Rape as psychiatric illness: Battle heats up

Prosecutor lobbying for new diagnosis

Even after writing and teaching about the pretextual use of psychiatric diagnosis for legal purposes, I found this one jaw-dropping:

The committee tasked with revising the sexual disorders in the next edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM) includes a prosecutor who specializes in prosecuting sex offenders as an invited advisor.

The prosecutor, Paul Stern of Washington, is now lobbying for a new psychiatric disorder for rapists, something that was considered and rejected from an earlier DSM. In an upcoming article in the Archives of Sexual Behavior, he reassures readers that creating this new "Paraphilic Coercive Disorder" would not increase the number of men involuntarily detained as Sexually Violent Predators. Au contraire: It would reduce the number of SVP commitments by improving diagnostic precision.

Stern lambastes psychologists and psychiatrists for engaging in "dangerous" legal analysis, while in the next breath asserts that he knows better than scientists about the validity of a psychiatric diagnosis for rapists! He dismisses concerns about the reliability and validity of the proposed diagnosis from two leading scientists, Raymond Knight and Vernon Quinsey. Likewise, he dismisses as an ideologue Dr. Allen Frances, psychiatry professor emeritus at Duke University and chair of the DSM-IV Task Force.

This article certainly did not seem good evidence of psychiatry as objective, value-neutral science, as Stern argues it should be.

Frances critiques "Paraphilia NOS"

Dr. Frances, meanwhile, continues to sound the alarm over poorly thought out diagnostic proposals for the DSM-5. His concerns arose out of his experience heading up the DSM-IV revision process. Witnessing the many unintended consequences of diagnostic expansion, such as epidemic stigmatization of children, he now regrets that he did not more carefully examine the reliability and validity of proposed diagnoses before approving them for inclusion.

In this week's Psychiatric Times, Frances squarely tackles the creation of psychiatric labels to justify the involuntary detention of criminal rapists.

The most disturbing turbulence at the boundary between psychiatry and the law is the misuse of a makeshift psychiatric diagnosis (“Paraphilia Not Otherwise Specified, nonconsent”) to justify the involuntary, indefinite psychiatric commitment of rapists. This is a disguised form of preventive detention (often for life), a violation of due process, and an abuse of psychiatry. The mental health professions have been placed in the position of providing a dangerous fig leaf to cover an unfortunate correctional gap created by fixed sentencing….

The Supreme Court has chosen to dance around the legal definition of a qualifying mental disorder. It has left this critical question up to the inconsistent and largely uninformed discretion of each lower court. This has led to huge confusion and very questionable practice. Many evaluators in SVP hearings have been led astray by a complete misunderstanding of the intent of the DSM-IV. They have applied the essentially made-up diagnosis ... to justify the psychiatric commitment of rapists who without this "diagnosis" would be regarded as no more than common, if particularly heinous, criminals….

This paradoxical gulf between the original intention of DSM-IV and SVP forensic evaluator misinterpretation of it leads to great confusion in the handling of expert mental health testimony in individual cases. The diagnosis "Paraphilia NOS, nonconsent" is clearly misguided -- almost always incorrect and inappropriate in forensic proceedings, but it has been accepted by enough mistrained "experts" to have acquired a patina of undeserved respectability that may (in a perverse self fulfilling prophecy way) lead to its acceptance.

Wisconsin exemplar: Bartow v. McGee

Frances urged the U.S. Supreme Court to hear the appeal of convicted rapist Michael McGee in order to clarify this issue. McGee's civil commitment rested on two contested diagnoses, "Paraphilia Not Otherwise Specified-Nonconsent" and "Personality Disorder Not Otherwise Specified."

McGee argued in his appeal that these "NOS" diagnoses are "bogus," invented by government psychologists to justify the continued confinement of men like him after they have completed their criminal sentences. He pointed out that the diagnosis of Paraphilia NOS-Nonconsent represents a minority fringe viewpoint that was specifically rejected by mainstream psychiatry.

In its Jan. 27, 2010 decision, the Seventh Circuit Court of Appeals used tortured logic to reject McGee's appeal:

We must inquire only whether the diagnosis was so patently lacking in credibility and validity that its consideration by the factfinder in the Wisconsin courts resulted in a denial of constitutional rights…. We cannot conclude that the diagnosis of a rape related paraphilia is so empty of scientific pedigree or so near-universal in its rejection by the mental health profession that civil commitment cannot be upheld as constitutional when this diagnosis serves as a predicate.

This case represents a perfect opportunity for the U.S. Supreme Court to clarify the nature of a "mental disorder" that justifies civil detention, Frances wrote:

The Court should resist the great temptation to continue to dodge this thorny, but basic, constitutional rights issue.... The Supreme Court must step up to the plate and provide clarity about what qualifies legally as a mental disorder in I was responsible for writing the final version of Paraphilia section in DSM-IV) that the diagnosis "Paraphilia NOS, nonconsent" is indeed 'patently lacking in credibility or validity' and is 'empty of scientific pedigree.' But I cannot argue that it is 'near universal in its rejection by the mental health profession' SVP commitments.

Lower courts have faced a peculiar difficulty in interpreting expert testimony in SVP cases. The wording used by the appeals court in the McGee case clearly illustrates the problem. I would argue (with some authority sincebecause a sizable segment of the community of SVP evaluated have been mistrained into believing that "Paraphilia NOS, nonconsent" is a valid DSM-IV diagnosis.

Clearly, the Supreme Court should accept McGee for review and dispel confusion on what constitutes a mental disorder in SVP cases. McGee is a perfect test case raising a crucial constitutional question that should not be decided haphazardly and inconsistently based a basic misunderstanding of psychiatric diagnosis.

Frances's plea was published a little late. On June 7, the U.S. Supreme Court declined to hear the case.

If prosecutor Stern gets his way, the Paraphilia NOS-Nonconsent controversy will be moot, as the DSM-5 (due out in three years) will include the more legitimate-sounding twin, Paraphilic Coercive Disorder. But the DSM-5 task force may be shooting itself in the foot by publicly aligning itself with a partisan advocate. If an SVP defense attorney had co-authored the opinion piece with Stern, it might appear less partisan and, by implication, pretextual.

To put that in scientific terms, if lobbyists look at least superficially nonpartisan, their claims of scientific legitimacy for this new disorder might have more face validity. Which, as we know, is still a far cry from construct validity.

The abstract of Mr. Stern's article, "Paraphilic Coercive Disorder in the DSM: The Right Diagnosis for the Right Reasons," is HERE, along with contact information if you want to request the full article.

Dr. Frances' article in Psychiatric Times, Rape, Psychiatry, and Constitutional Rights -- Hard Cases Make For Very Bad Law, is HERE. (You must first register, but it's free and easy.)

Related blog posts:

Scientist razes proposed "Paraphilic Coercive Disorder" (Nov. 6, 2009 blog post explaining scholar Raymond Knight's position on this diagnosis - RECOMMENDED)

Fed court OK's unorthodox diagnoses for sex offenders

Graphics credit: DSM-5 (a Spanish punk rock band!)