dissenting.
[¶ 28] I respectfully dissent from Parts V and VI of the majority opinion.
I
[¶ 29] While it is undisputed Corman has engaged in sexually predatory conduct, which satisfies the first element of the commitment standards, I believe an understanding of Corman’s sexually predatory conduct is germane to this case. Sexually predatory conduct is defined by statute as:
a. Engaging or attempting to engage in a sexual act or sexual contact with another individual, or causing or attempting to cause another individual to engage in a sexual act or sexual contact, if:
(1) The victim is compelled to submit by force or by threat of imminent death, serious bodily injury, or kidnapping directed toward the victim or any human being, or the victim is compelled to submit by any threat or coercion that would render a person reasonably incapable of resisting;
(2) The victim’s power to appraise or control the victim’s conduct has been substantially impaired by the administration or employment, without the victim’s knowledge, of intoxicants or other means for purposes of preventing resistance;
(3) The actor knows or should have known that the victim is unaware that a sexual act is being committed upon the victim;
(4) The victim is less than fifteen years old;
(5) The actor knows or should have known that the victim has a disability that substantially impairs the victim’s *345understanding of the nature of the sexual act or contact;
(6) The victim is in official custody or detained in a treatment facility, health care facility, correctional facility, or other institution and is under the supervisory authority, disciplinary control, or care of the actor;
(7) The victim is a minor and the actor is an adult; or
(8) The other individual is a person related to the actor within a degree of consanguinity within which marriages are declared incestuous and void by section 14-03-08 and the actor knows that; or
b. Engaging in or attempting to engage in sexual contact with another individual or causing or attempting to cause another individual to have sexual contact, if:
(1) The actor knows or should have known that the contact is offensive to the victim; or
(2) The victim is a minor, fifteen years of age or older, and the actor is the minor’s parent, guardian, or is otherwise responsible for general supervision of the victim’s welfare.
N.D.C.C. § 25-03.3-01(9). “Sexual act” is defined as “sexual contact between human beings” and “sexual contact” is defined as “any touching of the sexual or other intimate parts of an individual for the purpose of arousing or satisfying sexual or aggressive desires.” N.D.C.C. § 25-03.3-01(6) and (7).
[¶ 30] In this case, Corman was convicted for sexual molestation that took place in 1986. The conduct which was the basis for that conviction meets the statutory definition of sexually predatory conduct. Corman also self-reported sexual conduct which allegedly occurred when Corman was age 19-21, or six to eight years before the sexual molestation conviction, and which involved numerous boys ages 9-17. This conduct also meets the statutory definition of sexually predatory conduct.
[¶ 31] On the other hand, Corman’s 2007 conviction of contributing to the delinquency of a minor does not qualify as sexually predatory conduct under the statutory scheme. The evidence supporting that charge was that Corman provided a 15-year-old male with pornographic materials. This behavior does not meet the statutory definition of sexually predatory conduct, and there is no evidence that any other behavior meeting the statutory definition of sexually predatory conduct occurred during this incident. Similarly, Corman’s possession of photographs of children and sexually explicit cartoons does not qualify as sexually predatory conduct under the statute. As a result, the last sexually predatory conduct committed by Corman for purposes of analysis in this case occurred in 1986, 28 years ago.
II
[¶ 32] Corman argues the district court order was not supported by clear and convincing evidence that his mental disorder made him likely to engage in further acts of sexually predatory conduct. In this case, the district court adopted, carte blanche, the findings of Dr. Sullivan as expressed in her report. With respect to Corman’s likelihood of engaging in further acts of sexually predatory conduct, Dr. Sullivan’s report relied on Corman’s diagnoses, the results of actuarial tests, which Dr. Sullivan admitted later she had mis-scored, and Corman’s refusal to participate in sex offender treatment. Dr. Sullivan also noted, “the best predictor of future behavior is past behavior. Given that Mr. Corman has a history of engaging in sexual contact with multiple minor males, it is likely that his paraphilia in combination with his personality disorder will lead him *346to engage in future acts of sexually predatory conduct.”
[¶ 83] The majority, citing to information not included in Dr. Sullivan’s report or relied on by the district court, likens this case to In re M.D., 1999 ND 160, 598 N.W.2d 799, a case of first impression in which we affirmed a sexually dangerous individual determination for an individual who had violated the terms of his probation by engaging in a pattern of grooming which mirrored the facts of his original conviction. In that case, approximately one year after the end of his incarceration, M.D. was found with two minor boys in his apartment, a list of underage males, and contact information for his victim, all in violation of his probation. Id. at ¶¶ 2-5.
[¶ 34] In this case, on the other hand, Corman was apparently, based on the record available to the district court, unsupervised in the community for over twenty years, and there is no documentation of any further sexually predatory conduct. Although Corman has recently had some criminal violations, the third factor asks specifically whether Corman is likely to engage in further acts of sexually predatory conduct, not whether Corman is likely to engage in any type of criminal behavior.
[¶ 35] With respect to the extended period of absence of sexually dangerous behavior by Corman, Dr. Sullivan testified that it was not something that she would necessarily consider “positive,” and that she would just set that type of information aside when evaluating Corman’s risk for future acts of sexually predatory conduct. This is despite her insistence that “the best predictor of future behavior is past behavior.” As the district court merely adopted the findings of Dr. Sullivan, it is clear that absolutely no weight was given to the more than twenty-five year period between 1986 and the present during which there is no documented history of sexually predatory conduct by Corman.
[¶ 36] The majority’s affirmance of the district court’s findings regarding the third statutory commitment factor in this case suggests that, by simply meeting the first two factors, Corman is automatically likely to engage in further acts of sexually predatory conduct. Not only does this contradict the requirements this Court has set forth for evaluating the likelihood of reengaging in sexually predatory conduct, but it renders the third factor of the statutory commitment analysis meaningless. Although this Court has a history of upholding a district court’s findings in sexually dangerous individual commitment cases, we should not act as a mere rubber stamp. In light of the district court’s blanket adoption of Dr. Sullivan’s report and the total failure to consider the more than twenty-five year period between 1986 and the present during which there is no documented history of sexually predatory conduct by Corman, I believe the district court’s finding that Corman is likely to engage in further acts of sexually predatory conduct was clearly erroneous.
Ill
[¶ 37] Corman also argues the district court order was not supported by clear and convincing evidence that Corman has serious difficulty controlling his behavior. As the majority notes, this due process consideration was added in order to “distinguish a sexually dangerous individual from the dangerous but typical recidivist convicted in an ordinary criminal ease.” Matter of E.W.F., 2008 ND 130, ¶10, 751 N.W.2d 686 (citation and quotation marks omitted). The United States Supreme Court has noted “the constitutional importance of distinguishing a dangerous sexual offender subject to civil commitment from other dangerous persons who are perhaps *347more properly dealt with exclusively through criminal proceedings. That distinction is necessary lest civil commitment become a mechanism for retribution or general deterrence-functions properly those of criminal law, not civil commitment.” Kansas v. Crane, 534 U.S. 407, 412, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002) (citations and quotation marks omitted).
[¶ 38] With respect to whether Corman has serious difficulty controlling his behavior, Dr. Sullivan’s report stated:
Mr. Corman has not adequately participated in any form of Intensive Sex Offender treatment, and as a result he has not learned treatment interventions that would effectively permit him to prevent further sexually offensive and illegal behavior. He proved himself to be unmanageable when on intensive sex offender supervision in the community most recently. For these reasons, it is the undersigned evaluator’s professional opinion, to a reasonable degree of psychological certainty, that Mr. Corman will have serious difficulty controlling his sexual behavior if not committed to the State Hospital as a Sexually Dangerous Individual.
Dr. Sullivan does not indicate why a failure to complete treatment means that Corman, specifically, will have serious difficulty controlling his behavior. Again, Dr. Sullivan refused to even consider the fact that Cor-man has gone over twenty-five years without treatment and with no apparent difficulty in controlling his behavior.
[¶ 39] Corman was terminated from outpatient sex offender treatment due to his deception and failure to participate, and he refused to participate in sex offender treatment while in custody. Corman maintains he is innocent of the 2007 contributing to the delinquency of a minor charge, and Dr. Sullivan herself notes a correlation between Corman’s view of the charge and Corman’s refusal to participate in sex offender treatment. This behavior strikes me as the type common to “dangerous but typical recidivists.” I do not condone Corman’s decision to disregard the probationary conditions imposed on him by the district court. He certainly deserves the legal consequences associated with his decision to disobey a court order. However, I do not agree that civil commitment is the appropriate consequence for this type of willful misbehavior. If the due process consideration of the commitment standards is to have any meaning, it must be concluded that this type of behavior makes Corman the type of offender “more properly dealt with exclusively through criminal proceedings.” See Crane, 534 U.S. at 412, 122 S.Ct. 867.
[¶ 40] Because the determination that Corman has serious difficulty controlling his behavior was based only on his refusal to complete sex offender treatment and because no consideration was given to the over twenty-five year period in which Cor-man apparently controlled his behavior, I am firmly convinced that the district court’s finding that Corman has serious difficulty controlling his behavior was clearly erroneous.
[¶ 41] I respectfully dissent.
[¶ 42] CAROL RONNING KAPSNER