June 29, 2011

Top forensic psych’s shameful secrets: A cautionary tale

An investigative report on the secret life of a prominent forensic psychologist is generating controversy on professional listservs. Some want to let sleeping dogs lie. Others, including this blogger, believe the sordid tale contains valuable lessons for the field.

Photo credit: Seattle Times
Stuart "Stu" Greenberg was at the pinnacle of a highly successful career when he committed suicide in 2007 after being caught using a secret camera to spy on women – including fellow psychologists -- in his office bathroom.

Greenberg was a respected leader in forensic psychology. Former president of the American Board of Forensic Psychology, he had functioned as a professional gatekeeper in heading the committee that wrote a national certification exam for the field. He was a sought-after speaker who published articles on ethics in peer-reviewed journals. In court, his opinion could decide the fate of a parent seeking custody of her child. Charging $450 an hour, he had amassed an estimated $1.7 million in personal worth and owned at least two houses and a boat.

But in last weekend's Seattle Times, investigative reporters Ken Armstrong and Maureen O'Hagan reveal new details of Greenberg's less savory side. They go so far as to paint the Seattle psychologist as a "toxic force -- a poison coursing through the state's court system," who destroyed lives while building a career based on "hypocrisy and lies."

Previously sealed records dug up by the newspaper -- including a 1990 disciplinary case -- attest to Greenberg's power and "cunning," the reporters write:
His word could determine which parent received custody of a child, or whether a jury believed a claim of sexual assault, or what damages might be awarded for emotional distress…. [The records] show how he played the courts for a fool. He played state regulators for a fool. He played his fellow psychologists for a fool. And were it not for a hidden camera, he might have gotten away with it.
The report describes how Greenberg coerced Washington state's Examining Board of Psychology into sealing public records of a 1990 disciplinary action against him. The case involved alleged misconduct in four separate child custody cases. The Board imposed a three-year ban on his conducting such evaluations. But "within a year of getting his disciplinary history sealed, Greenberg was giving seminars to other psychologists on the ethics of parenting evaluations," the report says.

As an example of the destruction wrought by Greenberg, the reporters interviewed the complainant in one of the four cases. Surgical nurse Cathy Graden said she had no fears of losing custody of her 4-year-old son after her divorce. What she didn't know was that Greenberg and the lawyer for her ex-husband were limited business partners in a speculative investment venture:
The report Greenberg filed in court eviscerated Graden. It said she posed a grave danger to her son; that she was "probably" sexually abusing him; that she was psychologically unstable and possibly paranoid….In court, testifying, Greenberg described Graden as "quasi-psychotic," but said the diagnosis was tricky, because Graden might appear "quite normal." She would likely deny doing anything wrong to her son, Greenberg said, or alternatively, she "might genuinely not remember."

By the time Greenberg finished, Graden, out in the hallway, had been stripped of all defenses -- and without a clue to what had just happened. If she appeared normal -- well, Greenberg said she would. If she denied hurting her son -- that was part of her disorder. If she challenged Greenberg's work or motives -- she was paranoid. At the end of the hearing … the judge ordered the boy turned immediately over to his father, with Graden allowed to visit only if supervised by a therapist.
Graden finally got her son back when he was nine years old, but only because his father was killed in a work accident.

"Inscrutable field with immense power"

The Seattle Times piece is slanted. It castigates the entire field for the alleged criminal and unethical conduct of one individual. As we all know, there are honorable and dishonorable people in all professions. In my locale, the FBI is investigating a group of rogue police who allegedly sold drugs, ran a brothel and took money from a lawyer to make staged arrests of fathers in child custody cases. Yet the media do not paint all law enforcement with that same dirty brush. And some of the supposed misdeeds for which the reporters lambast Greenberg, such as lacking the clairvoyance to know that a priest he evaluated was lying about the extent of his sexual misconduct, are hardly evidence of turpitude. Nowhere is a spokesperson for our field given space to clarify or comment about the implications.

But in calling forensic psychology "an inscrutable field with immense power," the reporters tap into a popular conception with a kernel of truth.

Power is a corrupting force. Just as Greenberg wielded immense power over the fates of parents and children, forensic psychologists today abuse their power and destroy lives when they invent diagnoses to further pretextual goals, present personal opinion and prejudice masked as science, or testify that they know with mathematical certainty that a person will commit a future crime. Such misconduct is common in certain forensic contexts. In fact, its routine nature presents an obstacle to intervention. I know of one colleague whose attempts to complain about psychologists' improper opinions in court were rebuffed by a licensing board on the grounds that the opinions -- while improper -- were not sufficiently unusual.

Greenberg's tale may thus serve as a cautionary one about why the field should not collectively look away when we see colleagues abusing their power. Individually or as a group, it is our ethical duty to intervene when we see colleagues misbehaving -- stepping beyond the bounds of science, engaging in activities that seem biased, or (as in Greenberg's case) mistreating women or others with less social currency. Perhaps if Greenberg's superficial aplomb had not blinded colleagues to his faults, he could have been redeemed and this public tragedy averted.

Professional condemnation of Greenberg's misconduct serves other purposes. It demonstrates respect for the members of the public who were negatively affected, as well as for our own women colleagues who allegedly suffered sexual exploitation and betrayal by a colleague whom they trusted. It may encourage exploration in our professional literature about the existence of corruption, which always creeps into situations involving power and authority, and how this problem might be addressed.

It may also be useful for each of us to reflect personally on the lessons here. Many of us work largely alone. Without professional accountability, it is easy to go astray. The stakes are high, the material troubling, the settings adversarial. In these difficult circumstances, it is incumbent upon all of us to behave honorably and ethically, to avoid even the appearance of bias, to be transparent in explaining the basis of our often-consequential opinions, and to admit the limits of our knowledge.

In other words, to recognize the inherent power imbalances, and to strive for humility and honesty.

A collection of primary documents and news reports on Greenberg's case can be found at The Liz Library. Also at that site are direct quotes from psychologists' (supposedly) internal debates on the case as culled from two professional listservs. (Note that the presentation is biased and misleading; by publishing mainly one side of a vigorous debate, they misrepresent psychologists as overwhelmingly opposed to public airing of this troubling case. But it's still worth checking out.)

June 27, 2011

Sexual violence prevention: Recommended journal issue

The current issue of the International Journal of Law and Psychiatry features an excellent collection of diverse scholarship on the prevention of sexual violence. Papers address the empirical and moral foundations of prevention from the perspectives of law, psychiatry, criminology, psychology, and public policy. Here's a preview of a couple of the articles I've read so far….
Paraphilia battle pivotal to future of U.S. civil liberties

Jerome Wakefield, a professor at New York University and an influential theorist of mental disorder, provides a searing analysis of the messy paraphilia debacle that the DSM-5 task force has waded into. After providing a brief history, he dissects the current proposals to show how their conceptual invalidity will open the door to widespread abuse in forensic practice:

Needless to say, prosecutors availing themselves of civil commitment processes and wishing to keep offenders from release find it in their interest to argue for the most expansive possible interpretation of the DSM criteria for paraphilic disorders -- lending enormous weight to the details of the diagnostic criteria…. The convenience of these criteria in forensic evaluations seems more than offset by the potential for prosecutorial abuse and the long-term undermining of the credibility of the distinction – sanctioned by the Supreme Court as a constitutionally crucial one – between mental disorder-driven behavior and other motives for criminal behavior.
Wakefield joins the ranks of other respected figures to recognize the high stakes involved in the battle over whether sex crimes equate to mental disorder. As he bluntly puts it, the struggle over how sexual paraphilias are defined is “tactically central to the future of civil liberties in our country.” If the government can indefinitely detain men who have served prison time for sex crimes based on bogus psychiatric labels that supposedly impair their volitional control, it's only a matter of time before other groups are rounded up, too. 

Of all of the controversial paraphilias, Wakefield asserts, the “most flawed and blatantly overpathologizing” is pedohebephilia, which would expand pedophilia to encompass attraction to pubescent minors. Arguments by its proponents are both weak and misleading, he writes:

The first argument for the expanded category is that hebephilia is similar to pedophilia in that both involve attraction to physically immature individuals. This is about as valid an argument as saying that both dyslexia and illiteracy involve difficulties reading, thus illiteracy should be considered a disorder. The kind of immaturity involved in pubescence is vastly different from the kind in prepubescence from the specific perspective of its ability to trigger normal sexual interest, so in fact the dissimilarity is more important than the similarity…. The other two arguments – that some prosecutors are currently using the diagnosis “Paraphilia Not Otherwise Specified (Hebephilia)” and that the ICD [the World Health Organization’s diagnostic system] allows sexual preference for early pubescence as a disorder – ignores the critical question of whether these uses are valid…. Hebephilia as a diagnosis violates the basic constraint that disorder judgments should not be determined by social disapproval. This is a case where crime and disorder are being hopelessly confused.

Although the sexual disorders work group has backed down on two of its three most controversial proposals, it is clinging tenaciously to pedohebephilia, the brainchild of the Canadian laboratory that employs two members of the work group. Hopefully, a newly established scientific review committee for the DSM-5 will heed the increasingly strong warnings emitting from mainstream social scientists and psychology-law practitioners such as Wakefield, and have the common sense to squelch this ridiculous proposal. Otherwise, as Wakefield puts it, “the forensic tail [will be] wagging the validity dog, and we are likely to get criteria that possess a misdirected pseudo-validity that will not serve us in the long run and set a dangerous precedent for future tensions between civil liberties and civil commitment for mental disorder.”

Inevitable recidivism: An urban legend

Tamara Rice Lave, a law professor at the University of Miami, tackles the essential premise underlying current social policy toward sex offending: that apprehended sex offenders (especially child molesters) will continue to re-offend. As Lave shows, the courts and the public accept this premise with an unquestioning and almost religious fervor, ignoring a growing body of empirical evidence to the contrary.

Inevitable recidivism has saturated the media, political and popular discourse, and thus it has become the dominant frame due to its availability…. This sets up a dialectical process in which the public believes that sex offenders inevitably recidivate; the media write stories that bolster this belief, and politicians pass laws that are responsive to this belief. The effect is to have inevitable recidivism become a socially constructed fact.

When actual evidence of sex offender recidivism is examined, a huge gap exists between what is assumed and what the data actually shows because most sex offenders do not in fact recidivate. Thus there is a galaxy of sexually violent predator laws and an entire branch of Supreme Court jurisprudence that is founded upon a demonstrable urban legend.
The special issue, Beyond Myth: Designing Better Sexual Violence Prevention, was co-edited by professors Eric Janus (author of Failure to Protect, an essential text on sex offender law and policy) and John Douard. Both are, like myself, firm believers that we should be focusing scarce resources on primary prevention of sexual violence rather than on misguided campaigns rooted in moral panic and hysteria. Such campaigns are not only ineffectual, but they may actually increase the very problems they are aimed at solving.

The articles are:

Jerome C. Wakefield:  DSM-5 proposed diagnostic criteria for sexual paraphilias: Tensions between diagnostic validity and forensic utility [request from author HERE]

Tamara Rice Lave: Inevitable recidivism: The origin and centrality of an urban legend  [full text available online HERE]

A preview of all of the articles in the special issue, Beyond Myth: Designing Better Sexual Violence Prevention, is HERE. Clicking on a preview of an article allows one to email the author to request a reprint.

June 22, 2011

Brits: American psychiatry needs new theoretical frame

Ever since the American Psychiatric Association launched its multi-million dollar diagnostic industry with the publication of the DSM-III in 1980, the approach to successive editions has been to tinker, fiddle, and tweak: Change a diagnostic threshold here; reword a criterion there; remove an outdated label and add two or three more in its place.

Meanwhile, the underlying structure is so shoddy and out of touch with reality that the best thing to do would be to tear the whole thing down and start over. That's the message of the British Psychological Society, the UK’s 50,000-member professional body for psychologists, responding to the latest draft of the Diagnostic and Statistical Manual. The APA had invited the Society to comment on the DSM-5, currently due out in 2013.

The Society is concerned that clients and the general public are negatively affected by the continued and continuous medicalisation of their natural and normal responses to their experiences; responses which undoubtedly have distressing consequences which demand helping responses, but which do not reflect illnesses so much as normal individual variation…. The putative diagnoses presented in DSM-5 are clearly based largely on social norms, with 'symptoms' that all rely on subjective judgements, with little confirmatory physical 'signs' or evidence of biological causation. The criteria are not value-free, but rather reflect current normative social expectations.
The Society critiqued a range of proposed changes in the DSM, including major changes to the personality disorders as well as (of particular relevance to forensic practitioners) the sexual paraphilias. Particular concern was expressed over a proposed "attenuated psychosis syndrome." This proposal is "very worrying" to the British psychologists, as it will "stigmatize eccentric people" and lower the threshold for prescribing potentially harmful antipsychotic medications.

More broadly, the Society commented, the DSM diagnostic system's limited focus leads practitioners to ignore the relational and environmental contexts for psychological problems:

The Society recommends a revision of the way mental distress is thought about, starting with recognition of the overwhelming evidence that it is on a spectrum with 'normal' experience, and that psychosocial factors such as poverty, unemployment and trauma are the most strongly evidenced causal factors.
Retreat from diagnostic labeling urged

Rather than "applying preordained diagnostic categories," the Society recommends cataloging specific symptoms or complaints, such as "hearing voices" or "feelings of anxiety."

Statistical analyses of problems from community samples show that they do not map onto past or current categories…. While some people find a name or a diagnostic label helpful, our contention is that this helpfulness results from a knowledge that their problems are recognized, … understood, validated, explained (and explicable) and have some relief. Clients often, unfortunately, find that diagnosis offers only a spurious promise of such benefits. Since – for example – two people with a diagnosis of 'schizophrenia' or 'personality disorder' may possess no two symptoms in common, it is difficult to see what communicative benefit is served.... We believe that a description of a person’s real problems would suffice…. There is ample evidence from psychological therapies that case formulations (whether from a single theoretical perspective or more integrative) are entirely possible to communicate to staff or clients. We therefore believe that alternatives to diagnostic frameworks exist, should be preferred, and should be developed with as much investment of resource and effort as has been expended on revising DSM-IV.

The 26-page statement is available HERE.

June 19, 2011

Violence risk meta-meta: Instrument choice does matter

Despite popularity, psychopathy test and actuarials not superior to other prediction methods 

The past couple of decades have seen an explosion of interest in forensic assessment of risk for future violent and sexual recidivism. Accordingly, evaluators can now choose from an array of more than 120 different risk assessment tools. But should this choice be based on individual preference, or are some instruments clearly superior to others?

Several systematic reviews and metaanalyses have addressed this question, but their conclusions often conflict. In the first systematic review of these reviews (called a “meta-review”), Jay Singh and Seena Fazel of Oxford University found that methodological shortcomings may contribute to the confusion. Problems they identified in the 40 metaanalyses and reviews they studied included authors' failure to adequately describe their study search procedures, failure to check for overlapping samples or publication bias, and failure to investigate the confound of sample heterogeneity.

The Oxford scholars, along with Martin Grann of Sweden's Centre for Violence Prevention, set out to rectify this problem via a more methodologically rigorous meta-review, using optimal data analyses and reporting procedures. For this purpose, they used the Preferred Reporting Items for Systematic Reviews and Metaanalyses, a 27-item checklist designed to enable a transparent and consistent reporting of results.

For their meta-meta (a metaanalysis of the metaanalyses), they collected data from 68 studies involving about 26,000 participants in 13 countries, focusing on the accuracy of the nine most commonly used forensic risk assessment instruments:
  • Psychopathy Checklist (PCL-R)
  • Static-99
  • Historical, Clinical, Risk Management-20 (HCR-20)
  • Violence Risk Appraisal Guide (VRAG)
  • Sexual Violence Risk-20 (SVR-20)
  • Level of Service Inventory (LSI-R)
  • Sex Offender Risk Appraisal Guide (SORAG)
  • Spousal Assault Risk Assessment (SARA)
  • Structured Assessment of Violence Risk in Youth (SAVRY)
Big differences in predictive validity

As it turns out, these widely used instruments vary substantially in predictive accuracy. Performing the best was the SAVRY, a risk assessment instrument designed for use with adolescents. At the bottom were the Level of Service Inventory and the Psychopathy Checklist. This is not too surprising, as the LSI-R is used with a wide variety of general offenders, and the PCL-R was not designed for risk prediction in the first place.

The present metaanalysis would therefore argue against the view of some experts that the PCL- R is unparalleled in its ability to predict future offending.

Statistical method matters: DOR outperforms AUC

The researchers compared several different methods of measuring predictive accuracy. They found that a popular statistic called the Area Under the Curve (AUC) was the weakest. Use of the AUC statistic may help to explain why some metaanalyses were unable to find significant differences among instruments, the authors theorize.

Better methods for comparing instruments’ predictive accuracy include calculating positive and negative predictive values and also using something called the Diagnostic Odds Ratio, or DOR. This is the ratio of the odds of a positive test result in an offender (true positive) relative to the odds of a positive result in a non-offender (false positive). The authors’ summary performance scores pooled results from all four statistical methods.

Actuarials not superior; race also matters

The poor performance of the Psychopathy Checklist (PCL-R) was not the only finding that may surprise some forensic evaluators. The researchers also found no evidence that actuarial tools – such as the widely touted Static-99 – outperform structured clinical judgment methods like the HCR-20 or the SVR-20.

They also found that an offender's race is critical to predictive accuracy. Risk assessment instruments perform best on white offenders, most likely because white offenders predominate in the underlying studies. This is consistent with other research, including a study by Dernevick and colleagues finding that risk assessment instruments are poor at predicting misconduct in terrorists.

Caution is therefore warranted when using any risk assessment tool to predict offending in samples dissimilar to their validation samples, the authors stress.

This systematic review appears to be the most methodologically rigorous such study to date, in a rapidly evolving field. I recommend obtaining both articles (see below for author contact information) and studying them carefully. The stakes are high, and it behooves us to use the instruments that are the most accurate for the specific purpose at hand.

The studies are:

June 16, 2011

Psychiatrist: Time to drop “silly” hebephilia once and for all

"Striking new evidence" should place the nail in the coffin of a "poorly conceived" proposal to turn sexual attraction to pubescent minors into a new mental disorder, says the chair of the DSM-IV Task Force in a new blog post at Psychology Today.

Allen Frances, professor emeritus at Duke University, has vocally opposed efforts to expand psychiatric diagnoses in the upcoming edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-5), due out in 2013.

In the wake of the DSM leadership's recent abandonment of a controversial new diagnosis for rapists, Frances says it is also past time to relegate "hebephilia" to "the obscurity it has so long and so justly deserved":
'Hebephilia' is a medical-sounding term for what is a purely legal issue--the statutory rape of pubescent youngsters aged 11-14. This is a crime deserving punishment, not a mental disorder deserving psychiatric hospitalization…. The 'hebephilia' proposal was always a poorly thought out, obvious non-starter. It failed on conceptual grounds, was unsupported by scientific evidence, and would create disastrous forensic problems. 

Four strikes and you're out

Frances lists four “strikes” against the proposal. In the first place, he points out, attraction to pubescent teenagers is biologically “hard-wired,” not deviant. Second, the research literature is “pathetically thin, methodologically flawed, and mostly completely irrelevant to whether it should be considered a mental disorder.” Third, the construct is a “forensic nightmare” that is already being abused in Sexually Violent Predator (SVP) civil commitment proceedings.

Lastly, Frances lambasts the claim that the number of sex crimes an individual has committed can be the basis for an accurate diagnosis. According to Frances, an independent data analysis just accepted for publication by Behavioral Sciences and the Law debunks that assertion. The article, by Richard Wollert and Elliot Cramer (online HERE), delivers "a piercing nail to seal the coffin" on hebephilia, writes Frances:
Reanalyzing the original raw data with appropriate statistical methods, they found that (contrary to the original report) there was an extremely high false positive rate in identifying 'hebephilia.' This had been obscured by an obvious statistical error in the original analysis--the highly selective sampling of subjects at the poles of the continuum, arbitrarily excluding those in the middle.
Frances’s full essay, at his Psychology Today blog DSM in Distress, is HERE.

June 8, 2011

Leading psychiatrists critique proposed sexual disorders

  • Dangerous.
  • Unnecessary.
  • Sloppy.
  • Inaccurate.

These adjective express the sentiment of prominent forensic psychiatrists about a set of controversial new sexual disorders being proposed for the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5).

Four critiques in the current issue of the flagship journal of the American Academy of Psychiatry and Law follow two well-attended meetings in which forensic psychiatrists were "decidedly negative" toward the proposed paraphilias, in the words of psychiatrist Howard Zonana.

Pandering to legal pressure 

A primary concern of forensic psychiatrists is that the proposals are being developed not based on clinical need or scientific discovery but, rather, to meet demands from the legal system. Specifically, broadening of paraphilias will make it easier to:
  • Increase prison terms for Internet pornography users 
  • Win civil detention for repeat sex offenders who have no genuine mental disorders
"The sexual disorders in the current and proposed DSM contain a potpourri of categories that increasingly intersect with the criminal justice system," notes Zonana, a psychiatry professor at Yale:
"Caveats saying the DSM is designed for clinical and not legal purposes notwithstanding, our classification system has difficulty distinguishing what we consider criminal behavior from culturally unacceptable behavior and mental disorder. Several current proposals continue this trend and seem more responsive to criminal justice concerns than mental illness considerations. They also lack sufficient specificity to warrant being called a disorder."

Loosening categories will reduce accuracy

J. Paul Fedoroff echoed Zonana's concern about legal influence, and also highlighted the reduction in accuracy that the diagnostic expansions will engender:
"The [proposals] raise more questions than answers. The proposed revisions to current DSM-IV-TR criteria will decrease the specificity of ascertained and diagnosed conditions by dramatically loosening the diagnostic categories. While the proposed changes may increase diagnostic reliability, they will certainly decrease diagnostic accuracy. Given the consequences of mistaken diagnosis, the proposed revisions are both unhelpful and dangerous."

Federoff, chair of  AAPL's Sexual Behaviors Committee, also directs both the Sexual Behaviors Clinic at Royal Ottawa Mental Health Care Centre and the forensic research program at the University of Ottawa Institute of Mental Health Research. 

Hypersexuality: Pathologizing young adults

Both Zonana and Federoff critiqued the conceptual and practical problems with the big three proposals that were resoundingly rejected in an audience poll after a debate at last year's AAPL meeting. These include hypersexuality, pedohebephilia and paraphilic coercive disorder (which the DSM revisers recently agreed to shelve). Wrote Zonana:
"The amount of time a person spends thinking about and engaging in sexual behavior varies enormously across the life cycle, with a sharp peak in adolescence and early adulthood. The most striking feature of the current criteria for hypersexuality is that, in my experience, it will be especially hard to find a young adult of college age who does not meet all of the criteria. The same will be true of many adults. The amount of time adolescents spend fantasizing and engaging in sex-related behavior is enormous.... To call this a mental disorder will include far too many false positives."

Pedohebephilia: Confusing illegality with disorder

Zonana, Federoff, and two other prominent forensic psychiatrists – Johns Hopkins University psychiatry professor Fred Berlin and Columbia University professor Michael First – all criticized the proposal to expand pedophilia to include adults with sexual interests in minors who have reached puberty.

"What is the great need to expand the definition to make more diagnoses?" asked Zonana. "Their rationale seems to conflate law enforcement with mental illness even more. There certainly are no new good treatments to justify a need to identify more cases."
“Our culture has initiated a 'war on sex offenders' and the legal system has geared up to wage it. Since we have made the diagnosis almost completely overlap with the crime, we have become overly enmeshed with legal goals.”
Federoff agreed:
"With the broadening of the age range of interest that will satisfy the diagnosis, more people will be labeled. By definition, expansion of the range of diagnostic criteria reduces sensitivity (true positives). Is this a good idea?"
Critical voices encouraged

Introducing the critiques, Richard B. Krueger, a psychiatry professor at Columbia University and medical director of the New York State Psychiatric Institute's Sexual Behavior Clinic, invited others to submit input – especially in published form:
"We hope that these articles will stimulate further discussion and submission of thoughtful criticism. Forensic psychiatrists are particularly well suited to offer commentary concerning the use or misuse of paraphilia diagnoses in legal proceedings, and observations on any aspect of the proposed criteria would be welcome. Indeed, editors of relevant journals have been generous in publishing commentary and articles. The Journal of the American Academy of Psychiatry and the Law, Sexual Abuse, the Archives of Sexual Behavior, the Journal of Sex Research, and The Journal of Sexual Medicine have published criticisms of DSM-5. There is still time to submit comments. Even if suggestions are not actually incorporated or reflected in the revised criteria, the published record would be valuable and relevant for the future."
While I would certainly echo Krueger's encouragement, I am skeptical that some members of the DSM-5 Sexual Disorders Work Group will willingly give up their pet diagnoses – especially the scientifically suspect pedohebephilia construct that is already being misused on a widespread basis in Sexually Violent Predator cases.

As psychiatrist John Sadler noted in his book dissecting the conflictual history of the DSM's, Values and Psychiatric Diagnosis, the DSM committees claim openness and seek input, “but how such input is to influence the actual decision-making process is not discussed.”

At any rate, Krueger makes the excellent point that having a formal record of the opposition will be important in the future. If any of these three proposals makes it into the DSM-5, vigorous Daubert challenges by increasingly sophisticated attorneys will be certain to follow. Indeed, use of any of the paraphilias in court only calls attention to the scientifically weak underpinnings of the entire category. As Zonana points out:
"The work group has a difficult set of disorders to contend with. The category lacks a principled basis for considering inclusions and exclusions, which makes it vulnerable to societal pressures rather than advances in science. The proposals discussed should not be accepted in their current form, as they create more problems than they solve."
Daubert challenges will be especially likely in that the American Psychiatric Association has decided not to conduct any formal field tests of the proposed paraphilias. This means that even their interrater reliability -- far easier to establish than actual scientific validity (accuracy) -- will remain in doubt. Unofficial field trials being conducted at the Sand Ridge Detention Center in Wisconsin and in California will not alleviate this concern, as the coordinators of these trials have a vested interest in a positive outcome. It's something like hiring the fox to guard the chicken coop.

I predict that the paradoxical consequences of this shaky endeavor are going to come back and bite organized psychiatry in the future. As I wrote in the conclusion to my historical review of hebephilia's sudden emergence:
Significant unintended consequences are likely if novel syndromes of primary benefit to the sex offender commitment industry are incorporated into the upcoming edition of the DSM. First, at a time of mounting controversy over partisan influence and lack of scientific rigor in the DSM diagnostic system, critics will seize on this as a glaring example of arbitrary and unscientific use of psychiatric diagnosis in the service of a pragmatic goal. This could have the paradoxical effect of reducing the scientific credibility of the DSM and the fields of psychiatry and psychology more broadly. In the forensic arena, where the diagnosis will most often be invoked, it may paradoxically invigorate defense challenges on the grounds that psychiatry is being deployed in a pretextual manner. In the end, hebephilia will come to haunt not only those who are civilly committed on pretextual grounds, but the entire mental health field, for years to come.
As always, the Journal of the American Academy of Psychiatry and Law is available online for free downloading. The current issue includes some other interesting articles, including a critique by forensic psychologist Brian Abbott of a current push in the sex offender industry to combine actuarial scores with clinical judgment. I encourage you to check it out (HERE). 

June 6, 2011

Pornography sentence unconstitutionally cruel, judge rules

A must-read case for forensic psychologists  

"C.R." grew up in a chaotic, highly conflictual home. He was immature, socially klutzy, anxious and depressed. Friends introduced him to online pornography, readily accessible for free via peer-to-peer file sharing. He took to smoking marijuana and escaping into sexual fantasy. Between the ages of 15 and 19, he downloaded pornography, much of it involving boys ages 10-12, and shared files with other users.

When he was 19 years old, the FBI ensnared him in a sting and the world came crashing down. Under federal law, “C.R.” faced a statutory minimum of five years in prison.

Until Judge Jack B. Weinstein intervened, ruling that the 5-year minimum is unconstitutional in C.R.’s case, due to the youth’s age and immaturity.

The ruling is part of a crusade by Weinstein, one of the United States' most accomplished and respected jurists, against what he calls “the unnecessary cruelty of the law.” Previously, the 89-year-old federal judge in the Eastern District of New York led a similar campaign against rigid drug sentencing

Weinstein’s 401-page tome in United States v. C.R. should be on the required reading list of every forensic psychologist, tackling as it does many of the front-burner issues and controversies currently facing the field:
  • Adolescent brain development and immaturity
  • Risk for hands-on offending among pornography offenders
  • The misuse of risk assessment instruments (including the circular reasoning involved in assigning an offender to the “high risk” group on the Static-99)
  • The bogus disorder of “hebephilia” that you've heard about here
  • Morality and prejudice masquerading as science
Before sentencing C.R., Weinstein ordered an evidentiary hearing that would enable him to determine how best to protect the community while not unnecessarily destroying the young man’s life. Well-known experts including Robert Prentky and Meg Kaplan testified about C.R.’s low risk of recidivism, the likelihood he would face abuse in prison, and the impact of adolescent immaturity on youths’ judgment.They are quoted at length, as is a prosecution psychologist who found C.R. to be at high risk based in part upon factually erroneous information (that C.R. had visited gay "glory holes").

Ultimately, the judge still imposed a prison sentence, but cut it in half to 30 months. A longer term "lacks any legitimate penological justification" and violates the 8th Amendment’s bar on cruel and unusual punishment, he wrote:

This case illustrates some of the troubling problems in sentencing adolescents who download child pornography on a file-sharing computer service. Posed is the question: To protect the public and the abused children who are shown in a sexually explicit manner in computer images, do we need to destroy defendants like C.R.? ... C.R. should be prepared to assume a useful law-abiding life rather than one of a broken and dangerous, ex-prisoner deviant. Were it not for Congress‘s strongly expressed preference for incarceration in these cases, the court would have imposed a long term of supervised release with medical treatment outside of prison.
Weinstein echoed the reasoning of the U.S. Supreme Court in two recent back-to-back cases involving juveniles. One (Roper v Simmons) invalidated the death penalty for juveniles; the other (Graham v Florida) held that juveniles could not be sentenced to life without the possibility of parole for crimes other than homicide.

This is not Weinstein's first foray into the thicket of child pornography sentencing. Last year, he vacated the conviction of Pietro Polizzi on the grounds that the jury had a right to know what punishment a guilty verdict would produce. Several jurors told the judge they might not have convicted the married father of five had they known he would have gone to prison for at least five years.

"I don’t approve of child pornography, obviously,” Judge Weinstein told the New York Times at the time. But he also said he did not believe that those who merely view images, as opposed to producing or selling them, present a significant threat to children. “We’re destroying lives unnecessarily. At the most, they should be receiving treatment and supervision.”

Although Weinstein is more outspoken than some, an increasing number of judges are balking at giving pornography viewers longer prison terms than actual child molesters and rapists often get. “Across the country, an increasing number of federal judges [are] criticizing changes to sentencing laws that have effectively quadrupled their average prison term over the last decade,” noted the Times report.

In his erudite, data-rich dissection of pornography and risk, Weinstein cites everyone from Malcolm Gladwell to Alex Kotlowitz (long one of my favorite authors) and Laurence Steinberg, and to our very own forensic psychology colleagues John Monahan, Jennifer Skeem, and Charles Patrick Ewing (whose newest book is another must-read).

Weinstein, by the way, has had a fascinating and colorful career. He put himself through Brooklyn College by working on the docks in New York Harbor before forging multiple and overlapping careers as a teacher, lawyer, and public servant. Back in his early days of lawyering, he helped the NAACP with the landmark desegregation case of Brown v. Board of Education. As a jurist, he’s handled many of the biggest mass tort cases in the United States, involving Agent Orange, asbestos, tobacco, breast implants, DES, Zyprexa, and handguns. More on Judge Weinstein’s interesting life and career is HERE.

I have made the case of United States v. C.R. available for download HERE. Again, I recommend that you read it for yourself. It's a great primer, packed full of useful information and references -- many of them available online.