May 30, 2008

Case study on malingering diagnosis

I was excited when I picked up my mail today to find an advance copy of the latest issue of the Journal of Forensic Psychology Practice, with a long overdue article by me on malingering. As you can probably guess from the title, "Malingering as a Dichotomous Variable: Case Report on an Insanity Defendant," the article evolved out of a forensic case in which I was retained. I testified as an expert witness on the issue of insanity. The article critiques certain practices at an unnamed but easily identifiable state hospital.

Here is the abstract:

Malingering in forensic contexts has garnered increased attention in recent years. As a result, the past two decades have seen the development of more than a half dozen instruments to assess response styles. Although these instruments are gaining unprecedented popularity among forensic practitioners, there is little research on how closely practitioners adhere to the published guidelines for administration or interpretation. This article provides a case study of the use of one popular instrument, the Structured Inventory of Reported Symptoms, in an insanity case. Misinterpretation of the defendant’s scores contributed to the misclassification of malingering, which was used to bolster the government’s case at trial. This case suggests the need for better training and more caution when using instruments to assess response styles in forensic contexts.

May 28, 2008

No right to competence at SVP trial, court holds

You all know what a "Catch-22" is, right?

In the novel by the same name, that was the military catch that kept any airman from avoiding a combat mission. More broadly, it is a double bind in which a government bureaucracy achieves its goals through circular logic that in reality is both illogical and even immoral at times.

For a perfect, modern-day example, read last week's appellate opinion in the Wisconsin case of Ronald D. Luttrell (available here).

Luttrell is (or at least was) a pretty bad man. Back when he was 29 years old, he raped and killed an 83-year-old woman after breaking into her home. He is now 53 and because his prison term has ended, the state wants to lock him in a hospital so he cannot commit any future crimes.

What the appellate opinion boils down to is this: Luttrell does not have the right to be found competent before being tried as a Sexually Violent Predator. But the opinion is a great example of a Catch-22 because of its circular reasoning, geared not toward justice but toward achieving the state's utilitarian goal of incapacitation.

In the first catch, the court says that Luttrell is not being punished: He is facing civil commitment only to protect the public. Because he is not being punished, criminal protections do not apply. That is despite the fact that SVP "patients" face far more dire consequences than most criminal defendants. Here in California, for example, with one prior "qualifying offense" and an easily demonstrated risk to the public, you can get what amounts to a life sentence at a state hospital.

Second, the court argues, Luttrell must by definition be mentally ill or he could not be civilly committed. That is because, in order to be legal under U.S. Supreme Court holdings, a civil commitment must be based upon a diagnosed "mental abnormality" that makes the person "likely" to commit future sexually violent acts.

This is another great Catch-22. The mental illnesses that most frequently cause incompetence to stand trial are the big ones, like Schizophrenia and Mental Retardation. In SVP cases, people are assigned controversial diagnoses like Pedophilia, "Paraphilia NOS," and Antisocial Personality Disorder (see my previous posts, here and here). These conditions do not scramble the brain such that a person would be legally incompetent.

Competency is not some quirky technicality, by the way. It is a fundamental right in the criminal justice system in most countries. The idea, descended from British common law, is that it is patently unfair to put someone on trial when he is too crazy to defend himself. Not only that, but it makes the government look bad. The requirements for competency are also pretty basic. You need only a rudimentary understanding of your legal situation, and a minimal ability to assist your attorney in preparing a defense.

Contrary to what many people - including some defendants - think, being found incompetent in a criminal case does not necessarily get you off. You go to a state hospital, where you may spend more time incarcerated than if you had pleaded guilty and gone to jail.

However, there are limits. Back in the 1960s, a "feeble-minded" deaf-mute named Theon Jackson was found incompetent and received what amounted to a life sentence for two petty thefts totaling $9. His case triggered reforms that cap how much time a person can be hospitalized for competency restoration treatment. In Wisconsin, for example, a criminal defendant who is not likely to "become competent" within one year must be released from confinement unless he is eligible for the regular kind of civil commitment due to grave disability or dangerousness.

And that is precisely the worry of the Wisconsin court as to Sexually Violent Predators. Although they are dangerous under SVP definitions, most would not meet the criteria for dangerousness under the regular civil commitment laws, which require evidence of a recent act or threat to do serious bodily harm. Luttrell, for example, would not qualify because he committed his crime almost a quarter of a century ago.

But, hey, compared to the innocent children victimized in Operation Wagon Train or the Yearning for Zion raid, it's hard to muster a whole lot of sympathy for a guy who raped and murdered an 83-year-old woman in her own home. Even if it was a long time ago.

Hat tip: Luis Rosell. Photo credit: "Gilbert" (Creative Commons license).

May 22, 2008

Major ruling on forensic neuropsychology

Flexible wins epic
Battle of the Batteries

The Democrats have Obama versus Clinton. American Idol has the battle of the two Davids. But whoever heard of the battle between the fixed and the flexible batteries?

The New Hampshire Supreme Court, for one. And in that more obscure battle in the field of neuropsychology, the court this week handed a resounding victory to the flexible battery. Although I haven't seen anyone dancing in the streets, it's a victory that forensic psychologists and neuropsychologists should be celebrating.

A bit of background: The "fixed" battery approach involves rigid administration of a fixed set of tests. The most popular such batteries are the Halstead-Reitan and the Luria. The flexible or "Boston Process" approach, in contrast, involves administering a core set of tests, supplemented by extra tests chosen on the basis of specific case factors and hypotheses.

When I was a neuropsychology intern, I was trained in the Boston Process Approach. As it turns out, the overwhelming majority of neuropsychologists in a recent survey - 94% - said they use some type of flexible battery approach. As the New Hampshire Supreme Court pointed out, that makes it the standard of practice in the field.

The case involves the alleged lead poisoning of Shelby Baxter, now 13, when she was a toddler. The civil case against Ms. Baxter's landlord, whom the Baxters claim knew the apartment was contaminated, was dismissed after the trial judge excluded neuropsychological evidence using the Boston Process approach as not scientific. The case will now go forward.

The plaintiffs' neuropsychologist, Barbara Bruno-Golden, Ed.D, had substantial experience with lead-exposed children, and each individual test in her battery was published, tested, and peer reviewed, as befitting reliable science under the legal standard of Daubert and New Hampshire statutory law.

At a 6-day Daubert evidentiary hearing, the defense called controversial neuropsychologist David Faust, Ph.D., who testified that although Dr. Bruno-Golden's approach was generally accepted in clinical practice, it was not so in a forensic setting. The plaintiff's experts, as well as the American Academy of Clinical Neuropsychology in an amicus brief, correctly countered that there is no separate standard for forensic practice.

In its exhaustive and thoroughly reasoned opinion, the Supreme Court soundly rejected Faust's reasoning, issuing a monumental blow to the minority of forensic neuropsychologists who staunchly cling to the fixed battery approach.

"Under the defendants' position, no psychologist who uses a flexible battery would qualify as an expert, even though the flexible battery approach is the prevalent and well-accepted methodology for neuropsychology," the court pointed out. "Therefore, the implication … is that no neuropsychologist, or even psychiatrist or psychologist since, in their view, all combinations of tests need to be validated and reliable, could ever assist a trier of fact in a legal case."

The court held that any weaknesses in Bruno-Golden’s methodology - if indeed such existed - were properly handled through cross-examination and counterbalancing evidence in the adversarial trial process.

The case, Baxter v. Temple, is online here. A news article is here. A blog commentary at Traumatic Brain Injury is here.

Photo credit: 02ma (Creative Commons license)

May 20, 2008

"Fake Bad Scale": Lawyers advocate exposing in court

When a controversial test is being used against their client, attorneys may weigh the following questions:
  • Should I seek an evidentiary hearing (under Frye or Daubert) and try to exclude the test?
  • Or, should I let the test come in as evidence, and educate the jury about weaknesses in the underlying science?
This question regularly comes up at Sexually Violent Predator trials, regarding the controversial Static-99 risk assessment tool. Now, it is coming up in civil personal injury trials, regarding the MMPI-2's "Fake Bad Scale" (which I blogged about here back in March).

Increasingly, attorneys are choosing the second option when the science underlying a test is weak. They are openly critiquing the test and its findings, and allowing jurors to form their own conclusions. Yesterday's Lawyers USA features an article on how plaintiffs' attorneys are "turning the tables" on the Fake Bad Scale:
Although plaintiffs' attorneys are unanimous in despising the Fake Bad Scale, there is a mini-debate about whether it is more effective to exclude the test before trial or allow it in and discredit it while cross-examining the defense expert.

"It's a tough call, frankly," said Dorothy Clay Sims, a founding partner of Sims, McCarty, Amat & Stakenborg in Ocala, Fla., who has won three hearings over excluding the test.

"Frye and Daubert hearings are tough, but courts don't seem to like this test, so it's difficult to give up a hearing that you have a good chance of winning," she said. "On the other hand, once the Fake Bad Scale is demystified for the jury, and you pierce through it, they look at the defense doctor and say 'Oh, come on.' "
The article features the case of Sarah Jenkins, a medical receptionist who suffered tissue injuries and cognitive problems after her pick-up truck was hit by a delivery truck. She scored in the faking range on the Fake Bad Scale.

Rather than fighting to exclude the test, experienced trial attorney Dean Heiling made it a centerpiece. He cross-examined the defense expert at length about the test, and through his own expert exposed the controversy in the field about the test's validity.

Most interestingly, he put his client on the stand in rebuttal, and had her go through each test item and her answer with the jury.

Jurors deliberated only three hours before awarding a verdict of $225,749.

The lesson to forensic psychologists: Know your tests, and know their weaknesses.

The full story, by Sylvia Hsieh, is here, although it is only available to subscribers. For more on the controversy over the scale, see my previous post here.

Hat tip: Ken Pope

May 18, 2008

Scarface idolatry: Evidence of violence?

I was driving past an abandoned gas station where vendors usually sell fresh strawberries and oranges from the back of a pickup truck. This day, the vendors were selling Scarface posters instead. Framed ones, all different poses of the cultural icon.

The sight harkened me back to a young drug trafficker I evaluated. Although he had no known history of violence, federal agents found a Scarface poster along with a loaded handgun in his home. The poster, argued federal prosecutors, showed a propensity for violence.

I don't know how many young drug traffickers hang Scarface posters on their walls, but after last month's appellate decision in U.S. v. Marin I can say that it is not a good idea. Antonio Marin of Massachusetts was caught under very similar circumstances to the young man I evaluated. Charged with possessing a firearm in furtherance of drug trafficking, he said no, he simply had a "casual," innocent interest in guns. At trial, the government rebutted that defense by presenting a Scarface shadow box found in Marin's apartment. The display case contained (among other items) a picture of Al Pacino aiming a machine gun, a replica gun, and a cigar.

An appellate court upheld the use of the Scarface memorabilia against Marin, saying its probative value outweighed its potentially prejudicial impact.

That's where expert testimony might have proven helpful. As I wrote in my report in the similar case, research has established certain factors as correlated with violence. Scarface idolatry, no matter its intuitive appeal, is not one of them. If it was, the crime rate would be much higher: Scarface is one of the most popular DVD's on Amazon, and the Internet has dozens of Scarface-related sites and hundreds of spin-off products, including music tapes, posters, and T-shirts.

Researchers have studied the effects of violent media on aggression for decades, generating hundreds of studies on this topic. Although the debate continues to rage, there is general consensus that no direct link exists between violent cinematic imagery and real-life violence. Watching large amounts of violent movies or TV shows might encourage violence in those already so inclined, but fantasy violence is neither necessary nor sufficient to trigger real-life violence.

Interestingly, the potentially unfair prejudice of Scarface memorabilia was acknowledged in a second case last month, this time when the defense tried to introduce it at a trial.

High school students Jean Pierre Orlewicz and Alexander Letkemann of Michigan were on trial for a gruesome beheading-murder of a 26-year-old man named Daniel Sorensen. To bolster their claim of self defense, the teenagers sought to introduce images from Sorensen's MySpace page of - you guessed it - Scarface.

No can do, the judge ruled. The photos "would tend to move the jury to decide the matter on an improper basis such as inflamed passions and emotions."

Sorensen is not the only murder victim whose MySpace site was scoured for the low-down on his personality and proclivities. Indeed, that is one of the first places police (as well as people like me) will look for uncensored (if sometimes exaggerated) self portrayals when someone gets caught up in a crime. That potential reality is far from the minds of young people as they immerse themselves in the semi-public world of social networking.

Take the case of University of California Berkeley fraternity member Christopher Wootton. He was killed this month in a drunken, late-night brawl. His loyal friends and family insist he was a peaceable guy who must have been trying to defuse the combatants. On his MySpace site just a week earlier, however, he had bragged about grinding another man's face into the pavement during an unrelated drunken fight.

Will this admission be allowed in court, to bolster the 20-year-old murder defendant's contention that he acted in self defense? Only time will tell.

One thing is certain: If either of these young men had a Scarface poster on their wall, we will hear about it on the local news. And then those street-corner vendors might have to go back to selling fruit. So far, no one has tried to link strawberries to violence.

Hat tip: Colin Miller at EvidenceProf

May 9, 2008

Who will write the next DSM?

Would you believe: Pfizer, Eli Lilly, Wyeth, Merck, AstraZeneca and Bristol-Myers Squibb?

Or, at least, those are some of the BigPharma corporations with whom members of the task force charged with creating the 5th Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders have contracts.

It shouldn't come as a surprise. But it ought to alarm the public, given BigPharma's enormous and growing influence in so many spheres of public life all around the world.

More than half of the experts involved in the previous edition of the psychiatric bible also had monetary relationships with drug makers, according to a Tufts University study. The percentage was up to 100 percent for experts working on certain severe mental illnesses, such as schizophrenia. (The New York Times story on that 2006 research is here.)

A just-published book, The Medicalization of Society: On the Transformation of Human Conditions into Treatable Disorders, has more on this construction of difference as illness. Trends that author Peter Conrad notes include the medicalization of "male" problems such as baldness and sexual impotence, and the pathologizing of children's behavior and appearance (short kids now have idiopathic short stature which requires synthetic human growth hormone).

Another new book, The Rise of Viagra, further documents the pathologizing of sexual variation, including an effort by BigPharma's spin doctors to create public hysteria and a new market for medicines to treat Female Sexual Dysfunction."

Meanwhile, as I've blogged about elsewhere, the sex offender industry is lobbying for new diagnoses to medicalize illegal sexual conduct, including "hebephilia" for men who are sexually attracted to teens, and "Paraphilia Not Otherwise Specified-Nonconsent" for men who rape.

Look for all these, and more, as possible candidates for the new and expanded DSM-V. Each edition of the DSM contains more diagnoses than its predecessor, and each diagnosis is supposedly treatable with meds. DSM-I (1952) listed 106 mental disorders, DSM-II (1968) had 185, DSM-III (1980) had 265, and DSM-IV (1994) has 357. That's an average of about 84 new diagnoses per edition, so the DSM-V should have 440 or more diagnoses.

Hopefully, this week's blog post by New York Times health writer Tara Parker-Pope about the conflict of interest signals that the public will be kept informed.

The consumer watchdog group Integrity in Science, a project of the Center for Science in the Public Interest, is also following the scent of money. See my Amazon book list, Critical Perspectives on Psychiatry, for other books on the DSM and the construction of illness.

May 8, 2008

Forensic psychology angles in the Josef Fritzl case

The whole world seems glued this week to the bizarre case of Josef Fritzl. As you know, Fritzl is the Austrian man who kept his daughter and three of their children together locked in an elaborate basement dungeon for 24 years. As the dust settles, I'm trying to set aside my moral and emotional reactions to parse out the intriguing forensic psychology angles. Among them:

Insanity defense

At the top of the list is the defense's announcement that it will pursue an insanity defense.

"I believe that the trigger was a mental disorder, because I can't imagine that someone has sex with his own daughter without having a mental disorder," said his lawyer, prominent Viennese attorney Rudolf Mayer.

If the attorney is thinking about the archaic concept of moral insanity, he has a point. From a lay perspective, Fritzl has got to be deranged. How else could he engage in such an elaborate, long-running scheme against his own flesh and blood? Indeed, "mentally deranged" was how he was described by a barman at a brothel he frequented, based on his sadistic and deviant sexual behavior with the prostitutes there. (Prostitution is legal in Austria.)

Pundits don't seem to know much about Austria's legal standard of insanity, and I couldn't find it online. But in most countries, including in Western Europe, the insanity defense is rarely invoked and is even more rarely successful.

As one criminal defense lawyer recently put it, "You can be extremely crazy without being legally insane. You can hear voices, you can operate under intermittent delusions, you can see rabbits in the road that aren't there and still be legally sane."

I could be wrong, but it's hard for me to see how a retired engineer and real estate developer who could maintain such an elaborate subterfuge for a quarter of a century would meet the legal standard of insanity in terms of not knowing the difference between right and wrong.

However, even were Fritzl to pursue the defense, it would not mean that he would "get off," a common misperception regarding the insanity plea. Rather, he would likely be locked in a psychiatric hospital for the remainder of his natural life.

You can listen to a half-hour conversation among experts on NPR's Talk of the Nation. Featured are law professors Christopher Slobogin and Alan Dershowitz and Slate magazine legal correspondent Dahlia Lithwick. (Click on the NPR logo to the right.)

It will be interesting as case facts emerge to learn what complex algorithm may have produced Fritzl's twisted psyche. According to a sister-in-law, he grew up without a father, and his mother beat him on a near-daily basis. Certainly, that is one type of home environment that can produce a sexual sadist.

Competency to stand trial

Much public confusion exists about the distinction between legal insanity and incompetence to stand trial, and this confusion may be occurring in the Fritzl case as well.

Fritzl's attorney is quoted as saying that his client is "mentally incompetent" and that he will challenge any other decision reached by the psychiatrist who has been appointed by the court. Austrian law allows him to obtain an expert opinion from a psychiatrist of his choice.

While the legal construct of insanity pertains to an accused person's past state of mind, including whether he knew the difference between right and wrong at the time of his crime, competency pertains to the accused's present ability to understand the legal proceedings and assist one's attorney at trial.

As such, incompetency is not a permanent barrier to prosecution. If a person is found incompetent to stand trial, he is treated until he becomes competent, at which time he stands trial. (In the NPR program I link to, above, Dershowitz claims competency is often a permanent barrier to prosecution, but I believe he is wrong about that except in unusual cases in which a defendant cannot be restored to competency due to such things as severe retardation or dementia.)

Sex offending

Austria, like the rest of Western Europe, has not jumped on the imprisonment bandwagon in recent years. Its incarceration rate is 108 per 100,000, more than seven times lower than the United States'. Criminal code reforms in 1974 emphasized the importance of diversion as an alternative to incarceration. And Austrians are so opposed to capital punishment that they stripped California Gov. Arnold Schwarzenegger's name from a soccer stadium in his hometown because he refused to pardon a condemned man.

But as we here in the United States certainly know, extreme cases fuel extreme laws, and the heinousness of Fritzl's deeds may fuel a drive for harsher punishment in Austria, especially of sex offenders.

Indeed, Austria's justice minister is already vowing to spearhead a sweeping review of all sentencing laws and to propose legislation doubling prison sentences for "especially dangerous" predators.

Fueling outrage around the world is the fact that Fritzl had a prior sex offense conviction. Way back in 1967, when he was in his early 30s, he served time for rape. He also had a second conviction for attempted rape and an arrest for indecent exposure, according to reports.

Prosecutors are still deciding how to charge Fritzl so that he faces the maximum possible punishment. The maximum sentence for rape is 15 years, and unlike in the United States time is not added consecutively for multiple charges. He could get a few additional years if convicted of "murder through failure to act" for the death of an infant whom he admits incinerating. But since he is 73 years old, the difference in his sentence is probably moot except on a symbolic level.

Trauma psychology

Perhaps most interesting, and most unsettling, is the psychological effects of their ordeal on Fritzl's victims. These include Elizabeth, the daughter imprisoned for a quarter of a century, the children, and even Fritzl's wife Rosemarie, who claims to have had no inkling of her husband's deeds.

Elisabeth was initially kept tethered on a cable that allowed only limited movement. For about nine years, she and her older two children, 19-year-old Kerstin and 18-year-old Stefan, were kept in a tiny room together, meaning the children would have witnessed their grandfather’s sexual abuse of their mother.

Nineteen-year-old Kerstin remains quite physically ill, so we do not know much about her mental state. Stefan, however, shows signs of severely impoverished physical and psychological development, including trouble talking and moving around in the open after spending his entire life in a small, windowless basement. Younger son Felix, 5, probably has the best chance of recovery. The children reportedly communicate through a combination of speech and animal sounds, including growling and cooing, and become exhausted with the effort of trying to make themselves intelligible to outsiders.

As child psychologist Bruce Perry explains in his new book, The Boy Who Was Raised as a Dog, trauma and neglect at any age can cause gaps in neurological development that are difficult to reverse. Dr. Perry’s treatment is "neurosequential," meaning he sequentially targets brain regions left undeveloped by trauma. When children's brains are affected in infancy, for example, therapy may start with healing touch or rhythm before moving on to higher brain functions.

Elizabeth's psychological state is difficult to even fathom. Her father reportedly began raping her when she was 11 and continued to do so for a number of years. She bore seven of his children, one of whom died and three of whom were taken away from her to live upstairs. Imprisoned in the tiny cellar from the age of 18, she reportedly looks far older than 42.

"Why didn’t she try to escape?" some people have asked. We, of course, don't know that she did not try. But if she didn't, based on the limited available facts it seems reasonable to guess that it was due to a combination of fear, learned helplessness, and Fritzl’s diabolical control and terrorization. The initial door to the prison cell was a half-ton of reinforced concrete on steel rails. Fritzl apparently convinced Elisabeth and the children that the concrete door was wired to explode, and that poisonous gas canisters would explode if they tried to escape.

One can only hope that with high-quality treatment and support the family will have some chance of recovery. And that can only begin to happen after the legal case is resolved.

The Scotsman of May 9 has details of Fritzl's in-depth interview on his motives. Wikipedia has additional information and links to background sources.

May 3, 2008

Sex panic: Still no sign of abatement

The sex panic in the USA shows no signs of abating, despite more and more wrenching stories of excess. Readers will have seen the Seattle Times column I posted yesterday about the man who was dropped off to live under a bridge, an increasingly common phenomenon across the country. (See my previous blog posts here.)

This week, a woman beseechingly wrote to me from Louisiana about her son Eric, now languishing in prison for chatting with a teen girl online. (They never met, and he claims he didn't know her age.) Prison is no picnic, of course, but the real nightmare begins when he is released. According to his mother, he signed up for a 10-year registration, the law changed in January to 25 years, and now Louisiana is looking at retroactive lifetime registration for online offenses like this one. His story is here.

That tale is not uncommon. But more and more, the young men's mothers are going public. Yes, they acknowledge, their boys made mistakes by getting involved with girls who were under the legal age of consent. But they are adamant that their sons are good boys, not predatory pedophiles or rapists.

As an example, here is the story of another mother who went to the media on behalf of her 19-year-old son, who had consensual sex with a girl just shy of her 16th birthday. (Click on the logo below to go to the page that has a video interview with the mother.)

What's becoming increasingly clear from these stories is that the so-called "collateral consequences" are far worse than even the draconian criminal sanctions. Once arrested on a sex charge, no matter how minor or consensual, these young men are ensnared for life in an ever-growing net of so-called "collateral consequences" that make it difficult if not impossible to live a normal life. These include lifetime registration, shaming through online public databases, and – the ultimate consequence in 19 states so far – the possibility of lifetime hospitalization as a sexually violent predator.

Perhaps most chilling is the fact that courts have consistently ruled that people do not have a Constitutional right to be told about these potential consequences before they decide to enter a guilty plea. Indeed, some of the collateral consequences are retroactive; they did not even exist when the person pled guilty in exchange for what looked like a minor penalty.

Jenny Roberts, a law professor at Syracuse University, discusses the injustice of this in a forthcoming law review article, "The Myth of Collateral Consequences of Criminal Convictions: Involuntary Commitment of Sexually Violent Predators" (available for download here).

Nowhere are the results more tragic than when the defendant is factually innocent. This is most likely when a defendant is poor, Black, and/or mentally ill. And also when the guilty plea happened back in the day, before sex offenses became such a lifelong, inescapable yoke.

Friday's Boston Globe features one such case. Guy Randolph is an African American man who struggles with schizophrenia and alcoholism. More than 17 years ago, he was arrested for a sexual assault on a 6-year-old girl. He had been in jail for four months when his attorney encouraged him to cop a plea in exchange for immediate freedom.

But that immediate freedom came at a later price:
"For the past seven years, a photo of Guy Randolph has been posted at Boston police stations, labeling him the most dangerous type of sex offender. Neighbors who knew of his criminal record and the 10 years he spent in prison insulted him when they saw him on the streets. Police ordered him away from schools and playgrounds if he walked too close…. The stigma of the label was almost unbearable. Johns would tell her son how proud she was of him and that the people who called him names were 'ignorant.' But he became withdrawn and despondent, nothing like the outgoing, gregarious boy she had raised."
Yesterday, thanks to the dedicated work of attorney Sejal Patel, his conviction was reversed. Once more, it was the mother who had stood by Randolph and insisted on his innocence. After 17 years of struggle, she was finally celebrating - taking Randolph out for his favorite meal of Chinese food.

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

May 1, 2008

A bridge as a last resort

Seattle Times staff columnist

SNOHOMISH — The patch under the bridge is closed in by brambles. Rodent tracks crisscross in the dirt. It may be dry, but still it's not fit for human habitation.

Unless you're a sex offender, that is. The underside of the 88th Street bridge, near this river town's greenhouses and horse farms, is where state government last week assigned a released rapist to sleep.

David J. Torrence, who assaulted a 16-year-old girl in 1995, had completed his latest prison term (for failing to register as a sex offender.) He had no place to go. So officials gave him a sleeping bag and a rain poncho, then told him to stay under this bridge, 9 p.m. to 6 a.m., until further notice.

"We're not proud of it," says Mary Rehberg, parole officer for the state Department of Corrections. "We did it because this is what it has come to. Under a bridge is the best of the options we had left."

That we're now storing sex offenders under bridges is hardly the worst thing to happen in the long struggle over sex crimes. Not compared with what happened to the victims.

But it is a sign of a looming breakdown. There's got to be a better way.

Nobody wants sex offenders around. It can be infuriating to see taxes spent on their treatment or care. But putting them under bridges, like trolls? Set aside whether that's inhuman. It's about the worst outcome possible, for public safety.

Torrence was released from state prison at Monroe on April 20. He is a Level 3 — high risk for reoffending. He is not deemed so dangerous, or his crimes so serious, that he qualifies to be locked up longer.

Rehberg tried for months to find him a place to live.

He's barred by local ordinance from living in the town of Monroe (it bans all Level 2 and 3 offenders.) So she tried his relatives in another state. That state, like Monroe, rejected having him come there.

She called motels, shelters, landlords known to rent to sex offenders. All said no.

Almost any apartment building was likely to be off-limits because there would be families living there.


That's increasingly the way it goes. Sex offenders are the new lepers. She fitted him with a GPS bracelet and drove him to the 88th Street bridge.

"At least we could check on him," she said. "We could keep trying to find him a place. I'm sorry to say it, but it was the best we had to offer."

On the fourth night, he cut off his monitor and fled. So far he hasn't been found.

Some version of this sorry story is about to happen again. Rehberg is trying, but failing, to find housing for three more sex offenders, all due out soon.

The state has got to build some monitored halfway houses for sex offenders. Like you, I don't especially want one on my block. It also strikes me as unfair to pay for housing for criminals while many taxpaying folks are hurting.

But forget about fair. This system is shot. Our government just put a Level 3 sex offender under a bridge.

I asked Rehberg: Did you get much criticism for this?

"Not as much as we get when we actually find them a place to live," she said.

Reprinted with the written permission of the author. Danny Westneat can be reached via email. The column originally appeared here.