of others" required

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revocation, at the recommendation of the conditional release agent. See 725 ILCS

207/40(b)(4) (West 2012). Respondent signed and initialed a certificate indicating that

he understood the plan and that his conditional release would be revoked if he failed to

abide by the stated conditions.

¶7 Respondent was on conditional release for less than a year before the State filed a

revocation petition on July 5, 2011. This petition was based on admissions during a

polygraph examination taken May 30, 2011, that respondent had masturbated to fantasies

of rape more than 20 times while released, a fact which he failed to disclose to his

treatment providers until faced with the polygraph. The State also alleged that

respondent failed the polygraph examination in that deception was noted when he denied

rubbing against anyone for sexual gratification, denied masturbating to fantasies of rape,

and denied masturbating to phone sex. The State asserted respondent's deception

threatened the safety of others and required revocation of his conditional release. A

hearing followed in August. Respondent acknowledged in open court that he had not told

his therapist about these fantasies and only disclosed them before his polygraph exam.

While the court denied the State's petition, it specifically warned that any further

incidents would justify revoking respondent's conditional release.

¶8 In October 2011, apparently in response to respondent's difficulty controlling

deviant arousal, he was prescribed Eligard, a prescription medication thought to lessen

sexual urges by lowering testosterone levels. A number of court status hearings also

followed with the State representing that respondent had either failed or deliberately

distorted the results of his polygraph exams and that he was not working with his

treatment providers.

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No. 1-12-3090

¶9 In June 2012, the State again filed a petition to revoke respondent's conditional

release. In making its allegations, the State relied principally on the June 6, 2012,

reexamination report filed by clinical psychologist Dr. Smith, which the State attached

and incorporated into its petition. The State alleged respondent was having "significant

difficulty managing his deviant sexual arousal" and had been "less than forthright with

his case management team." In support, the State cited respondent's deviant sexual

fantasies "prior to the initiation of Eligard" and respondent's denial of "masturbating to

the deviant sexual arousal since the initiation of Eligard." In addition, the State noted

respondent's failed polygraph examinations, his intentional interference with the

examinations, and his admission that he contemplated having females in his apartment

without his conditional release agent's knowledge. The State noted Dr. Smith's opinion

that respondent's "lack of disclosure and the presence of secret keeping" suggested

defendant's word could not be taken "at face value." Given respondent's "high risk

behaviors" and lack of insight into the level of risk, the State urged the trial court to

revoke respondent's conditional release to protect "the safety of others" in the

community. The State noted that under the Act, conditional release may be revoked on

that basis or if respondent violated any condition or rule of conditional release.

¶ 10 An evidentiary hearing was held June 29, 2012. The court noted that the statute

was disjunctive; the State had to prove by clear and convincing evidence that a rule or

condition was violated or that the safety of others required revocation of conditional

release. Licensed clinical social worker Rhonda Meacham testified that she was on

respondent's case management team and had been treating him since fall 2010. She met

with respondent weekly for 90-minute group therapy sessions and had seen him

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No. 1-12-3090

individually for 60-minute sessions since February 2012. In addition, the State noted

Meacham's semiannual report, dated October 2011 to March 2012. Meacham testified

that respondent's primary issues were managing his deviant sexual arousal and being

transparent in therapy so he could pass his polygraph examinations.

¶ 11 Between June 2011 and February 2012, respondent had been unreliable in self-

reporting. Meacham testified he had failed his May 2011 polygraph examination and, in

particular, apparently failed the question of whether he had "rubbed up against anybody."

In September 2011, respondent's PPG test revealed no indication of arousal, but

respondent also "engaged in behaviors that could have manipulated the outcome" which

could invalidate the test and at the very least showed he was not following instructions.

In November 2011, he was said to have distorted the polygraph results by shaking his

legs during the test. In February 2012, respondent's polygraph examination was

inconclusive on two questions, one regarding whether he masturbated to fantasies of rape,

and he failed the question of whether or not he had women in his apartment. Meacham

noted that up until February 2012, respondent continued to struggle with "fantasies of

force" and would masturbate to thoughts of both force and frottage. Respondent reported

he could continue to masturbate to deviant fantasies without increasing his risk of

reoffending even though his reevaluation report indicated these types of fantasies

preceded sexually violent acts by respondent. On cross-examination, Meacham stated

she did not know what might negatively impact the PPG test results. She also stated

when a person failed one question on a polygraph test, some examiners considered the

entire exam to be failed, while some did not.

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No. 1-12-3090

¶ 12 Nonetheless, Meacham also testified that based on respondent's recent polygraph

examination from June 25 (the Monday before the hearing), it appeared he had "become

more honest since February of 2012 to date." Meacham explained that cognitive therapy

– like snapping a rubber band on his wrist when faced with a deviant thought – was

proving ineffective for controlling respondent's arousal, so in October 2011, respondent

was treated with the drug Eligard, which decreases testosterone levels and helps manage

sexual arousal. On cross-examination, she stated she did not know how frequently

respondent received the Eligard injections or how many he had received. She also stated

that some clients reported immediate responses to the medicine, while it took others some

six months to respond. In addition, Meacham believed respondent's fantasies of using

force had decreased but she could not determine whether the Eligard had affected

respondent's general sexist attitude toward women, i.e., whether a cognitive shift had

occurred. She testified that based on respondent's self-report, "there was a pretty sharp

decrease in the amount [sic] of fantasies that he was having" and he was not masturbating

at all. She testified that while he had made progress, she did not believe it was the same

progress "he claims to have made." She also believed "there was a shift taking place" at

the time he took the February 2012 polygraph while medicated with Eligard. Notably,

respondent's failure to disclose information relating to his masturbation had occurred

prior to the Eligard treatment. After the February 2012 polygraph, respondent made

more disclosures regarding his issues than before. For example, in response to his

February 2012 exam, respondent denied ever having a female in his apartment but

reported that he "had a lot of urges to have women in the apartment," which may have

contributed to him failing the test. Respondent specifically noted there was a female near

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No. 1-12-3090

his building one evening and, while he had strong urges to invite her to his apartment, he

never did. On cross-examination, Meacham stated that in the last year, respondent's

"sexual behavior" had improved. She stated that since June 2012, respondent was

"moving in the right direction" and had been more transparent.

¶ 13 Dr. Smith testified next that he had expertise in evaluating sexually violent

persons, specifically as to risk assessment and diagnosis. As part of his employment with

DHS, Dr. Smith had completed five annual reviews of respondent, with the last in June

2012, to determine whether respondent's current placement was appropriate to meet his

treatment needs. For the evaluation, Dr. Smith conducted a clinical interview with

respondent, reviewed his case management and treatment notes for the year, and

consulted with both Glazier, respondent's conditional release agent, and Meacham, his

treatment provider. Dr. Smith opined that respondent remained an SVP, as defined under

the Act, having been diagnosed with pedophilia (sexually attracted to minor females),

paraphilia not otherwise specified (sexually attracted to nonconsenting females),

frotteurism, substance abuse, and antisocial personality disorder. Respondent still

suffered from these mental disorders, which predisposed respondent to engage in future

acts of sexual violence, and it was still substantially probable, or much more likely than

not, that respondent would reoffend. The actuarial instruments placed respondent in the

category of low to "moderate high" range for risk of reoffending, with additional risk

factors including antisocial personality disorder, early-onset sex offending, and self-

regulations problems.

¶ 14 Dr. Smith testified that even though respondent consistently attended treatment,

given his behavior for the 2011-12 evaluation period, respondent could not be safely

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No. 1-12-3090

managed in the community. Dr. Smith cited respondent's failed polygraph examinations,

admissions of dishonesty to his treatment team, and lack of insight that having or

masturbating to deviant sexual fantasies was high-risk behavior. The fact that respondent

had passed his most recent polygraph test did not change Dr. Smith's opinion because

respondent acknowledged over the course of his review period that he had not been

forthcoming with his treatment team about his level of deviant sexual arousal and

masturbation to deviant fantasies, or accepted the risk this posed. Dr. Smith noted

respondent had admitted that even before leaving on conditional release, he had been

masturbating to deviant sexual fantasies without telling his treatment providers and "he

had previously not been as honest and open as he would have led people to believe."

Respondent also admitted that he had not used intervention methods to interrupt his

deviant sexual arousal and "had thoughts about planning" to have women in his

apartment without anyone knowing. Dr. Smith noted, many times respondent's

disclosures only came after a failed polygraph and asserted respondent was not being

forthright in his disclosures. Dr. Smith testified that respondent's Eligard treatments did

not change his opinion that respondent could not be safely managed and should no longer

be on conditional release because while Eligard was a tool for controlling arousal, it did

not necessarily "eliminate it," and could not be used to control respondent's thoughts or

cause him to "intervene" when aroused. Dr. Smith similarly did not know how often

respondent received the Eligard treatments.

¶ 15 Dr. Smith testified that sexual offending could be conceptualized as a cycle with a

number of different steps, and certain behaviors or emotions could lead a person "closer

to the point of offending." For respondent, his secret-keeping, deviant arousal,

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masturbation to deviant fantasies, and failure to take responsibility even while in a

restricted environment, were steps in the sexual offense cycle moving him "closer and

closer" to "high-risk behaviors being evident." Dr. Smith testified respondent would be

better managed in a secure facility because respondent's access to individuals who "could

be the source of either his thoughts, his fantasies, or his planning behaviors" and potential

victims would be limited. On cross-examination, Dr. Smith acknowledged that

respondent self-reported that his sexual fantasies had significantly decreased following

his Eligard treatments.

¶ 16 In closing, the State argued that the evidence indicated respondent had not

followed the conditions of release because he was uncooperative during psychological

testing, but then chose to argue the case almost exclusively on the alternative "safety of

others" prong.

¶ 17 Following argument, the trial court granted the State's petition to revoke

conditional release. Although the court specifically found the State had not shown by

clear and convincing evidence that a specific rule in the conditional release agreement

had been violated, the court nonetheless found the "safety of others" required

respondent's reconfinement. In support, the court pointed to issues that were related to

perceived shortcomings in complying with the conditions imposed on his release. This

included Meachem's testimony regarding respondent's unreliable self-reporting, his failed

polygraph examinations, his failure to follow instructions on the PPG test and the limited

effect of Eligard on his deviant sexual thoughts. The court also pointed to Dr. Smith's

testimony that respondent could not be safely managed in the community because of

respondent's admitted failure to be forthright with his case management team and lack of

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insight regarding the risk his sexually deviant fantasies posed. The court noted Dr.

Smith's testimony that respondent had disregarded treatment intervention methods and

specifically had thoughts about "how to get females into his apartment without anyone on

the case management team knowing about it." The court stated, "[t]he key is that these

secrets have only come to light after he has been caught on polygraph examinations," and

further noted Dr. Smith's testimony that these behaviors are part of the cycle of sexual

offending, with "each step" moving "the person closer and closer to re-offending." The

court stated that because respondent was not "moving forward in his treatment" and was

"continuing to be deceptive with his case management team," it was appropriate to

revoke his conditional release.

¶ 18 On June 29, 2012, the trial court revoked respondent's conditional release, and he

was reinstitutionalized at a DHS facility. Respondent filed a motion to reconsider the

judgment, which was denied, and this timely appeal followed.

¶ 19 ANALYSIS

¶ 20 Respondent now challenges the revocation of his conditional release. The Act

defines an SVP as a person who has been convicted of a sexually violent offense and who

is "dangerous" because he "suffers from a mental disorder that makes it substantially

probable that the person will engage in acts of sexual violence." (Emphasis added.) 725

ILCS 207/5(f) (West 2012); In re Detention of Stanbridge, 2012 IL 112337, ¶ 48; see

also In re Commitment of Curtner, 2012 IL App (4th) 110820, ¶¶ 31, 37 (defining

substantially probable as "much more likely than not" (internal quotation marks

omitted)). Under the Act, a mental disorder is a "congenital or acquired condition

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

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of sexual violence." 725 ILCS 207/5(b), 15 (West 2012); Stanbridge, 2012 IL 112337, ¶

48. Although the proceedings set forth in the Act are civil in nature (725 ILCS 207/20

(West 2012)), the State still must establish beyond a reasonable doubt that an individual

is an SVP; once the State does so, the respondent is committed to the custody of DHS for

control, care, and treatment "until such time as the person is no longer a sexually violent

person," which could hypothetically only end upon death. 725 ILCS 207/40(a) (West

2012); Stanbridge, 2012 IL 112337, ¶¶ 48, 50.

¶ 21 In this case, respondent was found to be an SVP and was accordingly

institutionalized in a secure setting where he received treatment for his mental disorders.

See 725 ILCS 207/50 (West 2012). Consistent with the Act, respondent was thereafter

"reexamined" yearly to determine whether he had made "sufficient progress in treatment"

to qualify him for conditional release. See 725 ILCS 207/55 (West 2012); Stanbridge,

2012 IL 112337, ¶ 49. After eight years of institutionalization, and after finding

respondent had made sufficient progress in treatment, the court granted respondent

conditional release on the recommendation of Dr. Smith.

¶ 22 When a court conditionally releases a respondent, it has concluded not only that

the person has made sufficient progress in treatment warranting release, but also that "the

person's condition has so changed since the most recent periodic reexamination *** that

he *** is no longer a sexually violent person." 1 (Emphasis added.) 725 ILCS 207/55

1 It merits mention that the trial court entered its judgment revoking respondent's conditional release on June
29, 2012, and denied respondent's motion to reconsider on August 31, 2012 (after granting respondent an extension
to file that motion). Respondent filed his notice of appeal on September 28, 2012. At the time of the June hearing
in this case, section 55(a) of the statute provided that yearly reexaminations were for the purpose of determining
whether the "person has made sufficient progress to be conditionally released ***." 725 ILCS 207/55(a) (West
2010). Effective on August 24, 2012, before final judgment was entered in this case, the legislature amended
section 55(a), adding that reexaminations are for the purpose of determining whether "(1) the person has made
sufficient progress in treatment to be conditionally released and (2) whether the person's condition has so changed

13
since the most recent periodic reexamination *** that he *** is no longer a sexually violent person." 725 ILCS
No. 1-12-3090

(West 2012); see also People v. Cooper, 132 Ill. 2d 347, 354-55 (1989) (same under the

Sexually Dangerous Persons Act); People v. Trainor, 196 Ill. 2d 318, 336-38 (2001)

(noting the similarities between the Act and the Sexually Dangerous Persons Act). In

other words, to be conditionally released, an SVP must reach a certain point in treatment

so that he can be safely managed in the community while still in the custody and control

of DHS and while subject to the conditions set by the court and rules of DHS. See 725

ILCS 207/40(b)(4), (b)(5) (West 2012); see also Cooper, 132 Ill. 2d at 355 (noting, a

sexually dangerous person maintains that legal status while on conditional release). In

relevant part, these conditions require a respondent to attend and fully participate in

assessment, treatment, and behavior monitoring, including, but not limited to, medical,

psychological or psychiatric treatment specific to sex offending or drug abuse to the

extent appropriate and based on subsequent DHS recommendations. 725 ILCS

207/40(b)(5)(F) (West 2012). These conditions also require a respondent to waive any

confidentiality so that the court and DHS have access to his assessment and treatment

results. 725 ILCS 207/40(b)(5)(G) (West 2012). While on conditional release, a

respondent must comply with all other special conditions that DHS may impose

restricting him from "high-risk situations" and limiting "access or potential victims." 725

ILCS 207/40(b)(5)(BB) (West 2012). "If the Department [(DHS)] alleges that a released

person has violated any condition or rule, or that the safety of others requires that

conditional release be revoked, he *** may be taken into custody under the rules of the

207/55(a) (West 2012); Pub. Act 97-1075 (eff. Aug. 24, 2012) (amending 725 ILCS 207/55(a) (West 2010)). We
cite the amended statute now because a subsequent amendment to a statute may be an appropriate source for
discerning legislative intent, and our review of the statute as a whole, together with its history, reveals the
amendment was meant to clarify the statute. See In re Skidmore, 2011 IL App (2d) 100730, ¶ 28; see also In re
Commitment of Sandry, 367 Ill. App. 3d 949, 976 (2006) (noting in reference to section 60(d) of the Act (725 ILCS

14
207/60(d) (West 2002)) that "[o]f course, what a person is 'making sufficient progress' in is treatment").
No. 1-12-3090

Department [(DHS)]." 725 ILCS 207/40(4) (West 2012). The State maintains the burden

of proving with clear and convincing evidence that revocation of conditional release is

required. Id. Revocation deprives a respondent not of the absolute liberty to which every

citizen is entitled, but only of the conditional liberty properly dependent on respondent's

observance of conditional release restrictions. See Morrissey v. Brewer, 408 U.S. 471,

480 (1972).

¶ 23 In this case, less than a year after respondent had been conditionally released, the

State alleged respondent was essentially unable to manage his deviant sexual arousal,

lacked insight into his high-risk behaviors, and had failed his psychological exams.

Consistent with the statute, the State asserted these behaviors threatened the "safety of

others" requiring revocation of respondent's conditional release.

¶ 24 On appeal before this court, respondent initially argues that the statutory standard

"safety of others" is unconstitutionally vague because the legislature failed to define the

phrase and, consequently, the statute fails to give fair warning to individuals regarding its

application, resulting in arbitrary enforcement. Although respondent failed to frame this

argument in constitutional terms before the trial court, he argues we may now address it

under the doctrine of plain error, adopted in criminal cases. The State counters that the

doctrine of plain error to which respondent subscribes does not apply in the civil context

of this case and, regardless, the statute is not unconstitutionally vague.

¶ 25 Because we choose to dispose of this case on the basis of respondent's alternative

argument relating to the quantum of evidence adduced at the hearing, we need not

address respondent's claim of constitutional error which he has raised for the first time on

appeal. Our supreme court has emphatically stated time and again that a reviewing court

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should avoid constitutional questions where the case may be decided on other grounds.

In re Detention of Swope, 213 Ill. 2d 210, 218 (2004); see also In re E.H., 224 Ill. 2d 172,

178 (2006).

¶ 26 Respondent then alternatively contends the State failed to prove by clear and

convincing evidence that the "safety of others" required the court to revoke respondent's

conditional release. Respondent specifically argues the State presented evidence showing

only "mere concerns about [respondent's] progress in sex offender treatment" and

showing that he failed to disclose deviant sexual fantasies. Respondent asserts this

evidence falls manifestly short of threatening the "safety of others," which is a standard

that must "mean more than simply the risk associated with allowing a sexually violent

person to remain on conditional release."

¶ 27 The State, in interpreting the meaning of the phrase "safety of others," argues

revocation is required under that provision where there is "concern that an SVP is

heading towards committing acts of sexual violence." In other words, a respondent need

not commit an overt act of sexual violence in order to come within the purview of the

phrase.

¶ 28 As respondent correctly observes, the phrase "safety of others" is not specifically

defined in the Act. In the absence of a statutory definition, courts will assume that

statutory words have their ordinary and popularly understood meanings. People v.

Bailey, 167 Ill. 2d 210, 229 (1995). Webster's dictionary defines "safe" to mean "free

from harm or risk" and "secure from threat of danger, harm, or loss." Merriam-Webster's

Collegiate Dictionary, http://www.merriam-webster.com/dictionary/safe. We will

construe this term in the context of the Act as a whole, while considering the reason and

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

See Stanbridge, 2012 IL 112337, ¶ 70. In doing so, wish to emphasize that under the Act

it is the respondent's mental disorder, which necessarily encompasses a volitional

impairment, that makes him dangerous beyond his control, thus presenting a risk or threat

of harm to others. See Kansas v. Hendricks, 521 U.S. 346, 358 (1997); People v.

Swanson, 335 Ill. App. 3d 117, 122-23 (2002); In re Detention of Hayes, 321 Ill. App. 3d

178, 187-88 (2001). The previous violent acts and pattern of behavior merely serve as

evidence of both the mental abnormality and an important indicator of future

dangerousness. 725 ILCS 207/5(b), (f) (West 2012); Hendricks, 521 U.S. at 358, 362;

Stanbridge, 2012 IL 112337, ¶ 85; see also In re Commitment of Derry, 393 Ill. App. 3d

482, 485 (2009) (an SVP is not committed for past conduct). If conditional release by

definition means a respondent is not substantially probable to engage in acts of sexual

violence outside the confines of an institution, then the converse means revocation of that

release is required where his reoffense is substantially probable. See 725 ILCS 207/55,

60(c) (West 2012); cf. In re Ottinger, 333 Ill. App. 3d 114, 120-21 (2002) (under section

60(c) of the Act, a trial court may grant a full hearing on an application for conditional

release when it is not substantially probable respondent will engage in acts of sexual

violence if released).

¶ 29 Our review of the case law together with the entire statutory scheme demonstrates

that the risk of reoffense and, thus, the threat to the safety of others presents itself when

the respondent's mental illness is not properly treated. See Ottinger, 333 Ill. App. 3d at

121-22; see also In re Detention of Lieberman, 379 Ill. App. 3d 585, 599 (2007) (noting,

"[t]he Constitution's safeguards of human liberty in the area of mental illness and the law

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are not best enforced through precise, bright-line rules" (internal quotation marks

omitted)); In re Commitment of Sandry, 367 Ill. App. 3d 949, 976 (2006) (noting that "an

individual's treatment is relevant to the decision as to whether that person is fit to be

conditionally released"). Thus, the inquiry in a revocation proceeding relating to the

"safety of others" may specifically focus on the respondent's progress, or lack thereof, in

treatment. Indeed, the entire purpose of the SVP law anticipates and aims to prevent

sexual dangerousness stemming from mental illness, so it would make little sense to tie

"safety of others" to overt acts of sexual violence. This conclusion is consistent with that

of our sister state, Wisconsin, which has a nearly identical provision in its SVP statute; in

interpreting "safety of others" in the context of conditional release, the Wisconsin

Supreme Court has held that a trial court need not wait until "overtly dangerous acts have

been committed" or ignore indications that certain rule violations can themselves

represent a risk to the community. In re Commitment of Burris, 2004 WI 91, ¶¶ 72-74,

273 Wis. 2d 294, 682 N.W.2d 812; see also In re Detention of Hardin, 238 Ill. 2d 33, 46

(2010) (noting the Wisconsin SVP statute is substantially similar to the Illinois SVP

statute); Wis. Stat. Ann. § 980.08(8) (West 2014) (current Wisconsin statute).

¶ 30 In this case, the trial court gave all appearances of favorably crediting the

testimony of both witnesses for the State – respondent's treatment provider, Meacham,

and his psychological evaluator, Dr. Smith, even though their testimony was seemingly at

odds regarding the main issue of whether respondent posed a substantially probable

danger to the safety of others. The court determined testimony regarding respondent's

failed self-reporting, polygraph exams, PPG test, and lack of insight regarding his high-

risk deviant fantasies, and plotting, all demonstrated that the State had established by

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clear and convincing evidence that respondent's continued release posed a threat to the

safety of others, even though it had already ruled that the State had not proved a specific

violation of a single condition by clear and convincing evidence. This would appear to

be an incongruous result.

¶ 31 In now reviewing the court's determination, we observe a trial court's ruling, that

the State established by clear and convincing evidence that the "safety of others" required

revocation of respondent's conditional release, will not be disturbed unless it is against

the manifest weight of the evidence, i.e. where the opposite conclusion is clearly the

proper result. See In re D.D., 196 Ill. 2d 405, 417 (2001); Sandry, 367 Ill. App. 3d at

978; People v. Robin, 312 Ill. App. 3d 710, 715 (2000). "Clear and convincing evidence

is defined as the quantum of proof that leaves no reasonable doubt in the mind of the fact

finder as to the veracity of the proposition in question." In re Gloria C., 401 Ill. App. 3d

271, 282 (2010). Notably, it is within the province of the trier of fact, not the mental

health professionals, to weigh all the evidence and witness credibility. Gloria C., 401 Ill.

App. 3d at 282; Robin, 312 Ill. App. 3d at 715.

¶ 32 Having reviewed the evidence, we conclude the trial court's determination that the

State proved by clear and convincing evidence that the "safety of others" required

revocation of respondent's conditional release was against the manifest weight of the

evidence. Here, while the evidence indicates respondent's lack of compliance with

treatment protocol and deviant sexual fantasies posed a threat to the public prior to

February 2012, this threat apparently diminished with the initiation of the Eligard drug

treatments. Meacham testified that respondent's fantasies of force had declined, he was

not masturbating at all, and indicated he was making disclosures about sexual urges and

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No. 1-12-3090

resisting the urges. She testified respondent's "sexual behavior" had improved in the last

year and that since June 2012, he had been "moving in the right direction." Significantly,

while respondent had previously thwarted or failed his polygraph exams, just prior to the

evidentiary hearing, he passed the polygraph exam. Meacham testified that Eligard could

sometimes take some months to be effective, and the evidence essentially implied that

this was just such a case. Although Dr. Smith testified the Eligard treatments could not

eliminate arousal or change respondent's cognitive therapy response to arousal, for

example, by forcing him to "intervene" when aroused or recognize the risk deviant

fantasies posed, we must return to the fact that according to Meacham, respondent was

not experiencing arousal on the Eligard treatment. Again, she testified he was in control

of his fantasies and disclosing them at the time of the hearing. While the trial court is

generally entrusted to resolve contradictions in the evidence, Dr. Smith did not directly

contradict Meacham's testimony, as much of his testimony appeared to reference

respondent's past conduct and behavior.

¶ 33 From an evidentiary standpoint, respondent's improved behavior and lack of

arousal necessarily defeated Dr. Smith's concerns regarding respondent's threat to the

safety of others, that were seemingly based on respondent's prior state of being. At most,

the record shows by clear and convincing evidence that respondent still maintained

disclosure and deception problems at the time of the hearing. In short, this case does not

present the quantum of evidence required to clearly and convincingly demonstrate that

respondent was at that time a threat to the safety of others.

¶ 34 Nonetheless, we note that our supreme court has held in another SVP case that a

trial court's judgment may be affirmed on any grounds which the record supports even if

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No. 1-12-3090

those grounds were not argued by the parties. Stanbridge, 2012 IL 112337, ¶ 74.

Contrary to the trial court's findings in this case, the evidence indicates that respondent in

fact violated the special conditions of his release early on by failing to fully comply with

his treatment protocol insofar as he apparently thwarted the polygraph examinations and

PPG test, and also admitted he was not intervening when necessary to divert his sexually

deviant fantasies. See 725 ILCS 207/40(b)(5)(F) (West 2012). According to his

treatment providers, respondent's failure to fully participate in treatment, as required by

his conditions of release, and lack of insight regarding his behavior, left respondent more

open to "high-risk situations" with potential access to victims. See 725 ILCS

207/40(b)(5)(BB) (West 2012). This raised the question of whether respondent had

indeed made sufficient progress in treatment such that he should remain released and was

no longer a sexually violent person. See 725 ILCS 207/55 (West 2012). Based on the

record's indication that respondent violated a condition of release, the trial court was

entitled to make the discretionary decision of determining whether to place respondent in

a more secure setting when respondent was not responding to the conditions of treatment

set by the treatment providers who work closely with him. See Lieberman, 379 Ill. App.

3d at 608-09 (noting the initial decision regarding where an SVP will do best in

treatment, among other factors, is a discretionary one for the trial court). Because the

trial court operated under the misapprehension that no condition of release was violated,

we conclude remand is necessary. On remand, we would suggest that the State be

permitted to amend its petition to more closely identify the specific rules violated.

Moreover, we also note that it has been two years since respondent's conditional release

was revoked. Should the trial court determine that respondent's violation does not

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warrant revoking his conditional release, the State may file a new revocation petition now

if circumstances have arisen warranting such revocation because mental health treatment

is not a static process, but a dynamic one. If respondent is not now responding to any

treatment, for example, then it seems respondent should not be released to the public.

¶ 35 Lastly, respondent argues that the circuit court improperly relied on Dr. Smith's

mental health reevaluation. The trial court noted at the outset of the hearing that it had

read this particular report, which also formed the basis of the State's petition to revoke

respondent's conditional release. Respondent now essentially argues that the court, in

reading the report, relied on evidence outside the record because the report contained

graphic details of respondent's prior sex offenses not testified to at trial. Although

respondent frames this argument as a violation of his constitutional right to due process,

we think this is more appropriately considered as an evidentiary issue.

¶ 36 We observe that the Act rather explicitly provides that "all evaluations conducted

pursuant to this Act *** shall be admissible at all proceedings held pursuant to this Act."

725 ILCS 207/30 (West 2012). Moreover, in determining whether conditional release is

appropriate, a court is required to consider the respondent's mental disorder, mental

history, and present mental condition, all of which necessarily requires a court to review

and rely on the respondent's mental health evaluations. See 725 ILCS 207/60(d) (West

2012); see also 725 ILCS 207/40(b)(2) (West 2012). Reading the statutes together, it

appears perfectly appropriate for both the trial court and this court to review respondent's

mental health evaluation when considering whether revocation of conditional release is

warranted. Moreover, here, the State attached the reexamination report to its petition and

Dr. Smith referenced the report in his testimony. Respondent in fact cited the report

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No. 1-12-3090

during cross-examination of Meacham to show respondent's improved state. Thus,

respondent not only failed to object to the implicit entry of the report into evidence, thus

forfeiting the issue, but seems to have positively acquiesced in the alleged error. See

People v. Enoch, 122 Ill. 2d 176, 186 (1988); see also McMath v. Katholi, 191 Ill. 2d 251,

255 (2000) (a party cannot complain of an error to which he consented). Given the

developing area of law presented by the Act, it is important that the parties fully develop

arguments below for the benefit of later addressing issues on appeal.

¶ 37 CONCLUSION

¶ 38 Based on the foregoing, we reverse the judgment of the trial court and remand this

case for the trial court to make further factual findings regarding the evidence presented

at the revocation hearing.

¶ 39 Reversed and remanded.

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