                                                    NO. 5-09-0019
                   NOTICE

 Decision filed 06/25/10. The text of
                                                       IN THE
 this decision may be changed or

 corrected prior to the filing of a
                                            APPELLATE COURT OF ILLINOIS
 Peti tion   for    Rehearing   or   th e

 disposition of the same.
                             FIFTH DISTRICT
________________________________________________________________________

In re DETENTION OF HARRY CAIN          ) Appeal from the
                                       ) Circuit Court of
(The People of the State of Illinois,  ) Christian County.
                                       )
      Petitioner-Appellee,             )
                                       )
v.                                     ) No. 98-MR-60
                                       )
Harry Cain,                            ) Honorable
                                       ) Michael D. M cHaney,
      Respondent-Appellant).           ) Judge, presiding.
________________________________________________________________________

             JUSTICE W EXSTTEN delivered the opinion of the court:

             The respondent, Harry Cain, appeals from the circuit court's denial of his petition for

discharge or conditional release from his commitment as a sexually violent person pursuant

to the Sexually Violent Persons Commitment Act (the Act) (725 ILCS 207/1 et seq. (West

2006)). For the reasons that follow, we affirm.

                                                   BACKGROUND

             In 1999, the respondent was adjudicated a sexually violent person pursuant to the Act

and was committed to the Department of Human Services for control, care, and treatment.

See 725 ILCS 207/1 et seq. (West 1998). Since then, he has repeatedly sought a discharge

or conditional release from his commitment, and on each occasion, his requested relief has

been denied. In re Detention of Cain, No. 5-05-0702 (2006) (unpublished order under

Supreme Court Rule 23 (166 Ill. 2d R. 23)); In re Detention of Cain, No. 5-04-0431 (2005)

(unpublished Rule 23 order); In re Detention of Ca in, 341 Ill. App. 3d 480 (2003); In re

Detention of Cain, No. 5-01-0083 (2003) (unpublished Rule 23 order); In re Detention of


                                                         1
Cain, No. 5-99-0197 (2000) (unpublished Rule 23 order). In 2007, the respondent filed the

petition for discharge or conditional release that is the subject of the present appeal. In 2008,

the circuit court denied the respondent's petition after a probable cause hearing. The relevant

items of evidence that the court considered at the hearing were psychological reexamination

reports prepared by the State's psychologist, Dr. Raymond Wood, and a psychological

evaluation report prepared by the respondent's appointed expert, Dr. Kirk Witherspoon.

                                     Dr. Wood's Findings

       In his reports, Dr. Wood indicated that when preparing his most recent evaluations

of the respondent, he had reviewed numerous sources of information, including the

respondent's past treatment records. Wood further indicated that he had evaluated or

examined the respondent on multiple occasions since 2005. Wood's findings included the

following.

       In 1988, when the respondent was 52, he was charged with aggravated criminal sexual

abuse, aggravated criminal sexual assault, and permitting the sexual abuse of a child. The

victims of the charged offenses were a 4-year-old girl and her two brothers, who were 8 and

12. The charges ultimately led to the respondent's incarceration, and in 1992, he was

paroled.     Following his release from prison, he "sporadically attended" sex-offender

treatment for six months. In 1996, the respondent was charged with sexually abusing a nine-

year-old boy, and he was released from prison on that offense in 1998. While incarcerated,

he was referred to, but did not enter, sex-offender treatment. "His records indicate[] *** that

seven other children reported incidents of sexual abuse or attempted sexual abuse that did

not result in criminal charges."

       In 1999, the respondent was committed pursuant to the Act. In June 2000, he entered

a multifaceted treatment program at his commitment facility, but he withdrew from the

program in January 2001. The respondent reentered the program in June 2002 but "was


                                               2
suspended for non[]attendance in November 2002." He was subsequently removed from the

program in January 2003. The respondent later "provided several justifications for not

participating in [the treatment program]," and he blamed his therapists for his decision to

withdraw in 2001. Wood indicated that treatment refusal was a perpetual problem with the

respondent. Wood explained that the treatment program's goals included relapse prevention

and cognitive restructuring, and one of its component phases required the respondent to fully

disclose and accept responsibility for all of his past sex offenses. While in treatment, when

questioned about "additional, undisclosed victims," the respondent "irrationally" interpreted

the questions as suggesting that he should lie and fabricate the existence of victims that did

not exist. Before his removal from treatment in 2003, however, the respondent admitted that

he had committed sexual offenses against nine victims.

       Wood indicated that during self-report assessments conducted while the respondent

was in treatment, the respondent had provided untruthful responses regarding his sexual

interests and attitudes. The respondent also suggested that his offenses against children were

not as serious as reported. When interviewed in 2007, the respondent stated, inter alia, that

"some women secretly want to be raped" and that a woman " 'could prevent rape if she

wanted to.' " The respondent also stated that "children could be seductive" by " 'the

movements they make.' " He indicated that he no longer had a sex drive, however, and that

his self-estimated risk of recidivism was less than 10%.

       Based on his review of the respondent's records and assessments, and consistent with

previous evaluations, Wood diagnosed the respondent with pedophilia towards both males

and females and a personality disorder with antisocial traits. Wood also utilized actuarial

assessments to determine the likelihood that the respondent might commit further sex

offenses if released. The respondent was designated a moderate-high risk using the Static-99

assessment and a high risk using the M nSOST-R. Wood explained that those assessments


                                              3
are "conservative and underestimate actual risk" and that the respondent's personality

disorder was an additional risk factor. The respondent's low motivation for treatment, his

lack of remorse and victim-blaming, his tolerant attitude toward sex crimes, and his sexual

interests in children were also noted as additional risk factors.

       Acknowledging that some research suggested that recidivism rates among sex

offenders decrease with age and that "actuarial risk estimates for sex offenders 60 or more

years old overestimate their actual risk," Wood explained that those considerations needed

"to be viewed within the context of [the respondent's] risk when he committed his predicate

offense." Wood further explained that although the respondent's recidivism risk was less

than 20% when he reoffended at age 59, he nevertheless reoffended. Wood stated, "Thus,

one cannot firmly conclude that an age[-]related reduction in risk is appropriate for [the

respondent]." Noting that sex-offender treatment "has been found to reduce recidivism,"

Wood stated that the respondent was not currently in treatment and that his past "progress

in treatment was minimal."

       In conclusion, Wood stated that although the respondent was 71, his pedophilia and

personality disorder were "conditions affecting his emotional and volitional capacity and

predisposing him to acts of sexual violence." Wood reiterated that the respondent was

assessed as a moderate-high risk to a high risk and that his additional risk factors "increased

his risk to engage in acts of sexual violence." Wood also stated, "No reductions in risk were

warranted based on medical condition, progress in sex offense specific treatment, or age."

Wood opined that the respondent remained "dangerous in that, as a result of his mental

disorders, it is still substantially probable that he will engage in acts of sexual violence."

Wood further opined that the respondent was still a sexually violent person who continued

"to require institutional care in a secure facility."

                                  Dr. Witherspoon's Findings


                                                4
       In his report, Dr. Witherspoon indicated that when preparing his evaluation of the

respondent, he had also reviewed numerous sources of information, including the

respondent's past treatment records. Witherspoon further indicated that he had interviewed

the respondent in February 2008. Witherspoon's findings included the following.

       The respondent acknowledged that in 1988 he had touched the vaginal area of a four-

year-old girl whom he had been babysitting. He claimed that while bathing the girl, she had

grabbed his hand and had used it to rub her vaginal area. She told him that it was okay that

he touched her and that "it felt good." The girl's mother also suggested that it was okay. The

respondent advised that his oldest son and another man had also molested the girl. The

respondent indicated that his 1996 sexual-abuse charge was the result of a false accusation

made by the mother of a boy who was trying to extort money from him. The respondent

"remembered grabbing the boy's leg, but never his penis." The respondent indicated that he

pled guilty to the charge because his public defender had refused to take the case to trial.

Witherspoon suggested that there was no evidence that the respondent had abused additional

victims. Witherspoon stated, "Consistently, [the respondent] denied ever having partaken

in sexual contact with any males."

       The respondent briefly attended sex-offender treatment following his first

incarceration but "did not accept recommended sex offender treatment when incarcerated the

second time, as he did not believe that he had justifiably needed it." While committed under

the Act, the respondent "entered and dropped out of treatment on two occasions."

Witherspoon stated, "Both decisions to stop attending were precipitated by harsh

confrontational tactics ***." The respondent complained that his therapists had told him that

he had to acknowledge additional sexual-abuse victims. The respondent indicated that he

"no longer has sexual thoughts or desires" and that "it is very difficult for him to even obtain

an erection." Witherspoon observed that the respondent "did not display marked evidence


                                               5
of deviant sexual attitude or interests" but that "he did offer enough aberrant endorsements

to raise cause for concern about attitudes which may permit a rationalization of sexual

misconduct with children." Witherspoon further explained, however, that the respondent

"did not reflect an ongoing desire to partake in sexual contact with minors."

       Witherspoon stated that the respondent's score on the Hare PCL-R, a "tool used to

gauge general criminalistic tendencies," was "not associated with marked antisocial

tendencies." Additionally, the respondent's profile as determined by the SVR-20, another

clinical assessment tool, "suggested a low reoffense risk categorical estimate at this point."

Witherspoon criticized the use of actuarial schemes such as the Static-99 and the MnSOST-

R, indicating that they were generally unreliable. He also stated, "Most data indicate that

persons [the respondent's] age have an estimated reoffense risk of zero percent." Based on

his evaluation of the respondent, Witherspoon opined that the respondent's pedophilia was

"in remission or resolved" and that he did not otherwise suffer from a recognizable

personality disorder. Witherspoon explained that despite the respondent's failure to complete

sex-offender treatment, "his estimated sexual reoffense risk categorization at this point is

'low.' " Witherspoon further opined that given the risk level associated with the respondent's

age, treatment completion "would appear to be a moot issue at this point."

       In conclusion, Witherspoon "recommended that [the respondent] be regarded as

falling within the 'low' sexual reoffense risk category at this point as a result primarily of his

age, increasing infirmity, and markedly abated if not altogether absent sexually deviant

interests and propensities." Witherspoon further recommended that the respondent be

discharged from his commitment and "that he not be required to reenroll in sex offender

treatment on an outpatient basis."

       In its written order denying the respondent's 2007 petition for discharge or conditional

release, the circuit court discussed the conflicting opinions of Drs. Wood and W itherspoon.


                                                6
In response to Witherspoon's criticism of the use of the Static-99 and the MnSOST-R as

clinical assessment tools, the court stated, "[T]his exact criticism was raised by previous

experts who testified on behalf of [the respondent] during an evidentiary hearing in 2004."

The court also noted that in In re Commitment of Simons, 213 Ill. 2d 523 (2004), the supreme

court held that actuarial tools such as the Static-99 and the MnSOST-R were generally

accepted in the psychological and psychiatric communities. Observing that the respondent

had still not completed any sex-offender treatment, the court stated, "In essence, the only

facts that have changed since [the respondent's] last discharge hearing[] are that he is older,

more frail, and has received a new independent psychological evaluation." The court then

concluded that there was not probable cause to believe that the respondent was no longer a

sexually violent person and that there was not cause to believe that it was not substantially

probable that he would engage in acts of sexual violence if on release or conditional release.

Following the court's denial of his motion to reconsider, the respondent filed a timely notice

of appeal.

                                         DISCUSSION

       An individual committed under the Act has the right to petition the committing court

for discharge or conditional release. 725 ILCS 207/60(a), 65(b)(1) (West 2006). When that

relief is sought, the committing court must set the matter for a probable cause hearing. 725

ILCS 207/60(c), 65(b)(1) (West 2006). "If the court determines at the probable cause

hearing *** that probable cause exists to believe that the committed person is no longer a

sexually violent person, then the court shall set a hearing on the issue."             725 ILCS

207/65(b)(2) (West 2006). "If the court determines at the probable cause hearing that cause

exists to believe that it is not substantially probable that the person will engage in acts of

sexual violence if on release or conditional release, the court shall set a hearing on the issue."

725 ILCS 207/60(c) (West 2006). "Whether or not probable cause exists to warrant a further


                                                7
evidentiary hearing is a matter resting in the sound discretion of the court," and "[a]bsent an

abuse of that discretion, we will not disturb the court's probable cause determination." In re

Detention of Cain, 341 Ill. App. 3d at 482.

       Arguing that the circuit court erred in denying him an evidentiary hearing on his

petition for discharge or conditional release, the respondent contends that in light of Dr.

Witherspoon's evaluation, the court improperly found that no probable cause existed to

believe that he was no longer a sexually violent person. In essence, the respondent's

argument is that the mere existence of conflicting opinions regarding his propensity for

sexual violence warrants an evidentiary hearing. We disagree, and we note that we rejected

the same suggestion when affirming the circuit court's denial of the respondent's previous

petition for a discharge or conditional release.

       In In re Detention of Cain, No. 5-05-0702 (2006) (unpublished Rule 23 order), the

respondent filed a petition for discharge or conditional release in 2005. The respondent's

appointed expert, Dr. Robert Chapman, and the State's expert, Dr. Wood, subsequently

evaluated the respondent and issued reports with divergent conclusions.          Specifically,

Chapman concluded that the respondent was no longer a sexually violent person and should

be released from his commitment, while Wood concluded that the respondent was still

sexually violent and should remain committed. After a probable cause hearing, the circuit

court denied the respondent's petition, and he appealed. Affirming the circuit court's

judgment, we concluded that the circuit court did not abuse its discretion by giving Wood's

evaluation greater weight than Chapman's. In re Detention of Cain, No. 5-05-0702 (2006)

(unpublished Rule 23 order); see also In re Ottinger, 333 Ill. App. 3d 114, 120-22 (2002)

(holding that the circuit court did not abuse its discretion by denying the respondent "a full

hearing on conditional release or discharge" where conflicting opinions were presented and

the court gave greater weight to those of the State's experts).


                                              8
       Here, we cannot conclude that the circuit court abused its discretion in determining

that other than the respondent's age and the fact that he had since obtained a new favorable

evaluation, nothing had changed since the respondent's last request for a discharge or

conditional release that would warrant a finding that probable cause existed to believe that

he is no longer a sexually violent person. Nor can we conclude that the circuit court abused

its discretion in rejecting Witherspoon's suggestion that given the respondent's age, he was

a zero risk to reoffend and treatment completion "would appear to be a moot issue." The

court obviously gave Wood's opinions regarding the respondent's dangerousness greater

weight than Witherspoon's, and W ood explained that the respondent's age as a risk reduction

had to be considered in the context of the fact that the respondent reoffended when he was

59. Wood thus concluded that under the circumstances, no reduction in risk based on age

was appropriate. We also note that many of Witherspoon's findings, such as his assessment

that the respondent's pedophilia was "in remission or resolved," were apparently based solely

on what the respondent had told him on the single occasion that they met.

                                      CONCLUSION

       For the foregoing reasons, the judgment of the circuit court of Christian County is

hereby affirmed.



       Affirmed.



       GOLDENHERSH, P.J., concurs.



       JUSTICE STEW ART, dissenting:

       I respectfully dissent because I believe the conflicting opinions of qualified experts

in this case constituted probable cause for a trial on Cain's petition for discharge or


                                             9
conditional release. The procedure the majority affirms allows the trial court to choose

between conflicting expert reports as the primary basis of its decision that one who is

imprisoned indefinitely, albeit for treatment, is not entitled to a trial to determine if he must

remain imprisoned indefinitely. Instead of allowing a trial at which disputed questions of

fact can be resolved, this procedure allows the court to bypass all of the truth-seeking

functions and protections of our rules of evidence. The problem with the procedure the

majority affirms is that it is devoid of any standard by which it can be determined what must

be presented by a detainee to justify a finding of probable cause. If the statutory procedures

by which a detainee is allowed to raise the possibility of his discharge or conditional release

are to have any meaning, then a detainee should be able to discern what is required in order

to obtain a trial at which a trier of fact can consider and resolve disputed issues of fact.

       The statutes upon which the trial court based its decision provide for the court to make

a determination of whether there is "probable cause" for a trial. In order to obtain a trial on

a petition for a discharge without conditions, the court must determine "that probable cause

exists to believe that the committed person is no longer a sexually violent person." 725 ILCS

207/65(b)(2) (West 2008). If probable cause is found to exist, a detainee may elect to have

a jury determine whether he should be discharged. 725 ILCS 207/65(b)(2) (W est 2008). In

order for Cain to receive a trial to determine if he qualifies for conditional release, the court

must determine that "cause exists to believe that it is not substantially probable that the

person will engage in acts of sexual violence if on release or conditional release." 725 ILCS

207/60(c) (West 2008). If this finding is made, a hearing on the petition for conditional

release is conducted by the court, without a jury. 725 ILCS 207/60(d) (West 2008). In this

case, the trial court based its order denying Cain a trial solely upon its assessment of the

experts' reports.   Those reports reached opposite conclusions; therefore, faced with

conflicting written opinions of experts, the trial court simply chose one expert's opinion over


                                               10
the other. This procedure denied Cain the opportunity to have the factual issues raised by

the conflicting opinions of experts on his petition for discharge decided by a jury.

       In its order, the trial court stated that it had discussed with the attorneys the issue of

how to avoid an evidentiary hearing when "there are two psychological evaluations which

reach opposite conclusions." The court noted that it had reflected on the matter and had

determined as follows:

        "[T]he mere existence of two conflicting reports does not mandate an evidentiary

       hearing. The trial court must have the discretion to weigh the credibility of both

       written reports in deciding the issue of probable cause, before ruling that the

       Respondent is entitled to an evidentiary hearing ***."

       A review of the record shows that numerous questions of fact raised by the pleadings

and reports remain unresolved by the trial court.          For example, Cain filed a petition

requesting that he be discharged from custody or conditionally released, in part alleging that

the State's expert evaluator had failed to follow the mandatory statutory standards. See 725

ILCS 207/55 (West 2008). Cain also alleged that, since his initial commitment, the State's

evaluators had failed to consider advances in the field of the psychology of sexual offenders,

making their opinions less than reliable. These pleadings raise questions of fact about the

reliability of the State's past and present evaluations.

       In his report, Cain's evaluator explained what he believed to be problems with the

reliability of some of the psychological testing conducted by the State's evaluator. The trial

court dismissed those concerns because the Illinois Supreme Court, in 2004, found that those

tests had been generally accepted within the scientific community and that their admission

did not require a Frye hearing (Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)). In re

Commitment of Simons, 213 Ill. 2d 523, 535 (2004). That decision, however, only renders

the tests admissible, and the trial court did not comment on Cain's expert's specific concerns


                                              11
about the reliability of those tests as applied to Cain. Even if the testing relied upon by the

State's evaluator is so widely accepted that no Frye hearing is required, without the experts'

testimony, the trial court had no basis for understanding how and to what extent the test

results formed the basis of the expert's opinion.

       In addition to the facts recited by the majority, Cain's expert noted that Cain had

dropped out of treatment twice due to the "harsh confrontational tactics" of the treatment

providers. Cain's evaluator found "no evidence of general significant psychopathy" or any

evidence of "deviant sexual attitude or interests." Cain's evaluator acknowledged that Cain

had made "aberrant" remarks that concerned him because those attitudes could permit Cain

to rationalize sexual misconduct with children, but the evaluator found that Cain "did not

reflect an ongoing desire to partake in sexual contact with minors." Contrary to the findings

of the State's expert, Cain's expert found that Cain's earlier diagnosis of pedophilia either had

been resolved or was in remission. He found that Cain was sexually impotent and had

cardiovascular disease, high blood pressure, and back pain. He determined that Cain's

"estimated sexual reoffense risk categorization" was "low." He noted that those in Cain's

age group, older than 70, had a "reoffense likelihood hovering around zero %" and that, as

a result, whether or not Cain completed treatment "would appear to be moot." These

findings raise issues of fact concerning what level and type of treatment, if any, Cain requires

and whether he continues to be a threat to society.

       The pleadings and written reports of the two evaluators raised numerous questions of

fact. In order to resolve those questions of fact, the trial court had to make determinations

about which expert's opinion was entitled to greater weight. Even though this court has

endorsed that very process in Cain's past appeals, I disagree with those decisions. Since

Cain's initial commitment in 1999, the trial court has denied Cain's requests to be discharged

or conditionally released at least eight times, five times without a trial of any type. This is


                                               12
not the first time that the trial court has denied Cain a trial when an appointed expert reached

the conclusion opposite to that of the State's expert. On prior occasions, an expert other than

the one appointed to examine Cain in this proceeding has determined that he should be

discharged. The State's expert has repeatedly opined that his imprisonment should continue.

If the opinion of a qualified expert that Cain should be discharged from confinement is

insufficient probable cause to allow a trial where a trier of fact determines the ultimate issue,

then what must he do to establish probable cause? Must he have the opinions of two experts

to overcome the opinion of the State's expert at the probable cause hearing?

       The procedure affirmed by the majority is contrary to the rules of evidence and is not

supported by the plain words of the Act. It is contrary to the rules of evidence because it

requires a trial judge to do the impossible–make credibility and reliability determinations

based upon the content of written reports of experts without any testimony from the authors.

It is not supported by the plain words of the Act because the plain meaning of a probable

cause hearing is to determine whether reasonable grounds exist to believe that a detainee

should be discharged or conditionally released. If such grounds exist, the detainee is entitled

to a trial where a trier of fact weighs the credibility of witnesses, not reports, and determines

the ultimate issue. Surely, the written opinion of a qualified expert that a detainee should

be discharged meets the probable cause standard.

       I am convinced that, in this case, the trial court abused its discretion, and its order

denying Cain a trial to determine whether he should be discharged or conditionally released

should be reversed.




                                               13
                                         NO. 5-09-0019

                                             IN THE

                               APPELLATE COURT OF ILLINOIS

                                  FIFTH DISTRICT
___________________________________________________________________________________

      In re DETENTION OF HARRY CAIN         ) Appeal from the
                                            ) Circuit Court of
      (The People of the State of Illinois, ) Christian County.
                                            )
            Petitioner-Appellee,            )
                                            )
      v.                                    ) No. 98-MR-60
                                            )
      Harry Cain,                           ) Honorable
                                            ) Michael D. M cHaney,
            Respondent-Appellant).          ) Judge, presiding.
___________________________________________________________________________________

Opinion Filed:        June 25, 2010
___________________________________________________________________________________

Justices:          Honorable James M. Wexstten, J.

                 Honorable Richard P. Goldenhersh, P.J.,
                 Concurring
                 Honorable Bruce D. Stewart, J.,
                 Dissenting
___________________________________________________________________________________

Attorney         Thomas E. Doyle, 123 S. Washington, Taylorville, IL 62568-0320
for
Appellant
___________________________________________________________________________________

Attorneys        Lisa Madigan, Attorney General of Illinois, Michael A. Scodro, Solicitor General,
for              Michael M. Glick, Stephen M. Soltanzadeh, Assistant Attorneys General, 100 West
Appellee         Randolph Street, 12th Floor, Chicago, IL 60601-3218
___________________________________________________________________________________
