In Matter of State of New York v. Donald DD. (24 NY3d 174 [2014]) the Court of Appeals held that "evidence that a respondent suffers from antisocial personality disorder cannot be used to support a finding that he has a mental abnormality as defined by Mental Hygiene Law 10.03 (i), when it is not accompanied by any other diagnosis of mental abnormality." The opinion in Donald DD. considered two respondents, Donald DD. and Kenneth T. Kenneth T. committed a knifepoint rape for which he was sentenced to 17 years in state prison. Shortly after his release to parole he attempted to rape another woman, was convicted and sentenced to eight years in state prison. A state psychiatrist testified that Kenneth T. had a "mental abnormality" within the meaning of article 10, based upon a diagnosis of "paraphilia NOS" and ASPD. These two disorders, according to the State's psychiatrist, predisposed him to the commission of sex offenses and resulted in his having difficulty controlling his conduct. The paraphilia predisposed Kenneth T. to committing sexual acts and the ASPD "gave rise to a serious difficulty in controlling the urge to rape." (24 NY3d at 179.) The State's expert identified two facts that showed that Kenneth T. had difficulty controlling his sexual misconduct. First, he committed his offenses under circumstances that would permit his victims to identify him. Second, he committed the second rape soon in spite of his having just served a 17-year prison sentence for rape. The Court held that this testimony did not constitute clear and convincing evidence that Kenneth T. had " 'serious difficulty in controlling' his sexual misconduct within the meaning of [Mental Hygiene Law] section 10.03 (i)." (Id. at 187.) Specifically the Court held that it was not permissible to find a lack of self control from the "facts of a sex offense alone": "Undoubtedly, sex offenders in general are not notable for their self-control. They are also, in general, not highly risk-averse. But beyond these truisms, it is rarely if ever possible to say, from the facts of a sex offense alone, whether the offender had great difficulty in controlling his urges or simply decided to gratify them, though he knew he was running a significant risk of arrest and imprisonment." (Id. at 188.) Donald DD. was convicted of rape in the second degree for having sex with a 12 year old when he was 18. He received a sentence of six months' jail and 10 years' probation. Shortly after his release from prison, Donald DD. was arrested for having non-consensual sex with a friend of his wife. He pleaded guilty to sexual abuse in the second degree and received a sentence of six months' imprisonment. Donald DD.'s probation was revoked following an arrest for a non-sex offense and he was sentenced to 1 to 3 years in state prison. He was evaluated for civil management under article 10, found to have ASPD, but not to have a "mental abnormality." While conditionally released to parole, Donald DD. was investigated for touching the "privates" of his own children and having non-consensual sex with his wife. Although there were no criminal charges, Donald DD.'s parole was revoked and an article 10 proceeding was commenced. Donald DD. was again diagnosed as having ASPD. This time, however, the State's psychiatrist opined that the ASPD predisposed him to commit conduct constituting a sex offense. The predisposition, however, was not based on the inherent nature of ASPD, but rather on the pattern of continuous violation of the law by committing sex crimes. A jury found that respondent had a condition, disease or disorder that predisposed him to the commission of conduct constituting a sex offense and the Appellate Division affirmed the finding. The Court of Appeals reversed, holding that a civil commitment under Mental Hygiene Law article 10 cannot "be based solely on a diagnosis of ASPD, together with evidence of sexual crimes." (Id. at 189.) The Court first noted the language from the United States Supreme Court's opinion in Kansas v. Crane (534 US 407, 413, 122 S Ct 867, 151 L Ed 2d 856 [2002] [also quoted in the dissent in Shannon S.]), that to survive constitutional challenge "the severity of the mental abnormality itself, must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case." (Donald DD., 24 NY3d at 189.) The Court then noted the testimony in the Kenneth T. trial (the companion case to Donald DD.) that perhaps 80% of the prison population has ASPD (noting other estimates between 40% and 70%). The Court held that ASPD by itself does not distinguish the sex offender with a mental abnormality from the "typical recidivist" and cannot be the basis for a civil commitment under article 10. The problem with the diagnosis of ASPD, according to the Court of Appeals, is not that the diagnosis is unreliable, but that "ASPD establishes only a general tendency toward criminality, and has no necessary relationship to a difficulty in controlling one's sexual behavior." (Donald DD. at 191.)