Opinion
No. 1-14-1360
06-26-2015
In re DETENTION OF BRAD LIEBERMAN, (The People of the State of Illinois, Petitioner-Appellee, v. Brad Lieberman, Respondent-Appellant.)
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County. No. 00 CR 80001 Honorable Dennis J. Porter, Judge Presiding. JUSTICE McBRIDE delivered the judgment of the court.
Justices Gordon and Reyes concurred in the judgment.
ORDER
¶ 1 Held: The trial court properly denied respondent's petition for discharge because he failed to set forth a plausible account that he no longer suffers from a mental disorder and is no longer a sexually violent person. ¶ 2 Respondent Brad Lieberman appeals from the trial court's order denying his petition for release and finding that no probable cause existed to discharge respondent from commitment pursuant to the Sexually Violent Persons Commitment Act (SVPCA) (725 ILCS 207/1 et seq. 2 (West 2012)). On appeal, respondent argues that the trial court erred in ruling that no probable cause existed that respondent should be discharged because he was no longer sexually violent. Respondent initially asserted that he should also have been granted conditional release, but he failed to argue that point in his brief and we will not consider this argument on appeal. ¶ 3 Respondent's criminal history and subsequent commitment under the SVPCA are well documented. The supreme court summarized respondent's history in the consolidated decision of In re Detention of Stanbridge, 2012 IL 112337, ¶¶ 19-22, as follows: "In 1980, Lieberman was convicted of numerous counts of rape and sentenced to multiple concurrent terms of imprisonment. Shortly before his scheduled release date from prison in 2000, the State sought to have Lieberman involuntarily committed as a sexually violent person pursuant to the Act (725 ILCS 207/1 et seq. (West 2000)). In February 2006, a jury found Lieberman to be a sexually violent person within the meaning of the Act. The mental disorders that formed the basis for Lieberman's commitment included paraphilia, not otherwise specified, sexually attracted to nonconsenting persons (paraphilia NOS-nonconsent). The State's experts described this type of disorder as one premised on intense recurring rape behaviors with nonconsenting adults that cause distress or impair one's ability to function in society. Thereafter, in April 2006, the trial court ordered Lieberman committed to the 3Department for institutional care and treatment in a secure facility until further order of the court. Lieberman appealed, arguing, inter alia, that the State failed to prove that he suffers from a serious lack of volitional control resulting from a current mental disorder, and failed to prove beyond a reasonable doubt that he suffers from a mental disorder or that he presents any risk to reoffend. In re Detention of Lieberman, 379 Ill.App.3d 585, 597-98 (2007). Specifically, he maintained that the State's expert's opinions and diagnoses did not meet the diagnostic criteria of the Diagnostic and Statistical Manual of Mental Disorders (DSM). Id. at 602. His commitment was affirmed on direct appeal. Id. at 611." ¶ 4 Following his initial commitment, respondent has been periodically reviewed under section 55(a) of the SVPCA, which requires a report six months after the initial commitment and a yearly report thereafter "for the purpose of determining whether the person has made sufficient progress to be conditionally released or discharged." 725 ILCS 207/55(a) (West 2012). ¶ 5 In November 2011, the State filed a motion for a finding of no probable cause, asking for a finding that there is no probable cause to warrant an evidentiary hearing on the issue of whether respondent is currently a sexually violent person in need of treatment on a secure basis. In support of the motion, the State included the October 2011 report prepared by Dr. Kimberly Weitl. Dr. Weitl indicated that respondent refused to participate in an interview with her, nor has respondent participated in any sex offender treatment programs. She stated that she prepared her report based on the record from respondent's criminal trial, the master treatment plan for 4 respondent, progress notes, Illinois Department of Corrections disciplinary reports, prior examinations, the Static-99 actuarial instrument, the Minnesota Sex Offender Screening Tool-Revised (MnSOST-R), and peer consultation. In the report, based on the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (DSM-IV-TR), Dr. Weitl diagnosed respondent with paraphilia, not otherwise specified, nonconsenting females (paraphilia NOS), and antisocial personality disorder. Dr. Weitl concluded: "As a result of Mr. Lieberman's mental disorder(s), it is substantially probable that (he) will engage in acts of sexual violence. (725 ILCS 207/5(f)). He scored in the Highest risk categories on two actuarial instruments and has several additional empirically based risk factors. Age may serve as a protective factor, but does not decrease his risk below that of substantially probable." ¶ 6 Dr. Weitl included her "tally sheet" for the Static-99 assessment. The sheet showed that respondent received seven points for committing acts of nonsexual violence, unrelated victims, stranger victims, and the most points for more than six charges and/or more than four convictions for sex offenses. The suggested risk categories indicate that a score of six or more was a high risk category. ¶ 7 Respondent filed a response to the motion, asserting that (1) Dr. Weitl's diagnosis of paraphilia NOS does not exist in the DSM, and ( 2) Dr. Weitl did not conduct a personal examination of respondent and her conclusions are based on his prior crimes, which does not support a conclusion that respondent was still a sexually violent person. 5 ¶ 8 In February 2012, respondent filed a petition for discharge or conditional release. Respondent argued that he is not a sexually violent person under the SVPCA, that he is not in need of commitment, and that it is not substantially probable that he will engage in acts of sexual violence if discharged or conditionally released. Respondent also filed a motion to appoint Dr. Craig Rypma for respondent's yearly petition for discharge under the SVPCA. In March 2012, the trial court granted the State's motion for finding of no probable cause, granted respondent's motion to appoint Dr. Rypma, and continued the matter. ¶ 9 In his March 2012 memorandum in support of his petition for discharge, respondent included a declaration from Dr. Allen Frances as an exhibit. Dr. Frances stated that he was a member of the DSM IV task force that "prepared the official manual used to guide all psychiatric diagnosis." In discussing paraphilia NOS, he said that the task force "never anticipated that [the] opening sentence of the section would be considered a forensic definition of Paraphilia or be used in determining the suitability of long term psychiatric incarceration in SVP cases." Dr. Frances disagreed with Dr. Weitl's diagnosis as well as prior diagnoses of respondent by other psychiatrists. Dr. Frances agreed with Dr. Schmidt, the expert in the prior proceedings under the SVPCA, in "finding no evidence to support a diagnosis of paraphilia" in respondent. Dr. Frances further agreed with Dr. Schmidt's "characterization of 'Paraphilia NOS sexually attracted to nonconsenting females' as made up, non-official, and scientifically unsupported." ¶ 10 Dr. Rypma filed his report in the trial court in September 2012. In his report, Dr. Rypma concluded: "Mr. Lieberman does not qualify for a diagnosis of a paraphilia. In order for an individual to qualify for the diagnosis of a paraphilia, there must be evidence of recurrent, intense, sexually arousing 6fantasies, sexual urges, or behaviors generally involving non-human objects, suffering or humiliation of oneself or one's partner, children, or other non-consenting persons. There is not sufficient evidence in this record to justify this diagnosis. He has not demonstrated an ongoing, let alone intense urge for engaging in assaultive sexual activity." ¶ 11 Dr. Rypma observed that there is a conflict within the psychiatric community about the validity of a paraphilia NOS diagnosis for the purpose of civil commitment. He asserted that "[t]his practice risks inaccurately conveying to the Court that an examinee suffers from a sexual disorder, when indeed their sexual crimes have been secondary to a more primary disorder, not contemplated by the civil commitment laws." ¶ 12 Dr. Rypma further found that respondent did not qualify for a diagnosis of antisocial personality disorder. The report also included results from several psychological tests. Dr. Rypma administered the Static-99R, which is an actuarial instrument used to assess the risk of recidivism. This version of the instrument included reductions in the risk based on the offender's age, with older offenders considered less likely to recidiviate. Respondent received a score of 7, which placed him in the "high range, relative to other sex offenders." The ten-year rate for this score would be 33.3% to 48.8%, when compared to the high risk sample. But if respondent was compared with the routine sample, then his recidivism rate would be 18.8% over five years. ¶ 13 The Psychopathy Checklist-Revised (PCL-R) "is a reliable and valid psychological rating scale used to assess psychopathic personality features." On the PCL-R, respondent received a score of 19, which "falls well below the generally accepted cutoff score of 30 used to classify persons as psychopathic." According to the report, this score placed respondent's recidivism risk 7 between a low of 18.8% and a high of 48.6%. In his deposition, Dr. Rypma stated that the PCL-R "is a very poor instrument when applied to a civil commitment population" because the first eight indicators have a reliability problem in that different practitioners could reach different scores for the same individual. ¶ 14 Dr. Rypma administered the SILS, "an intelligent screening instrument" used to insure that respondent could adequately read and comprehend test items on the psychometric instruments. According to the report, "[r]esults indicate that Mr. Lieberman appears to be functioning in the average range of intelligence." ¶ 15 The MCSDS was also administered to investigate respondent's "inclination to respond to test items in a way that would make him 'look good' or desirable to the evaluator." Respondent received a result of "High Average," which suggests "his rate of responding is generally consistent with the average person on probation/parole, and is not indicative of unusual minimization of personal limitations or exaggeration of positive attributes." ¶ 16 The Barratt Impulsiveness Scale (BIS-11) is a "30 item self-report instrument that is currently considered the most widely used and validated measure available for measurement of this construct." Respondent scored a 68, "which is below the mean score of 72.8 that is considered the threshold for high impulsiveness." "The results of this instrument does not support a conclusion that Mr. Lieberman lacks the capacity for volitional control." ¶ 17 The Iowa Gambling Test is designed to "assess impairment in personal and social decision making," including executive functioning. "Individuals with impairment in this area have difficulty planning their day to day activity, as well as difficulty with choosing appropriate 8 friends, partners, and activities, and they frequently make decisions that are not advantageous to their own well being." Respondent scored 58, which "is in the non-impaired range." ¶ 18 The Personality Assessment Inventory (PAI) is an instrument used for "assessing personality characteristics in an adult population." Respondent's "style of responding does suggest that he tends to portray himself as being relatively free of common shortcomings to which most individuals will admit, and he appears somewhat reluctant to recognize faults or problems in himself." His responses acknowledge his criminal conduct, and were in the normative sample. His responses were also "consistent" with low levels of psychopathy and impulsiveness. ¶ 19 The Millon Clinical Multiaxial Inventory-III (MCMI-III) is a "psychological assessment instrument comprised of 175 true/false items designed to provide information regarding psychopathy in clinical populations. The results indicated that respondent "endorsed items on this particular instrument in a manner that indicates a need of social approval or a general naiveté regarding psychological matters." Dr. Rypma stated that "[t]his protocol does not support a diagnosis of antisocial personality disorder." ¶ 20 Dr. Rypma submitted an addendum in October 2012, addressing changes to the SVPCA. In the report, Dr. Rypma considered whether the SVPCA required a judge to find that respondent "has substantially changed as the result of treatment." He observed that studies indicate more research on this topic is needed. He concluded that "While Mr. Lieberman has certainly not chosen to participate in the formal treatment program at Rushville, this evaluator is unable to conclude that the has not achieved 'Substantial Progress' in the 9environment in which he has lived over the past six years of his confinement." ¶ 21 In October 2012, the State filed a motion for finding of no probable cause based on the annual reexamination report, prepared by Dr. Weitl. Again, respondent refused to participate in an interview with Dr. Weitl. Dr. Weitl prepared her report based on the same materials as the 2011 report along with Dr. Rypma's report, and a brief interaction with respondent. Dr. Weitl concluded that respondent continued to suffer from paraphilia NOS and antisocial personality disorder. ¶ 22 She found that respondent's mental disorders make it substantially probable that respondent will reoffend. She based this conclusion on two risk assessment tests. The Static-99 was used in this report. The instrument is designed "to assist in the prediction of sexual and violent recidivism for sexual offenders." Dr. Weitl noted that she did not use the Static-99R version because while the version was recommended for use beginning in 2009, the data used to develop the revised version was not available until August 2011. Dr. Weitl stated that the Static-99R "has yet to be published or peer reviewed and there appears to remain some controversial issues surrounding the heavily weighted age item." ¶ 23 Respondent scored a 7 on the Static-99, which places respondent in the 96.3 to 98.3 percentile of sex offenders scoring at or below this number. The rank of recidivism risk for this score is 17.4% to 32.7% in five years, and 23% to 42.8% in ten years. Dr. Weitl opined that respondent's recidivism risk should be closer to the high risk value because respondent had more risk factors than a typical sex offender and he has not participated in any sex offender treatment. ¶ 24 The MnSOST-R is an instrument "intended to identify predatory and violent sexual offenders. The research on this instrument has shown it to be a useful tool in identifying high- 10 risk individuals for violent sexual offender recidivism." Respondent scored in the highest risk category for sexual reoffense. "Others who scored in this risk category were at a 72% chance to get arrested for a sexual offense within six years." ¶ 25 Dr. Weitl noted that any reduction in risk based on ages has been accounted for on all actuarial instruments. "Age may serve as a protective factor, but does not decrease his risk below that of substantially probable." She recommended that respondent continue to be found a sexually violent person under the SVPCA and he should remain committed to the DHS for further secure care and sexual offense specific treatment. ¶ 26 Both Dr. Weitl and Dr. Rypma were deposed. At her deposition, Dr. Weitl testified that respondent's mental disorders, paraphilia NOS and antisocial personality disorder, predispose him "to engage in acts of sexual violence." "He on numerous occasions sexually assaulted women. Even after legal intervention he's still making the choice to sexually assault these women. Even on bond, on supervision, he just got out waiting for trial, he's still raping women. So those are all evidence [sic] that he's not - he's got serious - not serious difficulty - that his emotional and volitional capacities are affected." ¶ 27 Dr. Weitl explained that respondent's mental disorder affects his capacity to make decisions and has predisposed him to sexual violence. Dr. Weitl stated that her opinion was based on respondent's actions in committing the sexual assaults in 1979 and 1980. When asked if anything between then and now adds to her belief that respondent lacks volitional control, she stated that "in the definition of paraphilias they're considered chronic, life-long disorders that 11 don't go away. So it's inferred that those disorders don't go away, that he still has that predisposition." She believed that respondent would not be able to stop himself from committing an act of sexual violence. ¶ 28 Dr. Weitl also testified that she read Dr. Rypma's report. She stated that she was not aware of the SILS, MCSDS, BIS-11, or the Iowa Gambling Test. She was familiar with the MCMI-3, stating that it measured personality and was a "fairly popular" test. She testified that Dr. Rypma's report that respondent did not have paraphilia NOS or antisocial personality disorder did not affect her opinion. She also stated that she accounted for respondent's age in the actuarial she used in reaching her conclusion. ¶ 29 Dr. Rypma testified that in his opinion respondent never suffered from a paraphilia, even when committing the sexual assaults. Dr. Rypma further discussed his opinions in this colloquy. "Q: Are you saying that [respondent] no longer suffers from a paraphilia, or are you saying that he never did suffer from a paraphilia? A: I find from my review of the records that Bradley Lieberman was never suffering from a paraphilia. I am aware, however, that the Court has found otherwise. I believe what I tried to say is that if he did at one time it's not apparent now. Q: Okay. Now, to find out if he ever did suffer from a paraphilia, does it help to know why he offended? A: Yes. Q: Why is that? 12A: I believe that he was dealing with some anger issues that dealt with his family of origin. He grew up in a family that is described throughout the record as well as by himself, as well as by interviews that I conducted to be a very close family situation. His parents were divorced. There was some indication in the record as I recall sitting here right now that he had recently left his mother's house and was living with his dad at the time of the offense. As I thought through the issue of paraphilia versus general criminal conduct, I believe that that was what was going on. I do not believe that he was suffering from a disorder of sexual arousal as I under the diagnostic requirements." ¶ 30 When asked why respondent offended, Dr. Rypma stated that "he was young, he was irresponsible, he was impulsive, he was 20 years old. He was - felt as many 20-year-olds I've come across feel, more powerful than they really are. He was an irresponsible kid." ¶ 31 In September 2013, defendant filed another petition for discharge, relying on Dr. Rypma's reports that he no longer suffers from a paraphilia. ¶ 32 The trial court conducted a hearing in March 2014 on the pending motions, the 2011 and 2012 motions for no probable cause filed by the State as well as respondent's February 2012 and September 2013 petitions for discharge. At the hearing, the court granted both motions for a finding of no probable cause, finding that there was no "probable cause to have a hearing based on the information submitted because there is no change I don't think." ¶ 33 The trial court then denied respondent's petitions for discharge for the following reasons. 13 "The issue is is there a plausible account of changed circumstances such that he is no longer, has the mental disorder towards no longer likely to perform acts of sexual violence. The opinions of the people that were submitted, Dr. Rypma, indicate that, and these are issues that were heard and rejected by the jury, rape is not a paraphilia, rejected by the jury; didn't rape anyone in the penitentiary, therefore he's okay, rejected by the jury. These tests that - the Impulsiveness Scale, Iowa [Gambling] Test, those were not heard by the jury granted, but they don't - on their own they don't go not [sic] future dangers sufficiently to that there are any changed circumstances. Rypma is saying I don't believe he has this thing because I don't believe it exists. And that was rejected by the jury, it's also been rejected by the Supreme Court I might add on this very case. It's - I don't see a sufficient change in circumstances that indicate that he no longer has this mental disorder quite frankly." ¶ 34 This appeal followed. ¶ 35 On appeal, respondent argues that the trial court erred in failing to properly apply the supreme court's decisions in Stanbridge , 2012 IL 112337, and In re Detention of Hardin, 238 Ill. 2d 33 (2010). Specifically, respondent contends that the court erred in denying his petitions for discharge under the SVPCA because he established probable cause by providing a plausible account that he is no longer a sexually violent person. We review the question of whether 14 respondent established probable cause de novo. In re Detention of Lieberman, 2011 IL App (1st) 090796, ¶ 40, aff'd sub nom., Stanbridge, 2012 IL 112337. ¶ 36 The SVCPA allows for the involuntary commitment of "sexually violent persons" by the DHS for "control, care and treatment until such time as the person is no longer a sexually violent person." 725 ILCS 207/40(a) (West 2012). A "sexually violent person" is defined under the SVPCA as "a person who has been convicted of a sexually violent offense, has been adjudicated delinquent for a sexually violent offense, or has been found not guilty of a sexually violent offense by reason of insanity and who is dangerous because he or she suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence." 725 ILCS 207/5(f) (West 2012). ¶ 37 As previously stated, in 2006, a jury found respondent to be a sexually violent person under the SVPCA based on a finding that respondent suffers from the mental disorder of paraphilia NOS. After a person has been committed under the SVPCA, then the State shall submit a written report based on an evaluation of the individual's mental condition "at least once every 12 months thereafter for the purpose of determining whether the person has made sufficient progress to be conditionally released or discharged." 725 ILCS 207/55(a) (West 2012). ¶ 38 "Although commitment is potentially indefinite in nature, a committed individual may challenge his continued commitment under the Act through a petition for discharge or a petition for conditional release." Stanbridge, 2012 IL 112337, ¶ 50 (citing 725 ILCS 207/65(a)(1) (West 15 2008)). At the time of the annual examination by the State, the committed person receives notice of the right to petition the court for discharge. 725 ILCS 207/65(b)(1) (West 2012). If the committed person does not affirmatively waive that right, the court must set a probable cause hearing to determine whether facts exist that warrant a hearing on whether the respondent remains a sexually violent person. Id. "However, if a person has previously filed a petition for discharge without the Secretary's approval and the court determined, either upon review of the petition or following a hearing, that the person's petition was frivolous or that the person was still a sexually violent person, then the court shall deny any subsequent petition under this Section without a hearing unless the petition contains facts upon which a court could reasonably find that the condition of the person had so changed that a hearing was warranted." Id. If the trial court concludes after the probable cause hearing that probable cause exists since the last reexamination such that the committed person "has so changed that he or she is no longer a sexually violent person, then the court shall set a hearing on the issue." 725 ILCS 207/65(b)(2) (West 2012). ¶ 39 The supreme court has held that the trial court's "role in assessing the evidence remains the same throughout the various probable cause hearings; that role is to determine whether the movant has established ' "a plausible account on each of the required elements to assure the court that there is a substantial basis for the petition." ' " (Emphasis in original.) Stanbridge, 2012 IL 112337, ¶ 62 (quoting Hardin, 238 Ill. 2d at 48, quoting State v. Watson, 595 N.W.2d 403, 420 (1999)). "Given the statutory definition of a 'sexually violent person,' it follows that in a discharge proceeding, the committed individual must present sufficient evidence that he no longer meets the elements for commitment: (1) he no longer 'has a mental 16disorder'; or (2) he is no longer 'dangerous to others because the person's mental disorder [no longer] creates a substantial probability that he *** will engage in acts of sexual violence.' " (Emphasis in original.) Id. ¶ 68 (quoting 725 ILCS 207/5(f), 15 (West 2008)). ¶ 40 The Stanbridge court further reasoned: "By using the terms 'no longer' and 'still,' the legislature intended that the relevant inquiry must begin with the premise that the individual has been adjudicated in the past with a mental disorder that makes it substantially probable that he will reoffend. The legislature intended that in postcommitment proceedings for discharge, the individual must present some plausible evidence that demonstrates a change in the circumstances that led to this finding. To hold otherwise would render the terms 'no longer' or 'still' superfluous. Under the relevant statutory scheme, a change in circumstances could include a change in the committed person, a change in the professional knowledge and methods used to evaluate a person's mental disorder or risk of reoffending, or even a change in the legal definitions of a mental disorder or a sexually violent person, such that a trier of fact could conclude that the person no longer meets the requisite elements." Id. ¶ 72. ¶ 41 Respondent argues that he set forth a plausible account of why he is no longer a sexually violent person through Dr. Rypma's report. Respondent bases his argument on the first two types 17 of changes in circumstances, a change in the person or a change in the professional knowledge and methods. Since respondent has not presented any argument that the third basis applies, we need not consider whether there was a change in the legal definition of the mental disorder or a sexually violent person. ¶ 42 In arguing that he presented a plausible account of a change in person or a change in the professional knowledge, respondent contends that Dr. Rypma's opinion as well as the psychometric tests conducted here set forth a plausible account sufficient to establish probable cause. He asserts that Dr. Rypma concluded that respondent no longer suffered from paraphilia NOS because respondent did not have any recurrent, sexually arousing thoughts, fantasies, or urges. However, neither Dr. Rypma's report nor his deposition testimony explains how he reached that opinion. We are unaware if the opinion is based on respondent's own denials, Dr. Rypma's assessment from his interview of respondent, or any other basis in respondent's record. Moreover, Dr. Rypma testified at his deposition that he believed that respondent never suffered from paraphilia NOS and committed the sexual assaults for criminal reasons based on his young age and impulsivity and irresponsibility. ¶ 43 As the supreme court framed the issue in respondent's case in Stanbridge, "the purpose of these proceedings is to raise a plausible account that Lieberman no longer has the disorder. Lieberman has already been found beyond a reasonable doubt by a jury to meet the legal definition of having a valid mental disorder. Lieberman cannot relitigate the fact that, in 2006, he was diagnosed with the disorder. Thus, the proper issue before the court applying the statute should be whether there was a plausible account of changed circumstances 18such that he no longer has the mental disorder for which he was already adjudicated in 2006." (Emphasis in original.) Stanbridge, 2012 IL 112337, ¶ 79. ¶ 44 Dr. Rypma's opinion that respondent no longer suffers from paraphilia NOS, in part because he never suffered from this mental disorder, fails to show a change in the committed person sufficient to support a plausible account. Moreover, the doctor's conclusion that respondent no longer has "recurrent, intense, sexually arousing fantasies, sexual urges, or behaviors" was without any foundation. In other words, Dr. Rypma never provided any basis whatsoever for this conclusion. ¶ 45 Respondent also points to several psychometric instruments administered by Dr. Rypma as new evidence that he is no longer a sexually violent person. These instruments tested respondent's comprehension, impulsivity, personality, volitional control, and truthfulness. According to respondent, "[t]he plausible inference to be drawn from these tests is that if Mr. Lieberman were indeed a sexually violent person, he would not consistently score within acceptable ranges on psychometric tests designed to evaluate his psychopathy, personality, and impulsiveness." Respondent's assertion lacks support in Dr. Rypma's report and testimony. Dr. Rypma's opinion did not offer any correlation between these instruments and respondent's mental disorder of paraphilia. The doctor did not testify or indicate in any way that these instruments were used to assess a sexually violent person's mental health. ¶ 46 Additionally, Dr. Rypma admitted in his deposition that he did not use the SILS test for comprehension in his risk assessment of respondent, nor does the MCSDS test measure respondent's risk of reoffending. Also, he testified that the PAI was used to assess whether respondent had a personality disorder, like antisocial personality disorder, and did not involve his 19 recidivism risk or sexual disorder. Respondent has not shown how these instruments provided any new information to support probable cause that he no longer suffers from paraphilia NOS, nor did Dr. Rypma's evaluation and testimony establish that respondent no longer suffers from a paraphilia. ¶ 47 Dr. Rypma did opine that the Static-99R instrument provided a better indicator than the prior version used by Dr. Weitl. This instrument was targeted to individuals who have committed sex offenses to measure recidivism. However, under both assessments, respondent scored a 7, placing him in the high risk category. The recidivism range for this category had a very wide margin of between 18% and 48% within ten years, which was the similar to the range presented by Dr. Weitl. Her opinion was that respondent would be closer to the high end of the recidivism prediction. ¶ 48 Respondent specifically points to the PCL-R as evidence that his score did not classify him as a psychopath. While Dr. Rypma's report indicated a score of 19, which was below the generally accepted score of 30 to classify as psychopathic, the report continued to indicate that respondent's risk of reoffending ranged from 18.8% to 48.6%. Also, Dr. Rypma noted that "arguments exist for suggesting the risk is underestimated by this method," but "there is no empirically supported evidence that would indicate that Mr. Lieberman's risk would be considered to exceed 48.6%." We do not believe that this result shows a change in respondent that he is no longer sexually violent when multiple instruments assess the recidivism risk as nearly 50% likely. ¶ 49 Moreover, Dr. Rypma's opinion is similar to that advanced by Dr. Schmidt in a prior appeal, which was rejected by the supreme court in Stanbridge. 20 "Furthermore, Dr. Schmidt's opinion that Lieberman does not currently have the mental disorder of paraphilia was insufficient to establish probable cause to believe that he is no longer sexually violent. The opinion was based upon historical facts, professional knowledge, and research already debated by the experts testifying in the prior proceeding and rejected by the jury. Dr. Diane Lytton testified on behalf of Lieberman at his commitment trial. In support of her finding that Lieberman did not have a paraphilia, she based her opinions on Lieberman's family and social upbringing, his psychosocial development, and the 15 mental health evaluations compiled while he was incarcerated, which did not diagnose a paraphilia. She also relied upon Lieberman's behavior while in prison, the fact that he was allowed to be around women, his attitudes toward women in his past relationships, and the fact that rape is not necessarily paraphilic. The jury rejected these same opinions. See In re Detention of Lieberman, 379 Ill. App. 3d at 594-97. Additionally, Dr. Schmidt offered no opinion on whether, assuming Lieberman had a mental disorder, he was no longer substantially likely to reoffend if released into the community. Dr. Schmidt offered no testimony directed at Lieberman's future risk of reoffending. The only opinion he offered related to this criteria was that those individuals that have administered and scored Lieberman 21on the GAF scale believe that his symptom severity and functioning capacity had improved substantially since he was detained in 1999. However, Dr. Schmidt offered no opinion on whether he believed Lieberman would no longer be substantially likely to reoffend based upon the GAF score alone if released into the community. Accordingly, we cannot infer that based upon the testimony regarding his GAF score alone, Dr. Schmidt was of the opinion that Lieberman would no longer be a danger to the community. Accordingly, the trial court properly concluded that Lieberman had not presented a plausible account that he was 'no longer a sexually violent person.' 725 ILCS 207/65(b)(2) (West 2008)." (Emphasis in original.) Stanbridge, 2012 IL 112337, ¶¶ 80-81. ¶ 50 Like Dr. Schmidt, Dr. Rypma has not offered any opinion as to why he believes respondent will not reoffend, but instead based his evaluation on results from testing instruments of general personality traits and habits. Dr. Rypma also opined that respondent committed the sexual assaults based on family issues, and the impulsivity and irresponsibility of his young age. This evaluation fails to address the key question, how has respondent's condition so changed that he no longer suffers from a paraphilia and further proceedings are warranted. Respondent has not set forth evidence to show either a change in the committed person or a change in the professional knowledge and methods used to evaluate a person's mental disorder or risk of reoffending. Accordingly, the trial court properly found that respondent failed to present a plausible account that he was no longer a sexually violent person. 22 ¶ 51 Respondent also contends that he cannot be held under the SVPCA based on Dr. Weitl's evaluation because it did not assess his current mental state. Respondent cites language from In re Detention of Samuelson, 189 Ill. 2d 548 (2000), as support. We disagree with respondent's interpretation of Samuelson. ¶ 52 In Samuelson, the supreme court was considering the constitutionality of the SVPCA. Id. at 551. Respondent points to the supreme court's discussion that "A defendant cannot be involuntarily committed based on past conduct. Involuntary confinement is permissible only where the defendant presently suffers from a mental disorder and the disorder creates a substantial probability that he will engage in acts of sexual violence in the future." (Emphasis added.) Id. at 559 (citing 725 ILCS 207/15 (West 1998)). ¶ 53 Respondent also relies on the Samuelson's court discussion of the Supreme Court's decision in Kansas v. Hendricks, 521 U.S. 346 (1997). In rejecting the defendant's argument that the SVPCA violates double jeopardy and ex post facto principles, the court found that the Hendricks decision was dispositive, where the Supreme Court considered a Kansas law similar to the Illinois one at issue. Id. at 558-59. "The court held that the law was civil rather than criminal in nature and that involuntary confinement pursuant to the law's provisions is not punitive. Accordingly, the court concluded that initiation of its commitment proceedings does not constitute a second prosecution for double jeopardy purposes. Because the law does not impose punishment, the court likewise concluded that it raises 23no ex post facto concerns. The court held that the ex post facto clause is not implicated for the additional reason that the law does not have retroactive effect. It permits involuntary confinement only where the defendant is currently suffering from a mental abnormality or personality disorder and is likely to pose a future danger to the public." Id. (citing Hendricks, 521 U.S. at 369-71). ¶ 54 Respondent asserts that Samuelson's statements that the SVPCA provides for confinement for those currently suffering from a mental disorder means that Dr. Weitl's report was insufficient because she did not assess his current mental state. Nothing in Samuelson provides for the discrediting of a psychological report when the committed individual refused to participate in an evaluation, such as the case here. ¶ 55 Respondent's contention that "[a]t no point did Dr. Weitl attempt to evaluate Mr. Lieberman's current mental state, or to determine whether he presently had paraphilia-NOS, or even any signs or symptoms of such a disorder," is belied by the record. Dr. Weitl's 2011 and 2012 evaluations clearly indicate that she sought to interview respondent, but on both occasions respondent refused to participate. Dr. Weitl then prepared evaluations based on the materials she had available, including respondent's criminal record, prior evaluations, and actuarials. There is no support for a conclusion that an annual psychological evaluation should be disregarded when the subject refused participation. If committed individuals were able to refuse participation and any evaluation prepared as a result were disregarded, the State would be unduly burdened and unable to follow the SVPCA. Such a result was not intended by the court in Samuelson. ¶ 56 Rather, the intention of Samuelson and the SVPCA was to assess a committed individual's current mental state, which was attempted by Dr. Weitl here. Dr. Weitl prepared 24 new evaluations with the intent to assess respondent's current mental state and whether he was still suffering from a mental disorder such that he was subject to the SVPCA. The trial court did not err in considering Dr. Weitl's evaluations. ¶ 57 Based on the foregoing reasons, we affirm the decision of the circuit court of Cook County. ¶ 58 Affirmed.