dissenting: I disagree with the basic premise, the underlying reasoning, and the conclusion of the majority that the Kansas Sexually Violent Predator Act (the Act) K.S.A. 59-29a01 et seq. violates the substantive aspect of the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
Kansas should join the decisions of the Supreme Courts of Washington (Personal Restraint of Young, 122 Wash. 2d 1, 857 P.2d 989 [1993]) and Wisconsin (State v. Post, 197 Wis. 2d 279, 541 N.W. 115 [1995]; State v. Carpenter, 197 Wis. 2d 252, 541 N.W. 105 [1995]) in upholding the validity of almost identical and substantially similar legislation in their respective states.
I would affirm the jury’s finding that Leroy Hendricks is a sexually violent predator requiring care and treatment by the Secretary of Social and Rehabilitation Services (SRS) of the State of Kansas. In my analysis, I will first consider the Act, more closely examine the evidence, set forth my specific disagreements with the majority holding, then briefly show why the multiple claims of invalidity of the Act should fail and the decision of the trial court should be affirmed.
History and provisions of the Kansas Sexually Violent Predator Act, KS.A. 59-29a01 et seq.
The issues raised in this appeal require the interpretation of the Act. The interpretation of a statute is a question of law over which our review is unlimited. State v. Donlay, 253 Kan. 132, Syl. ¶ 1, 853 P.2d 680 (1993). We begin the process by reviewing the history and provisions of the Act.
*266The 1994 Kansas Legislature, in response to the urging of an Ad Hoc Sexual Offender Task Force given impetus by the parents of Stephanie Schmidt (see State v. Gideon, 257 Kan. 591, 894 P.2d 850 [1995]), proposed, debated, and passed S.B. 525. Senator Bob Vancrum, before the Senate Judiciary Committee on February 22, 1994, stated it was designed “to protect our communities from those offenders who pose the greatest danger to society by providing for treatment and commitment of sexually violent predators until they are no longer a danger.”
Senator Vancrum further said: “The bill is narrowly tailored to focus on the smaller number of habitual sex offenders who, because of their psychological makeup, pose an immediate danger to the public as soon as they are released from prison.”
The debate prior to the bill’s passage was intensified by law enforcement officials’ statements of frustration at knowing that a soon-to-be-released sexual offender was likely to victimize another woman or child, testimony of Special Assistant Attorney General (now Attorney General) Carla J. Stovall to the House Judiciary Committee, March 21, 1994; and the emotional statement of a grieving father, Gene Schmidt, to the House Judiciary Committee, March 21, 1994. The debate included the measured concerns of Kelly McCaffrey, a private citizen, to the same House Judiciary Committee on March 21, 1994, who stated:
“Inevitably, several terms and definitions used in SB 525 will be a source of great consternation for some opponents of the bill, particularly those on the field of psychiatry. Such terms include ‘sexual violent predator,’ ‘mental abnormality,’ and ‘personality disorder.’ The argument is that such terms are merely legal, with no clinically significant meaning and no recognized diagnostic use.”
McCaffrey went on to state that “ legal rules are a specialized form of language that must respond to the human experiences that gave rise to them in the first place. Yet, legal rules must also structure that response in a way that allows them to be applied consistently and reliably’ ” (quoting Rideout, So What’s in a Name? A Rhetorical Reading of Washington’s Sexually Violent Predators Act, 15 U. Puget Sound L. Rev. 781 [1992]).
The Act’s first section, K.S.A. 59-29a01, clearly states the legislative findings:
*267“The legislature finds that a small but extremely dangerous group of sexually violent predators exist who do not have a mental disease or defect that renders them appropriate for involuntary treatment pursuant to the treatment act for mentally ill persons defined in K.S.A. 59-2901 et seq. and amendments thereto, which is intended to provide short-term treatment to individuals with serious mental disorders and then return them to the community. In contrast to persons appropriate for civil commitment under K.S.A. 59-2901 et seq. and amendments thereto, sexually violent predators generally have antisocial personality features which are unamenable to existing mental illness treatment modalities and those features render them likely to engage in sexually violent behavior. The legislature further finds that sexually violent predators’ likelihood of engaging in repeat' acts of predatory sexual violence is high. The existing involuntary commitment procedure pursuant to the treatment act for mentally ill persons defined in K.S.A. 59-2901 et seq. and amendments thereto is inadequate to address the risk these sexually violent predators pose to society. The legislature further finds that the prognosis for rehabilitating sexually violent predators in a prison setting is poor, the treatment needs of this population are very long term and the treatment modalities for this population are very different than the traditional treatment modalities for people appropriate for commitment under the treatment act for mentally ill persons defined in K.S.A. 59-2901 et seq. and amendments thereto, therefore a civil commitment procedure for the long-term care and treatment of the sexually violent predator is founcj to be necessary by the legislature.”
With it apparent that the legislature intended the commitment to be civil, the Act provides the following definitions:
“(a) ‘Sexually violent predator’ means any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person more likely to engage in the predatory acts of sexual violence.
“(b) ‘Mental abnormality’ means a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others.
“(c) ‘Predatory’ mean? acts directed towards strangers or individuals with whom relationships have been established or promoted for the primary purpose of victimization.
“(d) ‘Sexually motivated’ means that one of the purposes for which the defendant .committed the crime was for the purpose of the defendant’s sexual gratification.” K.S.A. 59-29a02.
From the definitions, it is clear that before there can be a finding that a person is a sexually violent predator there must have been a prior charge or conviction of a sexually violent offense; the antici*268pated sexually violent acts must be directed against strangers or individuals with whom relationships have been established or promoted for the primary purpose of victimization; and the person must have a congenital or acquired mental condition affecting emotional or volitional capacity sufficient to predispose the commission of such predatory sexually violent acts. Nowhere is there any requirement that this “sexually violent predator” must be “mentally ill” as defined in K.S.A. 59-2902(h), although a person subject to the Act could hardly be considered to be mentally healthy.
A “sexually violent offense” is both strictly and expansively defined as (1) rape, (2) indecent liberties with a child, (3) aggravated indecent liberties with a child, (4) criminal sodomy, (5) aggravated criminal sodomy, (6) indecent solicitation of a child, (7) aggravated indecent solicitation of a child, (8) sexual exploitation of a child, (9) aggravated sexual battery, (10) comparable federal or state crimes, (11) attempts, conspiracies, or criminal solicitations of the above crimes, and (12) “any act which either at the time of sentencing for the offense or subsequently during civil commitment proceedings pursuant to this act, has been determined beyond a reasonable doubt to have been sexually motivated.” K.S.A. 59-29a02.
With this definitional background, I turn to the procedure for determining if a person is a sexually violent predator. The Act provides for written notice of anticipated release from incarceration, K.S.A. 59-29a03, the filing of a petition alleging that a person is a sexually violent predator, K.S.A. 59-29a04, and a judicial determination of whether there is probable cause to believe the person named in the petition is a sexually violent predator, K.S.A. 59-29a05.
The Act then requires the determination that a person is a sexually violent predator to be made by a court or juiy. It provides for counsel to be appointed for the alleged sexually violent predator if the person is indigent, and the right to retain qualified experts or professional persons for assistance. K.S.A. 59-29a06.
The determination that a person is a sexually violent predator. must be beyond a reasonable doubt by the court or by a unanimous jury, if one is requested. K.S.A. 59-29a07. (The beyond a reason*269able doubt standard is materially more stringent than the “clear and convincing” standard of proof held to be required in state involuntary commitment proceedings by Fourteenth Amendment due process. Addington v. Texas, 441 U.S. 418, 60 L. Ed. 2d 323, 99 S. Ct. 1804 [1979]).
If the person is determined to be a sexually violent predator, the commitment is to the Secretary of SRS “for control, care and treatment until such time as the person’s mental abnormality or personality disorder has so changed that the person is safe to be at large.” K.S.A. 59-29a07. The right of appeal is clearly stated, as is the procedure to be followed if a person charged with a sexually violent offense and found to be incompetent to stand trial is about to be released under K.S.A. 22-3305. K.S.A. 59-29a07(b).
The Act provides for yearly examinations of the person’s mental condition, an annual court review, the right to petition for release, a hearing on the petition before a court or a jury, and the continued obligation of the State to show beyond a reasonable doubt that the petitioner’s mental abnormality or personality disorder remains such that the petitioner is not safe to be at large and that upon discharge, he or she is likely to commit predatory acts of sexual violence. K.S.A. 59-29al0. The provisions of K.S.A. 59-29a09 specifically require that “[t]he involuntary detention or commitment of persons under this act shall conform to constitutional requirements for care and treatment.”
Factual Statement
Although the legal issues in this case are numerous and complicated, it basically involves a factual finding by a unanimous jury that beyond a reasonable doubt Leroy Hendricks is a sexually violent predator. To place this finding in its proper perspective, a detailed recitation of the facts presented to the jury must be considered.
Hendricks testified he is 60 years old and first exhibited unlawful sexual behavior when he was 20 years old in 1955 by exposing his genitals to two young girls. He was charged with and pled guilty to indecent exposure. In 1957 he was convicted of lewdness for playing strip poker with a teenage girl.
*270His sexual desire for children continued. In 1960 he molested two young boys while he worked for a carnival. This resulted in imprisonment for 3 years. Soon after he was paroled in 1963, he was arrested for molesting a 7-year-old girl and again imprisoned. Attempts were made to treat him for sexual deviance, and in 1965 he was considered to be “safe to be at large” and discharged from a hospital.
Several years later, Hendricks engaged in sex with another young boy and girl. He was again imprisoned in 1967. He refused to participate in additional sexual offender treatment and remained incarcerated until he was paroled in 1972. He had been diagnosed as a pedophile; entered into and then quit treatment; and shortly thereafter began molesting his stepdaughter and stepson. He was incarcerated in 1984 for indecent liberties and was serving that sentence when he reached his conditional release date in September 1994, which resulted in these proceedings.
It is clear that Hendricks spent roughly half of his life between the ages of 20 to 60 incarcerated and had perpetrated sexual acts against children during every period when he was not in jail. He acknowledged that to reheve stress, he would molest children and that he hoped he would not do so again, but the only way to guarantee that he would not was for him to die. He acknowledged telling Dr. Charles Befort, a psychologist at Lamed State Security Hospital, that “treatment was bullshit.”
One of the girls Hendricks exposed himself to in 1955 testified to the incident. Hendricks’ stepdaughter and stepson testified as to repeated, long-term sexual abuse during their youth.
Lester Lee, a licensed clinical social worker specializing in male sexual offender treatment, testified Hendricks had a diagnosis of personality trait disturbance, passive-aggressive personality, and pedophilia.
Dr. Charles Befort testified as to his conversations with and testing of Hendricks. Dr. Befort stated that a personality disorder is a set of characteristics or traits, causing predictable behavior, which becomes a disorder when the person behaves in an abnormal manner, causing them or society trouble. He explained that ordinarily *271a mental abnormality is not a formal diagnosis but is a clinical phrase to discuss abnormality or deviance.
Dr. Befort testified he considered pedophilia to be a mental abnormality but that it was not necessarily a personality disorder. He did not diagnose Hendricks as having a personality disorder, nor did he find that he was “mentally ill” as the term is used, in connection with commitments. Dr. Befort did opine, without objection, that Hendricks was a pedophile who was likely to engage in predatory acts of sexual violence or sexual activity with children if permitted.
Dr. Befort’s testimony was based on Hendricks’ interviews, his testing, and his activity prior to his last incarceration in 1984.' He admitted on cross-examination that the term mental abnormality was not defined anywhere in the Diagnostic and Statistical Manual of Mental Disorders (3d ed. rev. 1987 and 4th ed. rev. 1995) pub-fished by the American Psychiatric Association (hereafter cited as DSM-IV), that the causes of behavior are multi-dimensional, and that “likely to” means a more than 50 percent chance that the person will engage in predatory acts of sexual violence at some point in the future. Dr. Befort reiterated on cross-examination that it was his opinion that Hendricks was a sexually violent predator as defined by the statute.
Hendricks testified briefly on his own behalf that he was divorced and had no intention of reestablishing a relationship with his former wife. Hendricks’ principal witness was Dr. William S. Logan, a forensic psychiatrist, who, after qualifying outside the presence of the jury, expressed an opinion based on a reasonable degree of medical certainty that psychologists and psychiatrists are not able to predict with more than 50 percent accuracy the future dangerousness of a sex offender. He further opined that the reliability of such a prediction of dangerousness or re-offense of sex offenders would be less than 50 percent accurate.
Based on this testimony, the jury was instructed, without objection on appeal, and a unanimous finding was reached that Hendricks was a sexually violent predator.
*272 Substantive Due Process
It is instructive to begin an analysis of this issue with a recitation of the rules for evaluating the constitutionality of a statute, although the importance of these presumptions becomés diminished as we weigh the ultimate balance in reaching our conclusions.
“lung-standing and well-established rules are that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the Constitution. Moreover, it is the duty of the court to uphold the statute under attack, whenever possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally sound, that should be done.” U.S.D. No. 503 v. McKinney, 236 Kan. 224, 230, 689 P.2d 860 (1984).
In fact, the authority and duty of the court to construe a statute as constitutional if it can be done within the legislature’s apparent intent is so strong that the court may read necessary judicial requirements into the statute. State v. Durant, 244 Kan. 522, Syl. ¶ 10, 769 P.2d 1174, cert. denied 492 U.S. 923 (1989).
The use of substantive due process to invalidate a statute is particularly suspect:
“ ‘Although the Court regularly proceeds on the assumption that the Due Process Clause has more than a procedural dimension, we must always bear in mind that the substantive content of the Clause is suggested neither by its language nor by preconstitutional history; that content is nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments. This is . . . only to outline Mr. Justice Black’s constant reminder to his colleagues that the Court has no license to invalidate legislation which it thinks merely arbitrary or unreasonable.’ Moore v. East Cleveland, 431 U.S. 494, 543-544 (1977) (White, J., dissenting).” Regents of University of Michigan v. Ewing, 474 U.S. 214, 225-26, 88 L. Ed. 2d 523,106 S. Ct. 507 (1985).
The opinion of this court relies on substantive due process to declare the Act unconstitutional. However, the majority fails to address directly what test should be used to measure the constitutionality of a legislative act attacked on the basis of substantive due process. Compare Personal Restraint of Young, 122 Wash. 2d at 26; State v. Post, 197 Wis. 2d 279, 301, 541 N.W. 115 (1995). It appears to assume that if substantive due process is implicated, the *273legislative act is ipso facto unconstitutional. Such a conclusion should not be so easily reached.
Where no fundamental right is involved, a statute attacked as violative of due process is subject to only minimal scrutiny:
“If a statute is attacked as violating due process, the test is whether the legislative means selected have real and substantial relation to the objective sought. This rule has been restated in terms of whether the statute is reasonable in relation to its subject and is adopted in the interests of the community.” Cott v. Peppermint Twist Mgt, Co., 253 Kan. 452, Syl. ¶ 18, 856 P.2d 906 (1993).
This standard is functionally equivalent to the rational basis test in the context of equal protection challenges. In re Wood, 866 F.2d 1367 (11th Cir. 1989). “Under the ‘rational basis’ test, if there is any rational relationship between the act and a legitimate governmental objective, the act passes muster. Under this test one challenging the constitutionality of the act bears the burden of showing no rational relationship exists between the means and the end.” State v. Risjord, 249 Kan. 497, 501-02, 819 P.2d 638 (1991).
However, the standard is heightened where a fundamental right is involved. We held in Farley v. Engelken, 241 Kan. 663, 669, 740 P.2d 1058 (1987), that the “standard of scrutiny increases with the perceived importance of the right or interest involved and the sensitivity of the classification.”
“The most critical level of analysis is ‘strict scrutiny,’ which applies in cases involving ‘suspect classifications such as race, ancestry, and alienage, and fundamental rights expressly or implicitly guaranteed by the Constitution.’ Farley, 241 Kan. at 669. When applying the strict scrutiny test, the burden is placed upon the State to show there is a compelling state interest in the statute, ordinance, or regulation; otherwise it is unconstitutional.” (Emphasis added.) State v. Risjord, 249 Kan. at 501.
Thus, when considering whether a statute violates substantive due process, the first step in the analysis is to determine whether it involves a fundamental right. If it does not, a rational basis for the enactment will be sufficient to allow it to pass constitutional bluster. If a statute involves a fundamental right, the statute is then subject to strict scrutiny.
. This is important because of the burden-shifting nature of strict scrutiny. When the statute, ordinance, or regulation is subject to *274strict scrutiny, the burden has been placed on the State to show the required compelling State interest for its action and the presumption of constitutional validity becomes greatly diminished. See State ex rel. Schneider v. Liggett, 223 Kan. 610, 617, 576 P.2d 221 (1978). But, it does not automatically follow that the challenged statute, ordinance, or regulation is unconstitutional. The United States Supreme Court has recently reiterated that application of strict scrutiny prescribes only the test to be applied and not the result which is to be reached. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237, 132 L. Ed. 2d 158, 115 S. Ct. 2097 (1995) (“[W]e wish to dispel the notion that strict scrutiny is ‘strict in theory, but fatal in fact/”)- If the government action is “narrowly tailored” to the compelling interest of the State, it survives the strict scrutiny analysis.
There is no doubt that the civil commitment of sexually violent predators involves so significant a . deprivation of liberty that the protections of due process are invoked. See Foucha v. Louisiana, 504 U.S. 71, 80, 118 L. Ed. 2d 437, 112 S. Ct. 1780 (1992); Addington v. Texas, 441 U.S. at 425. This clearly requires that we apply the strict scrutiny test and the analysis it involves. The question therefore becomes whether the State has shown a sufficiently compelling interest to warrant the statute’s undeniable intrusion on Hendricks’ liberty and whether the commitment scheme it has adopted is narrowly tailored to serve that compelling interest.
Unfortunately, the Supreme Court recently indicated in Foucha that our review might be somewhat less than strict scrutiny when it stated: “Freedom from physical restraint being a fundamental right, the State must have a particularly convincing reason, which it has not put forward for such discrimination against insanity ac-quittees who are no longer mentally ill.” Foucha, 504 U.S. at 86. If the State were only required to have a “particularly convincing reason” for its action, it would be a less stringent test than that required by strict scrutiny. Considering the gravity of the deprivation of liberty imposed by the statute, such increased permissiveness is, in our view, inappropriate. Therefore, our analysis is based on a strict scrutiny test, beginning with the premise that the State of Kansas has a compelling interest both in treating sexually *275violent predators and in protecting society from their actions. See Vitek v. Jones, 445 U.S. 480, 495, 63 L. Ed. 2d 552, 100 S. Ct. 1254 (1980). The ultimate question then becomes whether the Act is sufficiently narrowly tailored to serve those interests without unduly burdening individual rights.
The majority opinion suggests that the balance has already been weighed in the United States Supreme Court in favor of Hendricks and that we are therefore bound to find the Act unconstitutional. A review of the available cases, however, illustrates that we write on a relatively clean slate on the precise issues before us, and the limited authority available suggests the Act is a legitimate exercise of the legislature’s power.
Addington v. Texas, 441 U.S. 418, considered the question of whether procedural due process requires more than clear and convincing evidence in support of the State’s burden before a person can be subject to involuntary civil commitment. The Court, in a unanimous decision, held that procedural due process required more than a mere preponderance of evidence, but not evidence beyond a reasonable doubt. The clear and convincing standard of proof was therefore adopted as the constitutional minimum for involuntary civil commitment.
Addington offers some guidance in the present case, but is in no sense controlling. Addington, as a procedural due process case, was only indirectly concerned with the substance of Texas’ involuntary civil commitment laws. Addington did not, therefore, deal with the question of what mental condition was required to justify involuntary commitment, but only considered how certain the proof of that mental condition had to bé. However, the Court considered the degree of mental pathology required in terms of evaluating the risk of error of assessment under die various standards of proof it considered.
Chief Justice Burger, in writing for a unanimous court, cautioned:
“At one time or another every person exhibits some abnormal behavior which might be perceived by some as symptomatic of a mental or emotional disorder, but which is in fact within a range of conduct that is generally acceptable. Obviously, such behavior is no basis for compelled treatment and surely none for confinement. However, there is the possible risk that a factfinder might decide *276to commit an individual based solely on a few isolated instances of unusual conduct. Loss of liberty calls for a showing that the individual suffers from something more serious than is demonstrated by idiosyncratic behavior. Increasing the burden of proof is one way to impress the factfinder with the importance of the decision and thereby perhaps to reduce the chances that inappropriate commitments will be ordered.” 441 U.S. at 426-27.
Thus, Addington tells us little more than that one may not be involuntarily committed as mentally ill without “something more serious than is demonstrated by idiosyncratic behavior.” What" is that “something more”? Addington is unequivocal: That is a question reserved largely to the states. “The essence of federalism is that states must be free to develop a variety of solutions to problems and not be forced into a common, uniform mold. As the substantive standards for civil commitment may vary from state to state, procedures must be allowed to vary so long as they meet the constitutional minimum.” 441 U.S. at 431. The Addingtdn Court seems to reason that the degree of proof required for involuntary commitment is inversely proportional to the severity of the ailment of the mind. See 441 U.S. at 430-33. Therefore, since our Act requires a higher degree of proof than the constitutional minimum,' the Act appears to be “narrowly tailored” to restrict its application to contexts where the interests of the State are most compelling. From the dissimilar facts of Addington, little more guidance can be obtained.
Jones v. United States, 463 U.S. 354, 77 L. Ed. 2d 694, 103 S. Ct. 3043 (1983), also indirectly implies that the legislature had power to enact the Act. In Jones, the United States Supreme Court considered whether a determination of insanity at a criminal trial under a preponderance of the evidence standard was sufficient under the Due Process Clause to justify involuntary civil commitment without regard to the length of a hypothetical criminal sentence. Under the District of Columbia statute at issue, an insanity acquittee was to be confined in a mental hospital until he proved himself no longer mentally ill or dangerous. The Supreme Court found: “A verdict of not guilty by reason of insanity establishes two facts: (i) the defendant committed an act that constitutes a criminal offense, and (ii) he committed the act because of mental illness.” *277463 U.S. at 363. It is critical to understand that in the District of Columbia a defendant’s insanity is established by the Durham test, which excludes from punishment criminal conduct which is a product of a mental disease or defect. See Durham v. United States, 214 F.2d 862, 874-875 (D.D.C. 1954); Bethea v. United States, 365 A.2d 64, 69 n.11 (D.C. 1976). Not only did the Supreme Court find the Durham test sufficient to prove mental illness, it also found an insanity acquittal sufficient to support “an inference of continuing mental illness. It comports with common sense to conclude that someone whose mental illness was sufficient to lead him to commit a criminal act is likely to remain ill and in need of treatment.” Jones, 463 U.S. at 366.
Applied here, Jones makes clear that a requirement that a person suffer some mental infirmity before he or she can be involuntarily committed can be satisfied by more than a single, inflexible standard. For constitutional purposes, “mental illness” is not a psychiatric diagnosis to be made in accordance with the DSM-IV, but a legal determination to be made with reference to some standard that establishes that the person suffers a condition that is an ailment of the mind, rather than mere “idiosyncratic behavior” within a range of conduct that is generally acceptable. The United States Supreme Court has clearly decided not to imbue the term “mental illness” with any specific constitutional meaning, instead showing a preference for considering the meaning applied to the term by the statutory scheme at issue. See O’Connor v. Donaldson, 422 U.S. 563, 574-75, 45 L. Ed. 2d 396, 95 S. Ct. 2486 (1975).
This background brings into clearer focus the exact resolve of the Supreme Court in Foucha v. Louisiana, 504 U.S. 71. Foucha is a case on which the majority places great emphasis, although it is also highly dissimilar. Foucha dealt with the question of whether an insanity acquittee had to remain involuntarily committed even if mentally healthy (although choosing to be anti-social), if he failed to prove he was not dangerous. It is immediately apparent that Foucha is unlike the present case in the very areas that made the Louisiana statute in Foucha most offensive. First, under our Act there is no mechanism whereby a person can be confined while mentally healthy solely on the basis of supposed dangerousness. *278Second, under our Act the burden of proving an ailment of the mind and dangerousness remains always on the State, and always at the high burden of beyond a reasonable doubt.
The Foucha Court, without a majority opinion, found the Louisiana statute to be unconstitutional as violative of due process. The plurality opinion noted that due process required clear and convincing evidence of dangerousness and mental illness to support involuntary civil commitment. 504 U.S. at 80. Interestingly, the Court relied on Jones, which had determined that the mental illness required for involuntary civil commitment could be established by a finding of insanity at a criminal trial, even though Louisiana did not use the Durham, test but rather the M’Naghten test. 504 U.S. at 80; La. Rev. Stat. § 14:14 (West 1986). This further illustrates that the Court recognized that “mental illness” was not a diagnostic term of art but rather a descriptive term which could be satisfied by various standards. Further evidence of the Court’s flexible interpretation of mental illness is found in the fact that it alternatively referred to mental “illness,” “disease,” and “insanity” without expansion or qualification. 504 U.S. 81, 86. See Jackson v. Indiana, 406 U.S. 715, 737,32 L. Ed. 2d 435, 92 S. Ct. 1845 (1972) (recognizing involuntary civil commitment can be based on several grounds); State v. Post, 197 Wis. 2d at 304-05.
The plurality opinion in Foucha found three specific constitutional shortcomings in Louisiana’s law which are not present here. First, the Court found Foucha was entitled to a determination in a civil commitment hearing of his current mental illness and dangerousness. 504 U.S. at 78. Hendricks is specifically provided with those procedural protections.
Second, after Foucha could no longer be held as an insanity acquittee, he was entitled to procedures to establish the grounds of his confinement, which were not provided. 504 U.S. at 79. There is no similar problem here.
Third, the Court held it was substantively unfair to confine a mentally healthy individual solely based on his predicted dangerousness. The State did not claim, nor did it have to prove under the Louisiana statute, that Foucha suffered any ailment of the mind. 504 U.S. at 80. In the present case, our Act requires the *279State to prove a specifically defined type of mental ailment — a “mental abnormality.” Hendricks’ own testimony, as well as that of Dr. Befort, was admitted to support this burden.
Even if the plurality opinion in Foucha were applicable, it failed to gamer the support of a majority of the Supreme Court as precedent for future cases. Justice O’Connor, in concurring, wrote: “I write separately, however, to emphasize that the Court’s opinion addresses only the specific statutory scheme before us, which broadly permits indefinite confinement of sane insanity acquittees in psychiatric facilities. This case does not require us to pass judgment on more narrowly drawn laws . . . .” 504 U.S. at 86-87.
The majority opinion in our case rests on the erroneous conclusion that our Act is constitutionally infirm because it requires no showing of mental illness. It seems to base this conclusion on the absence of those two words. Yet it is not the incantation of “mental illness” that has constitutional significance, but the substance of the statute. Nor is mental illness an inflexible standard capable of precise meaning. As noted in State v. Post, 197 Wis. 2d at 304. “[T]he Supreme Court has declined to enunciate a single definition that must be used as the mental condition sufficient for involuntary mental commitments. The Court has wisely left the job of creating statutory definitions to the legislators who draft state law.”
The question is not whether Hendricks fits some clinical definition of mental illness, but whether he fit a legislative classification that is more than mere idiosyncratic behavior “within a range that is generally acceptable.” Addington, 441 U.S. at 426-27. And, whether that definition strikes an appropriate balance between a compelling interest of the State and the liberty interest of the individual — that is, whether it passes strict scrutiny.
Moreover, it is important to note that this balancing test must consider the facts of Hendricks’ case and not hypothetical situations that may or may not arise under the statute. The United States Supreme Court has not recognized an “overbreadth” doctrine outside the limited context of the First Amendment. United States v. Salerno, 481 U.S. 739, 745, 95 L. Ed. 2d 697, 107 S. Ct. 2095 (1987).
*280Our Act requires an ailment of the mind rising to either the level of a personality disorder or a “mental abnormality.” The evidence in this case establishes that Hendricks did not have a personality disorder. The basis for commitment the State did use, that Hendricks has a mental abnormality, requires considerably more than evidence of idiosyncratic behavior which is within a range that is generally acceptable. It requires “a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others.” K.S.A. 59-29a02(b).
Contrary to the majority opinion, this definition is not rendered meaningless by circularity. It clearly requires something more than a transitory inclination toward sexual violence generally. A person does not meet this standard for suffering from an ailment of the mind unless the person has both an ongoing mental pathology and that pathology is so severe as to prompt sexually violent behavior. The nature of the mental abnormality required before confinement is available is further limited by the fact that the mental abnormality must be of a type that makes the person likely to engage in a specific and limited type of sexual violence — predatory acts — in a specific setting — outside a secure facility. See K.S.A. 59-29a02(a).
While it is true that the definition of the ailment of the mind justifying the civil commitment under the Act is not identical to that justifying civil commitment of other dangerous mentally ill persons, this presents no constitutional barrier as the United States Supreme Court has not imposed a specific definition of “mental illness” for constitutional purposes. The Kansas Legislature’s decision to define “mentally ill person” in one context in K.S.A. 59-2902(h) does not impose a constitutional limitation on its ability to utilize a similar concept with fundamental differences for another purpose unless it violates constitutional guarantees of equal protection, which it does not, as we will later consider.
Nor is it critical that the Kansas Legislature defined “mental abnormality” as a classification that had not been explicitly recognized by the psychiatric community. The term “mental illness” itself is not defined in the DSM-IV. The DSM-IV is not in either *281design or fact a legal instrument, but merely a compendium of current thought among contemporary practitioners. The DSM-IV reflects only one perspective of the classification of mental disorders, and it violates no constitutional principle for the Kansas Legislature to select another.
“[TJhere has been little agreement on which disorders should be included and the optimal method for their organization. The many nomenclatures that have been developed during the past two millennia have differed in their relative emphasis on phenomenology, etiology, and course as defining features. Some systems have included only a handful of diagnostic categories; others have included thousands. Moreover, the various systems for categorizing mental disorders have differed with respect to whether their principle objective was for use in clinical, research, or statistical settings.” DSM-IV, Historical Background, p. xvi.
The DSM-IV itself acknowledges the shortcomings of its classification scheme as a mechanism to identify all mental disorders which might be relevant in different contexts. It clearly acknowledges its limitations in stating:
“Moreover, although this manual provides a classification of mental disorders, it must be admitted that no definition adequately specifies precise boundaries for the concept of‘mental disorder.’ The concept of mental disorder, like many other concepts in medicine and science, lacks a consistent operational definition that covers all situations. . . . [Djifferent situations call for different definitions.” DSM-IV, Definition of Mental Disorder, p. xxi.
Thus, the fact that the legislature has chosen different definitions of mental ailments, and drawn the boundaries of what is a “mental abnormality” in accordance with its limited purposes, is not an indictment of the statutory scheme, but rather is to its credit. It reflects that the legislature has narrowly tailored its statute to include only those persons presenting the precise danger the statute seeks to abate. The DSM-IV defines classifications for purposes completely unrelated to protecting the public from sexually violent predators, and therefore it is of no moment that its classification of mental disorders differs from that adopted by the legislature.
There is no justification for linking constitutional standards to the shifting sands of academic thought reflected in the DSM-IV and its frequent revisions. “The clinical and scientific considerations involved in categorization of these conditions as mental dis*282orders inay not be wholly relevant to legal judgments, for example, that take into account such issues as individual responsibility, disability determination, and competency.” DSM-IV, Cautionary Statement, xxvii.
In light of the DSM-IV’s purpose and design, it would be misguided to rely on it as a source of constitutional limitation on legislative power. The United States Supreme Court explained in Jones, 463 U.S. at 364 n.13:
“We do not agree with the suggestion that Congress’ power to legislate in this area depends on the research conducted by the psychiatric community. We have recognized repeatedly the ‘uncertainty of diagnosis in this field and the tentativeness of professional judgment. The only certain thing that can be said about the present state of knowledge and therapy regarding mental disease is that science has not reached finality of judgment . . . .’ [Citations omitted.] The lesson we have drawn is not that government may not act in the face of this uncertainty, but rather that courts should pay particular deference to reasonable legislative judgments.”
Our treatment of the insanity defense in criminal cases presents a fitting analogy. Kansas follows the M’Naghten test: “Under the M’Naghten test for criminal insanity, a defendant is to be held not criminally responsible where he does not know the nature and quality of his act or where he does not know right from wrong with respect to that act.” State v. Baker, 249 Kan. 431, Syl. ¶ 10, 819 P.2d 1173 (1991). The DSM-IV does not contain a classification of insanity matching our legal definition. Nevertheless, we permit both lay and expert opinion on the question of criminal insanity. State v. Harkness, 252 Kan. 510, Syl. ¶ 11, 847 P.2d 1191 (1992).
Consequently, the substantive due process analysis reduces to this: Has the State shown a compelling interest to which its statutory scheme for involuntary commitment is narrowly tailored? As discussed above, the State interest in confining and treating sexual predators is the protection of the public from random violent sexual attack by persons known to the State to be likely to carry out such attacks. “[I]t is irrefutable that the State has a compelling interest both in treating sex predators and protecting society from their actions.” Personal Restraint of Young, 122 Wash. 2d 1, 26, 857 P.2d 989 (1993).
*283Is the Sexually Violent Predator Act sufficiently narrowly tailored to achieve the State’s compelling interest? I would answer this question with a ringing “yes.” The Act is narrowly tailored in a number of particulars. First, it does not apply to sex offenders generally, or even to all sex offenders suffering some ailment of tire mind, but applies only to those persons with an ongoing mental condition rendering them likely to commit acts of sexual violence. Second, it does not apply to those susceptible to less restrictive treatment, but only to those who require secure confinement to prevent such violence. Third, to reduce the risk of erroneous detention it does not apply to all persons accused of sexually violent offenses, but only those previously charged or convicted. Fourth, it does not apply in the face of meager, or even clear and convincing evidence, but requires the State to prove beyond a reasonable doubt that a person qualifies for confinement. Fifth, consistent with its narrowly focused goals, it requires treatment outside the Department of Corrections. Sixth, it has adequate provisions for continuing reviews to ensure that only those persons representing a continuing danger are confined and treated. These are not all the reasons but are more than sufficient to require us to uphold the constitutionality of the Act.
For all of the reasons stated, I would hold that under established substantive due process analysis, the Act is narrowly tailored to serve a compelling State interest and therefore passes constitutional muster.
Although this dissent has answered the grounds for constitutional invalidity relied on by the majority, I write further, although not in great depth, about each additional issue raised by Hendricks which I would hold to be insufficient to require the reversal of his adjudication as a sexually violent predator.
Equal Protection
The “equal protection of the law” is guaranteed to all persons by both the Fourteenth Amendment to the United States Constitution and the Bill of Rights of the Kansas Constitution §§ 1 and 2.
*284Our decision on this issue is foretold by what we have said about the substantive due process issue herein. The difference between due process and equal protection is well established in Peterson v. Garvey Elevators, Inc., 252 Kan. 976, Syl. ¶ 1, 850 P.2d 893 (1993), where we state:
“The difference between the constitutional concepts of due process and equal protection is that due process emphasizes fairness between the state and the individual dealing with the state, regardless of how other individuals in the same situation are treated, while equal protection emphasizes disparity in treatment by the state between classes of individuals whose situations arguably are indistinguishable.”
Nevertheless, the test for determining the constitutionality of a statute under due process and equal protection weighs almost identical factors. Clements v. United States Fidelity & Guaranty Co., 243 Kan. 124, 127, 753 P.2d 1274 (1988). When a statute is attacked as violative of equal protection, the initial inquiry becomes which standard of scrutiny to apply. I have already answered this question and explained why I would hold the Act survives strict scrutiny.
I would also hold that Hendricks’ contention that similarly situated people are not treated similarly is totally without merit. All members of the class of persons of which Hendricks is a part are subject to treatment identical to that which he has received. Hendricks argues that the Act applies only to people who commit sex offenses and not other violent crimes; that the Act applies only to those who meet the definition of a sexually violent predator and not people convicted of incest; and that the Act applies a different standard of ailment of the mind to confine sexually violent predators than is used to confine other dangerous mentally ill people and subjects them to materially different procedures. None of the groups Hendricks compares to sexually violent predators are similarly situated for the limited and narrow purpose of the Act.
The legislature has broad constitutional authority to adopt statutory programs to confine and treat people who might be dangerous to themselves or others and who suffer from some mental ailment, whether a mental abnormality, a personality disorder, or mental illness as statutorily defined. However, the legislature is *285under no duty to act to the fullest extent of its authority, and the Constitution is not offended merely because the exercise of legislative power may result in some inequality. See Clements, 243 Kan. at 128; Manzanares v. Bell, 214 Kan. 589, 612, 522 P.2d 1291 (1974).
The Act focuses on the narrow problem of mental abnormality and violent, predatory sex crimes. The testimony of Senator Van-crum, previously quoted, shows the target group was “a small number of habitual sex offenders, who because of their psychological makeup, pose an immediate danger to the public.”
Equal protection of the law does not require the State to choose between attacking every aspect of a public danger or not attacking any part of the danger at all. As we said in Manzanares:
“ ‘[T]he legislative authority, acting within its proper field, is not bound to extend its regulations to all cases it might possibly reach. The legislature is “free to recognize degrees of harm and may confine its restrictions to those classes of cases where the need is deemed to be clearest.” If “the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied.” ’ ” Manzanares, 214 Kan. at 615 (quoting West Coast Hotel Co. v. Parrish, 300 U.S. 379, 81 L. Ed. 703, 57 S. Ct. 578 [1937]).
A statute does not violate equal protection just because it does not go as far as it might have gone. State ex rel. Schneider v. Liggett, 223 Kan. at 619.
The Act does not violate equal protection principles for the same reason it does not violate substantive due process — it is narrowly tailored to deal with a compelling State interest.
Civil or Punitive Nature of Act
Hendricks appeals the trial court’s finding that the Act is civil in nature and remedial, contending it is criminal and punitive. If the Act is criminal, Hendricks contends it is unconstitutional because it violates the constitutional prohibitions against double jeopardy and ex post facto laws. Since the arguments as to the second contention depend on whether the Act is civil or criminal in nature that must be first considered.
*286The Kansas Legislature’s intention to make the Act a civil statute is clear. The preamble of the Act, which has been previously quoted in its entirety, concludes by stating: “[Therefore a civil commitment procedure for the long-term care and treatment of the sexually violent predator is found to be necessary by the legislature.” K.S.A. 59-29a01.
A person committed under the Act is placed in the custody of the Secretary of SRS, not the Department of Corrections. K.S.A. 59-29a07(a). The provisions for commitment are similar to those for involuntary civil commitment under K.S.A. 59-2901 et seq. The classification established by the legislature will not be ignored by the court absent the clearest proof that the statutory scheme is so punitive either in purpose or effect as to negate the State’s intention that the proceeding be civil. United States v. Ward, 448 U.S. 242, 249, 65 L. Ed. 2d 742, 100 S. Ct. 2636 (1980).
The United States Supreme Court in Ward held that we first determine whether the legislature has applied a “civil” label to the statute and then whether the statutory scheme was 50 punitive either in purpose or effect as to negate that label. 448 U.S. at 248-49.
We have recently considered how a court determines whether a statutory enactment is truly remedial or punitive in character. A sanction which protects the public from harm is remedial in nature. State v. Mertz, 258 Kan. 745, 754, 907 P.2d 847 (1995). “Legislation which is regarded as remedial in its nature includes statutes having for their purpose the promotion of justice and the advancement of public welfare and beneficial public objects, such as the protection of health, morals, and safety of society, or of the public generally.” Mertz, 258 Kan. 745, Syl. ¶ 9.
There is no single feature which determines whether a statute is civil or criminal. Instead the court takes a commonsense, broad view, considering several factors:
“Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment — retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be *287connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in differing directions. Absent conclusive evidence of congressional intent as to the penal nature of a statute, these factors must be considered in relation to the statute on its face.” Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 9 L. Ed. 2d 644, 83 S. Ct. 554 (1963).
In Allen v. Illinois, 478 U.S. 364, 368-74, 92 L. Ed. 2d 296, 106 S. Ct. 2988 (1986), the United States Supreme Court held that the Illinois Sexually Dangerous Persons Act, which provided for the confinement and treatment of sexually dangerous persons, was civil in character such that a person subject to it could not claim the protection of the Self-Incrimination Clause of the Fifth Amendment to the United States Constitution. The Court found that by mandating care and treatment and providing for release if the person was no longer dangerous,
“the State has disavowed any interest in punishment, provided for the treatment of those it commits, and established a system under which committed persons may be released after the briefest time in confinement. The Act thus does not appear to promote either of ‘the traditional aims of punishment — retribution and deterrence.’ ” 478 U.S. at 370.
Like the Illinois Act, the commitment under our Act for care and treatment may continue only “until such time as the person’s mental abnormality or personality disorder has so changed that the person is safe to be at large.” K.S.A. 59-29a07(a).
Hendricks argues the Act is criminal in nature because it requires a showing of scienter, which he supports by claiming the Act applies to those convicted of a sexually violent offense. See K.S.A. 59-29a01. Inconsistent with this argument is the fact the Act also applies to those charged with sexually violent offenses. In such cases, no finding of criminal intent would accompany civil commitment. Additionally, the United States Supreme Court rejected a similar argument in Allen, 478 U.S. at 370:
“[Petitioner] first notes that the State cannot file a sexually-dangerous-person petition unless it has already brought criminal charges against the person in question. ... In addition, the State must prove that the person it seeks to commit perpetrated ‘at least one act of or attempt at sexual assault or sexual molestation.’ 107 Ill. 2d, at 105, 481 N. E. 2d, at 697. To petitioner, these factors serve to distinguish the Act from other civil commitments, which typically are not tied to *288any criminal charge and which the petitioner apparently concedes are not ‘criminal’ under the Self-Incrimination Clause. . . . We disagree. That the State has chosen not to apply the Act to the larger class of mentally ill persons who might be found sexually dangerous does not somehow transform a civil proceeding into a criminal one.”
The existence of previous or pending criminal convictions or charges serves only the limited purpose of identifying the group of individuals within which sexually violent predators might be found.
The testimony of individuals before the Senate and House Judiciary Committees that the Act was geared toward continued incarceration is repudiated by the stated legislative purpose, the civil nature of the commitment, and the specific requirement in K.S.A. 59-29a09 that the detention of persons “shall conform to constitutional requirements for care and treatment.”
I would reject Hendricks’ contention that the practical effect of the Act is indeterminate incarceration and the statement of the majority that treatment for sexually violent predators is all but nonexistent. The existence or extent of the specific care and treatment Hendricks has or will receive is not at issue here. It is clear that treatment is statutorily and constitutionally required. Further, the perspective of the committed individual is not what is relevant: “In determining if a civil proceeding has a retributive, deterrent, or remedial purpose, a court must use common sense. The court makes this determination from the objective viewpoint and not from the subjective viewpoint of the defendant.” State v. Mertz, 258 Kan. 745, Syl. ¶ 6. The mere fact of commitment “does not itself trigger the entire range of criminal procedural protections.” Allen, 478 U.S. at 372.
The legislature’s purpose was the protection of society from those rendered sexually dangerous by a mental ailment and the treatment of such people. Together, these are permissible goals of a civil commitment scheme and do not convert the Act into a criminal statute. See Allen, 478 U.S. at 373.1 would hold the Act to be civil in nature; thus, it should be evaluated by the standards applicable to such statutes.
*289 Double Jeopardy
A claim of double jeopardy generally applies only to criminal matters, and our finding that the Act is civil in nature diminishes any basis for this claim. Irrespective of our earlier holding, the claim must fail since none of the types of constitutionally guaranteed double jeopardy protection are available to assist Hendricks. Justice Abbott explained in Mertz:
“The Fifth Amendment Double Jeopardy Claiise of the United States Constitution states: ‘[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.’ The double jeopardy guaranty is enforceable against the states through the Fourteenth Amendment. North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969). Kansas also enforces an analogous double jeopardy clause in Section 10 of the Kansas Constitution Bill of Rights. It states: ‘No person shall ... be twice put in jeopardy for the same offense.’ The double jeopardy protection guaranteed in the Kansas Constitution Bill of Rights is equivalent to the protection guaranteed in the United States Constitution. See State v. Cady, 254 Kan. 393, 396-97, 867 P.2d 270 (1994). The double jeopardy clause provides three different types of protection for a person charged with a crime. Double jeopardy protection shields an accused from ‘(1) a second prosecution for the same offense, after an acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.’ 254 Kan. 396 (citing Brown v. Ohio, 432 U.S. 161, 165, 53 L. Ed. 2d 187; 97 S. Ct. 2221 [1977]).” 258 Kan. at 749.
. The first type of protection has no application here because Hendricks was not acquitted of any offense. The second type of protection would apply only if the civil commitment proceeding were a prosecution for the same offenses of which Hendricks was convicted. As noted above, the Act is not concerned with Hendricks’ past actions except to the extent they evidence his current dangerousness and mental ailment. Hendricks acknowledges that the second type of protection is implicated only, if the Act is criminal in character rather than civil.
The third iype of double jeopardy protection, relating to multiple punishments for the same offense, can be implicated even in a proceeding labeled as civil. United States v. Halper, 490 U.S. 435, 447-48, 104 L. Ed. 2d 487, 109 S. Ct. 1892 (1989). Thus, a civil sanction disproportionate to the harm actually caused may qualify as punishment for double jeopardy purposes. 490 U.S. at 448. *290“Simply put, a civil as well as a criminal sanction constitutes punishment when the sanction as applied in the individual case serves the goals of punishment. These goals are familiar. We have recognized in other contexts that punishment serves the twin aims of retribution and deterrence.” 490 U.S. at 448-49. “[A] civil sanction is violative of the Double Jeopardy Clause only if it ‘may not fairly be characterized as remedial, but only as a deterrent or retribution.’ Halper, 490 U.S. at 448-49.” State v. Carpenter, 197 Wis. 2d 252, 264, 541 N.W. 2d 105 (1995).
As noted above, the legislative purpose of the Act is public safety and treatment of those committed, not retribution or deterrence. Since it is remedial in nature and seeks neither punishment nor retribution, it does not constitute a double jeopardy violation.
Ex post facto
Hendricks’ contention that the Act is unconstitutional as an ex post facto law is without any merit.
An ex post facto law punishes as a crime an act previously committed that was innocent when done, increases the punishment for a crime after its commission, or deprives an accused of any defense which was available by law at the time the act was committed. Collins v. Youngblood, 497 U.S. 37, 42, 111 L. Ed. 2d 30, 110 S. Ct. 2715 (1990). Since the Act, as a civil statute, neither criminalizes conduct legal before its passage nor imposes punishment for a crime, it does not violate the Ex Post Facto Clause. Its concern is the current mental condition of the person subject to commitment and his or her present dangerousness, not any past behavior except as relevant to show current condition.
Procedural Due Process
Hendricks’ argument that the Act violates procedural due process must also fail. Procedural due process guarantees apply only to liberty and property interests encompassed by the Fourteenth Amendment. Jacobs, Visconsi & Jacobs v. City of Lawrence, 927 F.2d 1111, 1115 (10th Cir. 1991). The fundamental requirement of due process is a fair trial in a fair tribunal. State v. Green, 245 Kan. 398, 404, 781 P.2d 678, cert. denied 114 S. Ct. 1848 (1989). *291The concept of due process is flexible and does not require the same kinds of procedural safeguards in all situations. In re Marriage of Soden, 251 Kan. 225, Syl. ¶ 6, 834 P.2d 358, cert, denied 121 L. Ed. 2d 540 (1992). The procedures that must be afforded an individual depend on the nature of the loss the individual faces and whether the government’s interest in a more abbreviated procedure outweighs the individual’s interest. In re Cooper, 230 Kan. 57, Syl. ¶ 3, 631 P.2d 632 (1981).
The outline of the Act at the beginning of this dissent shows Hendricks is provided with a panoply of procedural rights. “The essential elements of due process of law are notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case.” Crane v. Mitchell County U.S.D. No. 273, 232 Kan. 51, Syl. ¶ 1, 652 P.2d 205 (1982).
The Act clearly provides all the necessary basic protections, including appointed counsel, a probable cause hearing, appointment of qualified experts or professional persons, a jury trial with unanimous decision, appeals, annual examinations, discharge petitions, hearings, and the strictest possible burden of proof on the State.
Hendricks’ argument that the Act denies him the right to remain silent is meritless, as the United States Supreme Court has clearly held that the protection against self-incrimination has no application in the civil commitment of sexually violent persons. Such protections come neither from the Fifth Amendment nor the Due Process Clause. See Allen, 478 U.S. at 368-74.
Hendricks has failed to overcome the presumption of the constitutionality of the Act on the grounds of double jeopardy, ex post facto, and procedural due process largely because the Act is not punitive but remedial, not criminal but civil.
Hendricks’ 1984 plea agreement
In exchange for his 1984 plea, Hendricks recounts that the State agreed to dismiss one of three counts of indecent liberties, not seek application of the Habitual Criminal Act, and recommend a prison sentence of 5 to 20 years on the remaining two counts, to be run concurrently.
*292Hendricks, contends that he had served the required time to b,e released, and the institution of proceedings to commit him for care and treatment violated his 1984 plea agreement.
Hendricks relies on State v. Wills, 244 Kan. 62, 765 P.2d 1114 (1988). In Wills, this court held that the State’s unqualified agreement to make, a specific, sentencing recommendation was binding not only at the original sentencing hearing, but also at ,a hearing on a motion to modify the sentence. . -
Hendricks’ argument is unpersuasive. First, Hendricks’ 1984 conviction was not the basis for his involuntary commitment, fifis involuntary commitment was based solely on his mental ailment and present dangerousness. .His. 1984 conviction served only to identify him as a member of the pool of people potentially subject to. the Act. Second, Wills- stands for the limited proposition that an unqualified agreement as to.the scope oí'punishment for an offense remains binding on the State after the original sentencing. Hea-dricks’ present confinement is not punishment'for any offense but merely civil commitment .based on his mental condition. Civil commitment following the service of the sentence is collateral to the plea and independent of the criminal case. See George v. Black, 732 F.2d 108, 110-11 (8th Cir. 1984). Third, under the Act, Hen-' dricks’ conviction of, and thus his guilty plea to sexually Violent offenses is immaterial. A person who is charged with such offenses is identified as within the pool to whom the Act might apply. The State did not violate the plea agreement.
Statutory Vagueness or Overbreadth
Hendricks’ claim that the Act is violative of due process because it is too vague and overbroad in definition, in procedure',' in purpose, and in application must also fail, primarily because the language of the Act, as summarized earlier, is clear.:
We remain duty bound to avoid a .vague construction of the Act if reasonably possible. Boatright v. Kansas Racing Comm’n, 251 Kan. 240, Syl. ¶ 1, 834 P.2d 368 (1992). Where the .statute at issue does not impose criminal penalties, a commonsense determination of fairness is the standard for determining vagueness. See Boatrigjkt, 251 Kan. 240, Syl. ¶ 3. We need not again detail all the provisions of the *293Act previously referred to herein to answer Hendricks’ claim. The Act is comprehensive, understandable, capable of application, and sufficiently clear and definite to withstand a vagueness challenge.
Scope of Expert Testimony
Hendricks’ argument that the trial court’s limitation of his expert’s testimony about a few technical details of certain academic studies amounts to reversible error is equally unconvincing.
To prevail on appeal, Hendricks must establish that the trial court abused its discretion. See State v. Friberg, 252 Kan. 141, 147, 843 P.2d 218 (1992). Judicial discretion is abused only where no reasonable person would take the view of the trial court. State v. Warden, 257 Kan. 94, 116, 891 P.2d 1074 (1995).
From a review of the record it is apparent the trial court permitted Hendricks’ expert to testify about all relevant conclusions within his field of expertise. Reasonable people could agree the excluded details could confuse the jury without materially advancing Hendricks’ position. Additionally, it does not appear that Hendricks attempted to offer the disputed evidence to die jury or that a proper proffer was made to preserve this issue for consideration on appeal.
Dr. Logan is an experienced psychiatrist who opined that based on numerous studies, mental health professionals erroneously predicted future unlawful behavior two out of three times and treatment has fitde effect on the recidivism rate for pedophiles. The evidence direcdy countered Dr. Befort’s opinion and Hendricks’ admissions, and it was up to the jury to consider its weight.
Sufficiency of Evidence
Because the State’s burden under the Act requires proof beyond a reasonable doubt, our standard of review is whether, after viewing all the evidence, viewed in the light most favorable to the State, we are convinced that a rational factfinder could have found Hendricks was a sexually violent predator beyond a reasonable doubt.
Dr. Befort’s expert testimony, Hendricks’ own testimony that he could not guarantee he would stop his sexual attacks on children, Hendricks’ entire life history, and the testimony of three of his *294victims, including two stepchildren, are clearly sufficient to support the jury’s unanimous verdict.
Conclusion
For all of the reasons hereinbefore set forth, I dissent from this court’s opinion and would hold that the Kansas Sexually Violent Predator Act is constitutional. The trial court should be affirmed.
McFarland, C.J., and Six, J., join in the foregoing dissenting opinion.