May 2, 2008

Fed court OK's unorthodox diagnoses for sex offenders

Last September, I posted about two legal challenges to the use of controversial psychiatric diagnoses to justify the civil commitment of sex offenders.

The US District Court for the Eastern District of Wisconsin has since issued final opinions on both challenges, allowing the use of the diagnoses of "Paraphilia Not Otherwise Specified-Nonconsent" and "Personality Disorder Not Otherwise Specified with Antisocial Features." Neither diagnosis is included in the psychiatric bible, the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR), nor are they commonly invoked in mainstream psychology or psychiatry. In the DSM, "NOS" is a residual category used when someone does not meet all criteria for a listed disorder; many clinicians refer to it as a "garbage diagnosis." (For a facetious take on the NOS label, see this essay.)

The twin rulings, against sex offenders Bruce Brown and Michael McGee, echo similar rulings in other states that make it easier for the government to get sex offenders involuntarily hospitalized after they finish serving their prison terms. To be Constitutional, according to the U.S. Supreme Court, such civil commitment based on a likelihood of future sex offending must be linked to a "mental disorder" or "mental abnormality." This is where psychologists and psychiatrists come in, and the industry has become a lucrative cash cow for some evaluators.

"Paraphilia Not Otherwise Specified-Nonconsent"

The tone of Judge Lynn Adelman's decision in the case of Brown v. Watters was a turnaround from his earlier ruling in the same case, in which he had sent the case back to the state court for additional proceedings. At that time, last July, he expressed doubts about use of the diagnosis of Paraphilia NOS-Nonconsent to justify civil commitment, saying it might be too broad to pass Constitutional muster: "[I]t may be that every criminal convicted of a sexual crime could be diagnosed with the disorder."

As the judge noted, a paraphilia is defined in the DSM as a chronic pattern of intense, sexually arousing fantasies, sexual urges, or behaviors generally involving nonhuman objects, suffering or humiliation, or children or other nonconsenting persons.

Rape is not included as one of the paraphilias in the DSM, and use of the residual category of "Not Otherwise Specified" for this legal purpose is controversial.

As of this writing, Brown's case is on appeal to the U.S. Court of Appeals for the 7th Circuit.

"Personality Disorder Not Otherwise Specified with Antisocial Features"

In a related case brought by sex offender Michael McGee, the same court also upheld the use of the diagnosis "Personality Disorder Not Otherwise Specified with Antisocial Features" as a basis for civil commitment.

The parallel opinions interpret the landmark U.S. Supreme Court case of Kansas v. Crane as allowing such unorthodox diagnoses in the service of "practicality." The Crane case, said the opinion in McGee v. Bartow, "made clear that courts should be driven more by practical considerations than the technical distinctions underlying much of psychiatry." The government "has wide latitude in defining a term like 'mental illness' or 'mental abnormality,' " echoed the ruling in Brown v. Watters, and need not limit itself to diagnoses that are "generally recognized in the medical community."

In other words, so long as experts testify that a sex offender has a disorder that causes him to have serious difficulty controlling his sexually violent behavior, the offender's Constitutional right to due process is satisfied.

Evaluator disputes characterization

Meanwhile, Dennis Doren, a prominent sex offender evaluator who testified in the Brown case, has issued a written statement in response to the Brown v. Watters opinion and my blog post last September reporting on the ruling.

In his statement, "Setting the Record Straight," Doren said the court was mistaken in claiming that he testified that he had created the diagnosis of Paraphilia NOS-Nonconsent. Rather, he wrote, he simply changed the extant phraseology from Paraphilia NOS-Rape (a more legal term) to Paraphilia NOS-Nonconsent (a more medical term), while creating a list of diagnostic indicators which he published in a manual for sex offender evaluators.

It is certainly true that Doren did not invent the concept of a preferential desire to rape, which has been recognized for a long time and has been called everything from bioastophilia to rapism. But most observers agree that Doren's manual did popularize and legitimize use of the "NOS" diagnosis in the sex offender civil commitment industry.

Doren said he made his recommendations not only to "bridge the gap or defiiciency of the DSM-IV" but also out of concern that evaluators were overdiagnosing Paraphilia NOS based simply on behavior, without regard to the requirement that the offender demonstrate a preference for forcible sex.

This type of overdiagnosis in the pursuit of civil commitment is a valid concern. Research suggests that only a small percentage of rapists are motivated by a preferential sexual attraction to rape. And offenders who are mislabeled face the daunting prospect of lifelong hospitalization without the due-process protections afforded by the criminal justice system.

These controversial diagnostic issues in civil commitment proceedings may finally be about to get some much-needed scrutiny and debate. The editor of the DSM-IV-TR, Michael First, has two articles in press taking issue with the way the DSM paraphilia diagnosis has been interpreted in civil commitment proceedings. His forthcoming editorial in the American Journal of Psychiatry is entitled "Issues for DSM-V; Unintended Consequences of Small Changes: The Case of Paraphilias." A lengthier analysis in the Journal of American Academy of Psychiatry and the Law is entitled "Use of DSM Paraphilia Diagnoses in Sexually Violent Predator Commitment Cases." Meanwhile, Doren's essay, "Setting the Record Straight," has also been accepted for publication, in Sex Offender Law Report.

Hat tip to
Susan Sachsenmaier for alerting me to the Wisconsin case developments


Anonymous said...

Sex Offenders are the other form of terrorist according to the government, because you don’t know who they are or where they are. So the government says to protect us and our children they will implant V Chips, not only in us, but in our cars, passports, identification, and run surveillance on our streets, homes, friends, and conversations. 96.5% of sex offenders are family members or friends to the victim, 97% are male, and only 3.5% of convicted sex offenders reoffend... Therefore the odds are YOU are more of a threat to commit a sex offense than a "sex offender". Mull over that for a moment.
What will the next set of laws be? Will they treat us more like criminals than they currently are over statistics like these? Will we again support them for the reasons or justifications of “good intentions”?
How can we prosecute people for life knowing how easy it is to be charged and convicted of a sex offense? Do you realize how many death row inmates have been found innocent due to D.N.A.? They convict sex offenders every day with merely ones word against anothers, today, a simple lie can wreck your life! How do V Chips, satellites, surveillance, and treating us like criminals stop our children from having a sexual encounter, or save us from terrorists that our government antagonizes?
There have however been thousands of vigilante attacks that have gotten an estimated 4000 innocent people hurt and even killed by mistaken identity or wrong addresses all together. In one case a pregnant woman was burned alive for nothing she had done. Now we harass or kill his/her family and friends as well? Is this what we have become? We now allow rights to be ignored?
There are now about 600,000 registered sex offenders, that is about the same number of truly patriotic men who died for those rights that you are ignoring. Anyone who would support breaking them is NOT patriotic Americans!!! As Americans how can we allow the government strip rights because they feel it’s (justified)?

esbuck said...

Now that we have a legal means to put someone away for life based on an "expert" opinion, we now what to do with that dimwit war criminal residing in the White House.