specially concurring in part and dissenting in part:
I concur in the portion of the majority’s decision with respect to the trial court’s use of J — SOAP—II. For the following reasons, I respectfully dissent from the majority’s holding on the issue of the trial court’s revocation of respondent’s probation.
As the majority discusses, the State must prove a violation of probation by a preponderance of the evidence. Justin M.B., 204 Ill. 2d at 125, 787 N.E.2d at 826. The petition to revoke probation stated respondent failed to
“complete or comply with sex[-]offender treatment, specifically within the past few weeks he was found to have possessed in his bedroom various sexual aids and devices and admitted to his therapist/counselor that he did not use any appropriate interventions to prevent himself from engaging in sexual behavior as he had been taught to do through counseling and expressed to his counselor that he could not stop his need to engage in sexual behavior.”
I would reverse the trial court’s decision because, in essence, the petition alleged respondent violated his probation by engaging in masturbatory conduct. The evidence at the hearing established the revocation was based on this 15-year-old boy’s masturbatory conduct. His “sexual behavior” was with himself — not any third-party victim. Calling the minor’s masturbation a failure to complete or comply with sex-offender treatment does not make it so.
The record supports the conclusion respondent was making slow but steady progress between April 2007 and January 2008. As the majority acknowledges, all parties, including the trial court, understood respondent’s outpatient treatment would take a significant commitment of time and effort because of respondent’s reduced intellectual capacity. Campbell even indicated to respondent’s parents that respondent would be in treatment for the entire five years of probation. Thus, revocation of the minor’s probation after only seven months, without any clear violations, reflects a lack of patience with respect to respondent’s progress.
In his April 16, 2007, letter to the State, just one month after probation was imposed, Campbell wrote respondent “initially had trouble grasping the concepts of distorted thinking but is beginning to understand how he used it in his offenses. Treatment with this client will be slow and lengthy due not only to the content and to issues addressed, but also due to his limited intellectual capacity.” Campbell acknowledged respondent’s motivating factors for the abuse related to his parents’ volatile relationship and “point in the direction of a power/ control offense with elements of revenge rather than purely sexual urges to have sexual contact with younger children. *** It may be a little more encouraging that the client needs to learn coping skills for stress and problem behaviors, rather than trying to change deviant sexual arousal patterns.”
In the April 24, 2007, progress report from Campbell, he stated “[respondent] appears to be genuine in his desire for treatment. He is presently taking the antidepressant medication Zoloft which, he states, has significantly reduced the frequency of sexual thoughts. *** Treatment with this client will be slow and lengthy due not only to the content and to issues addressed, but also due to his limited intellectual capacity.”
In the July 3, 2007, progress report, Campbell acknowledged the first masturbation incident when respondent’s grandmother saw him masturbating through his open bedroom door, but Campbell did not expound on how he addressed the incident with respondent. Campbell states “[respondent] has identified some of the thinking errors that he used in his offense. He also identified depression as a trigger for his fantasies/offenses. *** Progress is slow but he seems committed to resolving his problems. He pays attention and stays on topic. No new issues or concerns.”
At the August 1, 2007, hearing, the trial court stated, based on its review of Campbell’s report, “[p]rogress is slow” and “not much progress” had been made. Speaking to respondent, the court said “why you would engage in [masturbation], in the viewing and presence of your grandmother, I really can’t guess.” As the majority acknowledges, the court posed the issue of masturbation in terms of respondent engaging in the behavior in the presence of his grandmother, which could indicate to a 15-year-old male the behavior is acceptable in private.
Campbell states in his September 17, 2007, report “treatment has been focused on thinking errors. He seems to understand the concept and identify some of the thinking errors he used before, during, and after his offense. Also covered this quarter were anger management skills and identifying feelings. Progress has been satisfactory. He denies having *** had any deviant sexual thoughts during the quarter and there has been no evidence of any inappropriate sexual behaviors. *** No issues or concerns. Continue treatment.” (Emphasis added.) While Campbell acknowledges no deviant sexual thoughts, he does not report on any healthy or appropriate sexual thoughts or behaviors. In October 2007, Campbell reported no violations.
In his November 27, 2007, letter to respondent’s probation officer, Campbell states respondent is “in the process of developing his offense cycle so that he can map out the thoughts, feelings, and behaviors that led to his offending. *** [Respondent] remains cooperative with treatment except for journaling his feelings which he seems to avoid wanting to do. *** Overall, [respondent] is making satisfactory progress.”
In his December 20, 2007, progress report, Campbell indicates respondent attended all sessions. Respondent had difficulty expressing feelings due to a couple of identifiable factors relating to the learned rule that real men do not express feelings and his coping mechanism of numbing emotions. Campbell indicates respondent has expressed negative emotions relating to how his father has treated him and his parents’ ongoing conflicts. Campbell states respondent is learning intervention techniques to “get out of his cycle.”
Despite the petition specifically stating the masturbation incident was the reason for revocation, the majority and the trial court refer to respondent’s failure to make progress in counseling as the grounds for the probation revocation. At the revocation hearing, the court stated:
“It’s not just a matter that he masturbated when the doctor said that wasn’t appropriate behavior at that point, but because they’re not making any progress in therapy because he cannot, or will not, express his feelings and how these things came about. That’s why we’re not making any progress in therapy. And so if the only *** offer [of] proof is *** to say that not masturbating or masturbating is or is not appropriate behavior under this kind of therapy situation, that doesn’t go to the heart of this matter.”
If, despite the language in the petition, the trial court’s revocation was based on respondent’s lack of progress instead of the masturbation incident, this finding is not supported by a preponderance of the evidence. None of Campbell’s progress reports indicate treatment was not working, and Campbell consistently reported respondent made slow but steady progress.
The treatment plan implemented by Campbell lists the following goals: (1) client exhibits motivation for treatment, (2) client fully discloses and takes full responsibility for sexual offenses, (3) client identifies thinking errors, (4) client decreases arousal to deviant stimuli, (5) client identifies and understands offense cycle, (6) client develops relapse prevention plan, (7) client exhibits victim empathy, and (8) client’s behavior in the community is positive. Respondent’s treatment plan does not indicate ridding respondent of any sexual impulse or outlet is part of the treatment or an ultimate goal of the plan.
In accordance with the treatment goals, respondent (1) attended counseling sessions and, according to Campbell, exhibited a commitment to resolving his problems; (2) described the abuse he inflicted and consistently took responsibility for the abuse; (3) identified some of the thinking errors he used before, during, and after the offense; (4) decreased arousal to deviant stimuli, evidenced by his use of a primarily text-filled magazine that did not depict pictures of adults or children; (5) was learning how to “get out of his cycle” by incorporating intervention methods, which according to material provided by Campbell, included masturbation; (6) did not relapse in his deviant sexual behavior but used a relapse-prevention technique, masturbation, which is the subject of the revocation; (7) had not yet addressed victim-empathy issues, which Campbell testified would he addressed later in treatment; and (8) exhibited positive behavior in the community evidenced by his appropriate behavior around peers and school staff and his participation in the Future Farmers of America, an extracurricular activity offered at his school. Numerically rating respondent’s progress toward his treatment goals, Campbell increased respondent’s ratings in the areas of decreasing arousal to deviant stimuli, identifying the offense cycle, and developing a relapse plan. Campbell did not lower respondent’s rating for any of the eight goals.
If the masturbation incident was the basis for the trial court’s decision, or even a factor in the court’s decision, this too was improper, as no evidence was presented to show Campbell and the court prohibited respondent from masturbating as a term of his probation. In fact, the record does not indicate any effort by the court or Campbell to distinguish between healthy and deviant sexual thoughts and behaviors. On the contrary, Campbell testified that as of his December 20 status report, respondent was beginning the process of developing interventions to get out of the offense cycle. As part of the intervention therapy, Campbell provided respondent with reading material that specifically identified masturbation as an appropriate intervention technique. Additionally, only months prior to the revocation, the court indicated to respondent masturbation in front of his grandmother was inappropriate, leaving open to interpretation whether masturbating in private was an appropriate outlet.
The trial court and Campbell placed a strong emphasis on respondent’s failure to articulate precisely why he masturbated. Relying on a 15-year-old male’s inability to explain the reasons he masturbated as a basis for revocation seems quite faulty. Respondent’s intellectual limitations and difficulty expressing himself verbally would contribute to his difficulty in explaining the behavior. Campbell had previously indicated he allowed respondent to avoid the journaling exercise because he knew identifying and writing about his feelings was especially difficult for respondent. Campbell testified respondent “had a very difficult time expressing feelings. It took a lot of prompting on my part to get him to talk about his anger at his parents, for instance. And it was very difficult to get him to speak of feelings in any other context.” Campbell went on to testify respondent’s difficulty with communicating would apply to the feelings he experienced when he masturbated. Respondent presumably experienced some humiliation over being confronted by his parents for masturbating. In addition, his therapist asking him to explain why he masturbated could also contribute to his difficulty in discussing the incident.
At the revocation hearing, when asked if respondent’s engaging in masturbation was normal, Campbell replied “it wouldn’t be normal. The desire might continue to be normal, but the behavior would be prohibited. You know, the whole point of treatment was to help him learn to manage his behaviors and his thoughts and his feelings that went before the behaviors.” Campbell’s testimony and his reports illustrate a deficiency on the issue of deviant versus healthy sexual behaviors. He does not clarify whether “behavior” refers to the abuse or to any and all sexual behavior. Campbell does not say he informed the minor, as part of his counseling and treatment, that masturbation was in fact prohibited. As Campbell pointed out in his April 16, 2007, letter to the State, respondent’s abuse related to anger and coping issues rather than a desire to molest children. If treatment focused on eliminating deviant sexual thoughts and preventing acting on those thoughts, and respondent had abstained from deviant sexual behavior, the treatment was working.
At the same hearing, Campbell explained the letter he sent to respondent’s probation officer regarding the second masturbation incident was not meant to indicate respondent was a danger to others. Campbell testified “[t]here was no direct evidence that he was a danger to others. There was no indication he had been thinking about victimizing anyone or any indication that he had thought about that, no.” The State also asked Campbell, “with regards to intervention techniques and relapse prevention and distraction techniques, what does his engaging in this kind of sexual behavior tell you about the success of his treatment and how compliant he is with treatment?” Campbell responded “it indicates to me that he was not able to manage his behavior, his thoughts, feelings, or behaviors, and had not been able to use any of those techniques or interventions that we had talked about.” The State’s witness seems to equate the 15-year-old minor’s masturbation with noncompliance with treatment. However, by masturbating, respondent was engaging in an intervention technique, the use of which was an integral part of his treatment. For this, his probation was revoked.
At the conclusion of the presentation of evidence at the revocation hearing, the trial court stated:
“[H]ow does the counselor address these problems if [respondent] will not be honest and will not share this information in counseling? And that’s why it isn’t successful. And that’s why I find that the State has proved by a preponderance of the evidence that the minor has not followed his order of probation and his probation should be revoked.”
The State’s burden was to prove by a preponderance of the evidence the allegations in the petition to revoke. Those allegations stated respondent violated his probation by masturbating. The trial court found respondent violated his probation by not being honest (in the court’s opinion) and sharing information with his counselor, something entirely different than alleged in the petition.
In summary, regardless of how the trial court presented its reasons for revoking probation, it was in error because the preponderance of the evidence does not support the finding that treatment was unsuccessful. Campbell continued with respondent’s treatment for several months after the first masturbation episode, giving him satisfactory reports. Yet following the second episode, Campbell determined all of the treatment up to that point had failed and he would be starting from square one if he continued working with respondent. Masturbation was never clearly prohibited as part of his probation (nor do I suggest such a prohibition would have been appropriate), and Campbell apparently failed to distinguish between healthy and deviant sexual thoughts and behaviors.
Further, respondent consistently attended and participated in counseling, showed no signs of relapse or reoffending, and made positive progress toward his treatment goals. Nothing indicated he used any sexually deviant materials for arousal, and the apparent inconsistencies in Campbell’s approach to treatment understandably left respondent believing masturbation in private might be an acceptable activity. Respondent demonstrated a below-average ability to verbalize or commit to writing his thoughts and feelings, but made an effort to communicate with Campbell, prompting Campbell to overlook respondent’s failure to comply with the journaling exercise. Overall, respondent’s case illustrates the slow and tedious road to rehabilitation posed by juvenile outpatient treatment. A review of the record makes clear the trial judge reluctantly agreed to the originally negotiated disposition of probation. This is understandable, given the serious nature of the minor’s offenses. However, once the minor was placed on probation, he attended school, had a good relationship with his school aide, attended all of his counseling sessions, and did not reoffend. Viewing the evidence in the light most favorable to the State, I cannot find it proved, even by a preponderance of the evidence, the minor violated his probation. Therefore, I respectfully dissent.