dissenting.
[¶ 19] I respectfully dissent largely for the reasons set forth in ray dissent in Matter of Rubey, 2012 ND 133, 818 N.W.2d 731.
[¶ 20] The evidence that Rubey remains a sexually dangerous individual has not gotten any more convincing in the year that he has been deprived of his freedom since the last review of his commitment.
[¶ 21] I quote only from the testimony given by the expert, Dr. Lynn Sullivan, whose testimony was offered in support of Rubey’s continuing commitment. His situation and behavior remain the same as it did at the last hearing:
Q. Okay. Has there been some other— outside of the treatment, his ward behavior, his living condition behavior, things like that, any other incidents that have changed from where we previously adjudicated him to where we are today?
A. Nothing notable.
Q. Okay. He’s basically been the same?
A. Yes, same environment, same situation.
[¶ 22] Dr. Sullivan’s opinion, based upon actuarial assessment, would not support commitment:
Based solely on the actual risk results it is my professional opinion that Mr. Ru-bey’s actuarial assessed static baseline risk of sexual recidivism may not meet the criteria of likely to engage in further acts of sexually predatory conduct as defined in N.D.C.C. 25-03.1.
[¶ 23] Rubey is not a psychopath:
Q. BY MR. RUNGE: Dr. Sullivan, if I can find it here, your assessment using the PCL-R checklist, the Psychopathy Checklist, what does the manual say for the cut off?
A. 30 out of 40.
Q. And you scored him what?
A. 23.
Q. So that means he’s not psychopath?
A. That’s right.
[¶ 24] Her opinion is based solely upon failure to progress in treatment; yet, Dr. Sullivan can point to nothing that indicates Rubey is a danger:
Q. BY MR. RUNGE: On Page 10 then of your evaluation, you state that you see hostility towards women. You note this is “... possibly present because he has problems interacting appropriately with female staff ...” Can you give me examples where he has openly been hostile with female staff?
A. Not that he’s necessarily been hostile per se.
Q. How about threatening?
A. I don’t believe that he’s been specifically threatening.
Q. How about violent?
A. No.
Q. Aggressive?
A. Not to my knowledge.
Q. You also note that his sex drive is problematic?
A. Yes.
Q. What evidence do you have that his sex drive is problematic?
A. This item is based somewhat on historical behaviors of which Mr. Ru-bey has multiple sexual partners including victims. Mr. Rubey has had problems, his group—
Q. Well, hang on a minute. Now, I’ve been chastised by the Court, your Honor, for having to go back. She’s going back to historical data. I want to know what current evidence do you have that his sex drive is problematic?
*452A. He has had problems, his group has challenged him during this year on staring at and interacting inappropriately with female staff. They surmise that he is attracted to them.
Q. Was this threatening behavior?
A. No.
Q. Was it violent behavior?
A. No.
Q. It wasn’t aggressive behavior?
A. No.
Q. You note then his negative emotionality is possibly present and notes some degree of animosity towards staff?
A. Yes.
Q. Has he been aggressive towards staff?
A. No.
Q. What animosity has he shown?
A. He’s been — let me refer to my notes. He engaged in what we call staff bashing, which is negative.
Q. I can’t hear you.
A. He engaged in what we call staff bashing.
Q. Staff bashing?
A. Yes.
Q. Was that staff bad mouthing?
A. Yes.
Q. My terminology. And what was the content of that staff bashing?
A. I don’t have details. The note just says that he was told that he causes drama on the unit by bashing staff.
Q. Now, you note on Page 11 that based on his current age and combination of his health this may lower his risk to reoffend; is that correct?
A. Yes.
[¶ 25] Asked to give specifics of any instances that indicated an inability to control his behavior, bad mouthing the staff, without any details, was all that Dr. Sullivan could provide:
Q. So all in all in discussing the serious difficulty, you note that he has not had a significant behavioral problem or he’s not been a behavioral problematic person on the ward; correct?
A. Correct.
Q. And do you still think though he has serious difficulty controlling his behavior?
A. Yes.
[¶ 26] The record lacks any evidence, much less clear and convincing evidence, that Rubey satisfies the criteria for continuing commitment.
[¶ 27] CAROL RONNING KAPSNER