Find Legal Information

Docket No. 90151-Agenda 11-May 2001.

In re DETENTION OF HERBERT VARNER (The People of the 
State of Illinois, Appellee, v. Herbert Varner, Appellant).

Opinion filed October 18, 2001.

CHIEF JUSTICE HARRISON delivered the opinion of thecourt:

Following a jury trial in the circuit court of Lake County,Herbert Varner was found to be a sexually violent person underthe Sexually Violent Persons Commitment Act (the Act) (725ILCS 207/1 et seq. (West 1998)) and was committed to thecustody of the Department of Human Services for control, custodyand treatment. The appellate court affirmed, rejecting Varner'sclaims that the Act is unconstitutional and that he should not havebeen committed to institutional care. 315 Ill. App. 3d 626. Wegranted Varner's petition for leave to appeal. 177 Ill. 2d R. 315.The sole issue before us is whether the Act violates substantivedue process because it is not limited to persons who lack volitionalcontrol over their behavior. For the reasons that follow, we affirm.

During the summer of 1988, Varner repeatedly fondled hisfive-year-old niece and had sexual intercourse with her. Based onthat conduct, Varner was charged with criminal sexual assault(720 ILCS 5/12-13 (West 1998)). He pled guilty to the charge andwas sentenced to a term of imprisonment of 13 years in the IllinoisDepartment of Corrections.

As Varner's prison term was ending and he was scheduled forentry into mandatory supervised release, the State initiated theseproceedings to have him committed indefinitely to the Departmentof Human Services (Department) pursuant to the Sexually ViolentPersons Commitment Act. Two days after the petition was filed,the trial court held a hearing to determine whether there wasprobable cause to believe that Varner was a sexually violentperson within the meaning of the Act. Based on the evidencepresented at that hearing, the trial court determined that probablecause existed and ordered Varner transferred to a Departmentfacility for evaluation. See 725 ILCS 207/30 (West 1998).

The question of whether Varner was a sexually violent personwas subsequently tried before a jury. The jury heard evidence thatVarner may have been sexually abused as a child by his father. Hehad previously committed other sexual offenses involvingchildren, including his daughter and another niece. At the time hecommitted the offense for which he was then incarcerated, he wasonly 28 years old.

Marc Levinson, a clinical psychologist employed by theDepartment of Corrections, diagnosed Varner as suffering frompedophilia and a personality disorder, the combination of whichcreated a substantial probability that he will engage in further actsof sexual violence in the future. Although sexual offendertreatment programs were available to Varner in prison, he failedto participate in them. According to Levinson, Varner claimed thathe did not need sex offender treatment because he had notcommitted any sex offenses against children. When Varner wasasked how he would prevent future occurrences of sex offenses, hetold the psychologist that he would stay away from all women andall situations involving children.

Additional testimony was presented by Dr. Paul Heaton, aclinical psychologist employed by a group that contracts with theDepartment to perform evaluations for purposes of the Act.Heaton evaluated Varner on three occasions in 1998 and agreedwith Levinson that he suffered from pedophilia. Heaton identifiedvarious recidivist risk factors that were present in Varner's caseand opined that there was a substantial probability that Varnerwould offend again due to his mental disorder.

A clinical psychologist named Eric Ostrov testified onVarner's behalf. Ostrov opined that there is insufficient evidenceto conclude that respondent is a pedophile. He stated, however,that he could not rule that diagnosis out. He further stated that hebelieved that Varner suffered from a personality disorder thatcould predispose him to commit more sexual violence. In Ostrov'sview, the risk that Varner would reoffend was moderate but couldbe reduced to minimal. Ostrov believed that Varner could benefitfrom sex offender treatment but that he must first admit what hehad done, which would be very difficult for him. Ostrov proposedthat Varner's exposure to children be limited and controlled andthat he be treated with Depo Provera, a chemical that lowerstestosterone levels and thereby reduces an individual's sex drive.

No further evidence was presented, and the matter was sent tojury for deliberation. The jury was instructed that it was todetermine whether the State had proved beyond a reasonable doubtthat Varner was a sexually violent person. The court's definitionof a sexually violent person tracked the language used in section5(f) of the Act (725 ILCS 207/5(f) (West 1998)). Specifically, thejury was told that "[ a] sexually violent person means a personwho has been convicted of a sexually violent offense and who isdangerous because he or she suffers from a mental disorder thatmakes it substantially probable that the person will engage in actsof sexual violence." The jury was further instructed that criminalsexual assault constitutes a "sexually violent offense," and it wasgiven the definition of "[m]ental disorder" set forth in section 5(b)of the Act, namely, "a congenital or acquired condition affectingthe emotional or volitional capacity that predisposes a person toengage in acts of sexual violence" (725 ILCS 207/5(b) (West1998)).

The jury returned a verdict in favor of the State, finding thatVarner was a sexually dangerous person. The circuit court thenentered an order committing Varner to the custody of theDepartment for institutional care and treatment in a secure facility.See 725 ILCS 207/40(a), (b)(2) (West 1998). Varner subsequentlyappealed, challenging the constitutionality of the Act on thegrounds that it denies equal protection, violates the prohibitionsagainst double jeopardy and ex post facto laws, deprives him ofthe right to waive a jury trial, and contravenes procedural andsubstantive due process guarantees. Varner's appeal also raised aconstitutional challenge to section 30(c) of the Act, as amended byPublic Act 90-793, effective August 14, 1998, which prohibits aperson from introducing testimony or evidence of his own expertif the person "refuses to speak to, communicate with, or otherwisefails to cooperate with the expert from the Department of HumanServices who is conducting the evaluation" ordered by the court.725 ILCS 207/30(c) (West 1998). In addition, Varner argued thatthe circuit court erred in ordering him committed to institutionalcare in a secure facility and that he was denied the effectiveassistance of counsel.

The appellate court rejected each of Varner's claims. In theproceedings before our court, the only argument he continues topress is that the Act violates substantive due process. Accordingto Varner, his commitment under the Act cannot be squared withthe principles of substantive due process because it occurredwithout a specific finding by the jury that he lacked volitionalcontrol over his sexually violent criminal behavior.

Varner's claim that commitment is constitutionallypermissible only where the defendant lacks volitional control overhis sexually violent conduct is based on the United States SupremeCourt's decision in Kansas v. Hendricks, 521 U.S. 346, 138 L. Ed.2d 501, 117 S. Ct. 2072 (1997). In that case, the, the SupremeCourt considered a Kansas civil commitment statue similar to theIllinois statute at issue here. In upholding the constitutionality ofthe Kansas statute against a substantive due process challenge, theSupreme Court noted that the mere diagnosis of a mental disorderis insufficient to justify forced hospitalization. Rather, the Courtheld that civil detainment is proper only in those narrow instanceswhere an individual is unable to control his behavior and thereforeposes a danger to the public health and safety. Hendricks, 521 U.S.at 357, 138 L. Ed. 2d at 512, 117 S. Ct. at 2079. The Courtexplained:

"A finding of dangerousness, standing alone, isordinarily not a sufficient ground upon which to justifyindefinite involuntary commitment. We have sustainedcivil commitment statutes when they have coupled proofof dangerousness with the proof of some additional factor,such as a 'mental illness' or 'mental abnormality.'[Citations.] These added statutory requirements serve tolimit involuntary civil confinement to those who sufferfrom a volitional impairment rendering them dangerousbeyond their control. The Kansas Act is plainly of a kindwith these other civil commitment statutes: It requires afinding of future dangerousness, and then links thatfinding to the existence of a 'mental abnormality' or'personality disorder' that makes it difficult, if notimpossible, for the person to control his dangerousbehavior. [Citation.] The precommitment requirement ofa 'mental abnormality' or 'personality disorder' isconsistent with the requirements of these other statutesthat we have upheld in that it narrows the class of personseligible for confinement to those who are unable tocontrol their dangerousness." Hendricks, 521 U.S. at 358,138 L. Ed. 2d at 512-13, 117 S. Ct. at 2080.

The Illinois law challenged by Varner is similar to the Kansasstatute upheld by the United States Supreme Court in Hendricks.In re Detention of Samuelson, 189 Ill. 2d 548, 558 (2000). As withthe Kansas statute, this state's Sexually Violent PersonsCommitment Act requires that the future danger posed by anindividual be linked to the existence of a mental condition. TheIllinois statute uses the term "mental disorder" rather than "mentalabnormality" or "personality disorder," but the particularnomenclature is not dispositive. What is significant is that, as withthe Kansas law, the mental condition required in Illinois must beone which affects an individual's ability to control his conduct.See 725 ILCS 207/5(b) (West 1998).

If the inclusion of such a requirement was sufficient to sustainthe Kansas law against a substantive due process challenge, it issufficient to save the Illinois law. As noted earlier in thisdisposition, the jury here received instructions that tracked thelanguage of the Act. Under those instructions, the jury'sconclusion that Varner was a sexually violent person necessarilyrequired a determination that he suffered from a mental disorder.For the reasons set forth in Hendricks, the precommitmentrequirement of a mental disorder, as defined by the Act, wassufficient to "narrow[ ] the class of persons eligible forconfinement to those who are unable to control theirdangerousness." Hendricks, 521 U.S. at 358, 138 L. Ed. 2d at 513,117 S. Ct. at 2080. Accordingly, there was no need for the jury tomake any additional findings in this case regarding Varner'sability to control his sexually violent conduct.

Our appellate court recently considered an identical claim inIn re Detention of Trevino, 317 Ill. App. 3d 324 (2000), and cameto the same conclusion. We are unaware of any Illinois precedentthat has reached a contrary result. Although there is support forVarner's position in In re Care & Treatment of Crane, 269 Kan.578, 7 P.3d 285 (2000), cert. granted sub nom. Kansas v. Crane,___ U.S. ___, 149 L. Ed. 2d 372, 121 S. Ct. 1483 (2001), adecision by the Kansas Supreme Court, we find that caseunpersuasive.

At issue in Crane was the same statute which the KansasSupreme Court had struck down, but which the United StatesSupreme Court subsequently upheld in Hendricks. In attemptingto invalidate the law again, the Kansas Supreme Court looked firstto the statutory language defining mental abnormality as a"condition affecting the emotional or volitional capacity whichpredisposes a person to commit sexually violent offenses," aprovision which parallels the Illinois definition of mental disorderas a "condition affecting the emotional or volitional capacity thatpredisposes a persons to engage in acts of sexual violence." 725ILCS 207/5(b) (West 1998).

The problem with the provision, in the Kansas SupremeCourt's view, is that it refers to emotional capacity as well asvolitional capacity. The court reasoned that volitional capacityrefers to the ability to exercise free choice or will and that acondition affecting the capacity to exercise free choice or willwould, in this context, mean a condition that renders a personunable to control his or her behavior. By including emotionalcapacity, the court believed, the legislature must have intended toaddress some alternative circumstance in which the exercise offree will or choice is not at issue and the individual acts forreasons other than an inability to control his behavior. To theextent that such an individual might be subject to commitmentunder the statute, the court believed that the law was inconsistentwith Hendricks' requirement that civil commitment statutes suchas this be limited in their application to persons who cannotcontrol their dangerous behavior.

Despite the parallels between the Kansas statute and theIllinois Act, we are unwilling to accept the Kansas court'sanalysis. Unlike the Kansas Supreme Court, we do not believe thatthe legislature used the terms "emotional capacity" and "volitionalcapacity" as a way to differentiate between individuals who arecapable of controlling their sexually violent behavior and thosewho are not. The inability to control sexually violent behavior isa sine qua non under the statute. The terms "emotional" and"volitional" are merely adjectives used to describe the reasons anindividual might lack the capacity to control his behavior. Medicalscience's understanding of mental pathology is imperfect andevolving, and the legislature used these terms simply to insure thateveryone who is unable to control his or her sexually violentbehavior is covered by the law, whatever the precise reason forthat lack of control might be.

A second reason given by the Kansas Supreme Court forinvalidating that state's statute is that it applies, by its terms, notonly to persons suffering from "mental abnormalities," but also topersons suffering from "personality disorders." There is nodefinition of "personality disorder" in the statute, and the courtwas concerned that where an individual suffers from a personalitydisorder rather than a mental abnormality, a jury could find himsubject to civil commitment without first making a finding that hewas unable to control his behavior. That problem does not existunder this state's law. In defining "[s]exually violent person," ourstatute does not refer to persons suffering from personalitydisorders, only to persons suffering from "mental disorders." 725ILCS 207/5(f) (West 1998). The term "mental disorder" is, in turn,specifically defined by the Illinois Act, and, as discussed earlier inthis opinion, the precommitment requirement of a mental disorder,as defined by the Act, is sufficient to pass constitutional musterunder Hendricks.

For the foregoing reasons, the judgment of the appellate courtaffirming the circuit court's order committing Varner to thecustody of the Department of Human Services for institutionalcare and treatment in a secure facility is affirmed.

Affirmed.