dissenting: I respectfully dissent from the majority opinion, which continues to deny basic evidentiary safeguards when a judge or jury is making the determination of whether a person is a sexually violent predator. Involuntary commitment under K.S.A. 59-29a01 et seq. requires the State to meet the highest of burdens and should afford those accused the greatest protections that the law allows. For the reasons stated in my dissenting opinion in In re Care & Treatment of Miller, 289 Kan. 218, 232-33, 201 P.3d 625 (2009), I would hold that the court cannot consider dismissed charges of criminal wrongdoing or uncharged sexual conduct absent a K.S.A. 60-455 analysis.
The legislature recognized that the long-term, and in most cases, lifetime involuntary commitment of citizens based on speculation and conduct that has yet to occur requires the greatest procedural safeguards that the law will allow. We should not abandon the evidentiary safeguards provided by K.S.A. 60-455 by narrowly construing the statutory language and ignoring the core purpose and underlying rationale of the statute. Evidence of prior bad acts should not be admissible to prove a person’s disposition to commit sexually violent crimes at some unspecified future time absent our current K.S.A. 60-455 analysis. In re Care & Treatment of Miller, 289 Kan. at 232-33 (Rosen, J., dissenting).
*116Without consideration of the dismissed charges, which appear to have been based on consensual sexual activity between adults, and the uncharged and unproven sexual conduct, only the test scores remain to support a finding that Williams is “likely to engage in repeat acts of sexual violence.” K.S.A. 2010 Supp. 59-29a02(a), (c). As such, the Court of Appeals did not put undue weight on these test scores. The Court of Appeals was right to be waxy of these test scores. Even viewed in the light most favorable to the State, it is difficult to see how a 29 percent risk of reoffending or sexual recidivism risks of 33 percent within 5 years, 38 percent within 10 years, and 40 percent within 15 years demonstrate beyond a reasonable doubt that Williams is likely to commit repeat acts of sexual violence because of a mental abnormality or personality disorder.
Further, the majority gives short shrift to the fourth element, that the individual has serious difficulty controlling his dangerous behavior, in large part because the Court of Appeals opinion misstated the elements required for the involuntary commitment of sexually violent predators. Williams' argument on this point is admittedly limited, arguing only that both experts agreed that if Williams were able to stay sober, he would be far less likely to reoffend. The Court of Appeals recognized that “the record is replete with many instances of substance abuse and other behavioral difficulties that could contribute to Williams losing control and reoffending. This is something Williams himself recognizes.” In re Care & Treatment of Williams, No. 99,235, 2009 WL 2762455, at *4 (Kan. App. 2009) (unpublished opinion). However, substance abuse, in and of itself, is not sufficient to prove that Williams has serious difficulty controlling his dangerous behavior. Instead, it is the uncharged and unproven conduct that again provides the foundation for the majority’s rationalization that die fourth element has been proven beyond a reasonable doubt.
For these reasons, I would affirm the Court of Appeals.