dissenting.
[¶ 30] I respectfully dissent.
[¶ 31] G.R.H. engaged in criminal activity for which he was prosecuted and punished. Since 2004, however, he has been deprived of his liberty, not on the basis of some predatory act, but on the basis of a prediction that, if allowed to be free, he will engage in sexually predatory activity. His case is a study in how fragile the evidence is on which such a prediction has been made and continues to be made. I dissent because I do not believe that the evidence establishes by clear and convincing evidence that G.R.H. will engage in further acts of sexually predatory conduct which constitute a danger to others or that G.R.H. has serious difficulty controlling his behavior.
[¶ 32] In 2004, when G.R.H. was first committed, the State’s witness, Dr. Rosalie Etherington, testified that G.R.H. at that time had not been diagnosed with any sexual deviancy. Instead, the State relied on his antisocial personality disorder, coupled with actuarial test instruments and the PCL-R to predict that G.R.H. would reoffend. The State introduced and relied upon the RRASOR, the STATIC-99, and the MnSOST-R. As the evidence presented at the current discharge hearing shows, the reliability of the evidence on which G.R.H. has been deprived of his liberty for over six years now is suspect; it does not carry the weight of clear and convincing evidence. Nevertheless, despite a record replete with information that in 2004, during his stay in prison and during his evaluation at the state hospital, G.R.H. had been able to control his behavior, he was committed. Matter of G.R.H., 2006 ND 56, 711 N.W.2d 587.
[¶ 33] In 2007, G.R.H. petitioned for discharge and a hearing was held in 2008. The State’s witness testifying in favor of continuing commitment was Dr. Lincoln Coombs. He testified that G.R.H. had progressed well in treatment and achieved Stage 4 of treatment. He testified that in 2006 Dr. Lynne Sullivan had recommended that G.R.H. have alternative treatment from his confinement in the secure ward at the state hospital, but that none was available for him at that time. He testified that in order for G.R.H. to advance in his treatment, G.R.H. was mandated to take a polygraph test, a new requirement in the treatment regime, which required honest disclosure of his sexual history. In preparation for and during that polygraph test, G.R.H. disclosed several previously unknown sexual contacts with teenage girls, ages thirteen to seventeen, occurring while G.R.H. was aged nineteen to twenty-seven. I have previously discussed the legal implication of compelled disclosure and the implication of the use of such forced disclosure for commitment purposes, and I do not repeat it here. Matter of G.R.H., 2008 ND 222, ¶¶ 23-26, 758 N.W.2d 719.
[¶ 34] As a result of these compelled disclosures, G.R.H. has been diagnosed with paraphilia NOS (hebephilia). Dr. Coombs testified that while it is “not uncommon for adult men to be sexually attracted to teen girls,” the fact that G.R.H. “actually acted on it nine additional times after he was consequenced, knowing what the consequences would be. That’s representative of a disorder.” All of the new disclosed sexual activity occurred prior to the treatment commencing in 2004, during which treatment G.R.H. had made substantial progress, according to the testimony of Dr. Coombs. Dr. Coombs also testified that G.R.H. has “a good cognitive understanding of his sex offense cycle.” His then current treatment notes did not indicate an interest in adolescent sexual activities. G.R.H., 2008 ND 222, ¶ 9, 758 N.W.2d 719. The main predictive evidence relied upon by the court in 2008 was again *469the RRASOR, the Static-99, the MnSOST-R, telephone calls to “sex lines,” and sexual contact with his girlfriend during visits. Id. at ¶¶4, 9. The latter two were problematic because they were violations of the rules of the institution. Id. at ¶ 9.
[¶ 35] During the hearing on G.R.EL’s current petition for discharge, the State’s witness was Dr. Lynne Sullivan. Her report to the court included risk assessment instruments, but her testimony called into question the validity of those instruments. With respect to the MnSOST-R, which has been introduced at every hearing relative to G.R.H.’s commitment, she testified:
Q And in your opinion are those still valid scores?
A Yes. I do believe the scores are likely valid. There has been new information about the MnSOST-R that indicates that the percentage risk estimate of sexual recidivism is no longer valid. They are probably an over-estimate. But the absolute score and the categorical classification associated with those scores are still considered to be relevant and appropriate.
[¶ 36] Regarding the RRASOR introduced at the two prior hearings, she testified:
A I did look at the score on the RRA-SOR, the Rapid Risk Assessment of Sexual Offense Recidivism. However, at the conference, the [American Association for the Treatment of Sexual Abusers] conference in October of this year, the authors of that instrument said that instrument is no longer to be used. That it is no longer valid. Therefore, I wouldn’t consider that in this particular case.
[¶ 37] Referencing the Static-99 introduced at the two prior hearings, Dr. Sullivan stated:
A The creators of the RRASOR and the Static-99 have stated unequivocally that the RRASOR is not to be used and the Static-99R with the new associated norms is to be used.
[¶ 38] Dr. Sullivan acknowledged that the MnSOST-R, which is repeated in her report, even if its statistical reliability were not currently questioned, would not provide information that is currently useful:
A According to the North Dakota Manual for the Scoring of the MnSOST-R, the dynamic variables have to be, can only be used while incarcerated in prison. There are special rules if a person is released directly to probation. But, the bottom line is they cannot be used for progress or changes that have been made while institutionalized as a sexually dangerous individual.
Q Let me get this straight, then. So, no matter what he does in treatment he can’t lower the MnSOST score, then?
A That’s right.
Q So, basically, no matter what he does he will always be referred for commitment according to the MnSOST-R?
A Yes.
Q So, 20 years from now you could look at the MnSOST-R and say, well he should be referred for commitment?
A If that were the only thing someone was looking at, yes.
Q Also, on the MnSOST-R you have in there 78 percent at six years recidivism rate, is that correct?
A That’s right. Yes.
Q Do you still put that number in your new evaluations, new reports that you do?
A No, I don’t.
Q What do you put in there instead?
*470A I put in there that the author of the instrument has advised that these risk estimates are likely to be overestimates of a person’s risk for re-offense. Therefore, they should not be used.
Q So, then, should we tell the Judge when he sees 78 percent in his report, cross it out?
A He can certainly do that, yes.
Q Because that 78 percent is an over-estimate?
A It’s believed to be, yes.
Q So, is it safe to say that these tests actually have errors, they have some problems with it, is that correct?
A Yes.
Q And this is a rather new area of, I guess, of psychology, is that correct, sex offender evaluating?
A New as within the past ten years, yes.
Q So, as each year or decade goes by you get better at it?
A Theoretically, yes.
Q And it appears to me that the old information that you have actually seems to be the rate of recidivism or re-conviction or re-arrest are actually going down. They are not increasing, are they?
A They haven’t yet increased, you are right. They have been going down.
Q Because there was problems with the old testing?
A There are a variety of reasons. Theories about why the rate is decreased. Nobody knows for sure.
THE COURT: May I ask a question? The MnSOST-R, was it originally called the MnSOST test? Does the R stand for revised?
THE WITNESS: Yes, it does.
THE COURT: And, so, when you have the MnSOST-R in your report and 78 percent, what you are telling me or what you have testified to is that you went to a September, October conference and the authors of the MnSOST-R indicated that you shouldn’t be using those type of numerical values because they are based on an over-estimate. So it’s not only revised but it’s redacted.
THE WITNESS: Actually, the MnSOST was not discussed at the conference in October. It’s was the RRASOR and the Static-99. The information about the MnSOST has come forward by a list server that I am a member of.
[¶ 39] The trial judge summed up the difficulty with trying to use predictive instruments whose reliability is questioned by the very profession that developed them.
But, I hear the term actuary table or actuary study and I hear that the data is flawed and therefore we can’t use this portion or that portion. To me that’s kind of giving whole new meaning to the term actuary. It sounds like we have an area that is trying to use terms of mathematical certainty but yet it doesn’t fit because the data isn’t consistent with that. I will leave that to you. But that’s an impression I am getting right now.
[¶ 40] More than that, actuarial instruments are just that. By definition, actuarial instruments predict what will happen with large groups of people, but are unable to predict with any certainty at all what one individual within that group will do. This does not rise to the level of clear and convincing evidence.
[¶ 41] When asked to identify what behaviors G.R.H. exhibited that led Dr. Sullivan to believe that he had difficulty controlling his behavior, her testimony was as follows:
*471Based on the most recent information that he has continued to engage in phone sex with individuals despite that this is against the rules of the unit, [G.R.H.] has previously been conse-quenced for such behavior, knows that it would interfere with his progress in treatment, and yet has persisted in engaging in such behavior, I do believe that that indicates he has a serious difficulty in controlling his behavior.
This information was disclosed in treatment. “[G.R.H.] came to group and admitted that he had been engaging in phone sex as recently as December [2009]. The ages of the individuals with whom he engaged in phone sex was not known — ” Phone sex is not sexually predatory conduct under N.D.C.C. § 25-03.3-01(9). It is a violation of the rules of the institution. So is having consensual sex with an adult member of the opposite sex while visiting. G.R.H., 2008 ND 222, ¶ 9, 758 N.W.2d 719. This was the violation of the rules used during the hearing in 2007 to show that G.R.H. could not control his behavior. It appears that in the name of treatment, especially prolonged isolated treatment where there is no appropriate sexual outlet, violation of rules is considered enough for continued indefinite deprivation of liberty. This is true even if those rule violations do not demonstrate sexually predatory conduct, grooming for sexually inappropriate behavior, assaultive behavior, or even rudeness. I do not think such deprivation of liberty should come so cheaply.
[¶ 42] I dissent because there is no clear and convincing evidence that meets the statutory criteria.
[¶ 43] CAROL RONNING KAPSNER