Grosinger v. M.D.

KAPSNER, Justice,

dissenting.

[¶ 16] I respectfully dissent.

[¶ 17] M.D. was the first person ever committed under N.D.C.C. ch. 25-03.3. In re M.D., 1999 ND 160, 598 N.W.2d 799. He has now been in treatment since 1999. According to the State’s expert, Dr. Robert Lisota, M.D. progressed in treatment through stage 2 until- he was demoted for engaging in a consensual homosexual relationship with another inmate that would have been legal outside the State Hospital but was against the rules of the State Hospital. See also In re M.D., 2008 ND 208, ¶ 17, 757 N.W.2d 559 (Kapsner, J., dissenting).

[¶ 18] Since that time, Dr. Lisota testified M.D. “has quit sexually acting out with other residents. And he has his good days. He can give good feedback to peers at times. He has done well in his cog group for the most part; less so in the core group.”

[¶ 19] In other words, M.D. has modified his sexual behavior and, as acknowledged by the majority opinion, there is no other evidence of other rule-breaking activity. There is no clear and convincing evidence that M.D. is unable to control his behavior to currently satisfy the State’s burden. In re J.T.N., 2011 ND 231, ¶ 4, 807 N.W.2d 570.

[¶ 20] The problem with both the district court’s analysis and the majority opinion is that both are reliant upon M.D.’s history. If that were sufficient, no committed individual could ever be released. It is also the problem with simply relying on the “failure ... to successfully complete treatment.” Imposing treatment is conditional upon being able to show that a person is “likely to engage in further acts of sexually predatory conduct”; it is not enough that the person has done so in the past. N.D.C.C. § 25-03.3-13 (emphasis added).

[¶ 21] The district court referred to the actuarial instruments that Dr. Lisota testified about. Dr. Lisota indicated the MnSOST-R yielded a “High” risk of 54 percent, but that if M.D. were released under intensive supervision it would indi*844cate a 30 percent risk. Dr. Lisota also testified that the Static-99 yielded a moderate low score of 2, indicating a recidivism rate of 19.7 percent over a ten-year period. The district court relied more heavily on the unfavorable predictor. But what this fails to recognize is that neither test says anything definitive about M.D. Actuarial instruments are statistical instruments that fairly accurately predict what a group of people will do, but cannot tell what any individual in that group will do. That is, even assuming the unfavorable predictor is more accurate, the test does not tell you whether M.D. is part of the 54 percent that will be re-arrested within six years or within the 46 percent that will not. Contrary to the actuarial instruments, the only evidence in this record is that M.D. can control even his sexual behavior.

[¶ 22] This record is devoid of clear and convincing evidence that M.D. lacks the ability to control his behavior. The State did not meet its burden to continue to commit M.D.

[¶ 23] Carol Ronning Kapsner