dissenting.
[¶ 14] I respectfully dissent. The district court’s denial of M.D.’s petition for discharge is clearly erroneous based on this record.
I.
[¶ 15] The State’s expert, Dr. Lynne Sullivan, indicated M.D. has not completed sex offender treatment, but has regressed in his treatment. M.D. was civilly committed in 1998; thus, he has been civilly committed for ten years. The fact that he has been committed for ten years, alone, does not suggest he will remain in treatment indefinitely or that he will never successfully complete treatment, but it does call into question the effectiveness of the treatment program.
II.
[¶ 16] To continue to involuntarily commit an individual, the State must show “by clear and convincing evidence that the committed individual remains a sexually dangerous individual.” N.D.C.C. § 25-03.3-18(4); Interest of M.D., 1999 ND 160, ¶ 28, 598 N.W.2d 799. The evidence relied upon by the State does not meet this burden. Indeed, much of the evidence relied upon by the State should be rejected as irrelevant.
[¶ 17] Dr. Sullivan’s report noted, “M.D. had engaged in a secret, against-the-treatment-rules, 18-month-long homosexual relationship with a young-looking resident.” Majority Opinion at ¶ 3. The majority indicates, and I recognize, that by engaging in these acts, M.D. violated treatment rules. The State acknowledged, however, that there is nothing in the record to suggest that the relationship is anything other than consensual; and the other “young-looking” participant is acknowledged to be an adult.
[¶ 18] Thus, M.D.’s continuing deprivation of liberty is based on engaging in a homosexual relationship with a consenting adult. His continuing and indefinite confinement is based upon activity for which the State could not punish him criminally. In Lawrence v. Texas, 539 U.S. 558, 563, 578, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), the United States Supreme Court held unconstitutional a law criminalizing “sexual intercourse with another individual of the same sex.” While in Lawrence the defendant was tried criminally for his actions, and in the present case M.D. is being civilly committed for his actions, the facts of the two cases are similar. See id. at 563,123 S.Ct. 2472.
[¶ 19] Neither case involved a minor, public conduct, or prostitution. Id. at 578, 123 S.Ct. 2472. Lawrence did not pertain to individuals “who might be injured or coerced or who are situated in relationships where consent might not easily be refused.” Id. Nothing in the present case indicates coercion or consent are an issue. Neither case pertains to the issue of “whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Id. Lawrence involved “two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle.” Id.
[¶ 20] In Lawrence, the actions took place in a private residence, while in the present case, the actions took place in a treatment facility, and the actions were against treatment rules. Id. at 562. Even so, M.D. is being confined civilly for actions for which, according to this State’s criminal code, and United States Supreme Court precedent, he cannot be punished criminally. N.D.C.C. tit. 12.1; Lawrence, 539 U.S. at 578, 123 S.Ct. 2472. It was clearly erroneous for the district court to rely on the fact that M.D. was involved in *564a homosexual relationship as sufficient to deny M.D.’s petition for discharge. Facts for which the individual cannot be criminally prosecuted can be considered but add little, if anything, to establish that the individual remains a sexually dangerous individual.
[¶ 21] M.D. is being indefinitely confined for engaging in a relationship with a consenting adult, who is “young-looking.” Sexually dangerous individuals may be involuntarily civilly committed. N.D.C.C. ch. 25-03.3. To be labeled a “sexually dangerous individual,” one of the requirements is that the individual is likely to engage in sexually predatory conduct. N.D.C.C. § 25-03.3-01(8). While the definition of “sexual predatory conduct” is broad, it does not include engaging or attempting to engage in a sexual act or sexual contact with a consenting adult who is “young-looking.” See N.D.C.C. § 25-03.3-01(9); Matter of G.R.H., 2006 ND 56, ¶ 38, 711 N.W.2d 587 (Kapsner, J., dissenting). Thus, this Court is affirming the district court’s denial of discharge partially based on M.D.’s actions, that do not even fall within the expansive definition of sexually predatory conduct. N.D.C.C. § 25-03.3-01(9). Reliance on such a fact as meeting the statutory criteria is clearly erroneous.
[¶ 22] If M.D. had engaged in an 18-month-long heterosexual relationship with a consenting adult who was not “young-looking,” rather than a homosexual relationship with a “young-looking” consenting adult, the fact that such a relationship existed, albeit against treatment rules, would have been insufficient to deny M.D.’s petition for discharge. It would not have established that M.D. is likely to engage in sexually predatory conduct. Changing the sexual orientation of the consenting adults does not make the evidence more substantial. M.D. has been involuntarily civilly committed for ten years. Requiring an adult, regardless of his or her sexual orientation, to be celibate for ten years seems to be such an unrealistic expectation, that one wonders how it can contribute to, rather than frustrate, the individual’s therapy.
[¶ 23] When the lack of appropriate evidence of sexual dangerousness is combined with the scores M.D. demonstrated on the actuarial tests used to evaluate the statistical likelihood of recidivism, the evidence is not sufficient to meet the burden for continued and indefinite confinement. Perhaps the most telling demonstration that the law is not being correctly applied is the statement in paragraph 3 of the majority opinion: “In Dr. Sullivan’s professional opinion, M.D. has not progressed in his treatment to the point that his reof-fending would be less than likely.” This is the reverse of the standard that actually applies under N.D.C.C. § 25-03.3-18, but it is indicative of the misapplied concept of the State’s burden for continuing and indefinite involuntary commitment.
III.
[¶ 24] The district court’s denial of M.D.’s petition for discharge was clearly erroneous, because it was not based on clear and convincing evidence that he remains a sexually dangerous individual. Therefore, I respectfully dissent.
[¶ 25] Carol Ronning Kapsner