2019 IL App (2d) 180211 No. 2-18-0211 Opinion filed August 8, 2019 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
In re COMMITMENT OF ) Appeal from the Circuit Court SAMUEL RUTHERFORD ) of Du Page County. ) ) No. 07-MR-683 ) (The People of the State of Illinois, ) Honorable Petitioner-Appellee, v. Samuel Rutherford, ) Paul M. Fullerton, Respondent-Appellant). ) Judge, Presiding. _____________________________________________________________________________
JUSTICE McLAREN delivered the judgment of the court, with opinion. Justices Jorgensen and Spence concurred in the judgment and opinion.
OPINION
¶1 Respondent, Samuel Rutherford, committed under the Sexually Violent Persons
Commitment Act (725 ILCS 207/1 et seq. (West 2008)), appeals from the trial court’s denial of
his petition for discharge and the appointment of an independent evaluator. For the reasons that
follow, we affirm.
¶2 I. BACKGROUND
¶3 In 2002, respondent, then 16 years old, was adjudicated a delinquent minor for
committing attempted aggravated criminal sexual assault (720 ILCS 5/8-4(a), 12-14(b)(i) (West
2002)) and aggravated criminal sexual abuse (id. § 12-16(c)(2)(i)) against an 8-year-old girl. He
was sentenced to five years of probation. In March 2005, respondent admitted to violating the
conditions of his probation and was committed to the Department of Juvenile Justice (DJJ) for an 2019 IL App (2d) 180211
indeterminate term under section 5-720 of the Juvenile Court Act of 1987 (705 ILCS 405/5-720
(West 2004)). He was released on parole in June 2006. In 2007, at the age of 20, respondent
violated his parole conditions by committing frottage against a treatment center staff member on
at least two occasions and was recommitted to the DJJ.
¶4 In May 2007, the State sought respondent’s civil commitment under the Sexually Violent
Persons Commitment Act. In June 2008, after consulting with his attorney, respondent stipulated
to being a sexually violent person and to being committed to the care, control, and treatment of
the Illinois Department of Human Services (DHS). After finding that respondent had waived his
right to a jury trial, the trial court accepted his stipulation to commitment. In July 2009, the court
heard evidence at a dispositional hearing, including testimony from respondent and two
psychologists, and ordered respondent committed to institutional care in a secure facility.
¶5 In 2017, respondent received a statutorily required periodic reexamination to determine
whether he had “made sufficient progress in treatment to be conditionally released” and whether
his condition had so changed since his last periodic reexamination that he was “no longer a
sexually violent person.” 725 ILCS 207/55(a) (West 2016). The investigation was conducted by
Dr. Richard Travis. Because respondent declined to participate in the investigation, Dr. Travis
based his evaluation on respondent’s criminal, DJJ, and DHS records.
¶6 In his evaluation report, Dr. Travis identified respondent’s 2007 frottage offenses against
a female counselor as his “predicate offense.” The report explains that a predicate offense leads
to a mental disorder diagnosis that becomes the basis for a subsequent legal determination, such
as involuntary civil commitment.
¶7 Based on respondent’s records and on generally accepted diagnostic criteria, Dr. Travis
diagnosed respondent with “Pedophilic Disorder, Sexually Attracted to Both, Nonexclusive;
-2- 2019 IL App (2d) 180211
Frotteuristic Disorder; Other Specified Paraphilic Disorder, Zoophilia; Bipolar I Disorder, In Full
Remission; and Antisocial Personality Disorder.” Noting that respondent was 31 years old at the
time of the reexamination, Dr. Travis analyzed his likelihood of recidivism using actuarial
assessment tools that incorporate the relationship between age at release and sexual recidivism.
Respondent scored in the highest of five risk categories on these actuarial instruments. Because
respondent also presented many dynamic risk factors and treatment needs based on
psychological traits, he “remain[ed] at a substantial probability to engage in acts of sexual
violence.”
¶8 Dr. Travis noted that the risk of sexual recidivism can be lowered by “successful
completion of sexual offense specific treatment.” However, since respondent had not participated
in sex offender treatment since 2009, when he withdrew consent for treatment, “[n]o treatment-
based risk reduction [was] warranted.”
¶9 In conclusion, Dr. Travis stated: “Due to his mental disorders and assessed risk,
[respondent] remains substantially probable to engage in acts of sexual violence. His condition
has not changed since the most recent periodic reexamination [in 2016] such that he is no longer
a sexually violent person.” He further concluded that respondent “has not made sufficient
progress in treatment to be Conditionally Released.”
¶ 10 Following his 2017 reexamination, respondent petitioned for discharge and the
appointment of an independent evaluator, maintaining that “he no longer has a mental disorder,
and that any mental disorder he may previously have had no longer creates a substantial
probability that he will engage in acts of sexual violence.” Respondent further asserted, citing an
amicus brief in Miller v. Alabama, 567 U.S. 460 (2012), that, due to recent studies on differences
in juvenile and adult brains, a change has occurred in the “professional knowledge and methods
-3- 2019 IL App (2d) 180211
used to evaluate a person’s mental disorder or risk of reoffending.” The trial court denied the
petition, finding that respondent had not met his burden of showing a change in his condition and
that the studies he cited were likely known to the State’s evaluators.
¶ 11 II. ANALYSIS
¶ 12 Respondent contends that the trial court erred in denying his petition for discharge and
the appointment of an independent evaluator. We review for an abuse of discretion the trial
court’s decision not to appoint an independent evaluator. People v. Botruff, 212 Ill. 2d 166, 176
(2004). Whether there is probable cause to believe that respondent’s condition has so changed
that he is no longer a sexually violent person is reviewed de novo. In re Commitment of Kirst,
2015 IL App (2d) 140532, ¶ 49.
¶ 13 Respondent concedes that the issues of appointing an independent evaluator and probable
cause to proceed to a discharge hearing “necessarily became intertwined” at the hearing. Thus,
he argues that he was deprived of an adequate defense on both issues for the same reason: the
studies on differences in juvenile and adult brains were not used to evaluate his mental disorder
or the risk of his reoffending. Respondent’s argument, however, is a counterfactual enthymeme.
Based on the studies, respondent posits that, as juveniles’ brains mature, they evince “fewer
impulses toward reckless and criminal behavior and increased ability to restrain such impulses.”
Respondent presumes that there are no intervening facts that would contradict that conclusion in
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2019 IL App (2d) 180211 No. 2-18-0211 Opinion filed August 8, 2019 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
In re COMMITMENT OF ) Appeal from the Circuit Court SAMUEL RUTHERFORD ) of Du Page County. ) ) No. 07-MR-683 ) (The People of the State of Illinois, ) Honorable Petitioner-Appellee, v. Samuel Rutherford, ) Paul M. Fullerton, Respondent-Appellant). ) Judge, Presiding. _____________________________________________________________________________
JUSTICE McLAREN delivered the judgment of the court, with opinion. Justices Jorgensen and Spence concurred in the judgment and opinion.
OPINION
¶1 Respondent, Samuel Rutherford, committed under the Sexually Violent Persons
Commitment Act (725 ILCS 207/1 et seq. (West 2008)), appeals from the trial court’s denial of
his petition for discharge and the appointment of an independent evaluator. For the reasons that
follow, we affirm.
¶2 I. BACKGROUND
¶3 In 2002, respondent, then 16 years old, was adjudicated a delinquent minor for
committing attempted aggravated criminal sexual assault (720 ILCS 5/8-4(a), 12-14(b)(i) (West
2002)) and aggravated criminal sexual abuse (id. § 12-16(c)(2)(i)) against an 8-year-old girl. He
was sentenced to five years of probation. In March 2005, respondent admitted to violating the
conditions of his probation and was committed to the Department of Juvenile Justice (DJJ) for an 2019 IL App (2d) 180211
indeterminate term under section 5-720 of the Juvenile Court Act of 1987 (705 ILCS 405/5-720
(West 2004)). He was released on parole in June 2006. In 2007, at the age of 20, respondent
violated his parole conditions by committing frottage against a treatment center staff member on
at least two occasions and was recommitted to the DJJ.
¶4 In May 2007, the State sought respondent’s civil commitment under the Sexually Violent
Persons Commitment Act. In June 2008, after consulting with his attorney, respondent stipulated
to being a sexually violent person and to being committed to the care, control, and treatment of
the Illinois Department of Human Services (DHS). After finding that respondent had waived his
right to a jury trial, the trial court accepted his stipulation to commitment. In July 2009, the court
heard evidence at a dispositional hearing, including testimony from respondent and two
psychologists, and ordered respondent committed to institutional care in a secure facility.
¶5 In 2017, respondent received a statutorily required periodic reexamination to determine
whether he had “made sufficient progress in treatment to be conditionally released” and whether
his condition had so changed since his last periodic reexamination that he was “no longer a
sexually violent person.” 725 ILCS 207/55(a) (West 2016). The investigation was conducted by
Dr. Richard Travis. Because respondent declined to participate in the investigation, Dr. Travis
based his evaluation on respondent’s criminal, DJJ, and DHS records.
¶6 In his evaluation report, Dr. Travis identified respondent’s 2007 frottage offenses against
a female counselor as his “predicate offense.” The report explains that a predicate offense leads
to a mental disorder diagnosis that becomes the basis for a subsequent legal determination, such
as involuntary civil commitment.
¶7 Based on respondent’s records and on generally accepted diagnostic criteria, Dr. Travis
diagnosed respondent with “Pedophilic Disorder, Sexually Attracted to Both, Nonexclusive;
-2- 2019 IL App (2d) 180211
Frotteuristic Disorder; Other Specified Paraphilic Disorder, Zoophilia; Bipolar I Disorder, In Full
Remission; and Antisocial Personality Disorder.” Noting that respondent was 31 years old at the
time of the reexamination, Dr. Travis analyzed his likelihood of recidivism using actuarial
assessment tools that incorporate the relationship between age at release and sexual recidivism.
Respondent scored in the highest of five risk categories on these actuarial instruments. Because
respondent also presented many dynamic risk factors and treatment needs based on
psychological traits, he “remain[ed] at a substantial probability to engage in acts of sexual
violence.”
¶8 Dr. Travis noted that the risk of sexual recidivism can be lowered by “successful
completion of sexual offense specific treatment.” However, since respondent had not participated
in sex offender treatment since 2009, when he withdrew consent for treatment, “[n]o treatment-
based risk reduction [was] warranted.”
¶9 In conclusion, Dr. Travis stated: “Due to his mental disorders and assessed risk,
[respondent] remains substantially probable to engage in acts of sexual violence. His condition
has not changed since the most recent periodic reexamination [in 2016] such that he is no longer
a sexually violent person.” He further concluded that respondent “has not made sufficient
progress in treatment to be Conditionally Released.”
¶ 10 Following his 2017 reexamination, respondent petitioned for discharge and the
appointment of an independent evaluator, maintaining that “he no longer has a mental disorder,
and that any mental disorder he may previously have had no longer creates a substantial
probability that he will engage in acts of sexual violence.” Respondent further asserted, citing an
amicus brief in Miller v. Alabama, 567 U.S. 460 (2012), that, due to recent studies on differences
in juvenile and adult brains, a change has occurred in the “professional knowledge and methods
-3- 2019 IL App (2d) 180211
used to evaluate a person’s mental disorder or risk of reoffending.” The trial court denied the
petition, finding that respondent had not met his burden of showing a change in his condition and
that the studies he cited were likely known to the State’s evaluators.
¶ 11 II. ANALYSIS
¶ 12 Respondent contends that the trial court erred in denying his petition for discharge and
the appointment of an independent evaluator. We review for an abuse of discretion the trial
court’s decision not to appoint an independent evaluator. People v. Botruff, 212 Ill. 2d 166, 176
(2004). Whether there is probable cause to believe that respondent’s condition has so changed
that he is no longer a sexually violent person is reviewed de novo. In re Commitment of Kirst,
2015 IL App (2d) 140532, ¶ 49.
¶ 13 Respondent concedes that the issues of appointing an independent evaluator and probable
cause to proceed to a discharge hearing “necessarily became intertwined” at the hearing. Thus,
he argues that he was deprived of an adequate defense on both issues for the same reason: the
studies on differences in juvenile and adult brains were not used to evaluate his mental disorder
or the risk of his reoffending. Respondent’s argument, however, is a counterfactual enthymeme.
Based on the studies, respondent posits that, as juveniles’ brains mature, they evince “fewer
impulses toward reckless and criminal behavior and increased ability to restrain such impulses.”
Respondent presumes that there are no intervening facts that would contradict that conclusion in
this case. But respondent omits that, as an adult (presumably with an adult mind), he committed
frottage against a treatment center employee on at least two occasions. Positing probabilities
based upon a juvenile brain when the salient acts were done as an adult is unavailing.
Furthermore, because respondent did not participate in treatment after 2009, he can provide no
factual premise for his claimed change.
-4- 2019 IL App (2d) 180211
¶ 14 We also note that respondent’s reliance on a brief filed in Miller is misplaced because
Miller addresses punitive state action, not civil commitment. See In re Detention of Samuelson,
189 Ill. 2d 548, 559 (2000) (“proceedings under the Sexually Violent Persons Commitment Act
are civil rather than criminal in nature”). In Miller, the Court held that mandatory life
imprisonment without parole for crimes committed before the offenders turned 18 violates the
eighth amendment’s prohibition on cruel and unusual punishments. Miller, 567 U.S. at 479.
Commitment under the Sexually Violent Persons Commitment Act, unlike life imprisonment
without parole, contemplates the possibility of rehabilitation and discharge. See In re Detention
of Stanbridge, 2012 IL 112337, ¶¶ 71-76 (identifying the relevant discharge inquiry, which
includes change in the committed person or in the evaluative or legal standards). In rejecting
treatment, respondent rejected rehabilitation and forfeited the opportunity to show that he had
changed.
¶ 15 Finally, the studies cited in the brief are inapplicable here for the additional reason that
they are inconclusive. For example, one study “found that only 16% of young adolescents who
scored in the top quintile on a juvenile psychopathy measure would eventually be assessed as
psychopathic at age 24.” Donald Lynam et al., Longitudinal Evidence That Psychopathy Scores
in Early Adolescence Predict Adult Psychopathy, 116 J. Abnormal Psychol. 155, 160 (2007).
Having refused to participate in treatment or in his 2017 reexamination, respondent has no
evidence to back a claim that he has so changed with age that he is no longer a sexually violent
person. He does not benefit from citing a study indicating that the mental disorders of 16% of
those sampled did not change as their brains developed.
¶ 16 III. CONCLUSION
¶ 17 For the reasons stated, we affirm the judgment of the circuit court of Du Page County.
-5- 2019 IL App (2d) 180211
¶ 18 Affirmed.
-6- 2019 IL App (2d) 180211
No. 2-18-0211
Decision Under Review: Appeal from the Circuit Court of Du Page County, No. 07-MR- 683; the Hon. Paul M. Fullerton, Judge, presiding.
Attorneys William G. Worobec, of Law Office of William G. Worobec, for P.C., of Wheaton, for appellant. Appellant:
Attorneys Lisa Madigan, Attorney General, of Chicago (David L. Franklin, for Solicitor General, and Michael M. Glick and Lindsay Beyer Appellee: Payne, Assistant Attorneys General, of counsel), for the People.
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