The definitions of “mental disorder” in since-amended pattern instruction Wis JI—Criminal 2502 (2009), though concededly contradictory, didn’t prevent from being tried the issue of whether Sanders qualified for commitment as a sexually violent person:
¶14 As we have seen, two sentences in what the circuit court told the jury are contradictory:
(1) “Mental disorder means a condition affecting the emotional or volitional capacity that predisposes a person to engage in acts of sexual violence and causes serious difficulty in controlling behavior.” (Emphasis added.)
(2) “Not all persons with a mental disorder are predisposed to commit sexually violent offenses or have serious difficulty in controlling behavior.”
As noted earlier, the italicized part of the first sentence tracks Wis. Stat. § 980.01(2) (“‘Mental disorder’ means a … condition affecting the emotional or volitional capacity that predisposes a person to engage in acts of sexual violence.”). The second sentence, although contradictory, gives a needed escape hatch because it recognizes that not all mentally ill persons are fixated on sexually violent behavior and have serious difficulty in not acting on that fixation. Thus, the second sentence helped Sanders. It made clear that although the statute defined “mental illness” as something that “predisposes a person to engage in acts of sexual violence,” Sanders’s mental illness alone was not sufficient for the jury to find that he was a sexually violent person. Sanders thus has not shown how the inconsistency prevented the “real controversy” (whether as a result of his paraphilia and antisocial personality disorder, he was a sexually violent person) from being “fully tried.” Simply put, the instruction did not prevent him from arguing that his present mental illness did not make him more likely than not to commit further crimes of sexual violence if he were not committed, especially because the circuit court told the jury that Sanders’s mental illness had to cause him “serious difficulty” in controlling his behavior. Indeed, his two expert witnesses so testified.
Because the instruction was unobjected-to, review is under interest-of-justice auspices, as nicely delineated by the majority opinion, ¶13. Its resolution of the merits, however, might be more questionable. A sexually violent person must have a “mental disorder.” The instructions correctly informed the jury that a “mental disorder” causes serious difficulty controlling sexual behavior; but then unhelpfully annotated that definition with the qualification that not all persons with a “mental disorder” have such difficulty. The jury’s verdict represents a finding that Sanders has a mental disorder that predisposes him to sexual violence, but how can we be certain that the jury also found that the disorder caused serious difficulty controlling behavior. As the dissent explains:
¶23 Just a few sentences later, however, “mental disorder” has a contradictory definition: “[n]ot all persons with a mental disorder are predisposed to commit sexually violent offenses or have serious difficulty in controlling behavior.” See id. Worse, there is no clarifying language to assist the jury in determining which “mental disorder” is the one that warrants commitment under ch. 980. This is of course important because, as Wisconsin law recognizes (and common sense dictates), we do not commit individuals as sexually violent persons simply because they suffer from mental illness.
¶24 The Majority concludes that the jury was able to discern the difference between the contradictory definitions; yet, ironically, the Majority is unable to do so itself without utilizing additional clarifying language in its opinion. It repeatedly distinguishes the legal term of art from the contradictory general definition by renaming the general “mental disorder” mental illness. Indeed, the difficulty the Majority—and no doubt the jury—encountered is further highlighted by the most recent version of the jury instruction. This version includes clarifying language “to make it more understandable to the jury and to address an inconsistency in the  version.” See Majority, ¶14 n.4; see also Wis JI—Criminal 2502 n.9 (2011).
¶25 In Sanders’s case, the importance of the distinction between “mental disorder” as a legal term of art and “mental disorder” as a general mental illness is far from purely semantic. Using the given instruction, the jury could have easily confused the legal term of art with the contradictory, general definition of “mental disorder.” It could have found Sanders to be a sexually violent person based merely on the fact that he was diagnosed as having an unspecified form of paraphilia and antisocial personality disorder—which would have been inadequate under the law—instead of determining that his paraphilia and/or antisocial personality disorder: (1) predisposed him to engage in acts of sexual violence, and (2) caused him serious difficulty in controlling behavior such that he was likely to reoffend.