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Third Division
December 24, 2002

JUSTICE HALL delivered the opinion of the court:

On December 16, 1997, following a jury trial, defendantMichael Gilford was convicted of two counts of criminal sexualassault and two counts of criminal sexual abuse of T.A. Defendant filed a timely posttrial motion, which was denied. OnFebruary 23, 1998, defendant was sentenced to two consecutive 30year terms of imprisonment. On March 16, 1998, defendant filed atimely motion to reduce his sentence, which was subsequentlydenied. Defendant then filed a timely notice of appeal on March27, 1998.

On June 30, 1999, on direct appeal, this court reverseddefendant's convictions and remanded the action for retrial.People v. Gilford, No. 1-98-1346 (1999) (unpublished order underSupreme Court Rule 23 (166 Ill. 2d R. 23)). We found that theState's evidence was sufficient to find defendant guilty ofcriminal sexual assault and criminal sexual abuse beyond areasonable doubt. We also found, however, that certain trialcourt errors denied defendant a fair trial and needed to be curedupon remand. This court indicated that upon remand: (1)defendant was entitled to have his own expert physically examineT.A. in order to determine whether her physical disability⁽¹⁾affected her ability to move her head and neck; (2) the trialcourt should not unduly limit defendant's cross-examination ofDoctor Rom-Rymer, the State's expert witness; and (3) if thetrial court's in camera review of T.A.'s psychological recordsrevealed that the records contained no exculpatory material, thetrial court should impound the records and preserve them forappellate review.

The matter was remanded to the trial court by mandate issuedon January 4, 2000. Defendant made his $250,000 bail bond. OnMay 4, 2000, after discovery had been tendered and a number ofcontinuances granted, the State sought to revoke defendant's bondon the basis that defendant had violated the conditions of thebond by being found on school grounds. Defense counsel arguedthat defendant was on the school's grounds because he had drivento the school to pick up his wife, who was employed as a nurse atthe school. The trial court subsequently rejected the State'sargument that the bond should be revoked and instead modified theconditions of the bond and put defendant on 24-hour homeconfinement with the exception that defendant could see hisattorney, attend church and attend court-ordered counseling, ifhe gave 24-hour advanced notice to pretrial services. The trialcourt set the trial date for July 2000 but reset it to August 14,2000, due to witness unavailability.

On June 23, 2000, approximately two months beforedefendant's criminal trial was to begin, the State filed a civilcommitment petition to have defendant declared a sexuallydangerous person as that term is defined in section 1.01 of theIllinois Sexually Dangerous Persons Act (the Act) (725 ILCS205/1.01 (West 1996))⁽²⁾. On August 7, 2000, the trial courtdenied defendant's motion to dismiss the State's petition andinstead directed that pursuant to section 4 of the Act defendant be examined by two qualified psychiatrists in order to ascertainif he was sexually dangerous.⁽³⁾

At the hearing on the State's petition, conducted inDecember 2000, the State presented the testimony of Dr. Mathew S.Markos, a psychiatrist at the Forensic Clinical Services of thecircuit court of Cook County, Dr. Roger M. Wilson, a psychiatristat the Isaac Ray Center, a part of Rush-Presbyterian-St. Luke'sMedical Center in Chicago, Illinois, and Dr. Orest E. Wasyliw, aforensic psychologist at the Isaac Ray Center. The partiesstipulated that the doctors were experts in their respectivefields.

At the hearing, Dr. Markos testified that he examineddefendant on August 29 and 30 of 2000. The purpose of the firstexamination was to determine if defendant suffered from anyspecific mental disorder that had lasted for at least one yearand that may have increased defendant's propensity for criminalsexual behavior toward children and others. Prior to examiningdefendant, Dr. Markos reviewed the following documents: (1) theState's petition; (2) the transcripts related to this court'sRule 23 order dated June 30, 1999, regarding defendant's sexualconduct with T.A.; (3) police and investigative reportspertaining to defendant's sexual misconduct with J.G. as well asMelissa K.⁽⁴⁾ and T.A.; and (4) Department of Children and FamilyServices records pertaining to defendant. Dr. Markos alsoreviewed a report of an incident wherein defendant allegedlysexually molested Danille H., a 15-year-old babysitter, whobabysat for defendant and his wife's two children.

Dr. Markos' second examination was devoted to an evaluationof defendant's psychosexual development. During this secondexamination, Dr. Markos obtained information regardingdefendant's sexual history, starting with his sexual development. The doctor investigated defendant's sexual behavior andfantasies, both normal and deviant. Based on the two independentexaminations, Dr. Markos opined that defendant was suffering fromthe mental disorder of pedophilia, which the doctor believed hadexisted for a period of not less than one year. Dr. Markosfurther opined that defendant's pedophilia was predominantlydirected toward young females and was coupled with the criminalpropensity to the commission of sex offenses. Dr. Markos went onto state that, in his opinion, defendant met the statutorycriteria of a sexually dangerous person.

On cross-examination, Dr. Markos testified that he was awarethat after defendant's convictions for engaging in sexualmisconduct with J.G. and Melissa K., defendant had receivedtreatment and therapy. The doctor testified, however, that inhis opinion even though defendant received therapy, and eventhough there had been no reports of repeat sexual misconduct bydefendant subsequent to the therapy he received, these factorsalone did not indicate that the therapy was successful. Dr.Markos testified that, in his opinion, defendant still hadpedophilic impulses of which he had not been cured. Dr. Markosconceded that his opinion regarding defendant's presentpropensity to commit further sexual offenses was based ondefendant's pedophilic behavior that occurred more than 10 yearsago.

Dr. Wilson testified that he evaluated defendant in August2000. Prior to examining defendant, Dr. Wilson reviewed the samedocuments that Dr. Markos had reviewed in preparation for hisexamination of defendant. Dr. Wilson testified that hisevaluation of defendant began with a clinical interview whereinhe asked defendant to discuss his sexual history and previoussexual conduct. During the interview, defendant admitted that inaddition to sexually molesting J.G. and Melissa K., he alsomolested his young son during the same period. Dr. Wilsontestified that when he asked defendant if this type of conductmight occur again, defendant replied, "I don't know if this willhappen again. Like alcohol, you must always be aware." Oncross-examination, Dr. Wilson testified that pedophilia is amental disorder that, like alcoholism, is a life-long illnessthat cannot be cured. The doctor agreed that an individual whowas diagnosed as a pedophile some 10 years earlier would alwayshave a propensity to commit that type of behavior again. Thedoctor explained that a pedophile is never cured, but, rather,the possible recidivism can be reduced.

Dr. Wilson testified that after he conducted his clinicalinterview of defendant, a forensic nurse gave defendant an "Abelquestionnaire" to evaluate his sexual interests; defendant thenunderwent an "Abel Screening," which visually assessed his sexualinterests; defendant was also tested by a device called aplethysmograph, which measured the changes in the circumferenceof defendant's penis in response to 22 audiovisual videotapes;defendant also underwent a "Q-Sort" test wherein he viewedvarious pictures of adult men and women and young boys and girls.

On the "Abel questionnaire" defendant scored 32; a score of23 or less would be a deviation from the norm. On the sexualcognitive distortion and immaturity test, defendant scored 2 outof 20; a score of 3 or less suggests few if any cognitivedistortion problems. The "Abel screening" showed that defendanthad an interest in adult females with a slightly higher interestin adolescent females. The "Abel screening" also indicated thatdefendant appeared to be interested in adult males, frotteurisminvolving adult females and exhibitionism involving adultfemales.

On cross-examination, Dr. Wilson testified that theindication of frotteurism was not derived from any documented

behavior, but from defendant's fantasies and urges. However, Dr.Wilson conceded that defendant did not tell him about anyfantasies that specifically indicated frotteurism. Dr. Wilsontestified that the indication of exhibitionism was not derivedfrom any documented behavior, but from the amount of timedefendant spent viewing a specific picture during the "AbelScreening" assessment. The results from the plethysmograph wereequivocal, with defendant showing some responsiveness to underagefemales in coercive and noncoercive situations. On the "Q-Sort"test, defendant showed a moderate interest in adult women andadolescent girls.

Based on defendant's self-reports of child sexual abuse,police records, and the data that Dr. Wilson collected from thetests defendant underwent, the doctor opined that defendant wassuffering from the mental disorder of paraphilia with features ofpedophilia, ephebophilia, exhibitionism, frotteurism, and sadism. Dr. Wilson believed that defendant's mental disorder had existedfor not less than one year. Dr. Wilson further opined thatdefendant continued to possess a criminal propensity to engage incriminal sexual behavior toward minors, adolescents and adults. Dr. Wilson went on to state that, in his opinion, defendant was asexually dangerous person from a clinical standpoint. Inaddition, the doctor opined that the therapy defendant hadreceived did not reduce the possibility of recidivism.

On cross-examination, Dr. Wilson testified that in renderinghis opinion he took into consideration defendant's 1997conviction of the criminal sexual assault and criminal sexualabuse of T.A. The doctor conceded that he did not know thatdefendant's 1997 conviction had been reversed and remanded. Onre-cross-examination, when asked for evidence of defendant'sinability to control himself in the past 10 years, Dr. Wilsonpointed to the incident where defendant was found on schoolgrounds and on the number of extramarital affairs defendant hadengaged in.

Dr. Wasyliw testified that he conducted a psychologicalevaluation of defendant on August 22, 2000. Prior to examiningdefendant, Dr. Wasyliw reviewed the same documents that Dr.Markos had reviewed in preparation for his examination ofdefendant. Dr. Wasyliw evaluated defendant in order to assessthe presence, nature and extent of any psychopathology related todefendant's criminal sexual behavior. Dr. Wasyliw testified thathis evaluation of defendant began with a clinical interviewwherein he asked defendant to discuss his sexual history andprevious sexual conduct. Dr. Wasyliw testified that after heinterviewed defendant, he conducted a series of tests ondefendant, which included the Shipley Institute of Living test(an IQ test), the Minnesota Multiphasic Personalty Inventory test(MMPI-2), the Millon Clinical Multiaxial Inventory-II test, the16-Pesonality Factor Questionnaire and the RorschachPsychodiagnostic test.

Based on the results of these five tests, Dr. Wasyliw opinedthat defendant was suffering from the mental disorder ofparaphilia with features of pedophilia and ephebophilia. Dr.Wasyliw also opined that defendant was suffering from apersonality disorder having histrionic and narcissistic features. The doctor testified that the combination of these twopersonality traits indicated that defendant was a very self-centered, self-indulgent and manipulative individual, who wasready and willing to use others for his own purposes.

Dr. Wasyliw testified that in his opinion the previoustherapy that defendant received had no substantive effect on hispedophilia. The doctor opined that it was likely that defendantwould continue to have sexual interests in both young adolescentsand prepubescent children. Dr. Wasyliw found no indications offrotteurism or exhibitionism.

On cross-examination, Dr. Wasyliw conceded that the fivetests he administered to defendant could not predict defendant'spropensity to engage in future sexual misconduct since the testswere not designed for that purpose. The doctor testified that inhis opinion even though defendant received therapy and eventhough there had been no reports of repeat sexual misconduct bydefendant subsequent to the therapy he received, these factorsalone did not indicate that the therapy was successful.

The parties then stipulated to the testimony of Statewitnesses J.G., Melissa K., Danielle H., and T.A., who would allrecount their inappropriate sexual encounters with defendant. The parties further stipulated that defense witness Officer Batkowould testify consistent with his testimony heard on December 12,1997. The trial court reversed itself and struck the testimonyof Dr. John Grant.⁽⁵⁾ The State then rested.

Defendant renewed his motion to dismiss the State'spetition. Upon denial of the motion, defendant rested withoutpresenting evidence. After hearing closing arguments on thematter, the trial court found that defendant was a sexuallydangerous person and consequently remanded him to the custody ofthe Illinois Department of Corrections. Defendant filed a timelynotice of appeal, and we granted his application for directappellate review.

On appeal, defendant contends that: (1) the Act isunconstitutional; (2) the trial court erred in finding theevidence sufficient to declare him a sexually dangerous personbeyond a reasonable doubt; and (3) the State improperly used theAct for retribution when, during the pendency of defendant'scriminal proceeding, the State elected to seek defendant'scommitment as a sexually dangerous person under the Act, ratherthan proceed with the pending criminal prosecution. For thereasons that follow, we vacate and remand with directions.

ANALYSIS

Defendant first contends that the Act is unconstitutionaland violates his substantive due process rights in light of theUnited States Supreme Court's decisions in Kansas v. Hendricks,521 U.S. 346, 138 L. Ed. 2d 501, 117 S. Ct. 2072 (1997), andKansas v. Crane, 534 U.S. 407, 151 L. Ed. 2d 856, 122 S. Ct. 867(2002), because the Act allows a defendant to be indeterminatelycommitted as a sexually dangerous person without proof that thedefendant's mental disorder makes it "seriously difficult" forthe defendant to control his behavior. Defendant claims that amental disorder affecting an individual's propensity to commitsex offenses, as the Act requires, does not equate to a mentaldisorder that causes serious difficulty in controlling behavior,as Crane requires.

In response, the State contends that the Act meets thestandards announced in Hendricks and Crane because it requires adefendant's mental illness to exist for at least one year, itlinks that mental illness to criminal sexual propensities andthen requires defendant to have actually demonstrated thesepropensities. The State maintains that a defendant'sdemonstrated sexual propensities are proof, in and of themselves,that the defendant has serious difficulty controlling hisbehavior.

The constitutionality of a statute is a question of lawwhich this court reviews de novo. People v. Malchow, 193 Ill. 2d413, 418, 739 N.E.2d 433 (2000). In addition, statutes carry astrong presumption of constitutionality and the party challengingthe constitutionality of a statute bears the burden of rebuttingthis presumption. Best v. Taylor Machine Works, 179 Ill. 2d 367,377, 689 N.E.2d 1057 (1997). The starting point for any dueprocess analysis is the selection of the proper test to beapplied when reviewing the alleged constitutional violation. Inre I.D., 205 Ill. App. 3d 543, 548-49, 563 N.E.2d 1200 (1990).

In the present case, the State maintains that the Act issubject to the rational basis test because the statute is notbased on a suspect classification and it does not implicate afundamental right. We must reject the State's argument on thisissue.

Generally, courts apply the rational basis test in examiningthe constitutionality of a statute under substantive due process.Tully v. Edgar, 171 Ill. 2d 297, 304, 664 N.E.2d 43 (1996). Tosatisfy this test, a statute need only bear a rational relationto a legitimate legislative purpose and be neither arbitrary nordiscriminatory. Tully, 171 Ill. 2d at 304. If, however, thechallenged legislation impinges upon a fundamental constitutionalright, the court will examine the statute under the strictscrutiny standard. Tully, 171 Ill. 2d at 304. Under the strictscrutiny standard, a statute violates substantive due processunless it is narrowly tailored to serve a legitimate andcompelling legislative interest. Tully, 171 Ill. 2d at 304-05.

Both the Illinois and United States Constitutions protectindividuals from deprivations of liberty without due process oflaw. U.S. Const. amends. V, XIV; Ill. Const. art. I,