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In re Commitment of Franklin4/1/2004
e probability of future sexually assaultive behavior. However, those violations that are sexually related are weighted more heavily in the assessment."
. The "record" of which the majority opinion speaks, however, was not Dr. Doren's testimony at trial, but his deposition (which apparently was not introduced at trial and was not presented to the jury) in which he acknowledged that the defendant's prior non-sexual misconduct added points to the score of some, but not all, of the instruments that measure the risk of sexual offense recidivism that Dr. Doren considered.
. The majority opinion mistakenly believes that I am objecting to its consideration of these tests because they are not part of the record. My argument is that these tests were never shown to the jury and no expert testimony, by either Dr. Doren or Dr. Lodl, explained why the probation and parole agent's testimony regarding the defendant's prior acts of misconduct made it substantially probable that the defendant would engage in future acts of sexual violence.
. At trial, Dr. Doren never described any of these tools as taking into account all past law violations in attempting to evaluate the probability of sexual violence. Thus the majority opinion's conclusions that "uncontrolled behavior" and sexually violent behavior are connected are not supported by Dr. Doren's use of the assessment tools.
. At trial, Dr. Doren never suggested that any of the defendant's non-sexual behavior related to a predisposition to sexually violent behavior. Dr. Doren did not draw any conclusions at trial suggesting that the defendant's prior non-sexual misconduct made it more likely that he would commit acts of sexual violence in the future.
. Dr. Doren's testimony at trial did not rely on the defendant's prior non-sexual misconduct. Dr. Doren did not specifically refer to any of the defendant's prior misconduct or history unrelated to sexual behavior in explaining his diagnosis to the jury. Dr. Doren did not testify that the defendant's prior non-sexual misconduct was relevant to his determination of the defendant's propensity for sexual violence. In fact, Doren's testimony leads to the conclusion that the defendant's prior non-sexual misconduct is not relevant. Dr. Doren concluded that general criminality does not suggest paraphilia. Dr. Doren testified as follows about the defendant's prior misconduct:
he first thing I was looking for in Mr. Franklin's situation was his behavioral pattern, whether I could demonstrate that he interacted with someone in a known-consensual way for sexual purposes. There were three different times [the defendant] was convicted of offenses that were, in my opinion, clearly sexual in nature and involving a non-consensual process; it occurred in 1978, 1979, and 1984.
Another aspect of the behavioral pattern that I look at, though, is to see whether or not that's all part of an overall criminal way of being or if a person's criminality is quite specific to sexual offending. If a person is just criminal in a lot of ways, that does not suggest paraphilia, it doesn't negate it but it doesn't suggest it; whereas if the person's sole way of acting in an illegal way is sexual, that would suggest there's something driving the person specifically in a sexual manner.
As a juvenile, the records would indicate anyway, that as a juvenile his--and early adulthood his illegal behavior was of a variety of types not including much in the way of sexuality; there was one event as a juvenile, but as a--as an adult, basically since July of '76, all of his known illegal behavior involved raping or attempted raping. (Emphasis added.)
. In sum,
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