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

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 He scampers around the country deploying a bizarre admixture of obscure, outdated and unpublished tests that no one else has ever heard of.

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

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

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

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

New report slams "junk science” psychological assessments

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

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

Slick ad for one of a myriad of new psych tests.

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

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

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

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

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

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

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

Beware the all-powerful law of unintended consequences

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

But never underestimate the law of unintended consequences.

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

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

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

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

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

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

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

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

Hebephilia flunks Frye test

Photo credit: NY Law Journal

In a strongly worded rejection of hebephilia, a New York judge has ruled that the controversial diagnosis cannot be used in legal proceedings because of “overwhelming opposition” to its validity among the psychiatric community.

Judge Daniel Conviser heard testimony from six experts (including this blogger) and reviewed more than 100 scholarly articles before issuing a long-awaited opinion this week in the case of “Ralph P.,” a 72-year-old man convicted in 2001 of a sex offense against a 14-year-old boy. The state of New York is seeking to civilly detain Ralph P. on the basis of alleged future dangerousness.

State psychologist Joel Lord had initially labeled Ralph P. with the unique diagnosis of sexual attraction to “sexually inexperienced young teenage males,” but later changed his diagnosis to hebephilia, a condition proposed but rejected for the current edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-5).

Under the Frye evidentiary standard, designed to bar novel scientific methods that are not sufficiently validated, a construct must be “generally accepted” by the relevant scientific community before it can be relied upon in legal proceedings.

Judge Conviser found that hebephilia (generally defined as sexual attraction to children in the early stages of puberty, or around the ages of 11 or 12 to 14) is being promoted by a tiny fringe of researchers and in practice is used almost exclusively as a tool to civilly commit convicted sex offenders. Under U.S. Supreme Court rulings, such offenders must have a mental disorder in order to qualify for prolonged detention after they have served their prison terms.

“It is not an accident, as Dr. Franklin outlined, that hebephilia became a prominent diagnosis only with the advent of SVP laws,” the judge wrote in his 75-page opinion. “It is also not a coincidence that each of the three expert witnesses who testified for the State at the instant hearing either work or formerly worked for state [Sexually Violent Predator] programs.”

Conviser’s ruling analyzed both the practical problems in reliably identifying hebephilia and the political controversies swirling around it: Without any standardized criteria, “clinicians are free to assign hebephilia diagnoses in widely disparate ways, many of which are just plainly wrong.” Using age as a proxy for pubertal stage is no guarantee of reliability because pubertal onset is highly variable. Ultimately, he concluded, whether erotic interest in pubescent minors is deemed "pathological" is more about moral values than science.

APA secrecy faulted

The judge was harshly critical of the American Psychiatric Association for its refusal to publicly explain why it rejected hebephilia from the DSM-5 in 2013. The diagnosis was aggressively promoted by a Canadian psychologist, Ray Blanchard, and fellow researchers from Canada’s Centre for Addiction and Mental Health (CAMH), who dominated the DSM-5 subcommittee on paraphilias.

Blanchard rewrote the DSM section on paraphilias (sexual deviances) in a broad way such that virtually all sexual interests other than a narrowly defined “normophilic” pattern became pathological. However, the APA rejected Blanchard’s proposal to expand pedophilia to pathologize adult sexual attractions to pubescent-aged (rather than just prepubescent) minors.

“The proposal was apparently rejected because it was greeted with a firestorm of criticism by the sex offender psychiatric community, which was communicated to the APA board…. As best as this Court can surmise, the APA rejected the pedohebephilia proposal because it was opposed by most of the psychiatrists and psychologists who worked in the field.”

“[S]trikingly,” wrote Judge Conviser, “the process through which proposed new diagnoses are approved or rejected is shrouded in a degree of secrecy which would be the envy of many totalitarian regimes…. With respect to hebephilia, the APA board’s actions will have a direct impact on both public safety and the fundamental liberty interests of hundreds or thousands of people.”

The APA forces those involved in the DSM revision process to sign nondisclosure contracts. That policy came in the wake of a series of published exposes – including Christopher Lane’s Shyness: How Normal Behavior Became a Sickness, Jonathan Metzl's The Protest Psychosis, and Ethan Watters’s Crazy Like Us (to name just a few of my favorites) -- that embarrassed the world’s largest psychiatric organization by shining a light inside the often subjective and political process of diagnosis creation and expansion.

“Overwhelming” opposition

Blanchard and his CAMH colleagues’ 2009 proposal to expand pedophilia into a new “pedohebephilia” diagnosis in the DSM-5 spawned a massive outcry, which mushroomed into at least five dozen published critiques.

In preparation for my testimony at this and similar Frye hearings in New York, I expanded on my 2010 article in Behavioral Sciences and the Law tracing hebephilia’s rise from obscurity, to produce an updated chart containing all 116 articles addressing the construct. If one tallies only those articles that take a position (pro or con) on hebephilia and are not written by members of the CAMH team, fully 83% are critical as compared to only 17% that are favorable. This, Judge Conviser noted, is strong evidence against the government’s position that hebephilia is “generally accepted” by the relevant scientific communities.

“The thrust of the evidence at the hearing was … clear: there was overwhelming opposition to the pedohebephilia proposal in the sex offender psychiatric community,” he wrote. “There is overwhelming opposition to the hebephilia diagnosis today.”

Courts scrutinizing nouveau diagnoses

With the APA’s rejection of hebephilia as well as two other proposed sexual disorders (one for preferential rape and another for hypersexuality), government evaluators continue to shoehorn novel, case-specific diagnostic labels into the catchall DSM-5 category of “other specified paraphilic disorder” (OSPD) as a basis for civil commitment.

Under a 2012 New York appellate court ruling in the case of State v. Shannon S., upon a defense request, a Frye evidentiary hearing must be held on any such attempt to introduce an OSPD diagnosis into a Sexually Violent Predator (SVP) case. That has triggered a spate of Frye hearings in the Empire State, affording greater scrutiny and judicial gatekeeping of scientifically questionable diagnoses.

Ironically, although the Shannon S. court upheld hebephilia by a narrow 4-3 margin, Shannon S. would not have met diagnostic criteria under the narrower definitions presented by the government experts at Ralph P.’s Frye hearing four years later, because his victims were older than 14.

“Assuming hebephilia is a legitimate diagnosis, Shannon S., like many SVP respondents, was apparently diagnosed with the condition not based on evidence he was preferentially attracted to underdeveloped pubescent body types but because he offended against underage victims,” Judge Conviser observed in his detailed summary of prior New York cases.

The three dissenting judges in Shannon S. were adamant that hebephilia was “absurd,” and an example of “junk science,” deployed with the pretextual goal of “locking up dangerous criminals” who had committed statutory rapes.

The opening of the Frye floodgates has led to a flurry of sometimes-competing opinions.

In 2015, in State v. Mercado, Judge Dineen Riviezzo ruled against “OSPD--sexually attracted to teenage females” as a legitimate diagnosis. However, she declined to rule on the general acceptance of hebephilia because it was not specifically diagnosed in that case.

A year later, relying on similar evidence, a judge in upstate New York ruled in State v. Paul V. that hebephilia was generally accepted, in large part because it was backed by the APA’s paraphilias sub-workgroup. Judge Conviser found that reasoning unpersuasive, pointing out that the subworkgroup was dominated by the very same CAMH researchers who were hebephilia’s primary advocates; it was therefore “not a valid proxy" for the scientific community.

In July, another court rejected both hebephilia and “OSPD--underage males” as valid diagnoses, in the cases of Hugh H. and Martello A. The court noted that hebephilia is inconsistently defined, was rejected for the DSM-5, and is primarily advanced by one research group; further, attraction to pubescent minors is not intrinsically abnormal.

Cynthia Calkins, a professor at John Jay College of Criminal Justice in New York, echoed those points in her testimony at Ralph P.'s hearing. She noted that in the United States, the main psychologists advocating for hebephilia are government-retained evaluators in SVP cases, who make up only perhaps one-fourth of one percent of psychologists and psychiatrists in the U.S. and so cannot be a proxy for “general acceptance” in the scientific community.

The government’s choice of experts illustrated Calkins’ point: Testifying for the government were Christopher Kunkle, director of New York’s civil management program for sex offenders, David Thornton of Wisconsin’s civil commitment center, and Robin Wilson, formerly of Florida’s civil commitment center and a protégé of Ray Blanchard’s.

The third expert called by Ralph P.’s attorneys was Charles Ewing, a distinguished professor at the University at Buffalo Law School who is both an attorney and a forensic psychologist and has authored several books on forensic psychology.

Defense attorneys Maura Klugman and Jessica Botticelli of Mental Hygiene Legal Service represented Ralph P. Assistant New York Attorney General Elaine Yacyshyn represented the state.

Ultimately, New York State’s highest court may have to weigh in to resolve once and for all the question of whether novel psychiatric diagnoses like hebephilia are admissible for civil commitment purposes. But that could be years down the road.

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The ruling in State v. Ralph P. is HERE. The subsequent order of Sept. 28, 2016 granting Ralph P.'s motion for summary judgment and dismissal of the civil commitment petition is HERE.

A New York Law Journal report on the case, "judge Rejects Diagnosis for Civil Confinement," is HERE.

A search of this blog site using the term hebephilia will produce my reports on this construct dating all the way back to my original post from 2007, "Invasion of the Hebephile Hunters."

Remarkable experiment proves pull of adversarial allegiance

 Psychologists' scoring of forensic tools depends on which side they believe has hired them

A brilliant experiment has proven that adversarial pressures skew forensic psychologists' scoring of supposedly objective risk assessment tests, and that this "adversarial allegiance" is not due to selection bias, or preexisting differences among evaluators.

The researchers duped about 100 experienced forensic psychologists into believing they were part of a large-scale forensic case consultation at the behest of either a public defender service or a specialized prosecution unit. After two days of formal training by recognized experts on two widely used forensic instruments -- the Psychopathy Checklist-R (PCL-R) and the Static-99R -- the psychologists were paid $400 to spend a third day reviewing cases and scoring subjects. The National Science Foundation picked up the $40,000 tab.

Unbeknownst to them, the psychologists were all looking at the same set of four cases. But they were "primed" to consider the case from either a defense or prosecution point of view by a research confederate, an actual attorney who pretended to work on a Sexually Violent Predator (SVP) unit. In his defense attorney guise, the confederate made mildly partisan but realistic statements such as "We try to help the court understand that ... not every sex offender really poses a high risk of reoffending." In his prosecutor role, he said, "We try to help the court understand that the offenders we bring to trial are a select group [who] are more likely than other sex offenders to reoffend." In both conditions, he hinted at future work opportunities if the consultation went well. 

The deception was so cunning that only four astute participants smelled a rat; their data were discarded.

As expected, the adversarial allegiance effect was stronger for the PCL-R, which is more subjectively scored. (Evaluators must decide, for example, whether a subject is "glib" or "superficially charming.") Scoring differences on the Static-99R only reached statistical significance in one out of the four cases.

The groundbreaking research, to be published in the journal Psychological Science, echoes previous findings by the same group regarding partisan bias in actual court cases. But by conducting a true experiment in which participants were randomly assigned to either a defense or prosecution condition, the researchers could rule out selection bias as a cause. In other words, the adversarial allegiance bias cannot be solely due to attorneys shopping around for simpatico experts, as the experimental participants were randomly assigned and had no group differences in their attitudes about civil commitment laws for sex offenders.

Sexually Violent Predator cases are an excellent arena for studying adversarial allegiance, because the typical case boils down to a "battle of the experts." Often, the only witnesses are psychologists, all of whom have reviewed essentially the same material but have differing interpretations about mental disorder and risk. In actual cases, the researchers note, the adversarial pressures are far higher than in this experiment:

"This evidence of allegiance was particularly striking because our experimental manipulation was less powerful than experts are likely to encounter in most real cases. For example, our participating experts spent only 15 minutes with the retaining attorney, whereas experts in the field may have extensive contact with retaining attorneys over weeks or months. Our experts formed opinions based on files only, which were identical across opposing experts. But experts in the field may elicit different information by seeking different collateral sources or interviewing offenders in different ways. Therefore, the pull toward allegiance in this study was relatively weak compared to the pull typical of most cases in the field. So the large group differences provide compelling evidence for adversarial allegiance."

This is just the latest in a series of stunning findings by this team of psychologists led by Daniel Murrie of the University of Virginia and Marcus Boccaccini of Sam Houston University on an allegiance bias among psychologists. The tendency of experts to skew data to fit the side who retains them should come as no big surprise. After all, it is consistent with 2009 findings by the National Academies of Science calling into question the reliability of all types of forensic science evidence, including supposedly more objective techniques such as DNA typing and fingerprint analysis.

Although the group's findings have heretofore been published only in academic journals and have found a limited audience outside of the profession, this might change. A Huffington Post blogger, Wray Herbert, has published a piece on the current findings, which he called "disturbing." And I predict more public interest if and when mainstream journalists and science writers learn of this extraordinary line of research.

In the latest study, Murrie and Boccaccini conducted follow-up analyses to determine how often matched pairs of experts differed in the expected direction. On the three cases in which clear allegiance effects showed up in PCL-R scoring, more than one-fourth of score pairings had differences of more than six points in the expected direction. Six points equates to about two standard errors of measurement (SEM's), which should  happen by chance in only 2 percent of cases. A similar, albeit milder, effect was found with the Static-99R.

Adversarial allegiance effects might be even stronger in less structured assessment contexts, the researchers warn. For example, clinical diagnoses and assessments of emotional injuries involve even more subjective judgment than scoring of the Static-99 or PCL-R.

But ... WHICH psychologists?!

For me, this study raised a tantalizing question: Since only some of the psychologists succumbed to the allegiance effect, what distinguished those who were swayed by the partisan pressures from those who were not?

The short answer is, "Who knows?"

The researchers told me that they ran all kinds of post-hoc analyses in an effort to answer this question, and could not find a smoking gun. As in a previous research project that I blogged about, they did find evidence for individual differences in scoring of the PCL-R, with some evaluators assigning higher scores than others across all cases. However, they found nothing about individual evaluators that would explain susceptibility to adversarial allegiance. Likewise, the allegiance effect could not be attributed to a handful of grossly biased experts in the mix.

In fact, although score differences tended to go in the expected direction -- with prosecution experts giving higher scores than defense experts on both instruments -- there was a lot of variation even among the experts on the same side, and plenty of overlap between experts on opposing sides.

So, on average prosecution experts scored the PCL-R about three points higher than did the defense experts. But the scores given by experts on any given case ranged widely even within the same group. For example, in one case, prosecution experts gave PCL-R scores ranging from about 12 to 35 (out of a total of 40 possible points), with a similarly wide range among defense experts, from about 17 to 34 points. There was quite a bit of variability on scoring of the Static-99R, too; on one of the four cases, scores ranged all the way from a low of two to a high of ten (the maximum score being 12).

When the researchers debriefed the participants themselves, they didn't have a clue as to what caused the effect. That's likely because bias is mostly unconscious, and people tend to recognize it in others but not in themselves. So, when asked about factors that make psychologists vulnerable to allegiance effects, the participants endorsed things that applied to others and not to them: Those who worked at state facilities thought private practitioners were more vulnerable; experienced evaluators thought that inexperience was the culprit. (It wasn't.)

I tend to think that greater training in how to avoid falling prey to cognitive biases (see my previous post exploring this) could make a difference. But this may be wrong; the experiment to test my hypothesis has not been run. 

The study is: "Are forensic experts biased by the side that retained them?" by Daniel C. Murrie, Marcus T. Boccaccini, Lucy A. Guarnera and Katrina Rufino, forthcoming from Psychological Science. Contact the first author (HERE) if you would like to be put on the list to receive a copy of the article as soon as it becomes available.

Click on these links for lists of my numerous prior blog posts on the PCL-R, adversarial allegiance, and other creative research by Murrie, Boccaccini and their prolific team. Among my all-time favorite experiments from this research team is: "Psychopathy: A Rorschach test for pychologists?"

Forensic psychiatrists reject hebephilia - yet again!

Will American Psychiatric Association heed professional consensus?

Twenty years ago, Humbert Humbert went to prison for a series of sexual assaults on his 12-year-old stepdaughter, whom he famously nicknamed "Lolita." Now, as his lengthy prison term draws to a close, Wisconsin is petitioning to have the 60-year-old literature professor indefinitely detained as a Sexually Violent Predator.

The venue for last week's trial of Vladimir Nabokov's fictional protagonist was the annual convention of the American Association of Psychiatry and Law (AAPL) in Montreal. The central question, decided by audience vote, was whether the controversial diagnosis "hebephilia" qualified as a legitimate mental disorder justifying Mr. Humbert's indefinite civil detention.

The rousing theatrical performance featured an all-star cast of attorneys and psychologists, presided over by Toronto Judge Maureen D. Forestell. New Jersey Assistant Attorney General Mark Singer served as prosecutor. His expert witness was prominent psychiatrist Richard Krueger, a member of the paraphilias subworkgroup that has proposed adding "hebephilia" to the next edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-5). A hebephilic qualifier would extend pedophilia to men with sexual preferences for children who have entered puberty, such as the fictional Lolita.

Defending Mr. Humbert was preeminent Wisconsin attorney Robert LeBell. His expert was Washington psychologist Richard Wollert, who has published peer-reviewed articles on SVP-related topics and testifies for the defense in civil commitment proceedings. Appearing as the court's expert was prominent Canadian psychiatrist John Bradford, an advisor on paraphilia (or sexual deviance) to the DSM-IV, past president of the AAPL and clinical director of the Sexual Behaviors Clinic in Ottawa.

After a spirited and sometimes heated trial, the 131-member audience was given electronic clickers and voted overwhelmingly -- 82 percent -- against including hebephilia as a diagnosis in the DSM-5, due out in mid-2013. A majority also voted against even including the controversial diagnosis in a DSM-5 appendix as a condition meriting further study.

Third time's the charm?

This marks at least the third time in two years that respected professional bodies have voted against the idea of hebephilia as a new mental disorder. At a 2010 vote in Oslo, Norway, members of the International Association for the Treatment of Sexual Offenders (IATSO) were near-unanimously opposed to the newly proposed sexual paraphilia. U.S. forensic psychiatrists followed suit a month later at the 2010 AAPL conference, overwhelmingly voting against hebephilia as well as two other proposed paraphilias, "paraphilic coercive disorder" (aka rape) and hypersexuality, both since scrapped.

Earlier this year, more than 100 professionals, including prominent forensic psychologists and psychiatrists in the U.S. and internationally, sent an open letter to the DSM-5 revisers, urging them to nix hebephilia. Since then, at least two peer-reviewed articles have been published deconstructing its legitimacy, one in the respected Journal of Nervous and Mental Diseases ("Hebephilia and the Construction of a Fictitious Diagnosis" by forensic psychologists Paul Good and the late Jules Burstein) and the other a broad review ("Hebephilia as mental disorder?") by scholars Bruce Rind and Richard Yuill in the Archives of Sexual Behavior.

Rind and Yuill said they undertook their extensive review of the historical and cross-cultural evidence after hebephilia proponent Raymond Blanchard (a member of the DSM-5 paraphilias subworkgroup) and his colleagues at Toronto's Centre for Addiction and Mental Health brushed aside numerous published criticisms of the proposed disorder (see Table 1). Building on their earlier research, Rind and Yuill argue that hebephilia -- generally defined as sexual attraction to young pubescents in the age range of 11 to 14 -- is a biologically normal trait found to varying degrees in both human males and our closest mammalian relatives, such as higher apes. They blast hebephilia as a bold example of naked moral values masquerading as science:

"Blanchard et al. … did not invoke comparative evidence…. They did not invoke any evidence…. They declared it a disorder by fiat, bypassing scientific analysis in favor of a pre-given conclusion supportable only because it is, for the current time and place, culturally resonant. Had their pronouncement been the opposite (i.e., hebephilia is functional), their article would never have been accepted in a peer-reviewed journal without massive evidential backing. Strongly resonant opinion can facilely pass through without the kind of scrutiny demanded of non-resonant views."

Why hebephilia still clings to life, despite so much opposition and so little scientific support, is beyond me. It's like an unwanted house guest who just refuses to take the hint and pack his suitcase.

The evidence at trial 

In attacking the government's diagnosis of his client, defense attorney LeBell focused on the dearth of empirical studies on the condition, other than by researchers at a single Toronto clinic, and the likelihood of "false positive" diagnoses in legal cases.

The wording of the proposed new diagnosis has been changed again and again over the past couple of years. In its current iteration, pedophiles are defined as those who have "an equal or greater sexual arousal from prepubescent or early pubescent children than from physically mature persons, as manifested by fantasies, urges, or behaviors." (The requirements that the fantasies or urges be "recurrent" or "intense" have been removed, broadening the potential pool of sufferers.) Hebephiles are now defined as those with sexual attractions to "pubescent children" in Stages 2 to 3 of Tanner's pubertal stages (e.g., early development of pubic hair and breasts).

Defense expert Wollert testified that the problem of "false positives" -- people incorrectly identified as having a condition -- was extraordinarily high even in the controlled setting of the research laboratory. This problem would be much more acute in the forensic trenches where the hebephilia diagnosis is being deployed, he testified.

One insurmountable problem would be reliably identifying a sexual abuse victim's Tanner stage of pubertal development. Complicating this issue, testified the court's expert, John Bradford, Tanner Stages are highly variable. Because they reflect hormonal developments rather than specific ages, one could not assume a specific Tanner stage based on the age of a victim. About two years ago, alarming research indicated that girls are entering puberty far earlier than in previous generations; this month, a large study by the American Academy of Pediatrics identified a similar trend in boys.

Wisconsin psychiatrist Lynn Maskel, who organized and moderated the mock trial, labeled hebephilia a "weed diagnosis in the botanical garden of DSM."

"The question is not if sex with pubescent year old girls illegal, or if it is immoral," she told the audience of forensic psychiatrists. "The question to the psychiatric field is: Is it a disorder? And if it is, does this translate, for the expert witness, into a requisite mental disorder found in the specific SVP statute?"

Meanwhile, back in the real courtroom trenches …

In my seminal review, published in 2010 in Behavioral Sciences and the Law, I traced hebephilia's sudden emergence and rapid spread in legal discourse to the advent of Sexually Violent Predator laws, which require that the individual being considered for civil detention have a mental disorder that makes him qualitatively different from the garden-variety offender.

Since that article's publication, the introduction of hebephilia in U.S. courts has continued unabated, despite the lack of an official imprimatur by the American Psychiatric Association. In a string of SVP cases brought under the Adam Walsh Act, federal judges in North Carolina have ruled that the faux diagnosis is not a legitimate basis for civil detention.

However, other courts have been less circumspect. For example, just yesterday, in a narrow, 4-3 opinion, New York's high court upheld the civil commitment of a repeat sex offender named "Shannon S." based on the purported conditions of "paraphilia NOS" and "hebephilia." Mr. S. had engaged in a series of forcible rapes of adolescent girls, ages 13 through 16.

As the dissenters conceded, Shannon S. was a "very bad actor" and "the community may well be safer if he is kept behind bars."

"But, they added, "to put him there on the fiction that he has some sort of mental condition other than a tendency to commit the crimes for which he was convicted (and has served his time) is and should be constitutionally unacceptable."

Judge Robert Smith, writing for the minority, labeled as "absurd" the premise that attraction to adolescent girls is abnormal, as the government's two experts testified: "What is abnormal about appellant, and others who commit statutory rape by having sex with girls below the age of consent, is not that they find the girls attractive, but that they are willing to exploit them for their sexual pleasure -- in other words, they commit statutory rape."

Smith labeled hebephilia and the similarly disputed diagnosis of "paraphilia not otherwise specified" (rape) as "junk science devised for the purpose of locking up dangerous criminals." While such a practice might seem appealing from a public safety viewpoint, it creates "dangers of abuse," he eloquently warned:

"Many sex offenders are, or could reasonably be found to be, dangerous, and in common parlance they all have mental abnormalities: Mentally normal people do not commit sex crimes. Thus, unless 'mental abnormality' is defined with scientific rigor, such statutes could become a license to lock up indefinitely, without invoking the cumbersome procedures of the criminal law, every sex offender a judge or jury thinks likely to offend again.

"Some will intuitively respond: Not a bad idea. But it is a very bad idea, because not even a concern for public safety should be allowed to trump certain fundamental rules. Among them are that criminals can be confined only for crimes they have committed, after their guilt is proved beyond a reasonable doubt in a procedure in which they receive the many protections that our Constitution gives to those accused of crime, and that even when convicted they can be incarcerated for no more than the term of the maximum sentence provided by law. If the present sentences for sex offenders are too short, the Legislature should make them longer, but it should not, and constitutionally cannot, simply substitute civil for criminal proceedings as a means of keeping dangerous criminals off the streets."

As Judge Smith seems to recognize, it's a slippery slope. Bogus psychiatric diagnoses for sex offenders now, political dissidents (or others) tomorrow. That's the way they rolled in the former Soviet Union, after all.

Pretextual court rulings aside, the paraphilias subworkgroup has had more than two years to produce evidence for the reliability and validity of hebephilia, and it has not done so.

It is clear to most observers that hebephilia is not accepted by the relevant professional community. What remains unclear is whether the Board of Trustees of the American Psychiatric Association will get the message in time to prevent yet another in a veritable maelstrom of public-relations disasters and historical mistakes.

* * * * *

Additional resources: My resource page on hebephilia is HERE.

Of related interest: DSM-5  field trials discredit the American Psychiatric Association, by Allen Frances, Huffington Post, 10/31/2012

Happy Halloween!

Mysterious mental illness epidemics hit sexual predators in Arizona, Illinois

European sex offenders largely spared pejorative conditions

First responders racing to scene of a pedophilia outbreak

A survey of Sexually Violent Predator cases in eight U.S. states has revealed striking disparities in psychiatric disorders.

Almost two-thirds of the worst-of-the-worst sex offenders in Arizona suffer from pedophilia, and more than half have bad cases of a strange-sounding new disease called "paraphilia not otherwise specified." That is almost double the rate of pedophilia cases in Minnesota (with 35 percent) and, similarly, much higher than the rate of paraphilia not otherwise specified in Wisconsin (37 percent).

Meanwhile, a whopping 94 percent of sex offenders in Illinois suffer from personality disorders, most commonly antisocial personality disorder and an oddball affliction called "personality disorder not otherwise specified." That’s more than double the rate of personality disorders in Wisconsin, where only 41 percent of sex offenders have any personality disorder, mostly antisocial personality disorder.

The cause of the strange outbreaks remains shrouded in mystery. Could the dry climate in the U.S. Southwest produce more pedophiles? Perhaps the Chicago winds lend themselves to an infiltration of antisocial characters? Or, there is always the possibility of circumscribed contagions within the containment facilities for sex offenders in these two geographically discreet states (as in Legionella pneumophila).

Quarantining suspected antisocial virus carriers returning from court

The researchers who discovered the pattern attribute some of the variation to sampling differences. The Florida and Texas samples may have lower rates of mental illness, they write, because those samples included men who were referred for civil commitment but found not to meet criteria. In contrast, the samples from the other states consisted of men who were either civilly committed or on their way to being committed, having lost probable cause hearings in court.

The researchers are Shan Jumper, clinical director of a detention facility in the personality disorder-ridden state of Illinois and a leader of a national consortium of SVP facility administrators, and colleagues Mark Babula of Ohio and Todd Casbon of Indiana.

The three surveyed the SVP population in Illinois and compared their results with previously collected data from Arizona, California, Florida, Minnesota, Texas, Washington and Wisconsin. The study appears in the current issue of the International Journal of Offender Therapy and Comparative Criminology.

On average, pedophilia was the most common diagnosis among SVPs, assigned in 49% of cases nationwide. This was followed by paraphilia not otherwise specified (47%), antisocial personality disorder (43%), and personality disorder not otherwise specified (36%). Other sexual paraphilias, or abnormal sexual predilections, such as voyeurism, exhibitionism and sexual sadism, were assigned far less frequently.

Illusory differences?

All kidding aside, I would be willing to bet that there’s not a whole lot of genuine difference among the detained sex offenders in one state as compared with another. If that is so, then the dramatically different rates of diagnosis among the eight states is further evidence that these diagnoses – invoked as a legal basis for involuntary detention – are being applied arbitrarily, even whimsically, and lack sufficient reliability or validity.

Further support for evaluator differences as accounting for the large discrepancies is the fact that rates of these mental disorders are far lower in European countries that do not require mental illness as a basis for preventive detention of dangerous sex offenders. In one German survey, for example, about one-third of men who were civilly detained had molested children yet only 7 percent were diagnosed with pedophilia, suggesting the diagnosis is reserved for those with a demonstrable sexual orientation toward children.

The intriguing question of why forensic evaluators in certain of the 20 U.S. states with Sexually Violent Predator statutes are more likely to assign a given diagnosis than are their counterparts in other states remains a mystery.

The irony of the "NOS" label

With the advent of SVP laws, "NOS" categories of paraphilia (sexual deviance) and personality disorder have steadily gained popularity among sex offender evaluators in the United States.

The irony of assigning the label of "not otherwise specified" as if it is a bona fide mental disorder meriting involuntary detention largely escapes notice. But what an evaluator is actually conceding in assigning that descriptor is that the individual does NOT meet the minimal criteria for any established mental disorder, as catalogued in the American Psychiatric Association’s diagnostic manual, the DSM-IV-TR.

If you flip through the personality disorders section of the DSM, you will notice all manner of symptoms. Stop any random stranger on the street, and he or she is likely to manifest at least a few. For example, consider these:

• Angry reactions to perceived attacks on character or reputation (paranoid personality)
• Use of physical appearance to draw attention to oneself (histrionic personality)
• Envy of others (narcissistic personality)
• Feelings of inadequacy (avoidant personality)
• Difficulty disagreeing with others for fear of losing their support (dependent personality)
• Reluctance to delegate unless others conform to one's standards (obsessive compulsive personality)

The label of "personality disorder not otherwise specified" is given to individuals who are thought to have some smattering of symptoms of one or more personality disorders, but do not meet the full criteria for any. Most often, this label carries the specifier, "antisocial traits." What this actually means is that the individual does not meet even the minimal criteria for a diagnosis shared by a large proportion -- anywhere from 40 to 60 percent -- of garden-variety criminals in prison. (Of course, to qualify for a personality disorder, the person must suffer distress or impairment in functioning as a result of his symptoms. But, in a tautology, evaluators often say that this condition is met by the mere fact of arrest and incarceration.)

Harkening back to the original justification for SVP laws, the US Supreme Court stressed, in the landmark cases of Hendricks (1996) and Crane (2002), that the goal of civil commitment was to isolate a handful of mentally disordered predators who were qualitatively different from the run-of-the-mill criminal. How a diagnosis that essentially admits that the individual does not even qualify for an established disorder can meet that threshold is beyond me.

Click HERE to request the article, “Diagnostic Profiles of Civilly Committed Sexual Offenders in Illinois and Other Reporting Jurisdictions: What We Know So Far,” from the first author.

Australians: Proposed paraphilia diagnoses 'dangerously circular'

Proposed expansions of the sexual disorders in the DSM are getting negative attention Down Under, with critics worried about the blurring of lines between bad behavior and mental illness, according to an article in today's Sydney Morning Herald.

The article in Australia's fourth-largest newspaper focuses on the expansion of pedophilia to include a hebephelic subtype and the placement of a "so-called paraphilic coercive disorder" (rape-proneness) in the upcoming manual's appendix as a proposed condition meriting further study.

Most mental health professionals in Australia use the American Psychiatric Association's diagnostic nomenclature, enshrined in the Diagnostic and Statistical Manual of Mental Disorders (DSM), rather than the International Classification of Diseases (IMD), the international standard promulgated by the World Health Organization.

Australian psychiatrists and psychologists worry that the sexual disorder expansions will pave the way for more civil detention, in violation of the United Nations' International Covenant on Civil and Political Rights or, conversely, may be used by sex offenders to minimize or avoid legal punishment.

Indeed, in a case currently in the news in Melbourne, a well-known chef who sexually exploited vulnerable 13- and 14-year-old girls has introduced expert testimony on hebephilia as a mitigating factor. At a presentencing hearing, a defense-retained psychiatrist testified that Simon Humble suffered from hebephilia and would find prison difficult.

In addition to quoting clinicians and scholars in Australia, reporter Amy Corderoy reached across the Pacific to discuss the issue with your faithful blogger, a recent guest in Queensland; her article links back to this blog.

Hebephilia hopes hidey-hole will help it slip into DSM-5

Jean Broc: The Death of Hyacinthos

Hebephilia, the controversial faux disorder proposed for the upcoming DSM-5, has been repackaged in the hopes that no one will notice its presence. Unfortunately for its survival, two newly published journal articles may make it harder to hide.

The proposed label of "pedohebephilia” has been quietly discarded. Instead, hebephilia – defined as sexual attraction to young pubescents – has been buried in the text of revamped criteria for pedophilia. Presumably hoping it will go unnoticed, the web page authors do not mention the change.

The questionable diagnosis is the brainchild of a Canadian sex offender clinic with inordinate influence on the Sexual Disorders Workgroup of the American Psychiatric Association’s DSM-5 revision committee.

It is the last of three quacky sexual paraphilia proposals still standing. Overwhelming opposition derailed paraphilic coercive disorder (which would have turned rape into a mental disorder) and hypersexuality.

These victories notwithstanding, the developers of the DSM-5, due out in 2013, have been remarkably deaf to an ever-increasing roar of concern from allied professions in the United States and internationally. The revision process steamrollers on despite a mushrooming petition by a coalition of psychology organizations, a scathing critique by the British Psychological Society and, most recently, public statements of concern by the 154,000-member American Psychological Association and the 120,000-strong American Counseling Association. 

More costly and ineffective civil detentions

Following on the heels of my historical review of hebephilia in Behavioral Sciences and the Law, the Journal of the American Academy of Psychiatry and Law has just published two new critiques.

In an article focusing on the legal ramifications, forensic psychologist and attorney John Fabian warns that the primary result of adding this scientifically unproven diagnosis to the DSM-5 will be an increase in civil commitments of sex offenders.

Fabian outlines the inconsistent federal case interpretations of hebephilia, including the only federal court of appeals ruling, by the U.S. Court of Appeals for the First District in the case of Todd Carta (the case I led off with in my review):

The court in Carta focused on the offender's behavior as causing him distress, impairment, and dysfunction in his life. However, the question of whether hebephilia is a type of paraphilia NOS, depends on whether it is considered deviant and abnormal to have a sexual attraction and to engage in subsequent sexual behaviors toward pubescent adolescents and postpubescent minors. To this date, neither the case law nor clinical research on sex offenders has clearly supported classifying hebephilia as an abnormal pathology.

As we can see through this psycholegal analysis, both clinicians and the courts disagree as to whether hebephilia is a pathological sexual deviance disorder. Given the fact that the U.S. Supreme Court recently denied certiorari in hearing McGee, Michael L. v. Bartow, Dir., WI Resource Center, addressing whether a rape paraphilia NOS, nonconsent, meets the constitutional threshold for legal mental abnormality for civil commitment, it is unlikely that the Court will hear such a case addressing hebephilia. More likely, the DSM-5 will provide guidance for clinicians, attorneys, and judges who evaluate and litigate this issue in civil commitment proceedings.

Focus on clinical impairment

In a commentary on Fabian's article, sex offender researchers Robert Prentky and Howard Barbaree try to take a middle road in the contentious debate. At the outset, they acknowledge the questionable nature of diagnosing a condition that is hard-wired in heterosexual men:

Brooke Shields was only 12 years old when she played a child prostitute in Pretty Baby, three years before she modeled Calvin Klein jeans, asking, "Want to know what gets between me and my Calvin's? Nothing." Klein's young teenage models were so provocative that the Justice Department investigated whether the ads violated federal child pornography and child exploitation laws. Penelope Cruz was only 13 years old when she played a child prostitute in the French soap opera Série Rose. Jodie Foster was 14 years old when she played a child prostitute in Taxi Driver. The model Maddison Gabriel, the official "face" of Australia's Gold Coast Fashion Week in 2007, was only 12 years old. Highly sexualized young girls would not be used in advertising, in movies, and on catwalks unless a great many adult males were paying close attention. It appears that heterosexual human males are hard wired to respond sexually to young females with secondary sexual characteristics.

But, they continue, men with an "exclusive sexual preference for young teenagers" (if such men can be found) may indeed be sufficiently impaired so as to meet the mental disorder requirement of "clinically significant deficits in social and interpersonal skills."

This was the approach taken by the appellate court in upholding the civil commitment of Todd Carta, and it is a tactic being used by government experts in sexually violent predator civil commitment proceedings. In a circular rationale, once the pseudo-diagnosis of “Paraphilia Not Otherwise Specified-Hebephilia” is assigned, clinically significant impairment can be inferred from the mere fact of an arrest and criminal prosecution.

To their credit, Prentky and Barbaree do admit that the research base for hebephilia is insufficient at the present time:

The bright line in the sand should be the clinical and empirical integrity of the proposed diagnosis…. Examined in isolation, there does not appear to be adequate empirical evidence that sexual arousal in response to young adolescents constitutes a paraphilia…. Clearly, this is an area that warrants further research.

Let's just hope the DSM-5 gods tune in to the controversy in time to pull the plug on yet another half-baked idea that will only bring further embarrassment to the profession.

Both articles are freely available online:

• John Fabian: Diagnosing and Litigating Hebephilia in Sexually Violent Predator Civil Commitment Proceedings

• Robert Prentky and Howard Barbaree: Commentary: Hebephilia—A Would-be Paraphilia Caught in the Twilight Zone Between Prepubescence and Adulthood

The DSM-5 petition, spearheaded by the Society for Humanistic Psychology, is HERE.

"Invasion of the Hebephile Hunters," my oldie but goodie from 2007 (before all this hoopla got started), is HERE.

Multiple personality excluded in Texas insanity case

A serial rapist’s attempt to claim insanity based on multiple personality disorder fell flat, as a judge ordered the expert's trial testimony stricken from the record as junk science.

Billy Joe Harris

Psychiatrist Colin Ross testified that Billy Joe Harris, the so-called "Twilight Rapist" who targeted elderly women, suffered from multiple personality disorder -- now known as dissociative identity disorder (DID) -- brought on by childhood abuse.

Ross, who runs the Colin A. Ross Institute that provides trainings on psychological trauma and dissociative identity disorder, testified that the condition’s presence in the Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association establishes it as a "real and valid disorder."

Ross testified that he gave the defendant three tests for DID. However, in a most unusual procedure, rather than personally administering the tests, he gave them to the defense attorney to administer. Thus, he has no way of knowing for sure who filled in the tests, or under what circumstances. 

Ross testified that the defendant's scores on a screening test, the Dissociative Experiences Scale, were so high that he questioned the test's validity. He also conceded that the defendant was "clearly telling stories that are not true" about other aspects of his life, for example falsely claiming to have served in Iraq when he was actually in Saudi Arabia. However, Ross testified that after getting a chance to talk personally with one of Harris's alters, "Bobby," he was convinced of Harris's claim of multiple personalities.

"I don't think he's faking the dissociative identity disorder," he testified. "I could be wrong."

The real culprit, David the Dog

The defendant, a former prison employee, also took the witness stand, "weaving tales of bestiality, aliens, transvestites and combat heroism," in the words of news reporter Sonny Long. Harris testified that he had three other personalities inside him, including a black Great Dane named David who committed the rapes.

A dramatic moment came during cross-examination, when prosecutor Bobby Bell asked to speak to the defendant's alter, also named Bobby. As Long described the scene:

Harris lowered his head momentarily, raised it back up, rolled his neck and declared in a deep voice to be "Bobby."

Several jurors stifled laughter during the subsequent give-and-take between Harris and Bell, according to Long's account in the Victoria Advocate.

But perhaps even more damaging to Harris's credibility was an audiotape played for the jury in which he talks to his girlfriend about having put on "a good show" in court one day. Earlier that day, he had fallen to the floor and twitched and shook until he was restrained. The girlfriend warned Harris that the telephone call was being recorded, to which Harris replied, "I know it."

Forensic psychologist Walter Quijano also testified for the defense. (If the name sounds familiar, he has been in the spotlight for using race as a risk factor in death penalty cases, as I recently blogged about.) He testified that when multiple personality popped up as an issue, he stepped back because that is not an area of expertise for him. However, he did testify that it is unusual for someone to begin a rape career so late in life. Harris is 54.

Mere presence in DSM doesn’t establish validity

After the defense rested, the prosecution called as a rebuttal witness a Minnesota psychologist and attorney who has made a crusade out of pushing so-called "junk science" out of the courts.

Robert Christopher Barden testified that dissociative identity disorder (aka multiple personality disorder) is a controversial condition looked upon with skepticism by the scientific mainstream. He cited several articles rejecting the condition as a viable diagnosis, despite its presence in the DSM.

"Because something is in the DSM doesn't mean it's reliable or should be allowed in a court of law," he testified, according to an article in the Victoria Advocate. "One of the ways to get junk science out of the legal system is you rely on the relevant scientific community. If something is controversial it means it's not generally acceptable."

Barden said the number of mental health professionals who tout dissociative identity disorder as viable are few and far between.

"There are a few pockets of people left who are doing this," he said. "The scientists I know condemn it to be the worst kind of junk science and dangerous to the public. Controversial and experimental theories should not be allowed to contaminate the legal system."

Concerning the tests given to Harris, Barden said, "There's no magic to these tests. It looks scientific. It looks professional, but when you get down into it, it's junk. It's unusual for a psychiatrist to interpret a psychological test and it's highly unethical for Mr. Cohen [the defense attorney] to give the tests."

After Barden’s testimony that the condition is not generally accepted by the scientific community, despite the fact that it is listed in the DSM, District Judge Skipper Koetter ordered Dr. Ross’s testimony on dissociative identity disorder stricken from the record.

Justice, Texas-style

In the end, the defendant’s overdramatization and courtroom theatrics likely did him in. During the trial, he trembled and twitched and sat in the courtroom with paper stuffed in his ears, which his attorney said was “to keep the voices from speaking to him."

The jury took only 10 minutes to convict Harris, and another 10 minutes later in the month to sentence him to life in prison.

After the verdict, Barden said in a press release that the outcome demonstrates “the power of science-law teams in protecting the legal system from junk science testimony."

Barden has been involved in hundreds of lawsuits, criminal prosecutions and licensure actions across the United States over the past two decades, targeting not only multiple personality disorder but also quack therapists in the repressed memory and rebirthing therapy movements.

Judge Koetter's ruling is not the last word, of course, as it is just one trial judge's opinion. Appellate courts in other states have ruled differently. For example, in the 1999 case of State v. Greene (139 Wn. 2d 64), the Washington Supreme Court held that dissociative identity disorder was a generally accepted diagnosis because it was listed in the DSM-IV, and therefore met the Frye test for admissibility. But the Court went on to say that the applicability of this diagnosis to the issue of criminal responsibility was problematic and that testimony about DID was not "helpful" to the jury. (The Trowbridge Foundation has more information on this case HERE.)

The battle lines over dissociative identity disorder have heated up in the dozen years since that ruling, so who knows how an appellate court might rule today.

For those interested in learning more about the controversy, I recommend the chapter "Dissociative Identity Disorder: Multiple Personalities, Multiple Controversies" by Scott Lilienfeld and Steven Jay Lynn, in their book, Science and Pseudoscience in Clinical Psychology.