dissenting.
[¶ 19] I respectfully dissent.
[¶ 20] The majority recites the opinion of the district court. The sum and substance of that opinion is that Rubey displays a “lack of insight” together with a “failure to complete treatment.”
[¶ 21] When one examines the actual testimony offered by the State’s expert witness, the testimony is simply insufficient to meet the criteria to continue to deprive Rubey of his freedom under the statute for civil commitment as a sexually dangerous individual. Rubey must be shown to meet the criteria now, not when he committed the crimes for which he has been punished under the criminal law.
[¶ 22] We are required to review the evidence in support of commitment under a modified clearly erroneous -standard to determine whether the order is supported by clear and convincing evidence. Matter of Vantreece, 2009 ND 152, ¶4, 771 N.W.2d 585. Based on the evidence, and lack thereof, offered by the State, I am firmly convinced the district court’s order is not supported by clear and convincing evidence. We have previously outlined the burden on the State under the statute:
In [In re] Vantreece [2008 ND 197, 758 N.W.2d 909], we said commitment as a “sexually dangerous individual” is authorized under N.D.C.C. ch. 25-03.3, if the State clearly and convincingly establishes the individual:
“ ‘[1] engaged in sexually predatory conduct ... [2] has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction that [3] 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). In addition to the three requirements of the statute, there must also be proof the committed individual has serious difficulty controlling his behavior to satisfy substantive due process requirements. [In the Matter of] E.W.F., 2008 ND 130, ¶10, 751 N.W.2d 686 (citing Kansas v. Crane, 534 U.S. 407, 413, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002)).”
2008 ND 197, ¶ 1, 758 N.W.2d 909, 2008 WL 5003448 (quoting Matter of R.A.S., *7372008 ND 185, ¶ 6, 756 N.W.2d 771). The substantive due process requirement of Crane is not a “fourth prong” of N.D.C.C. § 25-03.3-01(8); rather, the constitutional requirement is part of the definition of a “sexually dangerous individual.” Matter of R.A.S., 2009 ND 101, ¶ 15, 766 N.W.2d 712. Thus, “we have construed the definition of a sexually dangerous individual to require that there must be a nexus between the [individual’s] disorder and dangerousness, proof of which encompasses evidence showing the individual has serious difficulty in controlling his behavior, which suffices to distinguish a sexually dangerous individual from other dangerous persons.” [In re] G.R.H., 2008 ND 222, ¶ 7, 758 N.W.2d 719.
Id. at ¶ 6.
[¶ 23] As is typical in these cases, Ru-bey is not contesting the first two “prongs” to establish commitment. What is at issue is whether it has been established that he is likely to engage in further acts of sexually predatory conduct and whether he can be shown to pass the Crane threshold. Neither is shown by clear and convincing evidence in this record.
[¶ 24] Usually in cases like this the person’s inability to control behavior is demonstrated by rule-breaking, though not necessarily of a sexual nature. See, e.g., Interest of G.L.D., 2011 ND 52, ¶ 7, 795 N.W.2d 346 (committee facing charges for assaulting State Hospital staff); Matter of A.M., 2010 ND 163, ¶ 5, 787 N.W.2d 752 (stalking female staff); Matter of E.W.F., 2008 ND 130, ¶ 5, 751 N.W.2d 686 (stalking female member of staff). As the majority’s quotation of the district court’s opinion indicates, the district court did not cite to any specific current or recent conduct of Rubey to demonstrate that he has trouble controlling his behavior. There is no such conduct in the reports of his time at the State Hospital. When the State’s expert, Dr. Robert Lisota, was asked to identify what indicated Rubey was likely to re-offend, Dr. Lisota responded with Rubey’s criminal history and the fact that Rubey quit Intensive Sex Offender treatment in the penitentiary in 2008. “[T]he only major infraction he had in prison was noncompliance with treatment.” It was the penitentiary program from which Rubey was “terminated” because he quit; there is nothing in the record indicating he has quit treatment at the State Hospital. Dr. Lisota acknowledged that Rubey continues to participate:
THE WITNESS: That would be indicated in the controlled environment by his inadequate treatment participation today.
Q. (MR. RUNGE CONTINUING) Well, let’s talk about the inadequate participation for a minute. What has he not done that he’s supposed to be doing? He’s participated, maybe not as much as other participants, but he has participated; correct?
A. He has participated.
Q. Okay. So what has he not done? I mean I’ve looked at all the documents that you’ve listed from Pages 14, Appendix 2, all the way to 24. Nowhere is there any serious write-up of him having problems or not participating in a general manner. He is there. He’s on time. He does his work. What’s the problem?
A. Well, the problem isn’t with him attending treatment, it’s how he’s doing treatment.
Q. Okay. Well, give me an example of how he’s doing treatment that is not correct.
A. There are multiple notes that indicate he is defensive.
[¶ 25] The notes show Rubey’s lack of understanding of the harm his crimes had *738done to his victims. But nowhere in the notes submitted in the evidence is there any indication of current or recent harmful behavior directed at another person or propei'ty or other rule-breaking.
[¶ 26] Not only is there no clear and convincing behavioral evidence, there is no clear and convincing actuarial evidence to meet the Crane test. Dr. Lisota administered a Psychopathy Checklist-Revised test to Rubey. This test does not establish that Rubey is dangerous. He received a score of 23, less than that indicative of paraphilia by psychopathic interaction:
Q. Do you come up with a definitive or some sort of conclusion?
A. Yes, the PCL-R scores on a range from 0 to 40.
Q. And what is it trying to get at?
A. How psychopathic the individual is.
Q. Okay. What happened when you ran the test in this case?
A. When I completed the test, I believe I came up with a total score of 23.
Q. And what does that mean in terms — that’s about the mid-point roughly?
A. It is. It’s indicative of some psychopathic traits. Not to a level — 30 is the cut point, established cut point for deeming an individual a psychopath. If we’re looking at a paraphilia by psychopathy interaction, 25 is the general accepted cut-off for that.
[¶ 27] Rubey was given the other standard actuarial tests; they do not support a high likelihood of risk, according to Dr. Lisota’s testimony:
Q. Okay. Hang on. Hang on. Now, let’s go back, I want to talk about the Static-99. What is the Static-99 for purposes of edification?
A. The Static-99 and Static-99R as well as the MnSOST-R,'they’re all actuarial instruments in which the individual is compared across a variety of factors to the developmental sample of the instrument in order to provide some estimate of his risk for re-offen[s]e.
Q. And this is a well-accepted risk assessment?
A. Yes.
Q. He fell into the low — or excuse me. Moderate range on the Static-99; right? Or is it low-moderate or moderate-low?
A. Yeah, I’ve got moderate-low.
Q. Okay. So you have three ranges; right? You have low, moderate, and high?
A. Low, moderate and high.
Q. Okay. Hang on. Just answer the question yes or no.
A. Yes.
Q. Low, moderate, high; right? Okay. So you scored him on the low-moderate side; right?
A. Correct.
Q. Okay. And you didn’t score him in the moderate; you didn’t score him in the high; you scored him in the low?
A. On the Static, yes.
Q. And his associated percentage was 19.7; right?
A. That’s correct.
Q. And this is the Static now. And his score was a two?
A. Correct.
Q. What is the score received by a typical offender in these cases?
A. Two.
Q. In your report now on the bottom after the — in the paragraph you say that, “Mr. Rubey is at least as likely as the ‘typical’ sex offender in the Static-99 sample to be reconvicted of a sexual predatory crime.” And is that a correct statement?
A. Yes.
*739Q. Is that my correct observation?
A. Yes.
Q. Now, he turns 60 in less than a year?
A. That’s correct.
Q. What does that do?
A. Then his Static score will drop by an additional two points.
Q. Which would be what? Zero; right?
A. Correct.
Q. And what’s the significance with a zero?
A. Then you’re below — you’re less likely than the average sex offender to re-offend.
[¶ 28] Rubey was approaching his sixtieth birthday at the time of this hearing. In addition, Rubey had been diagnosed with multiple sclerosis. Neither his age nor his physical condition appears to have been considered.
[¶ 29] We are not permitted to continue to incarcerate Rubey solely for his past criminal offenses. Being “defensive” while participating in treatment at the State Hospital does not rise to the level of clear and convincing evidence that Rubey is likely to engage in further acts of sexually predatory conduct which constitute a danger to the physical or mental health or safety of others. We have reiterated on prior occasions that the Crane requirement is “necessary to prevent civil commitment from becoming a mechanism for retribution or general deterrence, which are functions of criminal law and not civil commitment.” Matter of G.R.H., 2006 ND 56, ¶ 12, 711 N.W.2d 587 (majority citing Kansas v. Crane, 534 U.S. 407, 412, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002)). See also Matter of R.A.S., 2008 ND 185, ¶¶ 12-13, 756 N.W.2d 771. I dissent because Rubey appears to be committed solely on the basis of his lack of appreciation of the harm he did in the past rather than his meeting the statutory criteria of N.D.C.C. ch. 25-03.3.
[¶ 30] CAROL RONNING KAPSNER