In re The Detention of White

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Illinois Official Reports Reporter of Decisions

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accuracy and integrity

of this document

Appellate Court Date: 2016.11.29

15:05:38 -06'00'

In re Detention of White, 2016 IL App (1st) 151187

Appellate Court In re THE DETENTION OF PHILLIP WHITE (The People of the

Caption State of Illinois, Petitioner-Appellee, v. Phillip White, Respondent-

Appellant).

District & No. First District, Fifth Division

Docket No. 1-15-1187

Filed September 16, 2016

Decision Under Appeal from the Circuit Court of Cook County, No. 12-CR-80003; the

Review Hon. Thomas Byrne, Judge, presiding.

Judgment Affirmed.

Counsel on Law Office of Stephen F. Potts, of Des Plaines (Stephen F. Potts, of

Appeal counsel), for appellant.

Lisa Madigan, Attorney General, of Chicago (Carolyn E. Shapiro,

Solicitor General, Michael M. Glick and Evan B. Elsner, Assistant

Attorneys General, of counsel), for the People.

Panel JUSTICE LAMPKIN delivered the judgment of the court, with

opinion.

Justice Reyes concurred in the judgment and opinion.

Presiding Justice Gordon specially concurred, with opinion.

OPINION

¶1 Respondent Phillip White, who previously had been convicted of sexually violent offenses,

was found by a jury to be a sexually violent person and committed to the Illinois Department of

Human Services (IDHS). On appeal, White argues (1) his commitment was improper because

the diagnosis by the State’s experts of other specified personality disorder with antisocial

features did not qualify as a mental disorder pursuant to the Sexually Violent Persons

Commitment Act (Act) (725 ILCS 207/1 et seq. (West 2014)), (2) the trial court erroneously

rejected his proposed special interrogatory and thereby deprived him of the opportunity to test

the jury’s general verdict, and (3) the State failed to prove beyond a reasonable doubt that he

was a sexually violent person where he had not manifested any symptoms of the alleged mental

disorder for 30 years.

¶2 For the reasons that follow, we affirm the judgment of the circuit court.

¶3 I. BACKGROUND

¶4 This appeal arises from White’s jury trial, which found him to be a sexually violent person

under the Act and committed him to the IDHS for control, care, and treatment in a secure

facility until such time as he was no longer a sexually violent person. The experts who testified

at the trial used White’s documented history of criminal convictions in 1980, 1985, and 1991 in

formulating their opinions.

¶5 Specifically, in April 1980, White pled guilty to attempted rape, armed robbery, and

aggravated battery. According to the record, he followed a woman off an elevated train,

grabbed her around her throat, hit her several times, and dragged her into an alley. He said,

“you know what I want b***,” tore off her pants and panties, and attempted to place his penis

into her vagina. The police arrived and caught White as he fled the scene.

¶6 In September 1985, White pled guilty to aggravated criminal sexual assault. At the time of

the assault, he was on parole for the 1980 offenses for approximately one year. According to

the record, White and a female acquaintance were walking in a park, and White asked her to

join him as he picked up a package. They went together to an apartment building, but no one

answered the door upon their arrival. They went downstairs to the basement, and White tried to

kiss the woman, but she refused his advances. White then grabbed her by the neck, choked her,

hit her, cut her lip, and forced her into the basement. He told her, “I’m going to give you

something to believe [the gossip about me being a rapist],” and then he undressed her and

raped her.

¶7 In September 1991, White was convicted after a bench trial of armed robbery. At the time

of this robbery, he was on parole for the 1985 sexual assault offense for approximately one

year. According to the record, White followed a woman and her six-year-old daughter off a

bus. When they approached an alley, White took out a knife and pressed it to the woman’s

throat. He took her purse and then proceeded to drag her into the alley. He fled when

bystanders intervened and was later arrested. He received a 35-year sentence for this offense.

¶8 During his incarceration, he had some minor disciplinary issues and received “tickets,”

although never for sexual violations. In 1993, he was found to have two dagger-like weapons

in his possession at the Illinois Department of Corrections (IDOC). He pled guilty to unlawful

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use of a weapon by a person in the custody of the IDOC and was sentenced to six years’

imprisonment, to be added to his 35-year sentence for the armed robbery offense.

¶9 In February 2012, the State petitioned to commit White as a sexually violent person under

the Act on the basis of two mental disorders: paraphilia, not otherwise specified,

nonconsenting persons, and personality disorder, not otherwise specified, with antisocial

features. White’s diagnosis at that time was based on the fourth edition of the American

Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM). In

July 2014, the State amended its petition, revising the alleged mental disorders to reflect the

updated wording of the fifth edition of the DSM (DSM-5) for the alleged disorders, i.e., other

specified paraphilic disorder, nonconsenting females in a controlled environment (hereinafter

os-paraphilic disorder, nonconsenting females), and other specified personality disorder with

antisocial features (hereinafter os-antisocial personality disorder).

¶ 10 In February 2015, a jury trial was held on the State’s petition to commit White as a sexually

violent person. Expert testimony established that the Act defined a mental disorder as a

congenital or acquired condition affecting the emotional or volitional capacity that predisposes

a person to engage in acts of sexual violence. See 725 ILCS 207/5(b) (West 2014).

¶ 11 The expert testimony established that the term paraphilia denoted any intense and

persistent sexual interest other than sexual interest in genital stimulation or prepatory fondling

with a phenotypically normal, physically mature consenting human partner. Paraphilia could

be focused on a particular object of desire, like nonconsenting women in this case. A paraphilic

disorder was a paraphilia that caused distress or impairment to the individual or the satisfaction

of which entailed personal harm or risk of harm to others. The category other specified

paraphilic disorder applied to presentations of a paraphilic disorder that caused distress or

impairment in a person’s functioning, but did not meet the specific criteria for any of the eight

disorders that were outlined in the DSM-5. The DSM-5’s criteria for a diagnosis of other

specified paraphilic disorder, nonconsenting females in a controlled environment, required an

individual to have recurrent intense sexually arousing fantasies, urges, or behaviors involving

nonconsenting persons that impaired the individual’s life over a period of at least six months.

Here, the term controlled environment referred to White’s incarceration in the IDOC and

whether the opportunities for his alleged paraphilic behavior to manifest itself were

unavailable to him.

¶ 12 According to the expert testimony concerning the DSM-5 diagnosis of os-antisocial

personality disorder, the features indicative of a personality disorder predominate but do not

meet the specific criteria of any of the personality disorders outlined in the DSM-5. A

personality disorder affects an individual’s characteristic way of thinking, managing his

emotions, interacting with other people, or managing impulses. The term antisocial features

meant the individual was willing to disregard the rights of others, violate rules, and social

norms and continue to engage in criminal behaviors even after being sanctioned or

incarcerated. Features indicative of this diagnosis include habitual criminal activities,

violence, aggressiveness, and failure to take responsibility or demonstrate any remorse,

empathy, or concern for the harm caused.

¶ 13 The State’s evidence consisted of two expert witnesses in the area of forensic and clinical

psychology, Drs. Allison Schechter and Edward Smith. Both doctors specialized in sex

offender evaluations, had conducted a sex offender evaluation of White for the IDOC, and

were qualified as experts in the areas of sex offender evaluation and risk assessment. They had

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reviewed documents from White’s IDOC master file, which included police reports, witness

reports, court documents, medical records, documents concerning White’s disciplinary

history, and other records. They also had reviewed White’s criminal convictions from 1980,

1985, and 1991 and used that information to formulate their opinions. Although evaluators

were required to ask the subject of the evaluation for an interview, such interviews were not

necessary to make a diagnosis, and an evaluation based on the subject’s records only was

complete and widely accepted when the subject chose not to participate in an interview. Drs.

Schechter and Smith attempted to conduct clinical interviews with White, but he chose not to

participate.

¶ 14 Dr. Schechter was a psychologist employed by Wexford Health Source, Inc., a private

company that provided evaluation services for the IDOC. Although her 2012 report had been

based on the fourth edition of the DSM, she updated that report in February 2014 using the

DSM-5. She opined that White met the statutory criteria to be found a sexually violent person.

She concluded, based on the facts of White’s 1980 and 1985 convictions, that he suffered from

both os-paraphilic disorder, nonconsenting females, and os-antisocial personality disorder.

Furthermore, he had a girlfriend at the time of his 1980 and 1985 offenses and, thus,

presumably had a consensual sexual outlet available to him. This indicated that White had a

desire for sexual activity with nonconsenting women despite the availability of a consensual

partner. Moreover, White was on parole for less than one year at the time of his 1985 offense,

which suggested an inability to control his behavior. Dr. Schechter opined that White’s

convictions showed recurring and intense sexual arousal for a period of at least six months.

¶ 15 Dr. Schechter also considered White’s 1991 armed robbery conviction in reaching her

diagnoses. At the time of this robbery, White was on parole for about one year following the

1985 sex offense. Although the 1991 robbery was not a sexually violent offense for purposes

of the Act, Dr. Schechter believed it was relevant to her diagnoses because it followed White’s

pattern of abducting an essentially lone woman in public and taking her to an isolated second

location where he struggled with the victim. Because a witness had intervened in the 1991

incident, it was unknown whether it would have resulted in a sexual assault. According to Dr.

Schechter, this pattern of behavior was consistent with the diagnoses of os-paraphilic disorder,

nonconsenting females, and os-antisocial personality disorder. Dr. Schechter also opined that

White’s 1993 conviction for unlawful possession of a weapon in the IDOC was a further

indication of his antisocial personality tendencies, i.e., difficulty complying with rules even in

a controlled environment like prison.

¶ 16 Dr. Schechter testified that both os-paraphilic disorder, nonconsenting females, and

os-antisocial personality disorder were congenital or acquired conditions that affected White’s

emotional or volitional capacity and predisposed him to commit future acts of sexual violence.

A paraphilic disorder could be considered in remission if a person shows that he could be in the

community for at least five years without demonstrating any of the associated behaviors.

White’s condition, however, could not be considered in remission because, regardless of his

behavior while incarcerated, he was never out of prison for more than one year before

reoffending. Dr. Schechter testified that her diagnoses for White of both os-paraphilic disorder,

nonconsenting females, and os-antisocial personality disorder were mental disorders as

defined by the Act.

¶ 17 On cross-examination, Dr. Schechter acknowledged that a diagnosis under the DSM-5 was

not necessarily a mental disorder as defined by the Act. Further, she testified:

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“Q. Is it your conclusion that the personality disorder you diagnosed in this case

alone would be a mental disorder as defined by the [Act] or not?

A. Alone without the paraphilic disorder?

Q. Right.

A. If I had done an evaluation on a person that I only diagnosed with the personality

disorder, I would not likely refer them for commitment.

Q. So is it fair to say that if somebody didn’t find Mr. White suffered from other

specified paraphilic disorder, that the personality disorder which you diagnosed him

with would not be a mental disorder as defined by the [Act]?

A. That diagnosis alone, I would not refer somebody for commitment based on that

diagnosis alone, no.”

On redirect examination, Dr. Schechter testified:

“Q. You diagnosed [White] with two mental disorders, correct?

A. Yes.

Q. They are both the mental disorders required for commitment pursuant to the

[Act]?

A. Yes. Both of those mental disorders I used as pursuant to the [Act].”

¶ 18 Dr. Smith was a psychologist employed by the IDHS. He had updated his 2012 evaluation

of White to reflect the new DSM-5 nomenclature for White’s diagnoses of both os-paraphilic

disorder, nonconsenting females, nonexclusive type in a controlled environment, and

os-antisocial personality disorder. Dr. Smith testified that the term nonexclusive type meant

the individual was not solely sexually aroused by nonconsenting individuals. Like Dr.

Schechter, Dr. Smith based those two diagnoses partly on the facts and circumstances of

White’s history of criminal convictions. Specifically, Dr. Smith diagnosed White with

os-paraphilic disorder, nonconsenting females, based on his behavior and the sexual

statements he made to the victims while attempting to sexually assault them. Dr. Smith found it

significant that White was able to maintain arousal throughout the 1985 sexual assault until

completion, indicating an intense sexual interest in a nonconsenting partner. The 1991 offense

was very similar to White’s behaviors in the 1980 and 1985 sexual offenses, and the 1993

weapon conviction was relevant to demonstrate White’s overall pattern of criminal attitudes

and behaviors and willingness to break rules even when confined in the IDOC.

¶ 19 Dr. Smith diagnosed White with os-antisocial personality disorder because he had

repeatedly targeted lone women, attempted to isolate them, and used force to harm or threaten

them. The diagnoses of os-paraphilic disorder, nonconsenting females, and os-antisocial

personality disorder were congenital or acquired conditions and worked synergistically to

cause White to sexually offend. Dr. Smith explained that the two disorders worked together to

affect White’s emotional or volitional capacity because when an individual was sexually

aroused from sexual behavior with nonconsenting persons and possessed an attitude toward

other people that made him more willing to violate the rights of others, the two disorders made

the risk of offense more likely.

¶ 20 On cross-examination, Dr. Smith acknowledged that someone could have a DSM-5

diagnosis but still not meet the criteria to be deemed a sexually violent person under the Act.

Dr. Smith also testified:

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“Q. You talked about the synergy between the personality disorder and the other

specified paraphilic disorder, right?

A. Yes.

Q. But the personality disorder alone in and of itself is not a mental disorder as

defined by the [Act], isn’t that your opinion?

A. Typically, correct.

Q. In fact, you would not find that in this case?

A. Correct.”

On redirect, Dr. Smith testified:

“Q. You indicated that otherwise specified personality disorder with antisocial

traits would not in this case be a standalone diagnosis under the [Act]?

A. Correct.

Q. You diagnosed him in conjunction with other specified paraphilic disorder?

A. Correct.

Q. Is it then when they are together, is it then are they both mental disorders as

defined by the Act?

A. Yes.”

¶ 21 Drs. Schechter and Smith both testified that the os-paraphilic disorder, nonconsenting

females, and os-antisocial personality disorder were considered chronic in nature, would not

disappear or decrease with the passage of time, and had to be managed through cognitive

behavioral therapy. Because these disorders typically manifested as behaviors outside of a

controlled environment, the fact that White did not commit any sexual offenses while

incarcerated was not proof that he no longer suffered from either mental disorder. Paraphilic

disorders could be treated through therapy, but White had not participated in any sex offender

treatment.

¶ 22 Both experts conducted a risk assessment of White to determine his risk to reoffend

sexually if released. As a starting point for their assessments, they used actuarial instruments

that were comprised of a number of known static or historical risk factors related to sex

offender recidivism. The subject of the assessment was scored based on those objective factors

and then placed in a risk category. This risk category was not meant to calculate any specific

subject’s possibility of reoffending but rather was simply a comparison, within a standard

measure of error, to a range of a known group of sex offenders. The experts also considered

dynamic risk and protective factors that were additional empirically derived factors that had

been shown through research to either increase or decrease a subject’s risk of future reoffense.

¶ 23 Dr. Schechter used the Static-99R and MnSOST-R in her evaluation. However, because

the MnSOST-R was no longer widely used at the time of trial, she had reduced its weight in her

overall evaluation of White. Although Dr. Schechter initially gave White a score of five on the

Static-99R with an estimated recidivism rate of 21.2%, she later revised that score to a seven

upon realizing she had mistakenly used White’s 1991 armed robbery conviction as his most

recent sexual offense instead of his 1985 aggravated sexual assault. She explained that she

should have factored into his score his 34 years of age at the time of his possible release from

his sex offense. A score of seven was considered to be in the high risk category, with an

estimated recidivism rate of 30.7%. The standard measurement of error for the Static-99R was

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0.89, meaning a given score could be expected to fall within a range of 0.89 above or below the

given score.

¶ 24 Dr. Schechter also considered dynamic risk factors in formulating her opinion, such as

White’s general criminality or lifestyle instability, intimacy deficits, sexual self-regulation,

cooperation with supervision, and diagnosed personality disorder. She found that White had

been incarcerated for all but two years of his adult life and had committed very serious offenses

while on parole and in the community for a very short interval. This showed an inability to

cooperate with community supervision. She also found that the violent and callous behavior

White demonstrated while committing his offenses showed a lack of capacity for

self-regulation and a general lack of concern for others. Furthermore, White’s report to

previous evaluators that he had approximately 50 consensual sexual partners in the past and

was unfaithful to many of them demonstrated a lack of capacity to form an intimate

relationship. A previous evaluator had been told by White that he would not participate in sex

offender treatment even if it was mandated as a condition of his parole.

¶ 25 Dr. Smith used the Static-99R and the Static-2002R to conduct his risk assessment of

White. Dr. Smith gave White a score of five on the Static-99R, which placed him in the

moderate high risk category for future offenses. White had a score of six on the Static-2002R,

which placed him in the moderate risk category of that instrument. Dr. Smith also considered

the additional factors of personality disorder, paraphilic interest, a history of employment

instability, substance abuse, and noncompliance with supervision. Dr. Smith opined that

White’s relationship history, which included being married for a period of time, demonstrated

he could recognize deviant sexual interest and still chose to repeatedly engage in criminal

behaviors even though he could find consensual partners.

¶ 26 Both Drs. Schechter and Smith concluded that none of the protective factors that

potentially could have lowered White’s risk of sexual offense recidivism applied to him. White

had never participated in sex offender treatment, had no debilitating medical conditions that

interfered with his ability to achieve arousal or commit crimes, and his age of 53 years was not

significantly old enough to reduce his risk to commit further sexual offenses. Both experts

concluded that White continued to suffer from both paraphilic and personality disorders

because he had not participated in cognitive behavioral treatment, had not been in the

community for five years without reoffending, and had not satisfied any of the other criteria

that would indicate his disorders were in remission. Drs. Schechter and Smith opined that

White’s risk of reoffending was substantially probable, meaning he would be much more

likely than not to commit acts of sexual violence in the future. Drs. Schechter and Smith opined

that White met all the criteria to be designated a sexually violent person.

¶ 27 Dr. Romita Sillitti, a Du Page County psychologist, testified for White as an expert in the

field of sex offender evaluation and risk assessment. She concluded that White did not meet the

criteria of a sexually violent person and was not substantially probable to reoffend. Dr. Sillitti

reviewed White’s IDOC master file and the reports of Drs. Schechter and Smith. Dr. Sillitti

also conducted a 3½-hour interview with White. She found no evidence of severe mental

illness. Based upon White’s assertion to Dr. Sillitti that he was “drunk” at the time of the 1980

offense, Dr. Sillitti made a provisional diagnosis of substance abuse disorder. She

acknowledged, however, that the evidence was insufficient to make a substance abuse disorder

diagnosis due to the inaccessibility of alcohol or narcotics in the controlled environment of the

IDOC.

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¶ 28 Dr. Sillitti stated there was no clear evidence that the nonconsensual aspect of White’s

offenses aroused him and thus concluded that the evidence did not support a diagnosis of

os-paraphilic disorder, nonconsenting females. Based on White’s criminal history, Dr. Sillitti

believed he was motivated in the 1980 offense by intoxication and in the 1985 offense by anger

that the victim had rebuffed his initial advances. Dr. Sillitti believed that White’s 1991 robbery

offense was at least in part motivated by greed for material goods because he had taken the

victim’s purse.

¶ 29 Dr. Sillitti noted that White had not been diagnosed with os-paraphilic disorder,

nonconsenting females, until the State’s experts conducted their evaluations in the instant case.

Dr. Sillitti also emphasized that White had not committed any sexual offenses during his

decades of incarceration in the IDOC. Dr. Sillitti opined that even if someone had a paraphilic

desire in a controlled environment like the IDOC, that person would demonstrate behaviors

like making sexual statements, sexual misconduct, or possession of pornography.

¶ 30 Dr. Sillitti diagnosed White with os-antisocial personality disorder. She explained that a

personality disorder was the pervasive, stable way a person thought, felt, and acted in the world

and antisocial personality disorder in particular was a pervasive disregard for basic human

rights and norms. White did not meet the full criteria of an antisocial personality disorder

because he did not have any history of significant juvenile delinquent behavior even though he

showed other characteristics of the personality disorder, like criminal convictions. Dr. Sillitti

stated that a personality disorder was not a mental disorder as defined by the Act because it did

not affect a person’s emotional or volitional capacity, it did not cause changes in the person’s

mood that were beyond the person’s control, and it did not change the person’s ability to

understand reality or discern right from wrong. She did, however, testify that someone with an

antisocial personality disorder was more likely to commit a crime than someone without the

personality disorder.

¶ 31 Dr. Sillitti used the Static-99R and Static-2002R in her risk assessment of White. She gave

him a score of four or five on the Static-99R. That range resulted from variations concerning

the risk factor of whether the subject had targeted a known person or a stranger. Specifically,

White had told Dr. Sillitti that the victim in the 1980 offense was someone in his building and

known to him, but the victim did not tell the police that she knew White. If the victim was a

stranger, then White’s risk score was a five. If the victim was a known person, then White’s

risk score was a four. Dr. Sillitti testified that White scored a six on the Static-2002R, which

placed him in the moderate range.

¶ 32 Dr. Sillitti conceded that White did present with some dynamic risk factors, such as an

antisocial lifestyle, inconsistent jobs, substance abuse, and problems with self-regulation or

compliance with supervision. She also testified that it was a risk factor for reoffense if a subject

was unable to see himself as a risk and White had told her during their interview that he did not

see himself as a risk. Dr. Sillitti stated, however, that although the dynamic risk factors were

associated with a predisposition to break the law, these factors did not necessarily indicate a

risk of sexual recidivism.

¶ 33 Concerning mitigation factors, Dr. Sillitti opined that White’s 53 years of age decreased

somewhat his risk to engage in acts of sexual violence. Dr. Sillitti did not believe White’s lack

of participation in sex offender treatment was troublesome because she did not think he

suffered from a deviant sexual interest. She ultimately opined that White was not substantially

probable to reoffend and was not a sexually violent person.

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¶ 34 On cross-examination, Dr. Sillitti acknowledged certain inconsistencies between White’s

account of his 1980 offense and the facts contained in the police documents and court record.

Specifically, the only information suggesting that White had an alcohol problem was White’s

2013 statement to Dr. Sillitti that he was “stupid drunk” at the time of the 1980 offense.

Moreover, Dr. Sillitti acknowledged that a diagnosis based on recurrent sexual fantasies

depended primarily on self-reporting and it was not uncommon for someone to deny rape

fantasies during a clinical interview. Concerning Dr. Sillitti’s reliance on the fact that White

took the 1991 victim’s purse as an indication that the robbery was not sexually motivated, Dr.

Sillitti acknowledged that the record showed White continued to drag the woman into an alley

at knife-point even after he had taken her purse. Dr. Sillitti also acknowledged that White had

not participated in either substance abuse or anger management treatment even though those

options had been available to him.

¶ 35 At the jury instruction conference, White’s counsel asked the court to submit several

special interrogatories to the jury. Special interrogatory No. 2, which is at issue here on appeal,

stated, “We the jury find the Respondent, Phillip White, suffers from the mental disorder other

specified paraphilic disorder nonconsent.” The State objected to this special interrogatory on

the grounds that it misleadingly referred to only one of the two mental disorders from which

White suffered, according to the testimony of the State’s experts. The trial court refused to give

any of White’s proposed special interrogatories.

¶ 36 During closing argument, the State argued, inter alia, that it met its burden to prove White

suffered from a mental disorder because both Drs. Schechter and Smith had testified that the

two disorders of os-paraphilic disorder, nonconsenting females, and os-antisocial personality

disorder, in conjunction, were mental disorders under the Act. White’s paraphilic disorder

drove his deviant sexual behavior, and his antisocial personality disorder showed that he did

not care about the rights or safety of others, and “those two things, when they work together,

are the mental disorders pursuant to the Act.”

¶ 37 During deliberations, the jury sent the court a note that asked, “Is the qualifying mental

disorder that we’re basing our decision on paraphilic non-consent.” The court instructed the

jury to refer to the instructions and continue to deliberate. Thereafter, the jury found that White

was a sexually violent person, and he was committed to the IDHS in April 2015. He timely

appealed.

¶ 38 II. ANALYSIS

¶ 39 On appeal, White challenges the trial court’s indefinite involuntary commitment order

entered after a jury found that he was a sexually violent person under the Act. White contends

(1) his adjudication as a sexually violent person and involuntary commitment were improper

because the diagnosis by the State’s experts of the antisocial personality disorder did not

qualify as a mental disorder under the Act, (2) the trial court erred by refusing to give White’s

special interrogatory to the jury, and (3) the State failed to prove beyond a reasonable doubt

that he was a sexually violent person.

¶ 40 A. Mental Disorder Requirement of the Act

¶ 41 White contends he is entitled to a new trial because the State was erroneously allowed to

seek his commitment based on an os-antisocial personality disorder diagnosis despite the lack

of any testimony that an antisocial personality disorder alone could constitute a mental

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disorder as defined by the Act. White states that although both of the State’s experts opined

that White’s two diagnoses—os-paraphilic disorder, nonconsenting females, and os-antisocial

personality disorder—worked together to cause him to reoffend, they conceded, when pressed

on cross-examination, that an antisocial personality disorder alone was not a mental disorder as

defined by the Act. White argues that because the State’s experts did not find the os-antisocial

personality disorder to be a mental disorder independent of the os-paraphilic disorder,

nonconsenting females, it was manifest error to subject White to the possibility of being

committed based on something other than os-paraphilic disorder, nonconsenting females.

¶ 42 Some controversy surrounds the use of an antisocial personality diagnosis to establish a

mental disorder as a basis of involuntary commitment as a sexually violent person. See McGee

v. Bartow, 593 F.3d 556, 563 (7th Cir. 2010) (discussion of Supreme Court cases involving the

issue of whether a personality disorder diagnosis, without more, could satisfy the requirement

of a mental condition that causes a lack of control); In re State, 21 N.E.3d 239, 249-50 (N.Y.

2014) (holding that antisocial personality disorder was not a mental disorder under a New

York statute concerning the involuntary commitment of sexually violent persons); In re

Commitment of Adams, 588 N.W.2d 336, 340 (Wis. Ct. App. 1998) (interpreting the term

mental disorder in the Wisconsin statute concerning sexually violent persons to encompass

personality disorders). Such controversy notwithstanding,

“the factfinder has the ultimate responsibility to assess how probative a particular

diagnosis is on the legal question of the existence of a “mental disorder”; the status of

the diagnosis among mental health professionals is only a step on the way to that

ultimate legal determination. The methodology and the outcome of any mental health

evaluation offered as evidence is a proper subject for cross-examination, and we would

expect that, in the ordinary case, such efforts would expose the strengths and

weaknesses of the professional medical opinions offered.” (Emphasis in original.)

McGee, 593 F.3d at 577.

¶ 43 White’s attempt, however, to place his appeal within the controversy concerning the use of

the antisocial personality disorder in commitment proceedings is unavailing. The record here

clearly establishes that both State experts testified that White’s two disorders of os-paraphilic

disorder, nonconsenting females, and os-antisocial personality disorder, in conjunction,

constituted a condition or conditions that met the Act’s definition of a mental disorder.

Specifically, White’s paraphilic disorder drove his deviant sexual behavior and his antisocial

personality disorder showed that he did not care about the rights or safety of others, and those

two DSM-5 disorders, when they worked together, constituted conditions that were mental

disorders pursuant to the Act. Both State experts acknowledged that White’s personality

disorder diagnosis alone would not constitute a mental disorder as defined by the Act. The

testimony and argument before the jury clearly explained that a diagnosis of a mental disorder

under the DSM-5 was not necessarily a mental disorder as defined by the Act. Consequently,

White’s assertion that his involuntary commitment could be based solely upon a personality

disorder, which does not cause a lack of control, lacks merit.

¶ 44 Without citation to any relevant authority, White seems to complain that a combination of

psychological conditions, like the paraphilic and personality disorders here, should not qualify

as a mental disorder under the Act. To the extent that we are called upon to interpret the Act in

ruling upon this issue, that question is one of law, which is subject to a de novo standard of

review on appeal. In re Commitment of Trulock, 2012 IL App (3d) 110550, ¶ 36.

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¶ 45 The fundamental rule of statutory construction is to ascertain and give effect to the intent of

the legislature. People v. Dabbs, 239 Ill. 2d 277, 287 (2010). The most reliable indicator of that

intent is the plain and ordinary meaning of the language of the statute itself. Id. In determining

the plain meaning of statutory terms, a court should consider the statute in its entirety and keep

in mind the subject the statute addresses and the apparent intent of the legislature in enacting

the statute. Id. If the statutory language is clear and unambiguous, it must be applied as written,

without resorting to further aids of statutory construction. Id. A court may not depart from the

plain language of the statute and read into it exceptions, limitations, or conditions that are not

consistent with the express legislative intent. Town & Country Utilities, Inc. v. Illinois

Pollution Control Board, 225 Ill. 2d 103, 117 (2007).

¶ 46 A petition under the Act must allege, among other things, that the respondent “has a mental

disorder” and “is dangerous to others because [his or her] mental disorder creates a substantial

probability that he or she will engage in acts of sexual violence.” 725 ILCS 207/15(b)(4), (5)

(West 2014). The Act defines a mental disorder as “a congenital or acquired condition

affecting the emotional or volitional capacity that predisposes a person to engage in acts of

sexual violence.” 725 ILCS 207/5(b) (West 2014). The plain language of the Act requires the

existence of only one “condition” and does not exclude any specific psychological condition

from this definition. Moreover, there is no indication in the plain language of the Act that the

term condition must refer to a single DSM-5 disorder that must, standing alone, qualify as a

mental disorder as defined under the Act. To require the term condition under the Act to mean

only psychological diagnoses that each alone or independently would be enough to qualify a

person as suffering a mental disorder as defined by the Act would be to read a condition into

the Act that the legislature did not expressly set forth and would ignore the expert testimony

presented in this case that White’s os-paraphilic disorder, nonconsenting females, and

os-antisocial personality disorder worked synergistically to constitute mental disorders under

the Act. Because we will not read any such limitation or condition into the plain language of

the Act, we reject White’s argument, which seeks to limit the term condition in the Act’s

definition of a mental disorder to single, standalone disorders as defined in the DSM-5.

¶ 47 We conclude that the evidence here concerning White’s os-paraphilic, nonconsenting

females, disorder in conjunction with his os-antisocial personality disorder, which worked

synergistically and affected his emotional or volitional capacity to predispose him to engage in

acts of sexual violence, may suffice to constitute a condition pursuant to the Act’s definition of

a mental disorder. The Supreme Court has acknowledged that courts utilize an imprecise

definition of a serious mental disorder rather than precise bright-line rules when the courts are

engaged in distinguishing a dangerous sexual offender subject to civil commitment from other

dangerous persons who may be more properly dealt with exclusively through criminal

proceedings. Kansas v. Crane, 534 U.S. 407, 413 (2002). This is so because courts must

respect the considerable leeway states possess in defining the conditions that make individuals

eligible for commitment and “the science of psychiatry, which informs but does not control

ultimate legal determinations, is an ever-advancing science, whose distinctions do not seek

precisely to mirror those of the law.” Id. We address separately below White’s challenge to the

sufficiency of the evidence to support his adjudication and commitment as a sexually violent

person.

¶ 48 White also argues that, as a matter of law, an individual cannot be subject to involuntary

commitment under the Act based on a personality disorder because personality disorders do

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not predispose individuals to acts of sexual violence and compel them to act out sexually. The

pleadings, trial testimony, and argument before the jury, as set forth in detail above, establish

that White was not committed under the Act on the basis of a personality disorder alone; the

record clearly establishes that Drs. Schechter and Smith diagnosed White with two DSM-5

disorders and opined that both disorders worked together to constitute, under the Act, a

condition that affected White’s emotional or volitional capacity that predisposed him to

engage in acts of sexual violence. Accordingly, we decline White’s invitation to issue an

advisory opinion on the issue of whether a DSM-5 personality disorder diagnosis alone may

constitute a mental disorder under the Act. See In re Chilean D., 304 Ill. App. 3d 580, 584

(1999) (this court may not issue advisory opinions that are contingent upon the possible

happening of a future event).

¶ 49 B. Special Interrogatories

¶ 50 White asserts the trial court’s refusal to submit his special interrogatory No. 2 to the jury

was clear error and grounds for reversal because his request that the jury make a finding on

whether he suffered from os-paraphilic disorder, nonconsenting females, was designed to test

the jury’s general verdict. He contends he could not have been committed if the jury had

answered his special interrogatory in the negative because there was no evidence establishing

that other conditions aside from os-paraphilic disorder, nonconsenting females, constituted the

necessary element of a mental disorder.

¶ 51 Proceedings involving the adjudication of individuals as sexually violent persons are civil

in nature. 725 ILCS 207/20 (West 2014). The Code of Civil Procedure (Code) provides that

juries render general verdicts unless the nature of the case requires otherwise. 735 ILCS

5/2-1108 (West 2014). The Code also provides that parties may request the jury to make

special findings upon any material question or questions of fact. Id. A trial court’s decision on

whether to give a special interrogatory that has been requested by a party is reviewed as a

question of law de novo. Id.; In re Detention of Hayes, 2014 IL App (1st) 120364, ¶ 38.

¶ 52 A special interrogatory is proper if (1) it relates to an ultimate issue of fact upon which the

rights of the parties depend and (2) an answer responsive thereto is inconsistent with a general

verdict that might be returned. Simmons v. Garces, 198 Ill. 2d 541, 555 (2002). A response to a

special interrogatory is inconsistent with a general verdict only where it is “ ‘clearly and

absolutely irreconcilable with the general verdict.’ ” Id. at 555-56 (quoting Powell v. State

Farm Fire & Casualty Co., 243 Ill. App. 3d 577, 581 (1993)). An interrogatory should be a

single direct question and should not be misleading, confusing, or ambiguous. Zois v.

Piniarski, 107 Ill. App. 3d 651, 652 (1982). “[A]n inconsistent special finding controls a

general verdict as a matter of common law ***.” Id.

¶ 53 White’s proposed special interrogatory No. 2 stated, “We the jury find the Respondent,

Phillip White, suffers from the mental disorder Other Specified Paraphilic Disorder

Non-consent.” Although White’s expert opined that he could be diagnosed solely with

os-antisocial personality disorder, both the State’s witnesses testified that White had two

diagnoses—os-paraphilic disorder, nonconsenting females, and os-antisocial personality

disorder—and those two disorders worked in conjunction to constitute a condition or

conditions that met the definition of a mental disorder as defined by the Act. White’s proposed

special interrogatory listed a single mental disorder: os-paraphilic disorder, nonconsenting

females. But the State presented evidence of two mental disorders working together to drive

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his deviant sexual behavior and disregard for the rights or safety of others and thereby

satisfying the requirements of the Act. Accordingly, White’s proposed special interrogatory

was incomplete and confusing and could have misled the jury to think it could consider only

the os-paraphilic disorder, nonconsenting females, standing alone, as a mental disorder and

basis for commitment under the Act. Moreover, a negative answer to the proposed special

interrogatory would not have been absolutely irreconcilable with a general verdict because the

State’s experts testified that White’s two diagnoses worked synergistically to meet the mental

disorder definition. See In re Detention of Hayes, 2014 IL App (1st) 120364, ¶ 42 (trial court

properly rejected an incomplete interrogatory that listed a single mental disorder—paraphilia,

not otherwise specified, nonconsent (PNOS)—but the State had presented testimony that the

respondent suffered from both PNOS and antisocial personality disorder and both diagnoses,

alone or together, were sufficient to qualify him as a sexually violent person under the Act).

Based on the evidence presented at the hearing in this case concerning White’s two synergistic

mental disorders, White’s proposed special interrogatory would have painted an improper

picture to the jury, and the trial court correctly refused it.

¶ 54 C. Sufficiency of the Evidence

¶ 55 White asserts the State failed to prove beyond a reasonable doubt that he suffered from a

mental disorder as defined by the Act because the State’s case relied solely on the fact that he

was convicted of prior sex offenses and the evidence failed to show that in the past 30 years he

had manifested any symptoms, behaviors, or conduct evidencing a mental disorder.

Specifically, White argues that none of his IDOC infractions were sexual in nature and if he

was driven by strong desires for nonconsenting sex, he potentially had opportunities to act out

sexually while incarcerated but did not do so.

¶ 56 When addressing a challenge to the sufficiency of the evidence in a sexually violent person

adjudication proceeding, the reviewing court views the evidence in a light most favorable to

the State and determines whether any rational trier of fact could have found the required

elements proven beyond a reasonable doubt. In re Commitment of Trulock, 2012 IL App (3d)

110550, ¶ 48. A reviewing court will not reverse a jury’s sexually violent person determination

unless the evidence is so improbable or unsatisfactory that it leaves a reasonable doubt. Id.;

People v. Jackson, 232 Ill. 2d 246, 281 (2009). It is not the role of the reviewing court to

substitute its judgment for that of the trier of fact regarding the credibility of the witnesses or

the weight to be given the evidence. In re Detention of Lieberman, 379 Ill. App. 3d 585, 602-03

(2007).

¶ 57 The Act mandates procedures by which the State can involuntarily commit individuals

found by a court or jury to be a sexually violent person. 725 ILCS 207/40(a) (West 2014). A

sexually violent person is a person who has been convicted of a sexually violent offense,

suffers from a mental disorder, and is dangerous because his mental disorder creates a

substantial probability that he will engage in acts of sexual violence. 725 ILCS 207/15(b)

(West 2014); In re Detention of Hardin, 238 Ill. 2d 33, 43 (2010). The Act requires the

existence of only one condition affecting the emotional or volitional capacity that predisposes

a person to engage in acts of sexual violence (In re Detention of Welsh, 393 Ill. App. 3d 431,

457 (2009)), and as discussed above, nothing in the plain language of the Act prohibits a

commitment from being based on a combination of conditions that make it substantially

probable that the person will engage in acts of sexual violence.

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¶ 58 White does not challenge the first element: that he has been convicted of a sexually violent

offense. White argues that the evidence was not sufficient to prove beyond a reasonable doubt

both the mental disorder and substantial probability elements. White argues that he had never

been diagnosed with os-paraphilic disorder, nonconsenting females, before his evaluation

under the petition at issue here. White cites section 35(e) of the Act, which states that

“[e]vidence that a person who is the subject of a petition under *** this Act was convicted for

or committed sexually violent offenses before committing the offense or act on which the

petition is based is not sufficient to establish beyond a reasonable doubt that the person has a

mental disorder.” 725 ILCS 207/35(e) (West 2014). White claims the State’s case relied solely

on the fact that he was convicted of prior sex offenses. White also argues there was no evidence

of any conduct or behavior in the last 30 years to establish that he currently suffered from

paraphilia. We disagree.

¶ 59 While a prior sexually violent offense is not sufficient to establish that a person has a

mental disorder, experts are not prohibited from relying on the underlying behaviors

manifested during prior offenses in the diagnosis of a particular mental disorder. Hardin, 238

Ill. 2d at 51. Here, the State’s experts relied on the details of White’s offenses, not the mere

existence of the offenses, to make their diagnoses. Drs. Schechter and Smith both focused on

the pattern demonstrated by White’s criminal behavior. The parallel aspects of his 1980, 1985,

and 1991 offenses suggested a pattern of behavior consistent with a mental disorder diagnosis:

both the 1980 and 1991 offenses involved following female victims off of public

transportation, and all three offenses involved using force and violence against female victims

and taking them to more secluded locations. Drs. Schechter and Smith also considered the facts

that White had committed offenses while on parole and, thus, while being closely monitored

and with knowledge of the high risk of future imprisonment. Only a short time elapsed

between his release from prison and his commission of a subsequent offense, which suggested

an inability to control his behavior. Furthermore, White had reported to past evaluators that he

had consensual partners available to him at the time of his offenses, which indicated his desire

for nonconsensual sex. White also previously had told an evaluator he had been unfaithful in

prior relationships and had a history of multiple sexual partners despite having been

incarcerated for the majority of his adult life. Moreover, White had not participated in sex

offender treatment despite recommendations to undergo such treatment. He previously told an

evaluator he would not comply with sex offender treatment if it were mandated while he was

on parole, and he failed to take responsibility or show any remorse, empathy, or concern for the

harm he caused.

¶ 60 Both State experts also explained that White’s particular offensive paraphilic behavior

typically would not manifest itself in a controlled environment like the IDOC. This court has

affirmed sexually violent person adjudications despite the absence of previous diagnoses or

sexually overt acts in the controlled environment of a prison. See Welsh, 393 Ill. App. 3d at

455-56 (evidence held sufficient despite absence of inappropriate sexual conduct or alcohol

abuse while the respondent was incarcerated and there was no diagnosis of pedophilia until

three days before his release); Lieberman, 379 Ill. App. 3d at 602 (evidence held sufficient

despite the lack of any evidence of nonconsensual sexual activity in the previous 26 years).

¶ 61 Drs. Schechter and Smith testified that White’s mental disorders made it substantially

probable that he would commit acts of sexual violence. In reaching this conclusion, they did

not rely solely on actuarial instruments, but also considered dynamic aggravating and

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protective factors not included in the historical factors. They opined that White’s age of 53

years old did not diminish his risk of reoffending. Furthermore, he did not suffer from any

physical ailment or medical condition that would have interfered with his ability to assault. The

record did not show that White ever took part in any cognitive behavioral sex offender

treatment. These findings indicated that there were no protective factors that made White less

likely to reoffend. The State’s experts opined that White’s disorders were chronic in nature and

made him much more likely than not to reoffend, and Dr. Sillitti testified that White’s attitude

that he did not view himself as a risk was considered to be a risk factor.

¶ 62 White’s claims simply attack the weight of the evidence and witness credibility, but it is

not our function to retry him. Although Dr. Sillitti disagreed with the assessments of Drs.

Schechter and Smith, the question of whether the weight of the evidence and the credibility of

the witnesses proved that White was a sexually violent person was ultimately the responsibility

of the jury (Welsh, 393 Ill. App. 3d at 455), and we will not substitute our judgment for the trier

of fact’s evaluation of conflicting evidence. After reviewing the record in the instant case, we

find that the evidence, considered in the light most favorable to the State, was sufficient to

prove beyond a reasonable doubt the mental disorder and substantial probability elements

under the Act.

¶ 63 III. CONCLUSION

¶ 64 In light of the foregoing, we affirm the judgment of the circuit court of Cook County.

¶ 65 Affirmed.

¶ 66 PRESIDING JUSTICE GORDON, specially concurring.

¶ 67 I concur in the judgment only.

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