2021 IL App (1st) 182049 No. 1-18-2049 Second Division March 30, 2021 ____________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ____________________________________________________________________________
In re COMMITMENT OF ANDRE ADAMS, ) Appeal from the ) Circuit Court of (The People of the State of Illinois, ) Cook County. ) Petitioner-Appellee, ) ) No. 2011 CR 8000801 v. ) ) Andre Adams, ) ) Respondent-Appellant). ) Honorable ) William G. Gamboney ) Judge, presiding. ____________________________________________________________________________
JUSTICE COBBS delivered the judgment of the court, with opinion. Justices Lavin and Pucinski concurred in the judgment and opinion.
OPINION
¶1 Respondent-Appellant, Andre Adams, appeals from his judgment of commitment as a
“sexually violent person” (SVP) under the Sexually Violent Persons Commitment Act (Act) (725
ILCS 207/1 et seq. (West 2010)). On appeal, respondent argues that this court should reverse the
judgment because (1) pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), a hearing
was required to establish that respondent’s diagnosis was valid and generally accepted in the No. 1-18-2049
scientific community and (2) there was insufficient evidence to prove beyond a reasonable doubt
that respondent is an SVP. For the following reasons, we affirm.
¶2 I. BACKGROUND
¶3 In 2005, respondent was convicted of criminal sexual assault. Later in 2011, prior to
respondent becoming eligible for mandatory supervised release, the State sought to have the
respondent committed as an SVP under the Act. The trial court determined that there was probable
cause to believe that respondent was an SVP, and the matter proceeded to a jury trial on May 8,
2018.
¶4 A. Motion in Limine
¶5 Prior to trial, respondent filed a motion in limine requesting the court to bar the State’s
experts from testifying as to his diagnosis of a paraphilia. Relying on In re Detention of New, 2013
IL App (1st) 111556, respondent argued that the diagnosis of paraphilia by the State’s experts was,
in essence, a diagnosis of hebephilia that required a Frye hearing because it was not generally
accepted within the scientific community. The trial court denied the motion. Citing to our supreme
court’s subsequent decision in In re Detention of New, 2014 IL 116306, the trial court found that
a Frye hearing was not required because respondent was not diagnosed with hebephilia but was
instead diagnosed with “other specified paraphilic disorder, nonconsenting males, non-specific
type,” which was generally accepted in the scientific community. 1 Respondent filed a motion for
reconsideration, which the court denied. The case then proceeded to jury trial.
1 Prior to the hearing on respondent’s motion and after the publication of the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 5th Edition, DSM-5 (2013)), the State filed an amended petition to reflect the experts’ update of respondent’s diagnosis from paraphilia not otherwise specified to other specified paraphilic disorder nonconsent.
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¶6 B. Jury Trial
¶7 Three expert witnesses testified at trial: Dr. Alison Schechter and Dr. Richard Travis for
the State and Dr. Romita Sillitti for respondent. Respondent elected not to testify. All three experts
considered respondent’s criminal history, Department of Corrections (DOC) disciplinary records,
and treatment at the Department of Human Services’ (DHS) treatment and detention facility
(TDF). Dr. Schechter, Dr. Travis, and Dr. Sillitti conducted clinical interviews of respondent in
March 2011, September 2011, and January 2012, respectively.
¶8 1. Respondent’s Criminal and Disciplinary History
¶9 In 1993, two boys who were 15-years-old, reported to police that respondent, then 23 years
old, performed oral sex on them. Respondent was charged with two counts of criminal sexual
abuse, which were ultimately dismissed.
¶ 10 In 1994, respondent, then 25 years old, was charged with two counts of child abduction.
During that incident, he approached two boys, ages 13 and 15, and convinced them to come to his
house under the guise of recruiting them for a basketball team he coached. At his house, respondent
approached the boys individually and offered them money in return for allowing him to perform
oral sex on them. One of the boys initially agreed but then hesitated when respondent asked if he
was still willing. The boy said he had to leave, and respondent let him go. Respondent then asked
the other boy who also refused. Respondent pled guilty to two counts of child abduction and was
sentenced to a year in prison.
¶ 11 The experts also considered respondent’s charge of indecent solicitation in the years 1999-
2000. Respondent was 30 years old at that time, and the victims were three 16-year-old males who
knew him as a basketball coach. On several occasions between December 1999 and February 2000,
respondent had the victims over to his house, where he offered them money to masturbate for him
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and to allow him to perform oral sex on them. The victims refused and left the premises.
Respondent pled guilty to indecent solicitation and was sentenced to 3 years in prison.
¶ 12 Respondent’s most recent arrest for sexual misconduct was in 2002, which was designated
by the experts as the index or predicate offense. Respondent, then 33 years old, approached a 14-
year-old male victim on the street and told him that he was recruiting for a basketball team.
Respondent and the victim then went to respondent’s home, where respondent gave him six shots
of gin, rendering him intoxicated. Respondent encouraged the victim to expose his penis, which
respondent briefly touched. Respondent left the room and the victim fell asleep, but the victim
later awoke to find his pants removed and respondent inserting his penis into the victim’s rectum.
The victim repeatedly told respondent to stop, but respondent continued. Respondent also
performed oral sex and had the victim perform oral and anal sex acts on him. Respondent was
charged with numerous counts of criminal sexual assault and sexual abuse. He pled guilty to one
count of criminal sexual assault and was sentenced to 10 years in the DOC.
¶ 13 The experts also considered respondent’s 1994 conviction for unlawful use of a firearm
and a 1997 conviction for possession of a controlled substance, as well as his disciplinary history
while he was incarcerated. For instance, in 2001, respondent was disciplined by the DOC for
touching another inmate’s penis without consent and, in 2008, when respondent made sexual
comments to another inmate.
¶ 14 2. State’s Expert Witnesses
¶ 15 Dr. Schechter is a clinical and forensic psychologist, licensed to evaluate and treat sex
offenders. She had completed about 62 pretrial SVP evaluations and two posttrial SVP evaluations
throughout her career. In March 2011, she evaluated respondent at the Western Illinois
Correctional Center. The evaluation process consisted of a clinical interview, a risk assessment,
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“formulating an opinion and then writing a report.” The purpose of the clinical interview was to
obtain information about the offender’s background and his “sexual offending history,” as well as
“get a sense of the offender’s thoughts, attitudes, and beliefs.” After completing her evaluation,
Dr. Schechter concluded that respondent was an SVP. She diagnosed him with “paraphilia not
otherwise specified nonconsenting persons” and “personality disorder not otherwise specified with
antisocial features.”
¶ 16 Later in July 2014, she updated respondent’s diagnosis to conform with the Diagnostic and
Statistical Manual of Mental Disorders, 5th Edition (DSM-5), which had been published in 2013.
She explained that the DSM-5 was “a standard authoritative reference manual used by mental
health professionals that outlines and describes the various mental disorders.” She found that
respondent “continued to meet [the] criteria” for an SVP and diagnosed respondent with “other
specified paraphilic disorder nonconsenting males in a controlled environment” and “other
specified personality disorder with antisocial features.” Dr. Schechter noted that it was acceptable
practice in the psychology field to update evaluations.
¶ 17 In April 2017, Dr. Schechter issued a new report. She noted that at the time of her initial
evaluation, she only had records of respondent’s time at the DOC. However, at the time of her
2017 evaluation, she had additional records from TDF that “helped to clarify [respondent’s]
diagnosis.” She diagnosed respondent with “other specified paraphilic disorder nonconsenting
males nonexclusive type in a controlled environment” (OSPD nonconsent) and “narcissistic
personality disorder.” The “nonexclusive” specifier indicates that respondent is not exclusively
attracted to “nonconsenting adolescent males.” The “specifier in a controlled environment” applies
to “individuals who are living in an institutional setting where opportunit[ies] to engage in sexual
activity with a nonconsenting victim are restricted.”
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¶ 18 Dr. Schechter stated that the term “paraphilia denotes any intent and persistent sexual
interest other than sexual interest in genital stimulation or preparatory fondling with penis with
physically mature consenting human partners.” According to Schechter, a paraphilia constitutes a
disorder when it causes distress for the individual or harm to others. The “category other specified
paraphilic disorder,” on the other hand, applies where “symptoms that are characteristic of a
paraphilic disorder *** predominate but do not meet the specific criteria for any of the eight
disorders that are specifically listed in the paraphilic disorder diagnostic class.” Additionally, the
symptoms last for a period of at least six months.
¶ 19 Dr. Schechter testified that respondent met the diagnostic criteria for OSPD nonconsent
because his conduct showed an interest in “sexual activity with adolescent males who are unwilling
to engage in sexual activity with him.” Additionally, respondent satisfied this interest in a way that
harmed others or caused a risk of harm to others. Dr. Schechter opined that the sexual interest was
recurrent and intense because (1) respondent had been repeatedly incarcerated for sexually
assaulting or attempting to have sex with nonconsenting adolescent males, (2) he showed a clear
escalation of offending conduct, (3) repeatedly violated a position of trust as a basketball coach,
and (4) sought out sex with nonconsenting victims even when consensual sexual activity was
available to him. She further noted that, during treatment, respondent admitted numerous other
uncharged sexual offenses and “repeatedly reported having fantasies of having complete power
and control over victims,” as well as fantasies about anal sex with young boys. Dr. Schechter also
diagnosed respondent with “narcissistic personality disorder with antisocial traits,” which entails
“a persuasive pattern of grandiosity, need for admiration, and lack of empathy.” She opined that a
personality disorder has the effect of “exacerbat[ing] the paraphilic disorder or mak[ing] it worse”
and “makes it much more likely that [respondent] would engage in reckless, criminal, and
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interpersonally exploitative relationship towards others.” She testified that respondent’s disorders
were not likely to resolve on their own and the disorders were “congenital or acquired condition
that affects [respondent’s] emotional or volitional capacity and *** predisposes him to engage in
future acts of sexual violence.” She explained “emotional or volitional capacity” means that it
“affect[s] the way [respondent] thinks, feels, behaves, or makes choices to behave” and “makes it
seriously difficult for him to control his behavior.”
¶ 20 Dr. Schechter also conducted a risk assessment to “determine whether it was substantially
probable that [r]espondent would commit an act of sexual violence.” She conducted this
assessment by using “actuarial instruments,” such as the STATIC-99R and STATIC-2002R. 2
Respondent received a score of 8 on the STATIC-99R, which placed him in the well-above average
risk category. Respondent received a score of 7 on the STATIC-2002R, which also placed him in
the well-above average risk category. Dr. Schechter also utilized the Hare Psychopathy Checklist-
Revised (PCL-R), a personality assessment instrument used to identify traits of psychopathy.
Respondent received a score of 24, which placed him in the fifty-seventh percentile rank. Dr.
Schechter also considered the “dynamic risk factors, protective factors, and [applicable] case
specific factors.” She concluded that respondent was “more likely than not” or “substantially
probable [that respondent would] commit future acts of sexual violence.”
¶ 21 On cross-examination, Dr. Schechter testified that she was aware that a penile
plethysmograph (PPG) was performed on respondent at the TDF. A PPG test is used to measure
physical arousal to a variety of sexually explicit images. Respondent was presented with images
2 According to Dr. Schechter, STATIC-99-R and STATIC-2002R are “two of the most widely used actuarial instruments [i.e., empirically derived tools] used to aid in the assessment of risk of sex offenders.”
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depicting both adults and adolescents in coercive and noncoercive settings. Respondent did not
show a significant arousal response to the images. Dr. Schechter was also questioned about
hebephilia, which she described as sexual attraction to “post adolescent individuals.” She noted
that hebephilia was proposed for inclusion in the DSM-5 but was ultimately not included. Dr.
Schechter explained that OSPD nonconsent is used for paraphilias that are not specified in the
DSM-5 and there were perhaps over 100 for the DSM-5 to list. She agreed that any of these unlisted
paraphilias could support a diagnosis of OSPD nonconsent, provided there was evidence that it
exists and impacts important areas of a person’s functioning for at least 6 months. Dr. Schechter
also acknowledged that some clinicians oppose the use of OSPD nonconsent as a basis of
commitment, fearing that it may lead to the act of rape being classified as a mental disorder. She
also acknowledged that there is no consensus in the mental health field regarding what constitutes
impaired volitional or emotional capacity.
¶ 22 On redirect examination, Dr. Schechter clarified that she did not diagnose respondent with
hebephilia but with OSPD nonconsent. She testified that they are “two separate diagnoses,”
explaining that “[h]ebephilia is essentially an attraction and sexual acting out with simply post
adolescent individuals,” whereas OSPD nonconsent deals with the “arousal to the nonconsensual
aspect of the sexual activity.”
¶ 23 Dr. Travis is a clinical psychologist. Since March 2011, he worked for DHS as an SVP
evaluator and had conducted over 500 SVP evaluations. In September 2011, he was assigned to
evaluate respondent and concluded that respondent qualified as an SVP. In 2014, he updated his
evaluation to conform with DSM-5, which had been published. His opinion that respondent met
the SVP criteria did not change. Based on DSM-5, Dr. Travis diagnosed respondent with OSPD
nonconsent, stating that the “specification on that was that he is sexually attracted to nonconsenting
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persons.” He also diagnosed respondent with narcissistic personality disorder. Dr. Travis evaluated
respondent for a third time in 2016, taking into account additional treatment records from the TDF.
¶ 24 Dr. Travis explained that OSPD nonconsent requires a person to have urges or fantasies
about having full power or control over sexual partners or about making sexual partners do things
they may not want to do. He testified that the person must experience distress or cause harm to
others and must engage in nonconsensual sexual acts. In the present case, Dr. Travis opined that
respondent experienced sexual distress which stemmed from “wanting to have [sex] with minor
males and because of his religion” and the perceived conflict between his bisexuality and religion.
Dr. Travis also noted that respondent has caused harm to others, citing to respondent’s admissions
during treatment that he has sexually offended up to 31 people. Dr. Travis testified that one of the
usual elements of sexual offending is hypersexuality, which was exhibited here. Dr. Travis noted
that during treatment, respondent admitted that he regularly masturbated to thoughts of anal sex
with minor males, fantasized about having power and control over other people, and offended only
against people he was sure would remain silent. Dr. Travis testified that people with OSPD
nonconsent gain control of their victims in different ways, such as through intoxication,
intimidation, or threats.
¶ 25 Dr. Travis further testified that he could diagnose respondent with OSPD nonconsent even
though he had not offended since 2002 because such a disorder was unlikely to go away without
treatment. He stated that respondent’s mental disorders were “congenital or acquired conditions”
and they “impact his emotional or volitional capacity,” making him “more likely to follow his
impulse and urges.” Dr. Travis noted that respondent was 33 at the time of his last offense and that
a person’s sexual interests do not change much after their mid-20s. Additionally, respondent had
a long pattern of sexual offenses, and respondent himself had said that he did not expect his sexual
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interests to go away. Like Dr. Schechter, Dr. Tavis also performed a risk assessment using the
actuarial instruments. The results were the same. Dr. Travis also discussed the results of
respondent’s PPG test. He stated that that results did not “mean anything because [respondent was]
obviously sexually attracted to something.” He concluded that respondent’s risk of sexual
reoffending was “substantially probable.”
¶ 26 On cross-examination, Dr. Travis was questioned about hebephilia. Dr. Travis described it
as an attraction to “pubescent children” or people in the approximate age range of 11 to 14. He
acknowledged that having a paraphilia or being a serial rapist does not necessarily mean that one’s
emotional or volitional capacity is impaired.
¶ 27 3. Respondent’s Expert Witness
¶ 28 Respondent’s expert, Dr. Sillitti, first evaluated respondent in January 2012 after the trial
court found probable cause that respondent was an SVP. She diagnosed respondent with
narcissistic personality disorder with antisocial traits. Dr. Sillitti later reevaluated respondent in
2017 to account for new TDF records and the publication of DSM-5. During the interview,
respondent revealed the sexual abuse and domestic violence he experienced as a child. Respondent
also told Dr. Sillitti that he had about 100 sexual partners and sexual contact with at least 22
adolescents. Dr. Sillitti’s diagnosis of respondent did not change.
¶ 29 Dr. Sillitti opined that respondent’s need to feel important explained his attraction to
adolescents, who would not challenge his authority as adults would. She opined that although
respondent’s narcissistic personality disorder contributed to his sexual offenses, it did not impair
his emotional and volitional capacity. Dr. Sillitti discussed hebephilia, which she defined as an
“attraction to adolescents.” She testified that there was a movement to include hebephilia in the
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DSM-5, but it was not included in part because research had shown that attraction to adolescents
was not uncommon. Thus, she did not consider respondent’s attraction to adolescents abnormal.
¶ 30 Dr. Sillitti testified that although OSPD nonconsent is not specifically defined in the DSM-
5, people with that disorder “would generally be specifically aroused by the act of forcing
somebody to have sex.” She did not diagnose respondent with OSPD nonconsent because
respondent did not physically force his victims when they refused to have sex with him, with
exception of the index offense where respondent continued the sexual acts despite the victim’s
protests. With respect to the index offense, Dr. Sillitti testified that respondent admitted that he
committed the offense because he “lost all control.” However, respondent also admitted that he
maintained the ability to stop. She further testified that the PPG did not inform her opinion about
respondent’s sexual interests because he did not show any arousal response, even to subjects in
which he admitted having sexual interest.
¶ 31 In assessing respondent’s risk of sexually offending, Dr. Sillitti used the Static-99R. She
found that respondent was at risk of reoffending, but “it’s not due to a mental disorder that he can’t
control.” As such, she concluded that respondent did not satisfy the statutory criteria for
commitment as an SVP.
¶ 32 On cross-examination, Dr. Silliti testified that she worked full-time with Cermak Health
Services and SVP evaluations were not part of her work. However, she conducted SVP evaluations
in the past, and her last evaluation was in 2016. Dr. Silliti acknowledged that respondent reported
that he “lost control” during the index offense. During treatment, respondent started having
fantasies of having full power and control over sexual partners and doing whatever he wants to
them. She acknowledged that respondent was at high risk to reoffend.
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¶ 33 On redirect, Dr. Silliti noted that the mental disorder would need to “affect *** emotional
and volitional capacity which could predispose [an individual] to engage in acts of sexual
violence.” She testified that although respondent was at risk of reoffending, it was not due to a
mental disorder that he could not control.
¶ 34 C. Verdict and Trial Court Decision
¶ 35 After the close of evidence, the jury returned a verdict finding respondent to be an SVP.
The trial court found that respondent was at well-above average risk to reoffend. Given his level
of treatment progress at that time, the court found that the TDF was the least restrictive
environment where respondent could be treated and monitored. As such, the court ordered
respondent be committed to the DHS for treatment and institutional care.
¶ 36 II. ANALYSIS
¶ 37 On appeal, respondent argues that the trial court erred in denying his motion in limine to
bar the State’s expert witnesses from testifying about his diagnosis without a Frye hearing.
Respondent contends that the essence of the State’s experts’ opinions was that he was attracted to
adolescent males and, as such, he was diagnosed with hebephilia, which required a Frye hearing.
Respondent further argues that there is insufficient evidence that his mental disorder makes it
“much more likely than not that he will engage in future acts of sexual violence.” The State, on
the other hand, contends that a Frye hearing was not necessary because respondent was diagnosed
with OSPD nonconsent, a generally accepted mental disorder. The State also argues that there was
sufficient evidence to prove that the respondent was an SVP. We agree with the State.
¶ 38 A. Motion in Limine and Frye
¶ 39 Respondent contends that his conduct, as described by the State’s experts, was equivalent
to a diagnosis for hebephilia. He argues that, notwithstanding the State’s experts’ avoidance in
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identifying his attraction to adolescents, the evidence shows that, with the exception of a single
encounter with an adult male, his advances were to adolescent males. Because his conduct fits
within the definition of hebephilia, which, pursuant to New, has not been accepted in the
psychiatric community, respondent contends that a Frye hearing was required. Thus, he maintains,
the trial court’s decision to deny his motion in limine to bar the State’s experts’ testimony absent
a hearing, was reversible error.
¶ 40 Admission of scientific evidence is governed by the Frye standard. In re Commitment of
Simons, 213 Ill. 2d 523, 529 (2004). This standard is codified by the Illinois Rules of Evidence,
which provides that
“[w]here an expert witness testifies to an opinion based on a new or novel scientific
methodology or principle, the proponent of the opinion has the burden of showing the
methodology or scientific principle on which the opinion is based is sufficiently established
to have gained general acceptance in the particular field in which it belongs.” Ill. R. Evid.
702 (eff. Jan. 1, 2011).
“The purpose of the Frye test is to exclude new or novel scientific evidence that undeservedly
creates ‘a perception of certainty when the basis for the evidence or opinion is actually invalid.’ ”
New, 2014 IL 116306, ¶ 26 (quoting Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d
63, 78 (2002), abrogated on other grounds by In re Commission of Simons, 213 Ill. 2d 523, 529
(2004)). “Imposition of the test serves to prevent the jury from simply adopting the judgment of
an expert because of the natural inclination of the jury to equate science with truth and, therefore,
accord undue significance to any evidence labeled scientific.” Id. We review a trial court’s ruling
on a motion in limine based on the denial of a Frye hearing de novo. Simons, 213 Ill. 2d at 531.
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¶ 41 The crux of respondent’s argument on appeal is that the State’s experts essentially
diagnosed him with hebephilia. In an attempt to fit within the four corners of New, 2014 IL 116306,
respondent urges that notwithstanding the State’s label of OSPD nonconsent, his conduct was
actually the same as the conduct described in New, which supported a diagnosis of hebephilia. He
points out that, like with hebephilia, he was largely attracted to adolescent males. Other than the
one reported incident involving an adult male, his advances were made to underage males. Thus,
he contends that, consistent with New, he was entitled to a Frye hearing. We reject this argument.
¶ 42 In New, the issue before our supreme court was “whether paraphilia NOS, sexual attraction
to early adolescent males, otherwise known as hebephilia, is a diagnosable mental condition based
upon legitimate scientific principles and methods.” New, 2014 IL 116306, ¶ 33. The supreme court
found that it had “an inadequate basis to determine whether this diagnosis has gained general
acceptance in the psychological and psychiatric communities.” Id. ¶ 53. Therefore, the court held
that the hebephilia diagnosis was subject to a Frye hearing to determine if it was “a generally
accepted diagnosis in the psychiatric and psychological communities.” Id. 3
¶ 43 Respondent’s argument overlooks the testimony of the State’s experts in which they both
indicated that the basis of their diagnosis was respondent’s attraction to individuals over whom he
could assert power. The diagnosis in New was paraphilia not otherwise specified (PNOS) “sexually
attracted to adolescent males,” and one of the experts admitted that it was “essentially the same”
as the hebephilia diagnosis proposed for inclusion in the DSM-5. Here, Dr. Schechter and Dr.
Travis specifically stated that they did not diagnose respondent with hebephilia but with OSPD
3 We note that subsequent to our supreme court’s decision in New, the Second District Appellate Court decided In re Commitment of Bauer, 2020 IL App (2d) 180905, in which it affirmed the trial court’s post-Frye hearing determination that hebephilia has been generally accepted in the psychiatric and psychological communities.
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nonconsent. As Dr. Schechter explained, they are “two separate diagnoses” because “[h]ebephilia
is essentially an attraction and sexual acting out with simply post adolescent individuals” whereas
OSPD nonconsent deals with the “arousal to the nonconsensual aspect of the sexual activity.”
Although Dr. Schechter and Dr. Travis considered respondent’s criminal history, which mainly
involved victims who were minors, the experts considered the victims’ nonconsent as a basis for
respondent’s commitment. For instance, Dr. Travis testified that he diagnosed respondent with
OSPD nonconsent because “he is sexually attracted to nonconsenting persons.” Dr. Schechter also
testified that respondent met the diagnostic criteria for OSPD nonconsent because his conduct
showed an interest in “sexual activity with adolescent males who are unwilling to engage in sexual
activity with him.” Additionally, the experts considered a disciplinary action against respondent,
which involved him touching an adult inmate without consent. The index offense also involved a
clear instance of nonconsent.
¶ 44 Dr. Travis further explained that OSPD nonconsent requires a person to have urges or
fantasies about having full power or control over sexual partners or about making sexual partners
do things they may not want to do. He noted that during treatment, respondent admitted that he
fantasized about having power and control over other people and offended people he was sure
would remain silent. As such, the court’s ruling in New has no bearing on the present case because
respondent here was not diagnosed with hebephilia or a mental disorder based on attraction to
adolescents but, rather, the experts’ diagnosis was based on the nonconsensual aspect of
respondent’s actions.
¶ 45 Respondent nonetheless maintains that here, like in New, the respondent was not
specifically diagnosed with hebephilia. He notes, and we agree, that New requires that the
substance or content of the diagnosis be tested under Frye. Initially we note that the respondent’s
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conduct, as described in New, was in fact determined to fit within the diagnosis of hebephilia, i.e.,
attraction to adolescent males. The fact that a greater number of respondent’s sexual offenses
involved adolescent males served as only one factor in the State’s experts’ diagnosis. Respondent
does not dispute that there were encounters with nonconsenting males. We would additionally
point out that respondent’s expert, Dr. Sillitti, testified that respondent told her that he had “about
100 sexual partners and sexual contact with at least 22 adolescents.” This fact is consistent with
the State’s experts’ “nonexclusive” specifier, a specifier not attributed to the respondent in New.
Moreover, unlike the diagnosis in New, here the State’s experts explained that the “nonconsent”
specifier in respondent’s diagnosis indicates arousal to the nonconsensual aspect of the sexual
activity. Not to be overlooked, Dr. Sillitti testified that people with OSPD nonconsent would
generally be specifically aroused by the act of forcing another to engage in sexual activity. She
conceded that respondent had fantasies about having full power and control over his sexual
partners. Although Dr. Sillitti found insufficient evidence upon which to diagnose respondent with
OSPD nonconsent, she never actually diagnosed respondent with hebephilia. Further,
Respondent’s argument would have us discount the entire substance of the State’s experts’
testimony, parsing out only those aspects regarding his sexual encounters with adolescent males.
This, it would seem, would go against the suggestion of New that we consider the substance and
the content of the diagnosis.
¶ 46 Respondent argues that the “nonconsenting” specifier does not render the OSPD
nonconsent diagnosis meaningfully different from hebephilia. In support, he points out that the
State’s experts testified that he is sexually attracted to consenting people and nonconsenting
people, alike. Respondent maintains, however, that the “nonconsent” specifier is linked to his
attraction to adolescent males who are too young to consent.
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¶ 47 We note that Dr. Schechter’s diagnosis did include “non-exclusive” as a specifier in her
diagnosis. Thus, we agree that respondent was diagnosed as being sexually attracted to both
consenting and nonconsenting individuals. However, we do not perceive the experts’ inclusion of
the “nonconsent” specifier as relating to the age of legal consent but, instead, in the context of the
diagnosis, relating to individuals who demonstrate a lack of willingness to be engaged in sexual
activity. Thus, respondent’s argument brings him no closer to the facts in New.
¶ 48 Citing In re Detention of Melcher, 2013 IL App (1st) 123085, In re Detention of Hayes,
2014 IL App (1st) 120364 (Hayes I), and McGee v. Bartow, 593 F.3d 556 (7th Cir. 2010),
respondent next argues that the trial court failed to analyze the underlying issue of his diagnosis
and relied instead on prior judicial decisions to establish OSPD’s general acceptance. He offers
that neither Melcher, Hayes I, nor McGee were acceptable to our supreme court as a basis to take
judicial notice that the hebephilia diagnosis in New was generally accepted. Accordingly,
respondent argues that we may not rely upon them here.
¶ 49 Respondent could perhaps prevail had he, like the respondent in New, been diagnosed with
hebephilia. In any case, respondent correctly notes that it is generally established that a court may
determine general acceptance in two ways: (1) based on a Frye hearing or (2) judicial notice of
prior judicial decisions. See People v. McKown, 226 Ill. 2d 245, 254 (2007). In New, the State
offered Melcher, Hayes I, and McGee as decisional law of which the court could take judicial
notice of the general acceptability of the hebephilia diagnosis. The court distinguished those cases
from the one then at bar, noting that each addressed a PNOS diagnosis different from hebephilia.
Thus, the court rejected those cases as relevant.
¶ 50 As we have rejected respondent’s argument that his conduct and diagnosis is synonymous
with the respondent’s described conduct and diagnosis in New, we find his argument to be wholly
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lacking in merit. Thus, although Melcher, Hayes I, and McGee could not serve as judicial decisions
of which judicial notice of general acceptance of PNOS, sexually attracted to adolescent males
(hebephilia), could be taken, the same may not be said of their utility in evaluating respondent’s
diagnosis of OSPD nonconsent here. In that regard, we find Hayes I and In re Detention of Hayes,
2015 IL App (1st) 142424 (Hayes II), particularly instructive.
¶ 51 In Hayes I, the respondent had been determined to be an SVP under the Act. On appeal,
this court affirmed the respondent’s commitment, finding that PNOS, attracted to nonconsenting
adolescents and adults (PNOS nonconsent), was generally accepted as a valid diagnosis. Hayes I,
2014 IL App (1st) 120364. The court noted that the respondent’s diagnosis, PNOS, for which he
was initially committed, was included in the fourth edition of the Diagnostic and Statistical Manual
of Mental Disorders (American Psychiatric Association, Diagnostic and Statistical Manual of
Mental Disorders, Fourth Edition, Text Revision, DSM-IV-TR (2000)). Hayes I, 2014 IL App (1st)
120364, ¶ 35.
¶ 52 Twelve months following the respondent’s initial commitment, he was reevaluated and
determined to continue to be an SVP requiring commitment. 4 Hayes II, 2015 IL App (1st) 142424,
¶¶ 6-7. On the State’s motion, the trial court denied the respondent’s request for a probable cause
hearing on his status as a sexually violent person. Id. ¶ 7. The respondent appealed, seeking
reversal of the court’s denial. The basis of his argument on appeal was a purported change of the
disorder’s criteria, as defined in DSM-5, which had then been published. Id. ¶ 12
4 Pursuant to the Act, a committed respondent must be evaluated at least once every 12 months after an initial commitment to determine whether there has been any progress in treatment and whether the person’s conduct has changed. Hayes II, 2015 IL App (1st) 142424, ¶ 6.
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¶ 53 In affirming the trial court’s denial of a probable cause hearing, we held that the change
from PNOS, the respondent’s initial diagnosis as reflected in DSM-IV-TR, to other specified
paraphilic disorder (OSPD), the renaming of the respondent’s initial diagnosis, as reflected in
DSM-5, did not suggest a change in professional knowledge. Id. ¶ 23. Rather, the change was no
more than a relabeling or clarification of the elements of essentially the same disorder. Id. Citing
Melcher and McGee, we further held that PNOS nonconsent had been held to be an appropriate
diagnosis in this state and elsewhere. Id. ¶ 25. Thus, DSM-5’s change from PNOS to OSPD did
not serve as a basis for a probable cause hearing on his status. Id.
¶ 54 Significantly, in Melcher, we held that it was appropriate to take judicial notice that PNOS
nonconsent, is generally accepted within the psychological community. Melcher, 2013 IL App
(1st) 123085, ¶ 58; see also Brown v. Watters, 599 F.3d 602, 610 (7th Cir. 2010) (rejecting
challenge to paraphilia NOS diagnosis as lacking scientific validity). Earlier, in In re Detention of
Lieberman, 2011 IL App (1st) 090796, we noted that the diagnosis of paraphilia NOS, nonconsent
has been the basis for numerous probable cause or SVP findings in this state and in jurisdictions
outside of this state. Id. ¶ 53 (citing cases).
¶ 55 Finally, respondent argues that even if the State’s experts’ diagnosis applies, and we hasten
to add that it does, there is no evidence that the diagnosis is generally accepted, and the trial court
was not asked to take judicial notice of any decisions or scientific support. Further, he argues, even
if there are such cases, reliance upon them would be inappropriate “if the underlying issue of
scientific acceptance has not been adequately litigated.”
¶ 56 We believe that Melcher, and its progeny, support the conclusion that OSPD, formerly
labeled PNOS, is generally accepted in the psychological and psychiatric communities.
Accordingly, respondent’s argument that there are no published cases to demonstrate that OSPD
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nonconsent has been subject to Frye necessarily fails. Further, respondent points to nothing to
support his suggestion that litigation of general acceptance of the diagnosis may not been adequate.
Thus, we take judicial notice of Melcher and reaffirm our holding in Hayes II, as it relates to the
general acceptability of OSPD nonconsent. Given the general acceptance of PNOS nonconsent
and its equivalent OSPD, we find that a Frye hearing was not necessary.
¶ 57 B. Sufficiency of the Evidence
¶ 58 Respondent next contends that the evidence was insufficient to prove beyond a reasonable
doubt that he is an SVP. In reviewing a challenge to the sufficiency of the evidence, “we consider
whether, viewing the evidence in the light most favorable to the State, any rational trier of fact
could find the elements proved beyond a reasonable doubt.” In re Commitment of Fields, 2014 IL
115542, ¶ 19. It is not the function of this court to retry the defendant. People v. Smith, 177 Ill. 2d
53, 73 (1997). Rather, the trier of fact is charged with evaluating the credibility of the witnesses,
resolving conflicts in the evidence, and deciding what reasonable inferences to draw from the
evidence. People v. Daniel, 311 Ill. App. 3d 276, 282 (2000).
¶ 59 To establish that respondent is an SVP, the State must prove beyond a reasonable doubt
that (1) respondent was convicted of a sexually violent offense, (2) he has a mental disorder, and
(3) the mental disorder makes it substantially probable that he will engage in acts of sexual
violence. 725 ILCS 207/5(f) (West 2010). Under the Act, a mental disorder is defined as a
“congenital or acquired condition affecting the emotional or volitional capacity that predisposes a
person to engage in acts of sexual violence.” Id. § 5(b).
¶ 60 Here, respondent concedes that the first and second elements have been satisfied. However,
respondent argues that the State failed to prove the third element, that his mental disorder made it
substantially probable that he would engage in future acts of sexual violence. We disagree. Both
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Dr. Schechter and Dr. Travis testified that respondent’s disorders are congenital or acquired
condition and affect his emotional or volitional capacity. Dr. Travis noted that this makes him
“more likely to follow his impulse and urges.” The experts also used several recognized
assessments to predict respondent’s likelihood of reoffending. Based on their interviews with
respondent, his history of sexual violence, and the results of the risk assessments, both Dr.
Schechter and Dr. Travis opined that respondent’s emotional or volitional capacity predisposed
him to commit acts of sexual violence. They concluded that a substantial probability existed that
respondent would commit another sexually violent crime in the future. Additionally, respondent
himself had stated that he did not expect his sexual interests to go away in the future.
¶ 61 Although respondent’s expert, Dr. Sillitti, did not agree with the conclusion drawn by the
State’s experts, we will not disturb the findings of the trier of fact, which is in the best position to
weigh the testimony of the experts and assess their credibility. On review, the issue before us is
whether, after viewing all the evidence in the light most favorable to the State, any rational trier of
fact could find that the elements of the offense have been proved beyond a reasonable doubt. In
the present case, two experts testified consistently that respondent has a mental disorder that makes
it substantially probable that he will commit sexually violent acts in the future. Both relied on
psychological testing, the record, police reports, evaluations, and interviews with respondent in
reaching their conclusion. As such, there was sufficient evidence to prove respondent was an SVP
and a rational trier of fact could have found that all the elements under the Act were proven.
¶ 62 III. CONCLUSION
¶ 63 For the reasons stated, we affirm the judgment of the circuit court.
¶ 64 Affirmed.
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No. 1-18-2049
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 2011-CR- 8000801; the Hon. William G. Gamboney, Judge, presiding.
Attorneys Joseph G. Howard, of Law Offices of Joseph G. Howard, P.C., of for Chicago, for appellant. Appellant:
Attorneys Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, for Solicitor General, and Michael M. Glick, Joshua M. Appellee: Schneider, and Aaron M. Williams, Assistant Attorneys General, of counsel), for the People.
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