concurring.
[¶ 16] I concur.
[¶ 17] Justice Stevens has described the Illinois sexual civil commitment law as “a shadow criminal law” conflicting with the liberty and individual dignity otherwise characterizing our free society. Allen v. Illinois, 478 U.S. 364, 384, 106 S.Ct. 2988, 92 L.Ed.2d 296 (1986) (Stevens, J., dissenting). In Justice Stevens’ view, civil commitment of sexual violators conflicted with those core values because the commitment statute lacked the constitutional protections applied in a criminal case, even though the result of both is deprivation of liberty.
*725[¶ 18] States have defended, successfully, constitutional challenges against sexual predator commitment laws on the basis that such laws are not punitive in nature. Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997); Allen, 478 U.S. at 373-74, 106 S.Ct. 2988. The reasoning usually touted to demonstrate that such laws are not punitive is the express purpose to provide treatment for the civilly committed individual. Hendricks, 521 U.S. at 367, 117 S.Ct. 2072; Allen, 478 U.S. at 369, 106 S.Ct. 2988.
[¶ 19] Section 25-03.3-13, N.D.C.C., also provides for treatment:
If the respondent is found to be a sexually dangerous individual, the court shall commit the respondent to the care, custody, and control of the executive director. The executive director shall place the respondent in an appropriate facility or program at which treatment is available. The appropriate treatment facility or program must be the least restrictive available treatment facility or program necessary to achieve the purposes of this chapter. The executive director may not be required to create a less restrictive treatment facility or treatment program specifically for the respondent or committed individual. Unless the respondent has been committed to the legal and physical custody of the department of corrections and rehabilitation, the respondent may not be placed at and the treatment program for the respondent may not be provided at the state penitentiary or an affiliated penal facility. If the respondent is found not to be a sexually dangerous individual, the court shall discharge the respondent.
[¶20] In Allen, the specific constitutional protection that was asserted to be lacking in the civil proceeding, although the lack did not make the statute constitutionally infirm, was the 5th Amendment privilege against self-incrimination. Allen was ordered to submit to two psychiatric examinations prior to his initial commitment. Those examinations provided, in part, the basis for his commitment because they established his mental illness and his propensity to commit sexual assaults.
[¶ 21] The circumstances in Allen were different from those G.R.H. has experienced. The trial court had ruled that Allen’s statements to the psychiatrists were not themselves admissible. The Illinois Supreme Court had previously held “a defendant’s statements to a psychiatrist in a compulsory examination ... may not be used against him in any subsequent criminal proceedings.” Allen, 478 U.S. at 367-68, 106 S.Ct. 2988.
[¶ 22] The Allen court held the 5th Amendment did not apply to the Illinois law under the circumstances reviewed because the law was civil, not punitive, in nature. However, it also noted:
As petitioner correctly points out, however, the civil label is not always disposi-tive. Where a defendant has provided “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, it must be considered criminal and the privilege against self-incrimination must be applied. 448 U.S., at 248-249, 100 S.Ct., at 2641. We think that petitioner has failed to provide such proof in this case.
Allen, 478 U.S. at 369, 106 S.Ct. 2988 (alterations in original).
[¶ 23] G.R.H.⅛ continuing, indefinite confinement is based on statements he made during the course of treatment. The information became know through what was described as a “homework assignment” and polygraph testing. Thus, it was his self-incrimination that forms the basis *726for his continuing deprivation of liberty. Majority opinion at ¶ 8. G.R.H.’s statements are not being used in a criminal proceeding; were they used in a criminal proceeding, the term of incarceration would be limited by statute. No such limits exist in civil commitments. Further, our statutes specifically abrogate claims of confidentiality and privilege normally associated with treatment in proceedings under chapter 25-03.3. Section 25-03.3-05, N.D.C.C., provides:
1. Notwithstanding any other provision of law requiring confidentiality of information about individuals receiving care, custody, education, treatment, or any other services from the state or any political subdivision, any confidential information about a respondent or committed individual must be released to a state’s attorney for proceedings pursuant to this chapter unless release results in the loss of federal funds. The physician-patient privilege and psychotherapist-patient privilege do not apply to communications relevant to an issue in proceedings to commit an individual as a sexually dangerous person if the physician or psychotherapist in the course of diagnosis or treatment determines the patient is in need of commitment and to communications with a committed individual. The provision of any confidential or privileged information to the state’s attorney does not render the state, any political subdivision, or any state or political subdivision official or employee, or other person liable pursuant to any criminal or civil law relating to confidentiality or privilege.
2. For purposes of this chapter, the disclosure of individually identifiable health information by a treating facility or mental health professional to the state hospital or a mental health professional, including an expert examiner, is a disclosure for treatment. A retained or appointed counsel has the right to obtain individually identifiable health information regarding a respondent in a proceeding under this chapter. In any other case, the right of an inmate or a patient to obtain protected health information must be in accordance with title 45, Code of Federal Regulations, part 164.
Committed individuals, therefore, know they may be subject to further confinement if they comply with treatment by making self-incriminating statements as part of their therapy. Section 25-03.3-16, N.D.C.C., places limits on the admissibility of the ultimate determinations of the civil commitment court in a subsequent criminal proceeding but does not address the evidence on which the determinations are made.
[¶24] On the other hand, failure to comply with treatment is also used as the basis for continuing confinement. Matter of M.D., 2008 ND 208, ¶ 11, 757 N.W.2d 559; Matter of E.W.F., 2008 ND 130, ¶ 15, 751 N.W.2d 686; Matter of Barrera, 2008 ND 25, ¶ 13, 744 N.W.2d 744; Matter of M.D., 1999 ND 160, ¶ 37, 598 N.W.2d 799.
[¶ 25] The privilege against self-incrimination:
“not only permits a person to refuse to testify against himself at a criminal trial in which he is a defendant, but also ‘privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.’ ”
Allen, 478 U.S. at 368, 106 S.Ct. 2988 (quoting Minnesota v. Murphy, 465 U.S. *727420, 426, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984)). If disclosure is demanded as a prerequisite to treatment and either the disclosure or the failure to comply is the basis for continuing confinement, the ability to assert a privilege has been lost. In a criminal context, the exercise of the privilege against self-incrimination does not change the evidentiary burden; in this civil context, the exercise of the privilege can be considered for purposes of meeting the evidentiary burden. Matter of M.D., 2008 ND 208, ¶ 11, 757 N.W.2d 559. For purposes of this dilemma, the fact that the resulting confinement will occur at a treatment center does not seem meaningful. Based on either therapeutic compliance or non-compliance, the State is able to continue to confíne committed individuals involuntarily and indefinitely.
[¶ 26] G.R.H. has not challenged whether our statutory framework and its application have rendered the civil commitment “punitive” and thus requiring constitutional protections. Because he does not challenge on that basis, we necessarily do not examine the issue. This case should not be understood, however, to mean the issue could not be examined, if properly raised.
[¶ 27] G.R.H. only challenges whether, based on the evidence admitted, there is clear and convincing evidence required by the statute. Under our standard of review, when you include the self-incriminating disclosures made by G.R.H., the decision of the district court is affirmable.
[¶28] CAROL RONNING KAPSNER, J., concur.