dissenting.
[¶ 30] To deprive a person of his liberty for an indefinite period of time in the civil commitment of a sexually dangerous individual, the State must show by clear and convincing evidence that the individual to be committed has a disorder that makes the individual likely to engage in further acts of sexually predatory conduct and, because of the disorder, is likely to engage in those acts. N.D.C.C. § 25-03.3-01(8).
[T]here must be proof of serious difficulty in controlling behavior. And this, when viewed in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case.
Kansas v. Crane, 534 U.S. 407, 413, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002).
[¶ 31] The State failed to meet its burden in this case. Because I am firmly convinced the court’s decision is not supported by clear and convincing evidence, I would reverse. I, therefore, respectfully dissent.
I
[¶ 32] G.R.H. has spent much of the last ten years of his young life in prison for committing two sex crimes. A review of G.R.H.’s sex crimes shows that he is not the sort of sexually dangerous individual the civil commitment statute was designed for. Neither sex crime he committed had an element of force as part of the statutory definition of the crime. Neither of his crimes had elements for which one would ordinarily use the adjective “predatory.” The crimes involved no stalking of victims, no grooming of victims, no evidence of *598preplanning, no kidnapping or isolating of victims, and while each of his criminal acts involved a minor victim, G.R.H.’s age in relation to the victims age has to be considered when assessing the likelihood that he represents a threat to children. G.R.H. has never been diagnosed with any sort of sexual disorder such as pedophilia.
[¶ 33] His first sex violation involved voluntary sex between individuals that were five years apart in age. In 1994, when G.R.H. was 19 years old he had voluntary sex with a 14 — year-old. He met the girl at a club for persons 18 and older. The girl was in the club despite the age restrictions. The victim’s statement indicates the sex was voluntary although at 14 she was statutorily incapable of giving consent. G.R.H. pled guilty to the North Dakota equivalent to statutory rape and was sentenced to ten years in the North Dakota State Penitentiary with six years suspended. In 1997, G.R.H. was released from prison and placed on probation. Shortly after his release, his probation was revoked for failing to register as a sex offender and he was again incarcerated.
[¶ 34] In 1999, now 24 years old, G.R.H. was again convicted of committing a sex crime for engaging in oral sex with a 16-year-old. G.R.H. pled guilty to the charge of corruption or solicitation of a minor for engaging in a sexual act with a minor who was older than 15 when he was at least 22. Because G.R.H. pled guilty, there is no evidentiary record. There are conflicting reports on how this incident developed. Some reports suggest force was involved. Other reports state the girl was drunk at a party and was sexually involved with several men that night.
[¶ 35] Dr. Rosalie Etherington’s report stated:
[G.R.H.] had attempted sexual contact with D.D. earlier in the evening but she clearly declined. He then approached her again and after leading her into the downstairs bathroom he asked her to perform fellacio [sic] on him. D.D. indicated that she did not want to but he was very persistent. She then began but stopped and informed him she would not do it any longer. [G.R.H.] then grabbed her head and put his penis inside her mouth and forced her head back and forth upon his penis.
[¶ 36] G.R.H. committed crimes and he should be, and was, punished for his crimes. He has served his sentences for those crimes. While in prison, he received numerous hours of treatment and completed two separate sex offender treatment programs. Now, after spending nearly a decade in prison, G.R.H. is sentenced to an indefinite term of commitment based upon his two violations involving sex with minors.
II
[¶ 37] Chapter 25-03.3, N.D.C.C., authorizes the involuntary civil commitment of sexually dangerous individuals. The statute requires two findings: (1) sexually predatory conduct; and (2) some type of personality, sexual, or mental disorder that makes an individual “likely to engage in further acts of sexually predatory conduct.” N.D.C.C. § 25-03.3-01(8). The burden is on the State to show by clear and convincing evidence the defendant is a sexually dangerous individual. Interest of L.D.M., 2005 ND 177, ¶ 5, 704 N.W.2d 838.
[¶ 38] The first element, sexually predatory conduct, is not difficult to find under the statute as currently written. Many high school and college age individuals meet the definition of “sexual predator.” “Sexually predatory conduct” does not require a criminal conviction. N.D.C.C. § 25-03.3-01(9). An individual is a sexual predator under the statute for “[e]ngaging or attempting to engage” in voluntary sex *599with anyone under fifteen years old, regardless of the predator’s age.1 N.D.C.C. § 25 — 03.3—01(9) (a) (4). An individual is a sexual predator under the statute for “[ejngaging or attempting to engage” in voluntary sex with a minor when the actor is an adult. N.D.C.C. § 25-03.3-01(9)(a)(7). Thus, a sixteen-year-old sophomore in high school would be a sexual predator for having voluntary sex with a fourteen-year-old freshman, and an eighteen-year-old high school senior would be a sexual predator for having voluntary sex with his seventeen-year-old classmate. For purposes of this statute, oral sex is sex. See N.D.C.C. § 25-03.3-01(6) (defining “sexual act”). An individual can be a sexual predator for “[ejngaging in or attempting to engage in sexual contact” that an individual “knows or should have known” is “offensive to the victim.” N.D.C.C. § 25 — 03.3—01(9)(b)(l). The astonishing breadth of “sexually predatory conduct” is one reason that civil commitment of a criminal like G.R.H. could occur.
[¶ 39] Besides a showing of “sexually predatory conduct,” the State has the burden to show by clear and convincing evidence that an individual has a “congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction that makes that individual likely to engage in further acts of sexually predatory conduct which constitute a danger to the physical or mental health or safety of others.” N.D.C.C. § 25-03.3-01(8). The statute does not define what sort of disorders would fit this definition, although mental retardation is explicitly excluded. Id. The statute requires “experts chosen by the executive director” to evaluate whether the individual meets the requirements of the statute. N.D.C.C. § 25-03.3-12.
[¶ 40] In this case, three psychologists evaluated G.R.H. No psychologist reported that G.R.H. was a sexual deviant, or that he suffered from any type of paraphilia such as pedophilia or hebephilia (sexual attraction to humans who are pubescent). The only psychological disorder G.R.H. was diagnosed with was antisocial personality disorder. Antisocial personality disorder is not an unusual diagnosis for someone who has been in prison. Approximately 40%-60% of the male prison population are diagnosable with antisocial personality disorder. See Kansas v. Crane, 534 U.S. 407, 412, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002) (citing Moran, The Epidemiology of Antisocial Personality Disorder, 34 Social Psychiatry & Psychiatric Epidemiology 231, 234 (1999)). Dr. Ether-ington testified during the evidentiary hearing in this case that the number was actually higher. She testified that approximately 60%-75% of incarcerated individuals suffered from antisocial personality disorder.
[¶ 41] According to the DSM-IV manual, the authoritative text on psychological disorders, antisocial personality disorder requires a showing of a “pervasive pattern of disregard for and violation of the rights of others occurring since age 15.” See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 706 (rev. 4th ed. 2000) (DSM-IV) (detailing antisocial personality disorder). Sexual devianey is not a necessary component to a diagnosis of antisocial personality disorder. Three or more of the *600following seven factors must be met for this diagnosis to be applicable.
1. failure to conform to social norms with respect to lawful behaviors as indicated by repeatedly performing acts that are grounds for arrest
2. deceitfulness, as indicated by repeated lying, use of aliases, or conning others for personal profit or pleasure
3. impulsivity or failure to plan ahead
4. irritability and aggressiveness, as indicated by repeated physical fights or assaults
5. reckless disregard for safety of self or others
6. consistent irresponsibility, as indicated by repeated failure to sustain consistent work behavior or honor financial obligations
7. lack of remorse, as indicated by being indifferent to or rationalizing having hurt, mistreated, or stolen from another
Id.
[¶ 42] The disorder has a “chronic course but may become less evident or remit as the individual grows older.” Id. at 704. All three psychologists concluded G.R.H. suffered from antisocial personality disorder. Dr. Joseph Belanger’s written report concluded that G.R.H. met five out of the seven criteria necessary for a diagnosis of antisocial personality disorder. G.R.H. failed to conform to social norms, was deceitful, impulsive, irritable, and lacked remorse. According to Dr. Belan-ger’s report, G.R.H. did not represent a reckless disregard for the safety of others, nor was he conclusively irresponsible. Not one of the three psychologists diagnosed G.R.H. with a psychological disorder that is focused on sexual predatory conduct.
[¶ 43] It is questionable whether a diagnosis of antisocial personality disorder alone should meet our statutory requirements for commitment of a sexually dangerous individual. Assuming it does meet our statutory definition, the evidence submitted to the district court was insufficient to show G.R.H. was “likely to engage in further acts of sexually predatory conduct” because of the psychological disorder. N.D.C.C. § 25-03.3-01(8). The psychologists’ reports and testimony were equivocal about G.R.H.’s potential for committing another sex crime.
[¶ 44] Four psychological tests were used to determine whether G.R.H. would have a likelihood of recidivism. Only one of the four tests indicated a recidivism rate that could logically be denoted as “likely” to re-offend. Within a five-year period, the RRASOR showed a 14% chance of recidivism, the Static-99 showed a 39% chance of recidivism, and within a six-year period, the MnSOST-R showed a 78% chance of recidivism. A PCL-R test was also done on G.R.H. Dr. Etherington reported that G.R.H.’s score on the PCL-R test was “not clearly indicative” of a finding that G.R.H. was high risk for sexual recidivism. Her report stated that “such a finding would seem to require, based on existing research, the combination of this PCL-R score range with some type of relevant deviant sexual interest. Such a condition was not diagnosed for [G.R.H.].”
[¶ 45] The testimony presented at trial was also equivocal about G.R.H.’s potential to engage in further acts of sexually predatory conduct. Dr. Robert Gulkin, G.R.H.’s independent expert, testified that G.R.H.’s conduct was opportunistic and impulsive rather than predatory:
Q. [I]n your mind, the idea of what’s predatory conduct versus opportunistic conduct, how would you characterize Mr. H.’s previous offenses?
A. In my report, I had made reference to the fact that his two offenses did not present in the predatory manner of some sex offenders, that it— *601they — it was more opportunistic, that he did in fact take advantage of a situation and the individuals, used some poor judgment. I think this is the impulsivity. [T]his is some of the characterological issues of the Personality Disorder, but I did not see anything suggestive of a para-philia or an identifiable sexual pathology, and he as such presented qualitatively differently. Impulsive, poor judgment, involving some sexual activity, but not a predatory sexual act.
[¶ 46] Dr. Gulkin also testified that there was only a hypothetical probability or a potentiality that G.R.H. would repeat his behavior.
Q. Okay. In regard I guess to the other diagnosis, the Antisocial Personality Disorder, you did diagnose Mr. H. from suffering from that diagnosis; correct?
A. Yes, I did.
Q. Okay. And you believe that as a result of that diagnosis that that might potentially lead to — potentially lead to sexual misbehavior in the future, that — or would that be a fair statement?
A. Potentially, yes, it may.
Q. Potentially it may, okay. How likely it would lead to that, you don’t know quantitatively; correct?
A. That’s correct.
[¶ 47] Based on the evidence and testimony presented at the evidentiary hearing, the court’s finding that G.R.H. was likely to engage in further acts of sexually predatory conduct because of a diagnosis of antisocial personality disorder was clearly erroneous. While there may have been a showing that G.R.H. potentially or possibly could re-offend, there was not a showing by clear and convincing evidence that G.R.H. was “likely” to engage in sexually predatory conduct. Therefore, the court’s finding was clearly erroneous.
III
[¶ 48] While our statute requires an individual to be “likely to engage in further acts of sexually predatory conduct” because of a psychological disorder, the constitution requires something more. The United States Supreme Court has recognized that the inability to control behavior is a necessary constitutional requirement for civil commitment of sexual predators. In order for a civil commitment to be constitutional, there must be a finding of a “serious difficulty in controlling behavior.” Kansas v. Crane, 534 U.S. 407, 413, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002); see also Foucha v. Louisiana, 504 U.S. 71, 82-83, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992) (refusing to allow civil commitment that would permit the indefinite confinement “of any convicted criminal” after completion of a prison term). As the Crane court stated:
the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case.
Crane, 534 U.S. at 413, 122 S.Ct. 867.
[¶ 49] The court recognized the constitutional importance of distinguishing a dangerous sexual offender subject to civil commitment “from other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings.” Crane, 534 U.S. at 412, 122 S.Ct. 867 (citing Kansas v. Hendricks, 521 U.S. 346, 360, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997)). This separation *602was constitutionally necessary, otherwise “civil commitment” could quickly become a “ ‘mechanism for retribution or general deterrence’ — functions properly those of criminal law, not civil commitment.” Crane, 534 U.S. at 412, 122 S.Ct. 867 (citing Hendricks, 521 U.S. at 372-73, 117 S.Ct. 2072 (Kennedy, J., concurring)).
[¶ 50] Other jurisdictions interpreting Crane have concluded antisocial behavior is insufficient to civilly commit an individual. According to one jurisdiction, “under United States Supreme Court case law, a state cannot constitutionally confine a person based solely on antisocial behavior. In order to civilly commit an individual, there must be at least clear and convincing evidence that the individual is ‘mentally ill’ and ‘dangerous.’ ” In re Doe, 102 Hawai’i 528, 78 P.3d 341, 361-62 (App.2003).
[¶ 51] The record does not support a finding that G.R.H. is a dangerous individual. Although a finding of dangerousness is not alone a sufficient predicate for a civil commitment, Foucha v. Louisiana, 504 U.S. 71, 77, 80, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992), dangerousness is a necessary predicate to a civil commitment. The necessary evidence must show the individual is a danger to public health and safety because the person is likely to engage in sexually violent conduct in the future if not incapacitated. Hendricks, 521 U.S. at 357, 117 S.Ct. 2072.
[¶ 52] The district court erroneously found G.R.H. has a serious difficulty controlling his behavior. This finding was erroneous because there was substantial evidence G.R.H. could control his behavior. A diagnosis of antisocial personality disorder does not preclude such a legal determination that a person can control his behavior.
[¶ 53] Dr. Gulkin recognized a diagnosis of antisocial personality disorder does not mean an individual has a serious lack of ability to control behavior.
The general understanding is that antisocial individuals have the controls. In fact the literature, both research and general clinical literature, is full of observational and other studies that show that antisocial individuals are actively making choices and do control their behavior in different environments doing it differentially based upon the situation.
So it’s not the lack of capacity. It’s how antisocial individuals view situations and how they make the decisions about proceeding.
[¶ 54] At the initial commitment hearing on September 23, 2004, Dr. Rosalie Etherington testified G.R.H. could control his behavior.
Q. Okay. Would it be fair to say that Antisocial Personality Disorder then are people who can control their actions, but just have a proclivity not to, that they just don’t for whatever reason. They can control their actions, but they don’t.
A. There’s been lots of arguments made about volitional control and does it — you know, does it exist with an antisocial personality. I would say yes, they do have potential to control their behavior. Absolutely. They choose not to or the drive not to, you know, based on the disorder itself is quite strong, but nevertheless, yes. Under controlled circumstances, you know, with enough wherewithal or desire to do so, I do believe they can control themselves.
[¶ 55] Dr. Gulkin concurred in Dr. Etherington’s diagnosis.
Q. Dr. Gulkin, would you agree that G.[R.H.] does not have a special and serious lack of ability to control his *603behavior which would be different from a typical career recidivist?
A. That is correct.
[¶ 56] However, at the second eviden-tiary hearing, Dr. Etherington testified G.R.H. “suffers from antisocial personality disorder and that disorder in and of itself impairs his volition.” Equivocal testimony about G.R.H.’s ability to control behavior does not meet the clear and convincing evidentiary burden under our statute or the constitutional requirement of “serious difficulty in controlling behavior” announced in Crane, 534 U.S. at 413, 122 S.Ct. 867.
[¶ 57] G.R.H.’s ability to control his behavior is further demonstrated by his behavior in prison. Dr. Belanger testified G.R.H.’s conduct had improved while in prison and he “has not had an aggressive physical fight to the best of our knowledge since 1996. He’s learning I think to respond to the cues of what will get him into trouble with administration a little bit more quickly.” Dr. Gulkin testified “it’s my impression that the aggressive and impulsivity that had marked his earlier behavior had diminished, that through aging, education, treatment, it appears that he has been able to moderate those behaviors and demonstrate better control.” Dr. Etherington testified G.R.H. “became more compliant with programming. He started in some [college] classes. He completed classes. He just overall did much better.”
[¶ 58] G.R.H.’s recent behavior at the State Hospital has been described as “exemplary.” John Kildahl, an advanced clinical specialist who spends approximately five hours per week treating G.R.H., described G.R.H. as a model patient.
Q. Okay. During the time that you’ve been working with Mr. H., tell me a little bit how his behavior has been on the ward. Can you just—
A. I think exemplary.
Q. Okay. When you say exemplary, why would you say that?
A. Because there have been no altercations—
Q. Okay.
A. With others, with other patients, and/or with staff.
Q. Okay.
A. There have been no — in other words, there have been physical incidents with other patients and/or staff.
Q. Okay. Well, would there be any other reasons why you would characterize his behavior as exemplary?
A. I don’t know if it’s behavior. He helps out — he certainly helps with his groups to help and be insightful, and to give comments to others that he thinks are pertinent to themselves, to himself.
Q. Um-hmm. And I guess in regard to his relationship with other members of the group, is he generally liked by other members of the group, and do they generally have a fairly good working relationship?
A. I think he’s liked by some, and I think he’s respected by all.
Q. Okay.
A. I don’t think everyone likes him.
Q. Okay.
A. I think some are envious.
Q. Okay. In the time that you’ve been working with him, has he failed to conform with any of the rules or regulations on the ward to any significant degree?
A. No.
Q. Has he been in any way deceitful with you or other members of the treatment staff?
*604A. Not to my knowledge, no.
Q. Okay. Has he been impulsively, basically in any way, you know, unpredictable, odd behavior, anything along those lines?
A. No.
Q. Okay. Has he been irrational or aggressive?
A. On one occasion.
Q. Okay. Tell us about the one occasion where he was — I believe there was an occasion where he was what, aggressive?
A. I don’t [k]now that that’s — that’s a difficult word, it’s a difficult situation, what went on, I think. He was in the situation that I would refer to within one of the core groups that I was leading, and it resulted — it gave him — between he and another patient, basically he confronted another patient on an issue.
Q. Okay.
A. And the other patient grew heated, and there were some threats tossed, and they were returned — it was a heated pretty much face to face argument.
Q. Okay.
A. Of which both parties were at fault.
Q. Okay. How about irresponsible? Has he been responsible in regard to his various obligations? Has he been in any way consistently, or otherwise irresponsible?
A. He’s been extremely responsible to his treatment.
Q. Okay. And I guess in his treatment, has he shown any remorse for his actions, his previous actions?
A. Yes, he has.
[¶ 59] G.R.H. can control his behavior. This is demonstrated by his conduct at the State Penitentiary and the State Hospital. There is nothing in the record that would separate G.R.H. from the typical criminal recidivist. As such, he has been properly dealt with in criminal proceedings. Crane, 534 U.S. at 412, 122 S.Ct. 867. He has served his sentence and has already gone through two sex offender treatment programs while at the State Penitentiary. Under an evidentiary standard that requires clear and convincing evidence, the record does not support the court’s finding that G.R.H. had a serious difficulty in controlling his behavior. The finding was clearly erroneous.
IV
[¶ 60] The disposition of the trial court, and the majority’s interpretation of the statute, places the judicial discretion to determine who should be civilly committed into the hands of a few psychologists, merely applying the DSM-IV manual. This interpretation inevitably leads to a result that usurps the role that is at the cornerstone of the judiciary.
[¶ 61] As the Crane court noted, the “science of psychiatry, which informs but does not control ultimate legal determinations, is an ever-advancing science, whose distinctions do not seek precisely to mirror those of the law.” Crane, 534 U.S. at 413-14, 122 S.Ct. 867 (citing Ake v. Oklahoma, 470 U.S. 68, 81, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) (psychiatry not “an exact science”); DSM-IV xxx (“concept of mental disorder ... lacks a consistent operational definition”); id., at xxxii-xxxiii (noting the “imperfect fit between the questions of ultimate concern to the law and the information contained in, [the DSM’s] clinical diagnosis”)).
[¶ 62] In this case, we are aided by an amicus brief from the North Dakota Attorney General’s Office. A recent psychological report on the effects of Kansas v. Hendricks and Kansas v. Crane on mental *605health professional’s diagnostic techniques was included in an addendum to the brief. See Cynthia C. Mercado, Robert F. Schopp, and Brian H. Bornstein, Evaluating Sex Offenders Under Sexually Violent Predator Laws: How Might Mental Health Professionals Conceptualize the Notion of Volitional Impairment ? 10 Aggression and Violent Behavior 289-309 (2005). The report emphasizes that a clinical diagnosis is not synonymous with meeting a legal standard for civil commitment. Id. at 295. As the expert researchers report:
The use of diagnostic labels for legal purposes has been criticized on the grounds that they are descriptively imprecise. Although potentially helpful in determining whether a pattern of behavior meets a legal threshold, diagnostic labels should not be considered disposi-tive of a legal issue.
Id. (citations omitted).
[¶ 63] Clinicians have a responsibility to limit their testimony to areas of their competencies. Id. at 296. This is not to say there is no role for mental health professionals. As the psychologists’ report notes, “there is utility to clinical expertise when it provides [] description of clinicians’ unique understanding of human behavior.” Id. But ultimately the court is to make the “normative judgment as to whether such impairment ... renders the individual eligible (or ineligible) for a particular legal status.” Id.
[¶ 64] The psychologists reported that G.R.H. suffers from a personality disorder and that disorder impairs his volition. The court concluded that because the psychologists testified that G.R.H. met the legal standard, the court “really has no alternative but to commit him.” If we are to accept this interpretation, psychologists will have usurped the judiciary’s function. The court must decide whether it has received clear and convincing evidence that G.R.H. has a disorder which makes him a danger to society as a sexually dangerous individual. While clinical expertise is useful in these cases, the court must always maintain its normative role in passing judgment.
V
[¶ 65] Our civil commitment treatment program is appropriate and useful for sexually dangerous individuals who have committed sexually predatory conduct and who have a serious inability to control behavior. But civil commitment requires a clear and convincing showing that the statutory and constitutional requirements are met. It is a heavy burden not met in this case. While our statute may use the phrase “likely to engage in,” our judges must read that language in light of the constitutional requirements announced in Crane. If G.R.H. is a candidate for civil commitment, our statute is constitutionally infirm. Because I am firmly convinced the court’s decision is not supported by clear and convincing evidence, I would reverse. I, therefore, respectfully dissent.
[¶ 66] GERALD W. VANDE WALLE, . C.J., and CAROL RONNING KAPSNER, J., concur.. The 2005 Legislative assembly enacted N.D.C.C. § 12.1-20-01(3), which limits criminality based on age for most sex crimes: "When criminality depends on the victim being a minor, the actor is guilty of an offense only if the actor is at least four years older than the minor.” The age limitation was not included with the corresponding civil commitment statute.