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Docket No. 93579-Agenda 2-March 2003.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JAMES
MASTERSON, Appellant.

Opinion filed October 2, 2003.

JUSTICE RARICK delivered the opinion of the court:

Respondent, James Masterson, was charged with two counts ofattempted aggravated criminal sexual assault and two counts ofindecent solicitation of a child. During the pendency of the criminalcharges, the State instituted civil commitment proceedings, seekingto have respondent declared a sexually dangerous person as that termis defined in section 1.01 of the Sexually Dangerous Persons Act(SDPA) (725 ILCS 205/1.01 (West 1998)). After a hearing on theState's petition, the circuit court declared respondent a sexuallydangerous person and ordered his commitment. Respondent's motionto reconsider was denied, and he appealed.

The appellate court affirmed the judgment of the circuit court.No. 1-99-1318 (unpublished order under Supreme Court Rule 23).We ultimately allowed respondent's petition for leave to appeal (177Ill. 2d R. 315(a)).

Before this court, respondent argues that his commitment as asexually dangerous person should be reversed because (1) theevidence was insufficient to satisfy the constitutional requirement thathe has "serious difficulty" controlling sexually dangerous behavior,(2) the State's evidence was insufficient to satisfy the statutoryrequirement that he committed the criminal act which served as thebasis for civil commitment, and (3) the appellate court erred inrelying exclusively on a purported 1984 conviction to meet thedemonstrated propensities requirement of the SDPA.

BACKGROUND

On February 17, 1997, respondent was charged by indictment inthe circuit court of Cook County with two counts of attemptedaggravated criminal sexual assault and two counts of indecentsolicitation of a child. The intended victim was a 12-year-old girl.Criminal charges were pending when, on January 20, 1998, the Statefiled a petition to declare respondent a sexually dangerous person.The State requested the appointment of two psychiatrists to examinerespondent. Pursuant to the circuit court's order, respondent wassubsequently examined by Drs. Stafford Henry and Haidari Shikari.After examining the respondent, both concluded that respondentqualified as a sexually dangerous person as defined in the SDPA. Therecord indicates that a third psychiatrist, Dr. Henry Lahmeyer, laterexamined respondent pursuant to respondent's request, and came tothe same conclusion.

A hearing was held on the petition on February 8, 1999. At thehearing, Anna K. testified that she and respondent had been involvedin a sexual relationship for four or five years when, on February 15,1997, he gave her a letter wherein he stated that he wanted to "rub upagainst" her 12-year-old daughter, T.K., and look at pornographicmagazines and videos with T.K. Although respondent emphasizedthat both he and T.K. would be fully clothed, he expressed his desireto either massage T.K. or simulate anal intercourse with her. Annatestified that respondent often paid her to perform sexual acts andrespondent indicated he would pay both her and T.K. if Anna allowedhim to engage in the acts described in the letter.

Anna gave the letter to a police officer, who told her to tellrespondent she would agree to the requests outlined in the letter.Respondent telephoned several times that day, and each time Annaassured him that she would agree to his requests. She planned to meetwith respondent on February 17 so respondent could give her themoney requisite to a meeting with T.K.

On February 17, respondent drove Anna to a store to pick upsome products he had ordered. At that time, Anna noticed respondentwas carrying a gym bag that usually contained pornographicmaterials. Anna then told respondent that T.K. was home alone andrespondent should go back to the house. After respondent droppedAnna off at her destination, Anna telephoned her son and told him tomake sure that T.K. was upstairs when respondent arrived. Anna thencalled the police and informed them that respondent was on his wayto her house.

Officer Thomas Hennigan testified he and his partner wereassigned to investigate Anna's allegations against respondent. OnFebruary 17, 1997, Anna called Hennigan and told him thatrespondent was on his way to her house to meet with T.K. En routeto Anna's house, Hennigan and his partner saw respondent drive pastthem in a white truck. The officers stopped respondent and arrestedhim. The officers searched respondent's truck and recovered a gymbag containing 53 pornographic magazines and 3 pornographic videotapes. The officers also found a pair of handcuffs in the bag. Astatement by the prosecutor during respondent's commitment hearingindicates that the magazines depict "women" in a sexual context.

Detective Edward Winstead testified that he interviewedrespondent at the police station on the day of his arrest. Respondentadmitted he had written the letter Anna gave to the police. In theletter, respondent stated he wanted to either "massage" T.K. orsimulate anal intercourse with her. Respondent said, when he wrotethe letter, he had wanted to "rub against" T.K. while they looked atthe magazines and watched the videos that were subsequentlyrecovered from his truck. Respondent acknowledged that he hadbrought the magazines to Anna's residence for that purpose.Respondent indicated that, when he drove to Anna's house, hethought T.K. would be there alone; however, when respondententered the house and saw T.K.'s older brother, respondent becamealarmed and left. Notwithstanding the pursuit of proceduresconsistent with the stated intent of his letter and his discussions withAnna, respondent told Winstead, at one point in the interview, that hehad changed his mind and did not intend to touch T.K. on that day.Respondent conceded he had not told Anna, or anyone else, that hehad changed his mind. Moreover, he acknowledged that he wanted toperform the acts described in the letter.

The State presented the testimony of Drs. Henry and Shikari,both of whom testified that respondent was a pedophile and asexually dangerous person. Dr. Henry testified he was employed asa forensic psychiatrist with the Office of Forensic Clinical Servicesand, in that capacity, he had evaluated more than 500 patients. In1992, Henry received his license to practice medicine in Illinois. Thatyear, he completed his residency at the University of Michigan'sdepartment of psychiatry. In 1994, Henry became board certified inpsychiatry. In 1996, he was certified in forensic psychiatry, and in1998 he was certified in addiction psychiatry. Henry testified that hewas a member of the American Academy of Psychiatry and the Law,the American Psychiatric Association, and the Illinois PsychiatricSociety. He had previously qualified to testify as an expert in the fieldof forensic psychiatry.

Upon cross-examination, Henry conceded he had been asked todetermine whether a person was sexually dangerous on "less thanthree" occasions. Respondent's examination fell "somewherebetween one and three." Though he had assessed or diagnosed 50pedophiles during his career, he had never treated any of thosepersons.

Based upon his limited examination of Henry, respondent'sattorney argued that Henry did not meet the statute's requirementsand thus was not a "qualified psychiatrist," as defined in the SDPA.The SDPA defines a "qualified psychiatrist" as "a reputable physicianlicensed in Illinois to practice medicine in all its branches, who hasspecialized in the diagnosis and treatment of mental and nervousdisorders for a period of not less than 5 years." 725 ILCS 205/4.01(West 2000). The circuit court ruled that Henry qualified to testify asan expert in the field of forensic psychiatry. The court noted thatHenry had been licensed to practice medicine in 1992 and, basedupon his education, training and experience, he qualified as an expertunder the statute. Henry then proceeded to testify.

Prior to his interview with respondent, Henry reviewed recordsfrom Christ Hospital and the Chicago police department, as well asthe letter respondent wrote to Anna. By the time he testified, Henryhad also reviewed records from Avelante, a treatment program inwhich respondent had participated. Henry interviewed respondent onMarch 13, 1997. In the course of his interview with respondent,Henry and respondent discussed respondent's activities up to the dateof the examination. In essence, the discussion focused on threedocumented instances of sexual misconduct: one in 1983, another in1984, and the final incident in 1997, which prompted the filing of theinstant petition.

A police report revealed that, in 1983, respondent had fondled a15-year-old girl after having threatened her with a screwdriver. Henrytestified that respondent did not initially admit to the 1983 sexualassault. When Henry told respondent he was aware of the incident,respondent said he did not want to discuss it. He stated it hadhappened because he was mad. According to Henry, respondenteventually admitted that he had approached the girl with ascrewdriver, had fondled her, and then had followed her into a school,where he was arrested. In a probation department report preparedprior to the commitment hearing, it is noted that respondent indicatedhe "was sentenced to psychiatric treatment" as a result of thisincident. Henry testified that treatment took place at Christ Hospital.

Although Henry initially testified otherwise, under cross-examination Henry admitted respondent had provided no informationregarding another incident that took place in 1984. Henry eventuallyconceded his information had come solely from "police reports."Those reports evidently indicated respondent had developed afriendship with a 12-year-old girl and her brother for the apparentpurpose of furthering his sexual objectives. On the date of the sexualassault, respondent allegedly sent the girl's brother into a fast-foodrestaurant, then placed the girl on his lap, and looked at pornographicmagazines with her while he fondled her vagina. According to Henry,respondent was "charged with a sexual offense" for his conduct withthe girl. Respondent was 20 years old at the time. We note that thereport prepared by the probation department indicates respondent hadreceived a one-year conditional discharge on May 3, 1985, forcriminal sexual abuse.

With respect to the 1997 incident involving 12-year-old T.K.,respondent told Henry he was drunk when he wrote the letter to AnnaK. and he did not intend to follow through with the activitiesdescribed therein.

Henry described pedophilia as a major psychiatric illnesscharacterized by repeated fantasies and activities involving sexualcontact with children. Henry testified that the diagnosis requires a six-year age differential between perpetrator and victim. Henry stated thatthe disorder is reported to cause the afflicted person "distress anddifficulty." In fact, significant impairment or distress is required aspart of the criteria for diagnosis. The disorder is chronic and lifelong,and is exacerbated by stress.

Henry observed that people who suffer from pedophilia tend tominimize or deny their pedophilic behavior. Henry noted thatrespondent denied or minimized his conduct when he discussed hissexual behavior. Respondent told Henry he had been ostracized by hisfamily because of his sexual conduct. Respondent had developed adependence on alcohol, and the incidents of pedophilia appeared tobe linked to that dependence. According to Henry, respondentconveyed a sense of inadequacy and indicated that he felt incapableof having a mature relationship.

Henry testified that his examination of respondent revealednumerous "psychological stressors" in respondent's life. Henry notedthat respondent's parents had recently died, respondent had beenostracized by his sister because of his activities, he had a very limitedsocial support network, chronic financial difficulties, and a"somewhat modulized [sic] existence," and he was unemployed andalcohol dependent. Henry indicated the presence of these stressorswould increase respondent's propensity to engage in "acting out"behavior that could include pedophilic activity.

Henry diagnosed respondent as a pedophile-utilizing the criteriaset forth in the Diagnostic and Statistical Manual (DSM-IV)published by the American Psychiatric Association-and believedrespondent to be a sexually dangerous person. His diagnosis ofpedophilia was based upon respondent's recurrent urges and fantasiesinvolving children, which Henry believed had existed since at least1983, though he admitted the 1983 incident could not be used tosupport a diagnosis of pedophilia because it did not meet the criteriafor age differential. Henry testified that the three incidents, consideredtogether, revealed a demonstrated propensity to engage in sexuallyassaultive behavior and "inappropriate criminal predatorial conductdirected toward children." Henry felt that the risks respondent posedwere enhanced by his minimization of his condition, alcoholdependency, and psychological stressors in his life.

The parties stipulated that Dr. Shikari was qualified to testify asan expert in forensic psychiatry. Shikari examined respondent onFebruary 19, 1998. Shikari had reviewed police reports detailingvarious criminal offenses committed by respondent, the letterrespondent had given to Anna K., the prehearing report prepared bythe probation department, Henry's report, the petition filed by theState, and sexual offender treatment records from Christ Hospital andAdelante. Based on those records and his interview with respondent,Shikari believed that respondent could be classified as a sexuallydangerous person.

When interviewed by Shikari, respondent was apparently moreforthcoming about his sexual behavior than was the case with Henry.When Shikari asked respondent about the 1983 and 1984 incidents,respondent recounted the basic facts of each occurrence. Respondentsaid he was charged with aggravated criminal sexual assault as aresult of his conduct with the young girl in 1984. He characterized hisactions in each situation as "foolish and impulsive" and attempted toexcuse his behavior by explaining that he was young at the time, hadbeen drinking, and was under stress, financially strapped, andundergoing "hard times." When asked about the incident involvingT.K., respondent described the incident in detail and in much thesame way that it was outlined in the police report. Respondent said hehad been "setup."

Like Henry, Shikari utilized the DSM-IV as a guideline fordiagnosis. According to Shikari, the guidelines require that a personexhibit sexual desires, urges, or sexual behavior toward children thatare recurrent and have lasted for at least six months. Shikari believedthat the 1984 and 1997 incidents, taken together, established the firstcriterion for a diagnosis of pedophilia.

Another criterion for a diagnosis of pedophilia is a finding thatthe behavior causes significant distress or impairment to the personbeing diagnosed. Shikari found that respondent's description ofostracism, as well as his financial difficulty and depression, met thatcriterion.

Shikari noted that there must also be an age disparity of at leastfive years between the perpetrator and the victim, and the victim mustbe prepubescent or sexually immature, in order to support a diagnosisof pedophilia. In respondent's case, this was true of both the 1984incident involving the 12-year-old girl and the current incidentinvolving T.K.

According to Shikari, respondent's behavior evinced a sexualattraction to children and a tendency to act upon that inclination whenhe was under stress and drinking. Shikari testified that, afterconsidering respondent's circumstances and all of the relevantcriteria, he believed respondent to be a pedophile.

Shikari also found respondent to be a sexually dangerous personwho had demonstrated a propensity toward sexual offenses and actsof sexual assault of children. He believed it was very likely thatrespondent would repeat sexual offenses against children in thefuture.

Based upon this evidence, the circuit court found respondent tobe a sexually dangerous person. The court relied upon uncontrovertedevidence regarding respondent's attempt to commit an act of sexualabuse or assault on T.K. in February of 1997, and evidence of sexualconduct with a 12-year-old girl in 1984, as well as the testimony ofthe psychiatrists, indicating that respondent is a pedophile who hasdemonstrated his sexual propensities and will likely "continue to actupon his fantasies" due in part to various stress factors in his life. Thetrial court concluded the State had proven beyond a reasonable doubtthat respondent is a sexually dangerous person.

Respondent's motion to reconsider was heard on March 11 and31, 1999, and was denied on the latter date. On April 1, 1999,respondent timely filed notice of appeal.

On appeal, respondent contended the State had failed to provebeyond a reasonable doubt that he had attempted an act of sexualassault or molestation or that he suffered from pedophilia.Respondent also argued that the trial court had erred in finding thatone of the State's psychiatrists was qualified to testify as an expert.Finally, respondent argued that the trial court's finding did notwarrant his confinement in a facility operated by the IllinoisDepartment of Corrections.

The appellate court specifically rejected respondent's argumentsthat the State was required to prove multiple acts of sexual assault ormolestation, and that the proof of an attempted sexual offense withT.K. was a requisite to a finding of sexual dangerousness under theSDPA. The appellate court noted: "In this case, [respondent] does notdispute the 1984 conviction, and we find it sufficient to establish the'demonstrated propensity' element of the Act even in the absence ofa finding that the underlying offense [involving T.K.] constitutes anattempted sexual assault." Furthermore, the appellate court was notpersuaded by respondent's argument that the State was required toshow his victims were "prepubescent" in order to prove he was apedophile, suggesting that the sexual maturity of the victim wasmerely "a factor to be considered in diagnosing pedophilia."

The appellate court also rejected respondent's contention that Dr.Henry was not a "qualified psychiatrist" as defined in the SDPA,relying upon People v. Bommersbach, 228 Ill. App. 3d 877, 882(1992) (holding that years of psychiatric residency, prior to boardcertification as a psychiatrist, may be considered in assessing whetherthe psychiatrist meets the statute's five-year requirement).

Finally, addressing respondent's contention that the finding ofsexual dangerousness by the trial court did not mandate respondent'sconfinement in the Department of Corrections, the appellate courtpointed out that the trial court had "committed [respondent] to theDirector of the IDOC as guardian." Quoting section 8 of the Act (725ILCS 205/8 (West 1998)), the appellate court noted that dispositionis consistent with the statutory directive: " 'If the respondent is foundto be a sexually dangerous person then the court shall appoint theDirector of Corrections guardian of the person found to be sexuallydangerous and such person shall stand committed to the custody ofsuch guardian.' " Citing People v. Oetgen, 269 Ill. App. 3d 1000,1006 (1995), the court noted that the Director is given the discretionto determine what treatment a sexually dangerous person requires andwhere he or she should be placed, be it in a facility of the Departmentof Corrections or another setting.

ANALYSIS

We first address the central question raised by respondent in thiscase: whether respondent's commitment as a sexually dangerousperson comports with principles of substantive due process looselyarticulated in the United States Supreme Court's decisions in Kansasv. Hendricks, 521 U.S. 346, 138 L. Ed. 2d 501, 117 S. Ct. 2072(1997), and Kansas v. Crane, 534 U.S. 407, 151 L. Ed. 2d 856, 122S. Ct. 867 (2002). Respondent did not raise an issue of constitutionaldimension in the appellate court. The Crane decision was renderedafter the appellate court's disposition in this case, and it is uponCrane that respondent principally bases his constitutionalcontentions.

Initially, respondent argues that his commitment under the SDPAshould be reversed because "the evidence was insufficient to satisfyconstitutional requirement[s]" set forth in Hendricks and Crane.Later, in his reply brief, he suggests that "the SDPA isconstitutionally infirm if it is interpreted as not requiring a separatelack of control finding." Citing People v. Coleman, 183 Ill. 2d 366,384-85 (1998), respondent submits that the question presentedinvolves a "legal interpretation" of Crane requiring de novo review.The State approaches respondent's argument from the outset as achallenge to the constitutionality of the SDPA and, citing our opinionin People v. Malchow, 193 Ill. 2d 413, 418 (2000), observes that "thestandard of review of the constitutionality of a statute is de novo." Weagree that de novo review is appropriate.

We note that statutes are presumed constitutional, and the partychallenging the validity of a statute has the burden of clearlyestablishing that it is unconstitutional. In re Curtis B., 203 Ill. 2d 53,58 (2002). Since statutes enjoy a strong presumption ofconstitutionality, courts must construe statutes in order to uphold theirconstitutionality whenever reasonably possible. Hill v. Cowan, 202Ill. 2d 151, 157 (2002).

With these principles in mind, we begin our analysis byexamining the language of the SDPA, pursuant to which respondent'scommitment was ordered. Section 1.01 of the SDPA defines the term"sexually dangerous persons" as follows:

"All persons suffering from a mental disorder, whichmental disorder has existed for a period of not less than oneyear, immediately prior to the filing of the petitionhereinafter provided for, coupled with criminal propensitiesto the commission of sex offenses, and who havedemonstrated propensities toward acts of sexual assault oracts of sexual molestation of children ***." 725 ILCS205/0.01 (West 1998).

Thus, commitment under the SDPA requires that the State convincethe trier of fact-whether judge or jury (725 ILCS 205/5 (West1998))-beyond a reasonable doubt (725 ILCS 205/3.01 (West 1998))that the person who is the subject of the proceeding has a "mentaldisorder" of the prescribed duration, that the mental disorder isassociated with criminal propensities to the commission of sexoffenses, and that the person has actually demonstrated thatpropensity.

Unlike Illinois' Sexually Violent Persons Commitment Act(SVPA⁽¹⁾) (725 ILCS 207/1 et seq. (West 2000)), the SDPA does notdefine the term "mental disorder." The SVPA defines "mentaldisorder" as "a congenital or acquired condition affecting theemotional or volitional capacity that predisposes a person to engagein acts of sexual violence." (Emphasis added.) 725 ILCS 207/5(b)(West 2000). Unlike the SVPA, the SDPA does not specificallyaddress the probability or likelihood that the subject of the proceedingwill engage in sexual offenses in the future. Before a person may becommitted under the SVPA, the trier of fact must find that the subjectof the proceeding "is dangerous because he or she suffers from amental disorder that makes it substantially probable that the personwill engage in acts of sexual violence." (Emphasis added.) 725 ILCS207/5(f) (West 2000).

In Hendricks and Crane, the Supreme Court addressed theconstitutionality of a Kansas statute which was very similar toIllinois' SVPA. The Kansas Sexually Violent Predator Act (Kan. Stat.Ann.