June 11, 2023

Forensic psychologists denied absolute immunity

Does working for a government agency give a forensic psychologist license to do or say pretty much anything without legal consequence, even if it violates a subject’s Constitutional rights?


That is the intriguing question addressed by the U.S. Ninth Circuit Court of Appeals in a recent decision relating to the civil rights of people behind bars.

The ruling in Gay v. Parsons stems from a risk assessment by two psychologists working for California’s Board of Parole Hearings. Omar Sharrieff Gay, a California prisoner, filed suit against the psychologists, claiming that their opinion that he was at high risk for violence was influenced by racial and religious animus.

Gay was serving an indeterminate sentence of nine years to life for the attempted murder of a police officer. His crime took place in 1989, when he was a 21-year-old member of the Crips gang. A few years after going to prison, he converted to Islam and quit the gang.

In his civil rights claim, Gay described the psychologists' 2015 interview of him as feeling like “a military or police style interrogation.” He claimed that psychologists Amy Parsons and Gregory Goldstein asked hostile questions and made prejudicial comments, including:

“Why do you hate white people and Jews?”

“With everything going on in the world, at home with [Muslims], we don’t know if you are just another radical Islamic terrorist.”

When Gay took offense and asked if they would be asking those questions if he were a white Christian, Goldstein allegedly replied, “You’re a high risk for violence with that sarcastic attitude.”

Absolute immunity?

In their defense, the psychologists argued that they were absolutely immune from liability because they performed a function that was integral to the Parole Board, whose officers are immune from liability over their decisions. They contended that objectivity would suffer if psychologists had to worry about being sued over adverse opinions.

The Ninth Circuit disagreed.

Unlike the Parole Board officers, the psychologists did not have decision-making authority. Rather, their roles were merely advisory. Furthermore, the appellate opinion noted, they had not offered any evidence that their risk-assessment work subjected them to a burdensome volume of legal complaints. “An abstract fear of vexatious litigation” is not enough to merit immunity, the court held.

Further, Judge M. Margaret McKeown observed, the psychologists’ argument “ironically puts [them] in a position of hypothetically violating their professional principles and standards [that require them to] ‘exercise reasonable judgment and take precautions to ensure that their potential biases, the boundaries of their competence, and the limitations of their expertise do not lead to or condone unjust practices.’ ”

I did locate a contrasting decision in another California case, in which a psychologist was granted quasi-judicial (aka absolute) immunity. The distinction was that in that case, a child custody matter, the court had delegated decision-making authority to the psychologist to make certain orders regarding visitation. Without quasi-judicial immunity, the First Appellate District ruled in Bergeron v Boyd, custody evaluators would be “reluctant to accept court appointments or provide work product for the courts’ use. Additionally, the threat of civil liability may affect the manner in which they perform their jobs.”

The case of Gay v. Parsons isn’t over yet.

Qualified immunity?

There are two relevant kinds of immunity. There is absolute immunity, aka quasi-judicial immunity. This is the kind that judges get when acting in their judicial capacities. Similarly, legislators and government prosecutors.

Then there is qualified immunity. That’s the 1967 SCOTUS doctrine that has enabled police to get away with so much corrupt and violent conduct. It bestows immunity to government representatives who unlawfully violate a person’s constitutional rights unless they should have known at that time that they were violating “clearly established law” based on a prior similar case.

With the Ninth Circuit ruling that the psychologists are barred from claiming absolute immunity, the case now reverts back to a district court for a determination as to whether the psychologists can claim this qualified immunity.

The psychologists may have more luck with this. I found several judicial decisions around the country in which psychologists were granted qualified immunity. These included one in Louisiana where the psychologist was assisting the state’s psychology board, as well as cases in both Louisiana and Nebraska involving clinicians working at state hospitals.

In contrast, in a previous Ninth Circuit case, Jensen v. Lane County, the court held that a psychiatrist who was evaluating individuals for the county to determine their eligibility for involuntary hospitalization was not entitled to qualified immunity.

So, it could go either way.

Whatever the outcome of his lawsuit, Omar Gay has moved on.

After he underwent a new risk assessment by a different psychologist who deemed him at only moderate risk, the Parole Board voted in October 2021 to cut him loose. He was 53 years old at the time, and had spent 32 years behind bars. 

* * * * *

A YouTube video of the 9th Circuit hearing in Gay v. Parsons is HERE. A webinar on psychology and qualified immunity, featuring psycholegal scholar Jessica Bregant of Indiana University, is HERE.

February 15, 2020

Flawed science? Two efforts launched to improve scientific validity of psychological test evidence in court

There’s this forensic psychologist, we’ll call him Dr. Harms, who is infamous for his unorthodox approach. He scampers around the country deploying a bizarre admixture of obscure, outdated and unpublished tests that no one else has ever heard of.

Oh, and the Psychopathy Checklist (PCL-R). Dr. Harms never omits that. To him, everyone is a chillingly dangerous psychopath. Even a 30-year-old whose last crime was at age 15.

What’s most bizarre about Dr. Harms’s esoteric method is that he gets away with it. Attorneys may try to challenge him in court, but their protests usually fall flat. Judges rule that any weaknesses in his method should go to the “weight” that jurors give Dr. Harm’s opinions, rather than the admissibility of his tests.

Psychological tests hold a magical allure as objective truth. They retain their luster even while forensic science techniques previously regarded as bulletproof are undergoing unprecedented scrutiny. Based in large part on our briefcases full of tests, courts have granted psychologists unprecedented influence over an ever-increasing array of thorny issues, from future dangerousness to parental fitness to refugee trauma. Behind the scenes, meanwhile, a lucrative test-production industry is gleefully rubbing its hands all the way to the bank.

In other forensic “science” niches such as bite-mark analysis and similar types of pattern matching that have contributed to wrongful convictions, appellate attorneys have had to wage grueling, decades-long efforts to reign in shoddy practice. (See Radley Balko's The Cadaver King and the Country Dentist for more on this.) But leaders in the field of forensic psychology are grabbing the bull by the horns and inviting us to do better, proposing novel ways for us to self-police.

New report slams "junk science” psychological assessments

In one of two significant developments, a group of researchers today released evidence of systematic problems with the state of psychological test admissibility in court. The researchers' comprehensive survey found that only about two-thirds of the tools used by clinicians in forensic settings were generally accepted in the field, while even fewer -- only about four in ten -- were favorably reviewed in authoritative sources such as the Mental Measurements Yearbook.

Despite this, psychological tests are rarely challenged when they are introduced in court, Tess M.S. Neal and her colleagues found. Even when they are, the challenges fail about two-thirds of the time. Worse yet, there is little relationship between a tool’s psychometric quality and the likelihood of it being challenged.

Slick ad for one of a myriad of new psych tests.
“Some of the weakest tools tend to get a pass from the courts,” write the authors of the newly issued report, "Psychological Assessments in Legal Contexts: Are Courts Keeping 'Junk Science' Out of the Courtroom?”

The report, currently in press in the journal Psychological Science in the Public Interest, proposes that standard batteries be developed for forensic use, based on the consensus of experts in the field as to which tests are the most reliable and valid for assessing a given psycholegal issue. It further cautions against forensic deployment of newly developed tests that are being marketed by for-profit corporations before adequate research or review by independent professionals.

"Life or death" call to halt prejudicial use of psychopathy test

In a parallel development in the field, 13 prominent forensic psychologists have issued a rare public rebuke of improper use of the controversial Psychopathy Checklist (PCL-R) in court. The group is calling for a halt to the use of the PCL-R in the sentencing phase of death-penalty cases as evidence that a convicted killer will be especially dangerous if sentenced to life in prison rather than death.

As I’ve reported previously in a series of posts (here and here, for example), scores on the PCL-R swing wildly in forensic settings based on which side hired the expert. In a phenomenon known as adversarial allegiance, prosecution-retained experts produce scores in the high-psychopathy range in about half of cases, as compared with less than one out of ten cases for defense experts.

Research does not support testimony being given by prosecution experts in capital trials that PCL-R scores can accurately predict serious violence in institutional settings such as prison, according to the newly formed Group of Concerned Forensic Mental Health Professionals. And once such a claim is made in court, its prejudicial impact on jurors is hard to overcome, potentially leading to a vote for execution.

The "Statement of Concerned Experts," whose authors include prominent professionals who helped to develop and test the PCL-R, is forthcoming from the respected journal Psychology, Public Policy, and Law.

Beware the all-powerful law of unintended consequences

This scrutiny of how psychological instruments are being used in forensic practice is much needed and long overdue. Perhaps eventually it may even trickle down to our friend Dr. Harms, although I have a feeling it won't be before his retirement.

But never underestimate the law of unintended consequences.

The research group that surveyed psychological test use in the courts developed a complex, seemingly objective method to sort tests according to whether they were generally accepted in the field and/or favorably reviewed by independent researchers and test reviewers.

Ironically enough, one of the tests that they categorized as meeting both criteria – general acceptance and favorable review – was the PCL-R, the same test being targeted by the other consortium for its improper deployment and prejudicial impact in court. (Perhaps not so coincidentally, that test is a favorite of the aforementioned Dr. Harms, who likes to score it high.)

The disconnect illustrates the fact that science doesn’t exist in a vacuum. Psychopathy is a value-laden construct that owes its popularity in large part to current cultural values, which favor the individual-pathology model of criminal conduct over notions of rehabilitation and desistance from crime.

It’s certainly understandable why reformers would suggest the development of “standard batteries … based on the best clinical tools available.” The problem comes in deciding what is “best.”

Who will be privileged to make those choices (which will inevitably reify the dominant orthodoxy and its implicit assumptions)?

What alternatives will those choices exclude? And at whose expense?

And will that truly result in fairer and more scientifically defensible practice in the courtroom?

It’s exciting that forensic psychology leaders are drawing attention to the dark underbelly of psychological test deployment in forensic practice. But despite our best efforts, I fear that equitable solutions may remain thorny and elusive.

January 14, 2020

Showdown: DNA evidence vs. cognitive bias

Back in the 1980s, southern Alameda County in the East Bay was the hellmouth for serial murder. As a newspaper reporter covering the crime beat, I was reporting on at least three separate fiends prowling the suburbs and picking off young teenage girls at whim.

It was harder to stop them back then. Forensic DNA was still in its infancy. The historic evidentiary hearings in Oakland, California on the admissibility of DNA typing, with full-scale scientific battles tying up courtrooms for months on end, were still a few years away.

Tina Faelz and her mother Shirley
Fourteen-year-old Tina Faelz was one of the victims. In 1984, she was found dead with 44 stab wounds. She had taken a shortcut through a drainage culvert while walking home from school.

(As a side note, Tina had walked home that day because a group of girls was planning to beat her up if she rode the bus. Bullies tyrannized Foothill High School in suburban Pleasanton; on the same day as Tina’s murder, an alpha-male bully threw a football player into a dumpster and locked the lid.)

Detectives had no shortage of suspects. There was the mother’s violent boyfriend. There was the aforementioned school bully, whom someone had spotted near the crime scene. There was a man who was arrested shortly after Tina’s death for a similar assault in which the girl managed to escape.

What they lacked was hard evidence.

The case went cold for decades. It was finally cracked just a few years ago, thanks to the intersection of DNA science and a cop’s pregnancy. Detective Dana Savage couldn’t be on the streets due to her pregnancy, so she decided to take a gander at the vexing cold case.

Detective Savage was fairly certain that the culprit was one of two serial killers who’d been active in the region at the time; she just didn’t know which one. Based on the vigor of the attack, she figured the killer must have shed some blood, so all she needed was something to test for DNA. She struck gold with the victim’s purse, which had been found lodged in a nearby tree.

But when Savage got the call from the crime lab, she was in for a surprise. The culprit was not one of the serial killers. Nor was it any of the original suspects.

It was the 16-year-old classmate who’d been thrown into the school dumpster earlier in the day.

After killing Tina, Steven Carlson had dropped out of school and spent the next 30 years abusing meth and bouncing in and out of custody. When police came to talk to him, he started retching violently. He was tried and convicted, and is now serving a 16–to-life sentence.

It’s unfortunate that it took so long to catch the killer. But on the bright side, the Pleasanton police did things right: They kept their minds open and never fixated on the wrong person. That would have been far worse.

Barking up wrong trees

In other cases during that violent era, police sometimes got it tragically wrong. For example, when 8-year-old girl Cannie Bullock was raped and murdered in her home in nearby San Pablo, Detective Mark Harrison fixated relentlessly on William Flores, the sexually creepy guy next door, literally driving him to his grave. (If every creepy guy was a murderer there wouldn’t be many women left on the planet, or even many male cops if you believe the dismal statistics in the must-watch Netflix series Unbelievable.) Even after Flores self-immolated, the detective wouldn’t let him rest in peace. Once DNA technology became available, Harrison got a court order to dig up Flores’s body, certain the test results would clear the long-dormant case.

He was dead wrong. The DNA didn’t match that found on the little girl’s body.

(That case went cold for many years. Finally, DNA from a man convicted of sexual assault in Colorado was routinely entered into a database, which spit out a match. The killer, Joseph Cordova, was never a suspect in the girl’s killing, although he lived and worked in the area and had used drugs with the girl’s mother. He is now parked on California’s death row.)

But here’s the really bad news: Even with modern DNA technology’s miraculous crime-solving capabilities, fixations like Detective Harrison’s still lead police astray with some regularity. In particular, forensic science is no match for a priori stereotypes about the bad guys.

A case in point: The murder of elderly Leola Shreves in Yuba City, California.

The attack was frenzied. As detailed by San Francisco Chronicle reporter Matthias Gafni, the TV set was smashed and a door was ripped from its hinges. The 94-year-old victim had been tortured, strangled and beaten to a pulp. Her teeth were shattered, her jaw and back broken, and 17 of 24 ribs cracked. Her ears and scalp were nearly ripped from her skull.

Police quickly latched onto the next-door neighbor, a socially awkward video-game devotee. Michael Alexander aroused police suspicion in part due to his troubled past: He had been arrested at age 15 for threatening to kill a high school teacher and burn down the school after fighting with and choking another student.

Burdened with an intellectual disability, the 20-year-old was no match for the seasoned detectives who brought him in for questioning. When he denied ever being at his neighbor’s house, police lied to him, saying his fingerprints, shoe prints and DNA had all been found there. When he continued to profess his innocence, detectives suggested that maybe he had blacked out, and an alter ego named “Angry Mike” had committed the crime. Alexander’s na├»ve acceptance of the detectives’ ruses eventually led him to accede to their version of reality despite not having any recollection of it.

For anyone with expertise on false confessions, Alexander’s had all the classic hallmarks. It was replete with maybes and probabilities. The details did not match the evidence from the crime scene. And Alexander immediately recanted.

“Have you been looking for the real killer?” he later asked the detectives.

His question fell on deaf ears. He was arrested and charged with capital murder.

Unbeknownst to him at the time, there was indeed an abundance of real physical evidence – DNA, fingerprints and shoe prints. All of it excluded him and pointed to someone else.

Astonishingly, the identity of Shreve’s killer was in front of the detectives the entire time, but it took them six long years to realize it.

Armando Cuadras
On the night of the murder, a man named Armando Cuadras was found collapsed on the street just 300 yards away, drunk and badly injured. He was taken to the hospital by ambulance, but police failed to connect the two events. Cuadras, whose DNA was splattered all over the bloody crime scene, is now awaiting trial.

Mental blinders

Cognitive scientists have various names for the mental processes that cause people to prematurely focus on one solution to the exclusion of other possibilities. Tunnel vision. Myopia. Confirmation bias. In essence, the Yuba City police identified a suspect, based in part on their preconceived ideas about what a guilty person should look like, and in the process closed their minds to alternate possibilities.

Then, once all of the physical evidence came back and screamed out Alexander’s innocence, cognitive dissonance kicked in: It can be hard to abandon a firm belief even when confronted with irrefutable evidence that it is wrong. Cognitive dissonance was on florid display in the infamous case of the Central Park Five. As documented in the powerful Netflix series When They See Us, prosecutors still refuse to accept overwhelming evidence of the young men’s innocence. Such is the power of cognitive blinders. (My blog post on that astonishing case is HERE.)

Unfortunately, when police focus on the wrong person they not only destroy the suspect’s life, but also allow the real culprit to remain free, thereby endangering others in the community. There are myriad cases of very dangerous men who went on to rape and kill again after police investigators failed to diligently pursue all leads. (Again, let me plug the harrowing series Unbelievable.)

After almost two years in jail, Alexander was finally set free and the charges against him dismissed. But even with another suspect in custody and awaiting trial, police and prosecutors have stubbornly refused to concede that Alexander is innocent.

Which just goes to show, even the miracles of DNA typing are no match for minds that are rigidly shut.

* * * * *

FURTHER RESOURCES: The transcript of Michael Alexander's confession is available online, and is a good resource for teaching and learning about false confessions. Tina Faelz's killing is the subject of a true-crime book, Murder in Pleasanton, which includes back-story information not available elsewhere. If you are interested in diving deeper into the problem of cognitive biases in police investigations and how they can be avoided, a great resource is Criminal Investigative Failures, edited by D. Kim Rossmo. Two chapters I especially recommend are "Who Killed Stephanie Crowe," focusing on the appalling case that I've blogged about several times in which a 14-year-old boy was wrongfully arrested in his sister's murder, and "On the Horns of a Narrative," by my colleague David Stubbins and his brother, which focuses specifically on cognitive biases in criminal investigations.

A NOTE TO MY FAITHFUL SUBSCRIBERS: My apologies for the diminishing quantity of posts as of late. I'm working on a couple of larger writing projects. I also Tweet regularly on forensic psychology and criminology topics, so feel free to follow me on Twitter for more regular news and commentary.

June 10, 2019

BJS fuels myths about sex offense recidivism, contradicting its own new data

A new government report reinforces harmful misconceptions about people convicted of sex offenses. Here's our take on how to parse the data.

Guest post by Wendy Sawyer, Prison Policy Initiative*

By now, most people who pay any attention to criminal justice reform know better than to label people convicted of drug offenses “drug offenders,” a dehumanizing label that presumes that these individuals will be criminals for life. But we continue to label people “sex offenders” – implying that people convicted of sex offenses are somehow different.

A new report released by the Bureau of Justice Statistics should put an end to this misconception: The report, Recidivism of Sex Offenders Released from State Prison: A 9-Year Follow-Up (2005-2014), shows that people convicted of sex offenses are actually much less likely than people convicted of other offenses to be rearrested or to go back to prison.

But you wouldn’t know this by looking at the report’s press release and certain parts of the report itself, which reinforce inaccurate and harmful depictions of people convicted of sex offenses as uniquely dangerous career criminals. The press release and report both emphasize what appears to be the central finding: “Released sex offenders were three times as likely as other released prisoners to be re-arrested for a sex offense.” That was the headline of the press release. The report itself re-states this finding three different ways, using similar mathematical comparisons, in a single paragraph.

What the report doesn’t say is that the same comparisons can be made for the other offense categories: People released from sentences for homicide were more than twice as likely to be rearrested for a homicide; those who served sentences for robbery were more than twice as likely to be rearrested for robbery; and those who served time for assault, property crimes, or drug offenses were also more likely (by 1.3-1.4 times) to be rearrested for similar offenses. And with the exception of homicide, those who served sentences for these other offense types were much more likely to be rearrested at all.

The new BJS report, unfortunately, is a good example of how our perception of sex offenders is distorted by alarmist framing, which in turn contributes to bad policy. That this publication was a priority for BJS at all is revealing: this is the only offense category out of all of the offenders included in the recidivism study to which BJS has devoted an entire 35-page report, even though this group makes up just 5% of the release cohort. This might make sense if it was published in an effort to dispel some myths about this population, but that’s not what’s happening here.

Framing aside, the recidivism data presented in the BJS report can offer helpful perspective on the risks posed by people after release. Whether measured as rearrest, reconviction, or return to prison, BJS found that people whose most serious commitment offense was rape or sexual assault were much less likely to reoffend after release than those who served time for other offense types. The BJS report shows that within 9 years after release:
  • Fewer than 67% of those who served time for rape or sexual assault were rearrested for any offense, making rearrest 20% less likely for this group than all other offense categories combined (84%). Only those who served time for homicide had a lower rate of rearrest (60%). 
  • People who served sentences for sex offenses were much less likely to be rearrested for another sex offense (7.7%) than for a property (24%), drug (18.5%), or public order (59%) offense (a category which includes probation and parole violations).
  • Only half of those who served sentences for rape or sexual assault had a new arrest that led to a conviction (for any offense), compared to 69% of everyone released in 2005 (in the 29 states with data).
While the data were more limited on returns to prison,1 the study found that within 5 years after release, people who had served sentences for rape or sexual assault also had a lower return-to-prison rate (40%) compared to the overall rate for all offense types combined (55%). BJS notes that some of these returns to prison were likely for parole or probation violations, but because of data limitations, it is impossible to say how many were for new offenses, much less how many were for rape or sexual assault.

In sum, the BJS data show that people who served time for sex offenses had markedly lower recidivism rates than almost any other group. Yet the data continue to be framed in misleading ways that make it harder to rethink the various harmful and ineffective punishments imposed on people convicted of sex offenses.

The recidivism data suggest that current legal responses to people convicted of sex offenses are less about managing risk than maximizing punishment. The desire for retribution is understandable; unquestionably, rape and sexual assault inflict serious and lasting trauma. But our criminal justice system does a poor job of providing survivors of rape, sexual assault, and other violent crimes what they really want. In a 2016 survey of crime survivors, the Alliance for Safety and Justice found that, “Survivors of violent crime — including victims of the most serious crimes such as rape or murder of a family member — widely support reducing incarceration to invest in prevention and rehabilitation and strongly believe that prison does more harm than good.” But more prison time is the default response: those released after serving sentences for rape and sexual assault served longer sentences, with a median sentence of 5 years (compared to 3 years for all others combined) and more than a quarter serving 10 years or more before release.

And for many people convicted of sex offenses, confinement doesn’t end when their prison sentence does. Twenty states continue to impose indefinite periods of involuntary confinement under civil commitment lawsafter individuals have completed a sentence (or, in some cases, before they are even convicted). Proponents justify the practice as “treatment,” but conditions of civil commitment are punitive and prison-like, and this confinement is hard to justify with the recidivism data we have. The likelihood of post-release arrest for another rape or sexual assault for this group is less than 2% in the first year out of prison, and after 9 years, fewer than 8% have been rearrested for a similar offense. Those who are released at age 40 or older are even less likely to be rearrested for another sex offense, with re-arrest rates about half those of people who are released at age 24 or younger.

After prison, a number of other special restrictions make reentry especially challenging for those who have served sentences for sex offenses, including registration, public notification, and restrictions to residence and employment. (Even before release, some restrictions make it difficult for some people to leave prison when they would otherwise be paroled.) These restrictions tend to cause more problems than they solve. Residence restrictions in particular have contributed to homelessness and other problems in cities where they leave little room for returning citizens. According to a 2015 U.S. Department of Justice brief, “residence restrictions may actually increase offender risk by undermining offender stability and the ability of the offender to obtain housing, work, and family support.”

In another recent academic article, Hanson et al. agree that these additional restrictions are “justified on the grounds of public protection,” even though the underlying assumptions may be wrong: “Individuals are targeted because policy-makers believe they are likely to do it again. This is a testable assumption, and, as it turns out, not entirely true.” Their analysis shows that individual recidivism risk varies widely, can be low enough to be indistinguishable from that of people convicted of non-sex offenses, and drops predictably over time. The data published by BJS track with those findings.

Collectively, the research seems fairly clear: our responses to people convicted of sex offenses do not reflect the actual – generally low – risks they present. Instead of panicking about the small portion who reoffend after release, it’s time we talk more rationally about responses that effectively support desistance from crime – and serve the actual needs of victims of violence.

* Wendy Sawyer is a Senior Policy Analyst at the Prison Policy Initiative. This essay is reposted with the kind permission of the Prison Policy Initiative.  


  1. Only 23 states could provide the necessary data for the 5-year follow-up period, and only 17 could do so for the entire time frame. The BJS report only includes return-to-prison rates for the first 5 years after release in the 23 states with the necessary data.
  2. Conversely, it also only captures those behaviors that are caught by police. People who break laws after release but are never arrested would not be captured in recidivism data at all. Police presence and enforcement are therefore factors that affect recidivism statistics, as are prosecutorial decisions (for reconviction rates) and sentencing policies and practices (for reincarceration rates).
  3. While the BJS study compares overall rates of reconviction and returns to prison by most serious commitment offense, only the rearrest data allows us to compare post-release offenses by most serious commitment offense.

March 6, 2019

$28 million award for “Beatrice 6” whom police psychologist helped railroad to prison

"For years, a group of outcasts in Beatrice, Neb., were convinced they had brutally raped and murdered an elderly woman named Helen Wilson one night in February 1985, even though they couldn’t remember any of it."

That’s the lead of today’s story in the Washington Post, announcing a $28.1 million award to the “Beatrice Six” who spent a collective 70 years in prison before being exonerated a decade ago.

Of interest to this blog’s audience is the role of the police psychologist. As I blogged about back in 2008, Wayne R. Price, PhD saw no ethics conflict in helping to interrogate the suspects even though he had previously provided therapy to two of the young women. Dr. Price reportedly reassured the suspects that their lack of any recollection of the crime was because they had repressed the traumatic memory. He later assisted them in reconstructing the details of their imagined crime.

The Beatrice Six. Credit: Omaha World-Herald
As experts increasingly recognize, false confessions are not all that rare. What was unusual here was that several of the innocent suspects remained convinced of their guilt for years, leading to deep remorse and shame as chronicled by reporter Rachel Aviv in a fascinating New Yorker profile.

“You have a group of people who are led to share the same delusion, at the same time, with major consequences,” the psychiatrist who evaluated the Beatrice Six after their exonerations told Aviv. “Their new beliefs superseded their previous life experiences, like paper covering a rock.”

Joseph White in 2009, two years before his death (Nati Harnik/AP)
Remarkably, only one of the six suspects proved capable of withstanding the interrogative pressure. Although Joseph White remained fully convinced of his innocence throughout the ordeal, he was convicted anyway based on his friends’ false memories.

It was Mr. White's persistence that led to the ultimate exonerations. He repeatedly petitioned for DNA testing of the crime-scene evidence. When the testing was finally done, it implicated a different man, who by this time was long dead of AIDS.

Tragically, Mr. White won't get a penny of the $28.1 million award upheld this week by the U.S. Supreme Court. He died in a refinery accident in 2011, two years after filing his civil-rights lawsuit.

My original blog post from 2008 is HERE. Today’s Washington Post story contains additional background, commentary and links. I highly recommended the 2017 New Yorker investigation of the case. 

Hat tip: Phil T.

September 25, 2018

Kavanaugh exposed: Sexual assault as masculine theater

And the answer to the oft-asked question, "If it was so bad, why didn't she report it?"

Calvin Klein ad glorifying group rape
He unzipped his pants, whipped out his penis and thrust it in her face. "Kiss it!" cried others in the dorm room, jeering and taunting. She pushed him away, inadvertently touching his dangling member. Word of the escapade spread rapidly through the university grapevine, humorous for some and unsettling for others. 

The mushrooming allegations against Supreme Court nominee Brett Kavanaugh share a common denominator: Each took place in full view of other men. These were not furtive attempts to gratify lust. They were (if true) proud demonstrations of male entitlement and power.

As I have written about previously, multiple-offender rape is a distinct type of sexual violence. It is a form of cultural theater, in which the victim serves as a dramatic prop through which men publicly demonstrate their heterosexual masculinity to each other.

In weighing reactions to the Kavanaugh allegations, it is instructive to contrast the two disparate scripts of so-called “gang rape” that I found in a study of media coverage of high-profile cases. When the actors are men of color, we see a Feral Beasts narrative that taps into a deep reservoir of racial fears to cast the offenders as amoral savages viciously ravishing innocent victims. In contrast, with high-status men such as Kavanaugh, a Good Guys script trivializes the event as merely a youthful and isolated indiscretion.

Group rape prelude, DC Comics
But group rape is no youthful mistake. It is functional behavior. It serves a purpose. Masculinity is a fragile identity that must be earned and then repeatedly proven. The public humiliation of females (and in some cases weaker or feminine men) is one dramatic method for publicly demonstrating hegemonic masculinity. Ritualistic conquest of the feminine “other” serves to visibly prove heterosexual masculinity and celebrate gendered power while simultaneously cementing male social bonds through mutual complicity in taboo acts. 

And what better object of display than the penis itself, the instrument of maleness brandished as a weapon to denigrate a drunken woman and establish her gendered powerlessness.

This misogynist performance art is not randomly distributed. As I discussed in my earliest analysis of this phenomenon – an in-depth exploration of an incident in which a group of high school athletes in Long Island, New York sexually assaulted younger male teammates – subcultures that germinate the seeds of group rape share a preoccupation with masculinity, or the extrusion of all things feminine.

Historically, masculinist social norms have thrived in all-male settings such as fraternities, military forces, street gangs, police departments, rock groups, and aggressive sports teams. So it is no coincidence that Judge Kavanaugh came of age in just such an all-male, misogynist milieu.

There were the lascivious Friday morning announcements, usually delivered by a senior:

Kavanaugh (far left) and teammates brag in yearbook about "Renate,"
an unwitting girl from a nearby Catholic girls' school

“After the [football] game, there will be a mixer. Girls from Holy Cross, Holy Child and Visitation ... will ... be ... available.” 

To facilitate this sexual availability, Georgetown boys were in the habit of getting girls “blind drunk” on a concoction of “jungle juice”; to them, girls were nothing but “meat,” one girl recalled. The sexual abuse of girls was so rampant that more than 1,000 alumnae of Holton-Arms, the girls’ school down the road, have signed a letter in support of former alumnae Christine Blasey (Ford), saying her account of Kavanaugh’s attempted rape is entirely consistent with the experiences they too had “heard and lived.”

Most recently, attorney Michael Avenatti (of Stormy Daniels fame) is claiming to possess “significant evidence” from a reputable source of multiple house parties in which Kavanaugh, his buddy Mark Judge, and others would ply vulnerable girls with alcohol in order to pull “trains,” or gang-rape them. Avenatti is not the most desirable source for a bombshell claim like this; he is "a relentless self-promoter" who is obviously thrusting himself into the center of the controversy for his own self-aggrandizement. However, Judge’s ex-girlfriend confirms that Judge told her he participated in at least one such train, lending some support for Avenatti's allegation.

UPDATE 9/26/18 0900:  Avenetti has just released a sworn declaration by his client, Julie Swetnick, claiming she was gang raped at a house party attended by Kavanaugh and his friend Mark Judge. She says she confided in at least two people at the time. (She subsequently told MSNBC that she reported the assault to police.) She also claimed she attended other house parties at which the two were among a group of males who may have drugged girls in order to take advantage of them. She says that Kavanaugh was a "mean drunk" who was verbally and physically abusive to girls, engaging in behaviors "designed to demean, humiliate and embarrass them."

An assortment of other people -- both male and female -- have come forward publicly to describe Kavanaugh as a heavy drinker in high school and college who became belligerent when intoxicated. A woman going by the pseudonym "Elizabeth" has described an incident in which an inebriated Kavanaugh became "obnoxious and crude" with her, to the merriment of his football buddies, causing her to flee a party and avoid him thereafter. Additionally, Kavanaugh got into at least one bar fight in which he allegedly threw his drink on a man; his friend was taken into police custody for hitting the man with a glass. 

The reporting penalty

Kavanaugh supporters – including the man who nominated him – have retorted by asking why neither Dr. Blasey nor Deborah Ramirez (the victim of the Yale University penis-dangling incident) reported these offenses when they happened. This is a common question. It comes up all the time at sexual assault trials in which I serve as an expert consultant.

But it is the wrong question.

The correct question is: Why in the world do any (albeit few) young women opt to report sexual assault, when the deck is stacked against them and reporting will most likely compound their suffering?

Overall, only about one out of every three or four sexual assaults is reported to police. The reporting rates are thought to be even lower – as low as 10 percent – for acquaintance rapes of teenage girls and young women. Coming forward is extraordinarily courageous. But from my vantage point in the trenches, I often find myself wondering whether it is perhaps foolhardy as well, stemming from a skewed calculus of the relative risks and benefits. Because at every step – from the police station to the courtroom and beyond – reporting has unintended negative effects on privacy, social and family relations, and even on one’s very sense of self.

As the victim who is brave (or foolhardy) enough to come forward quickly learns, being on the receiving end of gendered power means that you don't control the discourse.

The “lying bitches” unit

First, there is the police problem. Police departments are precisely the type of hypermasculine milieu in which misogynist attitudes have traditionally flourished, and walking into a police station can be like entering the lion’s den.

Multiple surveys reveal that police to this day remain highly suspicious of rape claimants, erroneously believing that large numbers – up to 80 percent – are lying. [After the Judiciary Committee hearing on Sept. 27, a police officer in Jonesboro, Arkansas took to social media to publicly proclaim Dr. Blasey a liar, citing the ludicrous 80 percent statistic.] As an extreme example of police hostility, a former detective in Philadelphia’s rape unit reportedly called it the “lying bitches unit.” Accordingly, he was in the habit of miscoding rape reports as noncriminal offenses, thereby preventing them from being counted, much less prosecuted. (Such data machinations have the added advantages of bolstering police crime-solving rates while artificially lowering a community’s overall crime rates.)

Police and prosecutorial recalcitrance remains a major barrier to successful prosecution. In one county in Pennsylvania, for instance, at least 85 people, include 44 teenagers, have reported rapes to police in the past three years, yet charges were filed in just two of those cases, resulting in only one conviction. In a new report, the U.S. Police Executive Research Forum warns that high rates of downgrading or “unfounding” of rape allegations is a red flag; journalists have exposed such systematic practices in several large U.S. cities, including St. Louis, New Orleans, Cleveland, Baltimore, and New York City.

Deer on wall of shed where Amber Wyatt was raped (police evidence photo)
I was involved in one such case recently, in which a rape allegation mysteriously vanished. The 16-year-old victim, "Jessica," had promptly reported a credible sexual assault by an older classmate. Despite collecting physical evidence – both from Jessica's body and from a used condom left at the scene – police did not even bother to question the perpetrator, dismissing the rape as a “he-said, she-said” situation. It wasn’t until the assailant went on to commit at least three further sexual assaults that he was finally brought to justice. Naturally, that happened in a different jurisdiction.

Reporter Elizabeth Bruenig spent three years investigating the appalling case of another 16-year-old girl, a cheerleader from her hometown who was viciously raped while intoxicated by two athletes at a high school party. Like 16-year-old Jessica, Amber Wyatt had also promptly reported the assault to police. Physical evidence, including vaginal and anal tearing and one of the boys' semen inside her, corroborated her account. Yet no one was ever prosecuted. Her hometown turned against her, and she became a pariah. 

Outside of the U.S., meanwhile, police in some locales put the onus on victims to prove that their histories are unblemished before a case may proceed. In London, police are demanding unfettered access to vast quantities of highly personal records such as health data, school records and social media accounts, data that are not routinely collected from suspects. 

This intense scrutiny hints at the greater peril a woman faces at the next, more adversarial stage. Even when police investigate diligently and prosecutors determine there is enough credible evidence to file charges, the courtroom remains inescapably dangerous for the rape victim, a site of potential revictimization and compounding of the initial trauma. 

The "real" rapist of the public imagination
In criminal trials, a claim of rape is measured against the popular stereotype of a “real rape.” Real rapists are strangers to their victims. They wield knives or guns. They use physical force, and inflict physical injury. In reality, the proportion of such rapes is small. An estimated 90 percent of assailants know their victims. Typically, there is no weapon (other than alcohol), and the victim does not suffer visible injuries. The rape may be an impulsive crime of opportunity. Or, a victim may be targeted because she is easy prey due to such vulnerabilities as intoxication, social or physical isolation, naivety, or a desire to fit in with the popular crowd.

Acquaintance rape is essentially a confidence trick. The rapist exploits the victim’s psyche to gain her trust. The victim is taken by surprise. Girls are trained from a young age to be polite and compliant. So when caught off guard, fighting back aggressively against someone they know (and trusted up until that very moment) does not come naturally. But any dearth of physical resistance will be deployed against them later, in court. 

In other words, with the benefit of 20/20 hindsight, the victim in the prototypical acquaintance rape has just about always done things “wrong.” Maybe she drank too much. Maybe she flirted. Most likely, she made a poor choice – such as trusting the wrong guy or getting in the wrong car – that put her in a vulnerable position. Perhaps she did not physically resist to the degree that many men – with their different gender socialization – believe that a "real" victim would. Maybe her character is flawed, as evidenced by her sexual history or her mental health.

It is especially unreasonable to expect a 15- or 16-year-old girl to have the instincts (which are born out of experience) to anticipate that something bad is going to happen, and the skills necessary to extricate herself in time to avoid the assault. Perhaps it is no coincidence that girls in this age range are at especially heightened risk for victimization.

The requirement of a perfect victim is a very high bar. Invariably, case-specific factors can be found to cast aspersions on the victim's reputation or decision-making, thereby diminishing her credibility and recasting the incident so that the suspect is recast as victim. Unless there are multiple victims (and sometimes not even then), it is very difficult for the prosecution to prevail. Often, in the cases I observe, the accused is acquitted, perhaps using the defense of an honest (mis)belief that he had consent.

He walks out of the courtroom smiling, his invincibility shield intact. For her, the nightmares continue.


It is not just the rest of the world who judges the victim and finds her lacking. The victim is her own worst critic, nagged by a profound sense of shame and self-blame. Why did she trust him? Why did she get drunk? Why didn’t she fight harder? Why? Why? Why?

In a candid account of her own sexual assault victimization and failure to report, Atlantic contributor Caitlin Flanagan writes about the intense self-loathing an attempted “date rape” unleashed in her:

“In my mind, it was not an example of male aggression used against a girl to extract sex from her. In my mind, it was an example of how undesirable I was. It was proof that I was not the kind of girl you took to parties, or the kind of girl you wanted to get to know. I was the kind of girl you took to a deserted parking lot and tried to make give you sex. Telling someone would not be revealing what he had done; it would be revealing how deserving I was of that kind of treatment.” 

Although under normal circumstances it is the powerful who get to shape the dominant narrative and dictate who is to be believed, the Kavanaugh debacle is encouraging silenced voices to speak up – and to be believed by many. Flanagan believes Dr. Blasey. And so do most other women, if we are being honest. We’ve all been there. We’ve all been assaulted or harassed or denigrated. We’ve been made to feel small. We’ve blamed ourselves for male transgressions. We’ve witnessed these same things happening to other girls and women.

This is why Dr. Blasey’s story resonates among women, and presents such a potent threat for Kavanaugh and his base of support.

False allegations

Among his defenders, in contrast, Kavanaugh’s unwavering denial of wrongdoing is posited as evidence of innocence. But denial is only natural for an accused. If it proved innocence, the prisons would be empty. Denial proves lack of acceptance of responsibility, and nothing more.

In truth, contrary to the beliefs of many police officers and others in the general public, it is quite rare for women to fabricate allegations of sexual assault. Research has consistently found that only a tiny fraction of rape reports – perhaps 5 or 6 percent – are false, and these generally follow predictable and detectable patterns.

Protesters at Kavanaugh's alma mater, Yale University
The allegations against Kavanaugh do not fit the profiles of false reports. Dr. Blasey and Ms. Ramirez did not engage in “regret sex” with Kavanaugh. They have no personal vendettas. They are not mentally unstable or criminal fraudsters. Both are respected, middle-aged, professional women who have come forward quite reluctantly, imperiling their valued privacy and the safety of their families. If they were lying, we would expect exaggerated claims made with greater certitude. We wouldn’t expect Dr. Blasey to take and pass a polygraph exam. Even the small details point to veracity: Mark Judge jumping onto the bed with Kavanaugh and Blasey; the manner in which Kavanaugh zipped his pants after exposing his penis to Ramirez; both women's admitted gaps in memory for some peripheral details. Real crimes are clumsy and messy and awkward, just like these.


We are witnessing a wave of ignominious "himpathy" for Kavanaugh. Defenders of this powerful man lament that no man is safe, if a youthful indiscretion or two can come roaring back decades later and “destroy a good man’s career.” 

But let’s tease that apart a bit. First and foremost, the implication that all young men are rapists is horrendously defamatory of the male gender.

And while forgiving youthful transgressions sounds merciful, why is himpathetic compassion not equal opportunity? Why aren't these same individuals lobbying to end sex offender registries that impose lifelong societal exile on teenage boys and young men, often for one-off mistakes? Why aren’t they advocating on behalf of the forgotten boys (and girls) from disadvantaged backgrounds who languish in prison for decades (as chronicled by attorney Bryan Stevenson in his poignant Just Mercy)?

Kavanaugh snubs Fred Guttenberg,
father of a 14-year-old Parkland school shooting victim
Unlike some of his detractors, I am not especially worried about Kavanaugh coaching girls’ basketball. He may inadvertently communicate sexist attitudes. But, as I’ve explained here, his sexual assaults were not the product of sexual deviance. They were the efforts of a privileged male to prove his masculine dominance to his peers.

So the issue isn’t Kavanaugh's risk for sexual reoffense. It’s whether he is ethically and morally fit to serve on our nation’s highest court.

Kavanaugh has repeatedly called for "fairness" in the confirmation process. But is he himself someone who will exercise his authority fairly and on behalf of all citizens, including women? Is he someone who demonstrates fairness and empathy for those with less privilege?

We don’t have to look back into ancient history for clues to the answer. Judge Kavanaugh was a member of a three-judge panel that twice flouted U.S. Supreme Court recognition of the rights of Guantanamo detainees to seek federal court review of their detentions, suggesting he is no friend to the disenfranchised. And as he hides behind good deeds like volunteering at a soup kitchen, he callously turns his back and refuses to shake the proffered hand of a Parkland slaughter victim's father.

So, the question of fairness becomes, fairness to whom? Only to him, or to society writ large? If Kavanaugh is hurriedly ushered onto our nation's highest court, what message will that transmit – especially to today's youth on the cusp of adulthood – about fairness, and about the true status of girls and women in 21st-century America?