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IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE GEIGER delivered the opinion of the court:

Following a jury trial, the respondent, Raymond Trevino, was adjudicated to be a sexually violentperson pursuant to the Sexually Violent Persons Commitment Act (the Commitment Act) (725 ILCS 207/1et seq. (West 1998)). On appeal, the respondent argues that (1) section 30(c) of the Commitment Act isunconstitutional; (2) the Commitment Act violates his constitutional right to equal protection under the law;(3) the State failed to prove beyond a reasonable doubt that he was a sexually violent person; (4) he wasdenied a fair trial as a result of improper questioning and argument by the State; and (5) his commitmentwas unconstitutional because the jury did not specifically find that he lacked volitional control over his violentcriminal behavior. We reverse and remand for further proceedings

The facts relevant to the instant appeal are as follows. On November 4, 1998, the State filed apetition requesting that the respondent be placed in the control, care, and custody of the Department ofHuman Services (DHS) pursuant to section 15 of the Commitment Act (725 ILCS 207/15 (West 1998)). Thepetition alleged that, in 1996, the respondent had been convicted of attempted criminal sexual assault (720ILCS 5/8--4(a), 12--13(a)(1) (West 1996)) and sentenced to six years' imprisonment. The respondent wasincarcerated at Taylorville Correctional Center and was scheduled for mandatory supervised release onNovember 6, 1998. The petition alleged that the respondent had been diagnosed according to theDiagnostic and Statistical Manual of Mental Disorders, fourth edition (DSM-IV), as suffering fromexhibitionism and personality disorder not otherwise specified and that these mental disorders created asubstantial probability that the respondent would engage in acts of sexual violence. The petition wasaccompanied by the written mental health evaluation of Dr. Marc Levinson, a psychologist employed by theDepartment of Corrections (DOC).

On November 13, 1998, following a hearing, the trial court determined that there was probablecause to conduct further proceedings on the State's petition. See 725 ILCS 207/30 (West 1998). The trialcourt also ordered that the respondent be transferred to the DHS for an evaluation as to whether he was asexually violent person. See 725 ILCS 207/30(c) (West 1998). At this time, the respondent's attorneyindicated that the respondent would be exercising his right to remain silent pursuant to section 25(c)(2) ofthe Commitment Act (725 ILCS 207/25(c)(2) (West 1998)) and that he would not speak or cooperate withthe State in its preparation for trial. The respondent's attorney also informed the trial court that therespondent would be filing a jury demand and requested the appointment of an independent mental healthexpert.

In response to this latter request, the State noted that section 30(c) of the Commitment Actprohibited the respondent from introducing any testimony of his own examining mental health expert in theevent that he refused to cooperate with the court-ordered DHS evaluation. Section 30(c) of the CommitmentAct provides, in relevant part, as follows:

"If the court determines after a hearing that there is probable cause to believe that theperson named in the petition is a sexually violent person, the court shall order that the person be*** transferred within a reasonable time to an appropriate facility for an evaluation as to whether theperson is a sexually violent person. If the person named in the petition refuses to speak to,communicate with, or otherwise fails to cooperate with the expert from the [DHS] who is conductingthe evaluation, the person shall be prohibited from introducing testimony or evidence from anyexpert or professional person who is retained or court appointed to conduct an evaluation of theperson." 725 ILCS 207/30(c) (West 1998).

The trial court did not rule upon the respondent's request for the appointment of an independent mentalhealth expert at that time.

On January 15, 1999, the respondent filed a motion to declare section 30(c) of the Commitment Actunconstitutional. The respondent argued that the provision impermissibly interfered with his ability to callwitnesses and violated his right to due process of law under the federal constitution (U.S. Const., amend.XIV). The respondent also argued that the Commitment Act violated the equal protection clauses of thefederal and state constitutions (U.S. Const., amend. XIV; Ill. Const. 1970, art. I,