Matter of Schweninger

CRIPPEN, Judge

(dissenting).

I concur in the determination of the court to properly limit application of Minn.Stat. §§ 526.09, 526.10 (1992).

The reach of the Psychopathic Personality Statute is limited by Pearson. Under Pearson, there must be (a) a “habitual course of misconduct in sexual matters” and (b) “an utter lack of power to control * * * sexual impulses” so that (c) it is likely the person will “attack or otherwise inflict injury, loss, pain or other evil on the objects of their uncontrolled and uncontrollable desire.” Minnesota ex rel. Pearson v. Probate Court of Ramsey County, 309 U.S. 270, 274, 60 S.Ct. 523, 525-26, 84 L.Ed. 744 (1940), aff'g 205 Minn. 545, 287 N.W. 297 (1939).

In re Linehan, 518 N.W.2d 609 (Minn.1994).

If we apply the statute as so construed, the courts will not find it unconstitutionally vague. Pearson, 309 U.S. at 274, 60 S.Ct. 523, 526. And the Minnesota Supreme Court has determined that the appellate courts should “reverse cases that misapplied the statute as narrowed by [Pearson].” Linehan, 518 N.W.2d at 610 (citing In re Blodgett, 510 N.W.2d 910, 915 (Minn.1994), pet. for cert. filed, 62 U.S.L.W. 2530 (U.S. June 9, 1994) (No. 93-9493)).

But the trial court in this case properly applied the statute and should be affirmed. My conclusion is premised on these several considerations:

I.

In Pearson, referring to the third of its list of elements for identifying a psychopathic personality, the Minnesota Supreme Court described the topic in terms of one whose impulses produced the likelihood of attack or other infliction of injury. 205 Minn, at 555, 287 N.W. at 302. In Blodgett, the court described this element in terms of the substantial likelihood for a further sexual assault. 510 N.W.2d at 914. This personality is a “violent sexually deviant condition.” Id. at 915. The psychopathic personality, the court said repeatedly, is a “sexual predator.” Id. at 915, 917.

Today we attempt to distinguish among dangerous predators, concluding that some can be committed but others cannot. Although appellant has molested 17 or more children over a period of years, by means of seduction and coercion, the evidence does not show that he physically forced others to participate in sexual activity. Appellant’s record is one of bribes, threats and other manipulations that coerce or entice young boys into acts of oral sex and other sexual behavior. This evidence, the trial court found, demonstrates a condition that makes it likely appellant will “attack or otherwise inflict injury” on the objects of his uncontrollable desire. (Quoting Pearson, 205 Minn, at 555, 287 N.W. at 302.) In my opinion, the evidence warrants this finding, documenting that appellant’s condition continuously produces assaults and violence, the dangerous activities of a sexual predator.

The perpetrator of assaults inflicts bodily harm on others. See Minn.Stat. § 609.02, subd. 10 (1992) (assault). I find unconvincing the contention that a small child suffers no bodily harm, no assault, no violence, when led methodically into episodes of fondling and *452oral sex with an adult. If we engage in this classification of predators, it follows under our criminal code that criminal sexual conduct, including acts constituting criminal sexual conduct in the first degree, are not violent or even assaultive. See, e.g., Minn.Stat. § 609.342, subd. 1(a) (1992) (sexual penetration with a person under 13 years of age).

The supreme court has found appropriate our reversal of the psychopathic personality commitment of a “nonviolent sexual exhibitionist.” Blodgett, 510 N.W.2d at 915 n. 9 (citing In re Rodriguez, 506 N.W.2d 660 (Minn.App.1993), pet. for rev. denied (Minn. Nov. 30, 1993)). This court found that the appellant in Rodriguez could not be a psychopathic personality because “he did not have physical contact with [his victims], molest, rape, or otherwise sexually assault them.” 506 N.W.2d at 663. Appellant has habitually engaged in conduct that constitutes a far different and far more severe danger than the acts described in Rodriguez. And appellant has created a danger that contrasts importantly with the fondling, “spanking,” and squeezing that was found less than seriously harmful in In re Rickmyer, 519 N.W.2d 188 (Minn.1994).

No doubt we can categorize predators. Some use more force than others. Still, we depart from precedent by suggesting that the psychopathic personality statute protects only victims of raw physical force — not the children and vulnerable adults whose lives are severely and permanently marred by sexual behavior like the acts of sexual penetration that are part of appellant’s pattern of conduct.

II.

Appellant patiently planned his sexual conquests and had to work up his courage to deal with his victims. But the trial court reached a proper decision on the second and third elements of the Pearson definition, 1) appellant’s utter lack of power to control his sexual impulses, and 2) the resulting likelihood that he will repeat his dangerous conduct. Cf. Linehan, 518 N.W.2d at 613-14 (vacating commitment where proposed patient has a record of completing alcohol treatment, medical experts cited by the trial court fail to address the Pearson criteria, and these experts observe that the proposed patient’s personality is stable and fairly controlled). When we evaluate predators who have shown a continuous pattern of noncon-trol over a period of many years, and who have not been treated successfully, it is without precedent to distinguish among them by trying to measure the amount of time they consume in preparing to act on their dangerous impulses.

Moreover, because we cannot confine our attention to limited parts of the record, we cannot be preoccupied with Dr. Michael Farnsworth’s distinction between plotting behavior and impulsive lack of control. The appellate courts must determine as a question of law whether the record supports, by clear and convincing evidence, the trial court’s conclusions that the Pearson elements are met. Linehan, 518 N.W.2d at 613.

Farnsworth also testified that appellant’s behavioral patterns were ingrained, a personality disorder, and that there was a high risk of his further abuse of children. Dr. Satter-field testified that appellant was not in control of his impulses and has a high risk of reoffending. Dr. Fox said that appellant lacked control over his sexual impulses. Addressing the question of whether appellant’s lack of control was utter and complete, Fox only expressed bewilderment with an unrealistic construction of the concept, observing that he has never met anyone who offended at every opportunity. We should hold that the record as a whole supports the trial court’s conclusions on the elements of non-control and risk of further sexual misconduct.

III.

The judiciary and the community of law scholars will continue to explore numerous questions on the constitutionality of the Psychopathic Personality Statute. The trial court’s decision involves neither a substantive due process issue that distinguishes the case from Blodgett, nor any question of procedural due process that is not settled by Pearson, 309 U.S. at 275-77, 60 S.Ct. at 526-27. And in my opinion, the trial court acted well within the limits dictated by the Pearson *453holding on vagueness. Id. at 274, S.Ct. at 526. But our arbitrary distinction among sexual predators, choosing to apply the statute to some but not to others, entails an unequal protection of the laws beyond the dangers on that score already reviewed in Pearson, 309 U.S. at 274-75, 60 S.Ct. at 526, and Blodgett, 510 N.W. at 917, 925 (Wahl, J., dissenting).

When concluding that the psychopathic personality statute does not involve denial of equal protection for some persons, the supreme court explained in Blodgett that this is because the statute deals specially with “the sexual predator.” 510 N.W.2d at 917. According to the evidence, appellant is a sexual predator. The trial court applied the statute appropriately in this case, and by holding otherwise, we hasten the day when the statute will be found unconstitutional.

I respectfully dissent.