specially concurring in part and
dissenting in part:
The majority finds (1) that the trial court violated the respondent’s right to due process in denying his request for an independent psychiatric examination, and (2) that the court did not err in denying the respondent’s motion to strike Dr. Carich’s socio-psychiatric report. I concur in the first finding and agree that the matter should be reversed and remanded for all of the reasons set forth in the majority opinion and, for the reasons that follow, I dissent from the second finding.
I dissent because of my belief that the State’s threshold obligation in a recovery proceeding — the socio-psychiatric report — has not been met because I do not think Dr. Mark Carich satisfies the statutory requirement that treatment be accorded and the respondent be assessed in the report by a “psychologist.” More specifically, I agree that the statute does not expressly require that the psychologist be licensed, but I do think it requires him to be a psychologist.
The Sexually Dangerous Persons Act (Act) (725 ILCS 205/1.01 et seq. (West 2000)) does not contain an explicit statement of purpose. The courts have, however, determined and described the legislative purpose. The most recent statement of that purpose by the Illinois Supreme Court is found in People v. Trainor, 196 Ill. 2d 318, 752 N.E.2d 1055 (2001).
“The Act’s purpose is twofold: (1) to protect the public by sequestering a sexually dangerous person until such a time as the individual is recovered and released, and (2) to subject sexually dangerous persons to treatment such that the individual may recover from the propensity to commit sexual offenses and be rehabilitated.” Trainor, 196 Ill. 2d at 323-24, 752 N.E.2d at 1058-59.
Sexually dangerous persons are statutorily defined as having a “mental disorder” coupled with criminal propensities to commit sex offenses and demonstrated propensities toward acts of sexual assault or acts of sexual molestation of children. 725 ILCS 205/1.01 (West 2000). The determination of sexual dangerousness for purposes of commitment requires an examination and evaluation by a “qualified psychiatrist” as defined in section 4.01 (725 ILCS 205/4.01 (West 2000)) and a jury finding beyond a reasonable doubt.
The Trainor court noted that the 1963 amendments to the Act included a provision quashing all outstanding indictments that served as the basis for the civil commitment proceeding. The court observed that the amendment “altered the aim of the Act because it focused on the rehabilitative treatment of the offender rather than punishment,” and noted that “under the Act, the State has a statutory obligation to provide care and treatment for persons adjudged sexually dangerous. This care is designed to effect recovery in a facility set aside to provide psychiatric care.” Trainor, 196 Ill. 2d at 324-25, 752 N.E.2d at 1059, citing People v. Cooper, 132 Ill. 2d 347, 547 N.E.2d 449 (1989); Allen v. Illinois, 478 U.S. 364, 92 L. Ed. 2d 296, 106 S. Ct. 2988 (1986).
I believe we must consider all of the issues raised by Burns in the context of this statutory purpose and with the obligation of strict construction and application of the statute. People v. Bruckman, 33 Ill. 2d 150, 210 N.E.2d 537 (1965); People v. Johnson, 322 Ill. App. 3d 117, 749 N.E.2d 402 (2001).
Although the recovery proceeding has previously been treated as qualitatively different from the initial determination and carrying a lower standard, our supreme court held in Trainor that, in this proceeding as well, the State continues to bear the burden of proving beyond a reasonable doubt that the applicant is still sexually dangerous, expressly abrogating 10 published appellate court decisions that held to the contrary.
The threshold requirement for the State in meeting that burden is a socio-psychiatric report responding to the application showing recovery, in which the applicant represents that he has recovered from the mental disorder that resulted in his original commitment. The statute tells us that the report “shall be prepared by the psychiatrist, sociologist, psychologist and warden of, or assigned to, the institution wherein such applicant is confined.” (Emphasis added.) 725 ILCS 205/9 (West 2000).
After carefully fulfilling our obligation to strictly construe and apply the statute with regard to the psychiatrist, the majority then ignores it to find not only that the statute does not require a licensed psychologist but also to decide that the legislature did not really mean that it wanted a real psychologist to work with and evaluate these patients and participate in the preparation of the report — a person with a bachelor’s degree in psychology and a master’s and doctorate in educational counseling, not in psychology, would be just fine. I think this holding, when we give “psychologist” its usual and customary meaning, is contrary to the plain language of the statute and severely undercuts the legislative purpose and the weight of the report in sustaining the State’s burden of proof. I wonder if any of us on this panel, being diagnosed with a mental disorder and confined until we have recovered, would be content to be treated and evaluated by a school or family counselor. Or would want the trial court to rely on a report based on the assessments of a person who does not possess the qualifications called for in the statute.
Carich is not and has never been a “psychologist” and has never had his psychological competence tested. I would find that he does not satisfy the plain language of the statute and that he is not trained or demonstrably competent to perform the evaluations and draw the conclusions called for in the socio-psychiatric report.
The majority also rejects respondent’s claim that the report was not signed by the statutorily required sociologist. See 725 ILCS 205/9 (West 2000). It finds no error because the report was signed by a social worker, but it advances no reason for its apparent conclusion that there is no difference between the skills, functions, and training of sociologists and social workers.
As previously indicated, I agree that the outcome in the trial court must be reversed and the case remanded for a new trial. Because of what I believe are significant concerns about the qualifications of Dr. Carich to provide the treatment and make the assessments called for in the statute and because I see no basis for deciding that the legislature did not intend for services to be provided and'the report to be signed by the sociologist it specified, I would require the circuit court on remand to carefully assess the adequacy and legal sufficiency of the socio-psychiatric report to satisfy the State’s burden of proving beyond a reasonable doubt that respondent remains sexually dangerous. I would reverse the order denying the motion to strike the report and, therefore, dissent on the majority’s decision to the contrary.