This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




In the Matter of:

James Lee Schweninger.

Filed October 7, 1997


Norton, Judge

Hennepin County District Court

File No. P49335292

Michael J. Biglow, 839 Midland Bank Building, 401 Second Avenue South, Minneapolis, MN 55401 (for appellant Schweninger)

Michael O. Freeman, Hennepin County Attorney, Carolyn A. Peterson, Assistant County Attorney, A-2000 Government Center, Minneapolis, MN 55487 (for respondent petitioner)

Hubert H. Humphrey III, Attorney General, John L. Kirwin, Assistant Attorney General, 900 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for intervenor State of Minnesota)

Considered and decided by Norton, Presiding Judge, Peterson, Judge, and Amundson, Judge.



Appellant James Lee Schweninger seeks review of his indeterminate commitment as a sexually dangerous person (SDP). Appellant argues that the trial court did not have clear and convincing evidence to support the commitment and argues that the SDP act is unconstitutional. We affirm.


An official from the Minnesota Correctional Facility - Lino Lakes filed a petition to commit appellant as an SDP.[1] In the course of the initial hearing, appellant acknowledged that he had had sexual contact with many young male victims. He described how he groomed and sexually abused them over an extended period of time. He started by exposing himself, having his victims expose themselves, fondling his victims, and engaging in oral sex. In 1990, appellant pleaded guilty to criminal sexual conduct in the first, second, and third degrees for crimes against boys ages six, seven, and thirteen.

Two psychologists diagnosed appellant with pedophilia, with schizoid and avoidant personality traits. While incarcerated, appellant entered several treatment programs, but did not complete them. Trial testimony detailed the harm appellant's sexual conduct caused his victims. As to the likelihood he would cause harm in the future, appellant believed that outpatient treatment with certain safeguards would suffice, while experts cited factors showing that appellant was likely to reoffend if he were not committed. The trial court committed appellant as an SDP.

Subsequently, the trial court held a review hearing in which a member of appellant's treatment team from the security hospital testified as to appellant's diagnosis with pedophilia, same sex, and schizoid personality traits. He explained that the treatment team believed appellant was at risk to reoffend and recommended continued commitment. The trial court then committed appellant as an SDP for an indeterminate period, and Schweninger appealed.

This appeal was stayed pending the supreme court's decision in cases challenging the constitutionality and the merits of SDP commitments. The supreme court issued decisions upholding the constitutionality of the SDP act and affirming the merits of initial and indeterminate commitments. In re Linehan, 557 N.W.2d 171, 182, 186, 187 (Minn. 1996), pet. for cert. filed (U.S. May 2, 1997) (No. 96-8876); In re Linehan, 557 N.W.2d 167-71 (Minn. 1996), pet. for cert. filed (U.S. May 2, 1997) (No. 96-8876). This court issued an order dissolving the stay and now considers the appeal on the merits.



Appellant challenges his commitment as a sexually dangerous person. Trial court findings of fact will not be reversed unless clearly erroneous. In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986). We review de novo whether the record supports by clear and convincing evidence the trial court's conclusions that the standards for commitment were met. In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994).

A sexually dangerous person is defined as one who

(1) has engaged in a course of harmful sexual conduct as defined in subdivision 7a;

(2) has manifested a sexual, personality, or other mental disorder or dysfunction; and

(3) as a result, is likely to engage in acts of harmful sexual conduct as defined in subdivision 7a.

Minn. Stat. § 253B.02, subd. 18b(a) (1996). Harmful sexual conduct is defined as "sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another." Id., subd. 7a.

Appellant first contends the trial court did not make a finding that he posed a substantial likelihood of causing serious physical harm. The statute, however, requires a showing of the likelihood of either serious physical or emotional harm, but does not require both. Id. Thus, the trial court determination as to serious emotional harm would be sufficient to meet the statutory standard.

Appellant next argues that the statute does not indicate the type of emotional harm that is considered serious, and he cites law addressing recovery for emotional distress in the tort area. See K.A.C. v. Benson, 527 N.W.2d 553, 560 (Minn. 1995) (holding that, to sustain claim for intentional infliction of emotional distress, plaintiff must establish that distress was severe); Carlson v. Illinois Farmers Ins. Co., 520 N.W.2d 534, 537-38 (Minn. App. 1994) (holding that, to recover damages for negligent infliction of emotional distress, plaintiff must exhibit physical manifestations of emotional distress). Under these standards, he contends the psychologists were unable to establish that the child victims experienced "serious" emotional harm.

The standard for assessing whether the requisite degree of harm is shown can be found in the commitment act; it is unnecessary to look to tort law. See Minn. Stat. § 253B.02, subd. 7a (setting forth definitions and presumptions for proving harmful sexual conduct). The experts in this case discussed the serious emotional harm that can result from the acts appellant committed, such as loss of self esteem, extreme emotional distress, betrayal or loss of trust in adults, sexual dysfunctions later in life, feelings of shame, powerlessness, depression, and aggressiveness, and post traumatic stress syndrome. Videotaped interviews of several victims showed that they did suffer serious emotional harm, including betrayal of trust, increased aggression and assaultiveness, shame, and long-lasting effects from appellant's actions in overpowering them. Based on this evidence, the court had clear and convincing evidence to conclude both that a substantial likelihood existed that appellant's victims suffered serious emotional harm and that they did indeed suffer such harm.

Next, appellant contends insufficient evidence existed to show he was likely to commit future harm. He argues that the psychologists were unable to predict when or how he would reoffend, spoke in general terms, and referred to studies showing low recidivism rates. We disagree.

The law requires a showing that the person is highly likely to engage in future acts of harmful sexual conduct. Minn. Stat. § 253B.02, subd. 18b(a)(3); In re Linehan, 557 N.W.2d 171, 180 (Minn. 1996), pet. for cert. filed (U.S. May 2, 1997) (No. 96-8876). The supreme court has set out factors for the trial court to consider in determining whether the likelihood of future harm was shown. Id. at 189 (factors for use in predicting harm in SDP commitment); Linehan, 518 N.W.2d at 614 (setting forth factors for use in predicting harm in psychopathic personality commitment).

The trial court found clear and convincing evidence that, as a result of his sexual disorder of pedophilia, appellant was highly likely to engage in acts of harmful sexual conduct if released without intensive treatment in a structured environment. The court cited appellant's past harmful sexual conduct, previous treatment failures, lack of insight into his sexuality, lack of victim empathy, lack of a relapse prevention plan, and lack of stress management skills, as well as his total inability to have an intimate sexual relationship with an adult. In the review hearing, the trial court found that, although appellant had shown improvement, he had not completed the sex offender treatment, including relapse prevention treatment. The court also found the treatment team assessed appellant and determined he presented a number of sex offense-related deficits. The trial court's findings are supported by clear and convincing evidence and show appellant is highly likely to reoffend if he were not committed.


Appellant also challenges the constitutionality of the SDP law. The supreme court has now upheld the SDP law against various constitutional attacks. Linehan, 557 N.W.2d at 174-75. The United States Supreme Court's recent decision addressing Kansas's similar sexual violent predator act also supports the constitutionality of Minnesota's SDP law. Kansas v. Hendricks, 117 S. Ct. 2072, 2079-81 (1997).

In Linehan, 557 N.W.2d at 184-187, the supreme court directly addressed several of the constitutional arguments appellant makes, and upheld the SDP statute against claims it violated the right to substantive due process and equal protection. The court also held that the SDP law is "facially civil" and not so punitive as to trigger federal constitutional prohibitions against ex post facto laws and double jeopardy. Id. at 189. This ruling disposes of appellant's claim that the law is criminal, entitling him to numerous constitutional protections.

Appellant also argues that the commitment act violated equal protection because it impermissibly provided more lenient standards for commitment as a sexually dangerous person than as mentally ill and dangerous. Compare Minn. Stat. § 253B.02, subd. 18b(a) (definition of SDP) with Minn. Stat. § 253B.02, subd. 17 (definition of mentally ill and dangerous person). Our review of the statutes does not show the distinction appellant makes. Further, we see no indication that the SDP commitment act violates equal protection. See Linehan, 557 N.W.2d at 186-87 (determining that SDP act passes heightened scrutiny and does not violate equal protection).

Appellant also contends differences exist between the discharge criteria for a mentally ill and dangerous commitment and a sexually dangerous person commitment. This argument is premature because he has not yet petitioned for discharge. Further, the supreme court has rejected this argument. Call v. Gomez, 535 N.W.2d 312, 318-19 (Minn. 1995) (holding statutory discharge criteria for mentally ill and dangerous persons under Minn. Stat. § 253B.18, subd. 15, apply to psychopathic personality commitment), cert. denied, 117 S. Ct. 772 (1997); see Minn. Stat. § 253B.185, subd. 1 (1996) (stating that provisions relating to mentally ill and dangerous commitment generally apply to commitments as sexual psychopathic personality or sexually dangerous person).

Next, appellant contends the definition of a sexually dangerous person is void for vagueness because it promotes arbitrary and capricious application of the law. See State ex rel. Pearson v. Probate Court of Ramsey County, 205 Minn. 545, 554-56, 287 N.W. 297, 302-03 (1939) (discussing void for vagueness challenge to psychopathic personality law), aff'd, 309 U.S. 270 (1940).He raises numerous questions as to how the various statutory terms are to be defined.

The supreme court has had no difficulty in defining the relevant terms in the SDP statute. As to the term "mental disorder" in Minn. Stat. § 253B.02, subd. 18b(a)(2), the court addressed the argument that a particular personality disorder violated substantive due process because it was "little more than a definition of criminal behavior." Linehan, 557 N.W.2d at 184. The supreme court rejected this argument, noting the SDP act was written by psychologists and psychiatrists who believed the categorization of mental disorders and diagnostic criteria in the American Psychiatric Association's Diagnostic & Statistical Manual of Mental Disorders (4th ed. 1994) identified underlying mental disorders accounting for behavior. Id. at 185. Likewise, this definition defeats any argument that the term "mental disorder" is void for vagueness.

Appellant also argues that the term "likely to engage in acts of harmful conduct" is impermissibly vague. Minn. Stat. § 253B.02, subd. 18b(a)(3). As we have already noted, the supreme court required a "highly likely" standard for future harm and adopted specific factors to consider in determining whether the standard was met. Linehan, 557 N.W.2d at 180, 189. In addition, the supreme court held that "the scope of the statute is clear" with regard to this factor: "Nonviolent but sexually harmful acts are included in its reach." Id. at 190. We see no basis for concluding that the statute is void for vagueness.


[ ]1 This court earlier reversed appellant's commitment as a psychopathic personality. In re Schweninger, 520 N.W.2d 446, 450-51 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994).