Serious Difficulty Controlling Behavior Proven by Treatment Refusal and Institutional Misconduct, with Expert Nexus; Negative Inference from Absent Independent Expert Affirmed

Introduction

In Interest of Skorick, 2025 ND 171, the North Dakota Supreme Court affirmed the denial of Edward Skorick’s petition for discharge from civil commitment as a sexually dangerous individual (SDI). The case centers on the constitutional “Crane requirement” — that, beyond meeting the statutory definition of an SDI, the State must prove the respondent presently has “serious difficulty controlling his behavior.” The Court held the State met its burden through expert testimony tying Skorick’s diagnosed disorders to volitional impairment, evidence of ongoing institutional misconduct, persistent refusal to participate in treatment, high risk assessment results, and the controlled nature of the hospital environment. The Court also approved the district court’s drawing of a negative inference from the respondent’s failure to present testimony from his court-appointed, independent examiner.

The decision is a robust application — and clarification in the discharge-hearing context — of the nexus requirement under Kansas v. Crane, 534 U.S. 407 (2002), as developed in North Dakota’s SDI jurisprudence. It underscores that nonsexual rule violations and treatment refusal, when accompanied by expert analysis connecting diagnosed disorders to volitional deficits and risk of sexual reoffense, can satisfy the “serious difficulty” element. The Court also reaffirms that trial courts may draw an adverse inference when a respondent elects not to call their independent evaluator.

Summary of the Opinion

• Issue: Whether the State proved by clear and convincing evidence that Skorick has “serious difficulty controlling his behavior” sufficient to continue his SDI commitment at a discharge hearing under N.D.C.C. § 25-03.3-18.
• Standard of Review: Modified clearly erroneous. The Supreme Court will affirm unless the district court misapplied the law or the decision is not supported by clear and convincing evidence, with a requirement that the district court state the supporting facts.
• Key Evidence:
  • Expert testimony and report by Dr. Peter Byrne diagnosing Other Specified Paraphilic Disorder (hypersexual with pedophilic, voyeuristic, exhibitionistic, and fetish-theft behaviors), Antisocial Personality Disorder (APD), and Alcohol Use Disorder, with continuing high risk to reoffend (three to four times more likely than comparators), unchanged from the prior review.
  • Demonstrated nexus: Dr. Byrne explained how the combination of paraphilic disorder, APD (impulsivity, disregard for others, lack of remorse), and alcohol use lowers inhibitions and impairs volitional control, leading to sexual acting out.
  • Recent conduct: Five write-ups for rule violations (failing to follow rules, verbal aggression, bullying, impulsivity) and a series of other documented problematic behaviors (e.g., disrespect to staff, ignoring instructions), all occurring in a highly controlled environment.
  • Treatment refusal: Skorick refused to attend or participate in group treatment during the entire review period; the secure setting was “containing” his behavior rather than demonstrating internal control.
  • Unopposed expert evidence: Although the district court appointed an independent examiner (Dr. Stacey Benson) at Skorick’s request, she did not submit a report or testify; the district court drew a negative inference from this absence.
• Holding: The district court’s findings sufficiently identified present difficulties in control and properly established the required nexus between disorders and likely sexual reoffense. The State met its burden; the order denying discharge is affirmed.

Analysis

Precedents Cited and Their Influence

• Kansas v. Crane, 534 U.S. 407 (2002)
  • Crane establishes the constitutional requirement that civil commitment must rest on proof of a mental abnormality or disorder causing serious difficulty in controlling behavior. North Dakota’s courts refer to this as the “Crane requirement” or “nexus.”
  • In Skorick, the Court operationalizes Crane by demanding evidence that ties the diagnosed disorders to present volitional impairment likely to result in sexual predation if released.
• Interest of Sternberg, 2023 ND 40, 987 N.W.2d 340
  • Articulates the review standard and underscores that findings must identify recent conduct or otherwise show present serious difficulty controlling behavior.
  • Influence: The district court complied by detailing current write-ups and problematic behaviors, not merely historical acts, thereby satisfying Sternberg’s “present difficulty” emphasis.
• Matter of Muscha, 2021 ND 164, 964 N.W.2d 507
  • Defines “serious difficulty controlling behavior” as requiring a causal connection between the disorder and inability to control behavior that would likely cause future sexually predatory conduct.
  • Influence: Dr. Byrne’s testimony provided precisely this causal link, describing how paraphilic disorder, APD, and alcohol use interact to undermine volition.
• Matter of Didier, 2023 ND 218, 997 N.W.2d 837
  • Confirms that all relevant conduct may be considered; the conduct need not be sexual and events with some temporal proximity are particularly relevant.
  • Influence: The Court accepted nonsexual institutional misconduct (rule-breaking, bullying, impulsivity) as probative of control deficits, especially when contextualized by expert nexus testimony.
• In re Johnson, 2016 ND 29, 876 N.W.2d 25
  • States that failure to attend treatment can demonstrate inability to control behavior just as violations of institutional rules can.
  • Influence: Treatment refusal here added substantial weight to the State’s proof of present inability to regulate behavior, particularly given the secure, structured setting.
• Matter of R.A.S., 2019 ND 169, 930 N.W.2d 162
  • Holding: Two isolated refusals to take prescribed medication did not establish serious difficulty controlling behavior absent more substantial findings.
  • Influence: The Court distinguished R.A.S. because Skorick’s record included multiple write-ups, a broader pattern of problematic behavior, and complete treatment refusal.
• Matter of J.M., 2019 ND 125, 927 N.W.2d 422
  • Holding: Limited rule infractions, disputed factual interpretations, lack of sexual acting out, and significant treatment progress undermined the nexus showing; the State failed to tie minor violations to sexual reoffense risk.
  • Influence: Skorick’s case contrasts sharply: no treatment participation, multiple rule violations, and unopposed expert testimony linking disorders to volitional impairment.
• Interest of T.A.G., 2019 ND 167, 930 N.W.2d 166
  • Holding: Lack of progress in treatment alone is insufficient to prove serious difficulty; specific findings showing the Crane nexus are required.
  • Influence: The district court here did not rely on treatment nonparticipation alone; it added current conduct, diagnostic analysis, risk findings, and expert nexus testimony.
• In re E.W.F., 2008 ND 130, 751 N.W.2d 686
  • Approves drawing a negative inference from a respondent’s failure to call an independent expert psychologist, and using that inference in evaluating clear and convincing evidence.
  • Influence: The district court permissibly drew a negative inference from the absence of Dr. Benson’s testimony, reinforcing the State’s unopposed expert evidence.
• Prior proceedings: Interest of Skorick, 2022 ND 141 (Skorick II); 2024 ND 83 (Skorick III)
  • Skorick II recognized that failure to participate in treatment, not merely lack of progress, weighs in favor of finding serious difficulty. Skorick III affirmed denial of discharge where the respondent declined treatment and accrued write-ups.
  • Influence: The present case closely tracks Skorick III: continuing refusal to engage in treatment and a pattern of institutional misconduct, reinforcing continuity in the Court’s approach.

Legal Reasoning

• Statutory framework and due process overlay
  • The parties did not dispute the three statutory elements of N.D.C.C. § 25-03.3-01(7) (past sexually predatory conduct; qualifying disorder; likely future sexually predatory conduct as a result of the disorder). The only question was the Crane due process element: present serious difficulty controlling behavior.
• Expert-driven nexus
  • Dr. Byrne’s testimony and report provided a detailed clinical nexus. He diagnosed Other Specified Paraphilic Disorder with multiple manifestations (hypersexual, pedophilic, voyeuristic, exhibitionistic, fetish-theft), Antisocial Personality Disorder, and Alcohol Use Disorder.
  • He explained how APD (impulsivity, irresponsibility, disregard for others, lack of remorse) interacts with paraphilic drives to impair volition, and how alcohol use lowers inhibitions, enabling sexual fantasies to translate into action. This integration addresses the critical “nexus” element: the disorders cause difficulty controlling behavior that is likely to lead to sexual reoffense.
• Evidence of present difficulty
  • The district court identified ongoing institutional misconduct within the review period: five write-ups for rule violations, verbal aggression, bullying, and impulsivity, plus additional troublesome conduct (disrespect, ignoring instructions, lying). Under Sternberg and Didier, these nonsexual acts can evidence control deficits, particularly when linked by expert testimony to the disorders at issue.
  • The Court emphasized the context: these behaviors occurred in a highly controlled environment, supporting the inference that control would deteriorate in the community.
• Treatment refusal as corroborative evidence
  • Skorick refused all group treatment throughout the review period. The Court invoked Johnson to reiterate that nonparticipation can demonstrate inability to control behavior, especially where the secure hospital setting appears to be merely “containing” behavior rather than reflecting internalized control.
  • Importantly, the district court did not rely on treatment refusal alone; it served as one of multiple converging proofs.
• Risk assessment
  • Dr. Byrne’s risk assessments showed Skorick remains at high risk, three to four times more likely to reoffend than similarly situated offenders, with scores unchanged from the prior review. While risk scores do not, by themselves, prove the Crane nexus, they support the overall likelihood finding when combined with diagnostic and behavioral evidence.
• Negative inference from absent independent expert
  • Despite securing appointment of an independent examiner, Skorick presented neither a report nor testimony from that examiner. Consistent with E.W.F., the district court drew a negative inference from this omission. The Supreme Court approved that step, especially given that the State’s expert evidence was otherwise unopposed.
• Distinguishing “insufficient evidence” cases
  • R.A.S. involved two isolated medication refusals; J.M. featured limited and disputed infractions alongside significant treatment progress and no sexual acting out; T.A.G. cautioned that treatment stagnation alone is not enough. In contrast, Skorick’s record showed a pattern of misconduct, complete treatment refusal, high risk, and a robust expert nexus — a qualitatively different evidentiary posture.
• Standard of review application
  • Applying the modified clearly erroneous standard, the Court found the district court’s detailed findings supported by clear and convincing evidence and consistent with governing law. No legal misapprehension occurred; thus, affirmance followed.

Impact

• Clarifies proof at discharge hearings
  • This decision underscores that, at discharge hearings, the State can satisfy Crane’s nexus by presenting cohesive expert testimony connecting diagnosed disorders (including nonsexual disorders like APD) with present volitional impairment, supported by recent institutional misconduct and treatment nonparticipation, even if the misconduct is nonsexual.
• Weight of nonsexual institutional misconduct
  • Citing Didier, the Court affirms that nonsexual rule violations can meaningfully evidence control deficits when the expert ties them to the disorders that drive sexually predatory conduct. The presence of such violations in a controlled environment is especially probative.
• Treatment refusal as a significant factor
  • Reaffirming Johnson and earlier Skorick decisions, the Court signals that refusing to engage in treatment may strongly support a finding of serious difficulty controlling behavior, particularly when paired with other evidence.
• Practical consequences for litigation strategy
  • Respondents who obtain independent evaluations but choose not to present them risk a negative inference under E.W.F. This opinion will likely incentivize respondents to either present their independent examiner or be prepared to explain their absence convincingly.
  • For the State, the case validates the utility of comprehensive expert reports that synthesize diagnosis, risk assessment, treatment engagement, and recent conduct, and that explicitly speak to volitional impairment and the Crane nexus.
• Continuity with North Dakota SDI jurisprudence
  • The decision harmonizes with Sternberg, Muscha, Didier, Johnson, and prior Skorick appeals, providing a consistent framework that trial courts can apply to produce adequate, reviewable findings on the “serious difficulty” element.

Complex Concepts Simplified

• Clear and convincing evidence
  • A high standard of proof requiring that the evidence show it is highly probable the claim is true. It’s more stringent than preponderance (more likely than not) but less than beyond a reasonable doubt.
• Modified clearly erroneous review
  • The appellate court defers to the district court’s factual findings unless they reflect a legal error or are not supported by clear and convincing evidence. The district court must state the specific facts underpinning its conclusion.
• Serious difficulty controlling behavior (the Crane requirement)
  • Beyond meeting statutory criteria, due process requires proof that a person’s disorder causes a present, serious inability to control behavior — a nexus that distinguishes the civilly committed SDI from an ordinary criminal recidivist.
• Nexus
  • The causal link between the diagnosed disorder(s) and the person’s current inability to control behaviors that would likely lead to sexually predatory conduct in the future.
• Controlled environment relevance
  • Behavior in a secure hospital is informative, but the lack of sexual acting out there does not negate risk. Misconduct within a controlled setting, coupled with treatment refusal, may indicate that behavior is being contained by structure rather than internally controlled — suggesting greater risk if released.
• Negative inference from absent independent expert
  • When a respondent has an independent evaluator but chooses not to present their testimony, the court may infer that the expert’s testimony would not have supported the respondent’s position. This inference is one piece of the evidentiary mosaic, not a stand-alone basis for commitment.
• Role of risk assessments
  • Structured risk tools inform the likelihood of reoffending. They do not by themselves establish the Crane nexus, but can corroborate expert opinions about risk and volitional control when integrated with diagnosis and conduct evidence.
• Antisocial Personality Disorder in the nexus analysis
  • APD is not a sexual disorder, but its traits (impulsivity, disregard for others, lack of remorse) can interact with paraphilic disorders and substance use to impair control and increase the likelihood of sexual reoffense. The nexus turns on how the diagnosed conditions, together, undermine volitional control.

Conclusion

• The North Dakota Supreme Court affirmed denial of discharge because the State proved, by clear and convincing evidence, that Skorick presently has serious difficulty controlling his behavior.
• The district court’s findings were sufficiently specific and grounded in:
  • Expert testimony establishing a causal nexus between diagnosed disorders and impaired volitional control;
  • Recent institutional misconduct within a controlled setting;
  • Complete refusal to participate in treatment;
  • High and unchanged risk assessment results; and
  • A permissible negative inference from the absence of the independent examiner’s testimony.
• The decision clarifies that nonsexual institutional infractions and treatment refusal can meaningfully evidence present control deficits when tied to the respondent’s disorders through expert analysis — satisfying Crane in the discharge-hearing posture.
• For practitioners, the opinion underscores the importance of presenting cohesive, nexus-focused expert testimony and recent-conduct evidence, and the risks of not calling an independent evaluator once appointed.