In re Commitment of Bushong
Case Date: 08/30/2004
Court: 2nd District Appellate
Docket No: 2-02-1213 Rel
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IN THE
JUSTICE BYRNE delivered the opinion of the court: The trial court found respondent, Eugene Bushong, to be a sexually violent person pursuantto the Sexually Violent Persons Commitment Act (SVPA) (725 ILCS 207/1 et seq. (West 2000)) andordered him committed to a Department of Human Services (DHS) treatment facility indefinitely. Respondent did not appeal the adjudication or his commitment to DHS. Instead, respondentpetitioned alternatively for conditional release (725 ILCS 207/60 (West 2000)) or discharge (725ILCS 207/65 (West 2000)). The trial court denied the petition, and respondent timely appeals. On appeal, respondent alternatively asks us to vacate the trial court's finding of sexualviolence and the dispositional order, or to remand the cause for a new hearing on his petition forconditional release. Respondent argues that (1) his due process rights were violated at the originalcommitment hearing because the SVPA did not require the trial court to expressly find that his mentaldisorder makes it difficult for him to control his urge to commit sexually violent acts; (2) he wasdenied his right to equal protection at the conditional release hearing because the SVPA requires theState to prove its case by only clear and convincing evidence rather than by proof beyond areasonable doubt, as is required by the Sexually Dangerous Persons Act (SDPA) (725 ILCS 205/1.01et seq. (West 2000)); and (3) he received ineffective assistance of counsel at the conditional releasehearing when his attorney did not (a) challenge the admissibility of actuarial instruments that theState's expert used to assess respondent's risk of recidivism or (b) move to exclude the testimony ofthe State's expert as a sanction for the DHS treatment providers' refusal to discuss the case with thedefense expert. We reject respondent's arguments and affirm the judgment. FACTS Following a hearing on February 23, 1999, the trial court found beyond a reasonable doubtthat respondent was a sexually violent person. The court found that respondent had been convictedof aggravated criminal sexual abuse in 1986 and 1991; the offenses involved boys who were less than17 years old; and respondent suffered from the mental disorder of paraphilia, not otherwise specified,attracted to males, nonexclusive type. The court found that respondent was dangerous because the"mental disorder makes it substantially probable that [respondent] will engage in acts of sexualviolence." Following a dispositional hearing on August 16, 1999, the court ordered respondentcommitted to DHS for care and treatment. On December 12, 2000, defense counsel filed a petition seeking respondent's conditionalrelease. The petition alleged that respondent's time would be better spent in employment andoutpatient treatment. The court heard the petition more than 18 months later, on June 24, 2002. Dr.Leavitt, the State's expert, testified that he conducted 6-, 18-, and 30-month evaluations in which heinterviewed respondent, reviewed his treatment progress, administered psychological tests, andupdated his risk analysis. Dr. Leavitt reported that respondent had been charged with seven sexoffenses over 40 years. Respondent was convicted six times and showed no evidence of stopping hiscriminal sexual behavior. Dr. Leavitt stated that the DHS treatment providers were treating respondent for paraphilia,sexually attracted to males, nonexclusive type. Respondent also exhibited narcissistic personalitydisorder. His treatment consisted of a five-phase core sex-offender-specific program, as well as anindividual plan. Respondent was assigned a case manager and a primary therapist. Respondent hadshown some progress by participating in treatment and admitting to some of his past sexual offenses. Respondent first participated in a disclosure group because he initially resisted treatment. At the timeof the hearing, respondent was in the second phase of the program, which focused on acceptingresponsibility for his sexual deviance. Before progressing to phase three, respondent submitted toa polygraph test, but his results were inconclusive because he responded erratically. Following thepolygraph test, respondent admitted to abusing five additional victims. This delay in disclosurecaused his treatment providers to doubt whether respondent could discuss his past honestly andopenly. The providers also expressed concern that respondent could not focus and participate ingroup treatment. Dr. Leavitt administered the Multiphasic Sex Inventory, which showed that respondentremained defensive but was also becoming increasingly open about his past behavior. The MillonClinical Multiaxial Test showed that respondent felt depressed, insecure, and personally inadequate. Dr. Leavitt's most recent interview indicated that respondent had a more positive outlook and wasopen about the progress he had made. Respondent indicated that his risk of reoffending haddecreased because he was more comfortable with his sexuality. Dr. Leavitt administered several actuarial instruments to assess respondent's potential forrecidivism. The Static-99, the Hanson-Bussiere meta-analysis, and the Hanson and Harris instrumentsshowed that the following significant dynamic factors must be addressed: respondent's deviant sexualinterests, cognitive disorders, and resistance to personal change. Dr. Leavitt opined that respondent'sprogress in treatment did not reduce his risk of reoffending. Dr. Leavitt testified that the DHS program was the only inpatient sex-offender-specificprogram in Illinois. Respondent's treatment at the time of the hearing included 10 to 12 hours ofweekly group therapy, as well as other treatment. If respondent were granted conditional release,he would likely participate in weekly 1 |
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