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.

Collateral consequences of juvenile conviction

By the age of 17, Terence Hallinan had had several scrapes with the law, including a conviction for helping beat up three Coast Guardsmen in order to steal a case of beer. Yet he was able to put delinquency behind him, and become a successful attorney who served two terms as district attorney of San Francisco.

Such redemption stories were not so unusual back in his day. But today's world is much less forgiving of youthful indiscretions. A kid who gets into any type of legal trouble has a much harder time overcoming the stigma and going on to lead a productive life.

An astonishing two million juveniles are arrested each year in the United States. For many, their first priority is getting out of custody. They may be willing to plead guilty to a seemingly trivial crime, in order to accomplish this short-term goal. Little do they realize that pleading guilty to a crime may have long-lasting collateral consequences far worse than the initial punishment itself.

In an excellent overview of the juvenile justice system in the current issue of The Champion (published by the National Association of Criminal Defense Lawyers), Dr. Ashley Nellis, research analyst of The Sentencing Project, outlines some of these drastic consequences:

Zero Tolerance and Other School Push-out Policies

There is a public perception that African American and Latino students are quitting school in droves. But as explained on an episode of NPR’s Talk of the Nation last week, many of these students are actually the victims of  PUSH-OUT policies disproportionately targeting students of color. Zero Tolerance policies spearheaded by the federal government are forcing some youngsters out of school even if an arrest does not lead to a conviction.

Employment Barriers

Contrary to what many people believe, children processed through the juvenile  justice system do not automatically have their records destroyed (expunged) when they turn 18. Neither do juveniles transferred to the adult system. Having a criminal record creates sometimes insurmountable barriers to leading a successful life, by limiting options for housing, education and employment.

Eviction and Homelessness

Due to a law passed in 1996, under the Clinton administration, a juvenile conviction can lead to the eviction of an entire family from low-income housing. Youth re-entering their communities from out-of-home placement also struggle to achieve housing stability. This destabilization, naturally, increases risk for reoffending -- and the cycle continues.

Placement on a Sex Offender Registry

Despite their demonstrated lack of efficacy, and even their harmful effects, juvenile sex offender registries are gaining in popularity. In some states, children as young as nine are being placed on registries for childish misconduct or even consensual relations with other children. Ironically, children are the very people the laws were intended to protect, yet they are being disproportionately harmed by placement on registries.

After individuals have been added to the registry, they face strict limitations on where they can live, attend school, and work. Anytime registrants change residency they must notify the authorities and update their registration; failure to do so promptly can and frequently does result in incarceration…. Despite the law’s intent to make children and the community safer, it does the opposite. Young people face social stigma, branding as predators, housing bans, and exclusion from schools as a result of placement on the registry.

Dr. Nellis concludes with a series of recommendations to reduce the negative impact of collateral sanctions for juveniles, including:

• Reverse counterproductive school-based policies such as "zero tolerance" that disengage youth from school.
• Ensure expungement for juvenile records.
• Prohibit inclusion of juvenile records on national and state offender registries.
• Restrict non-relevant conviction questions from employment applications.
• Revise and expand reentry services and supports for youth. 

The full article, Addressing Collateral Consequences of Convictions for Young Offenders, can be downloaded HERE.

Hat tip: Bruce

Sex offender roundup

So much being generated on the sex offender front that it's hard to keep up. Here, in no particular order, are just a few choice items:

The Atlantic: Overzealous sex offender laws harm public

As the tide begins to turn, The Atlantic magazine has joined the backlash, with a well-written and insightful piece by associate editor Conor Friedersdorf that begins like this:

On the Texas registry for sex offenders, Frank Rodriguez's crime is listed as "sexual assault of a child." If I lived in his neighborhood and had young children, I'd be frightened upon seeing that. Safe to assume that some of his neighbors discovered his status and became alarmed. Needlessly so, as it turns out. Delving into his story, journalist Abigail Pesta has discovered that Rodriguez was arrested for having sex with his high school girlfriend. He was 19. She was 15. They've now been happily married for years, and he has fathered four girls.

The anecdote is part of a larger story about America's sex offender registries and the people on them who don't belong there. It's a timely subject. This month, some state governments are racing to bring themselves into compliance with the Adam Walsh Child Protection and Safety Act in order to avoid losing federal funds. As a result, the sex offender dragnet may pull in even more people. Says Pesta, "Each of the 50 states now has at least one grassroots group dedicated to getting young people -- many high school age, but some under the age of 10 -- off the registry."

So perhaps the backlash will grow too.

The article continues HERE.

Juvenile registries harmful, study finds

Dovetailing nicely with the Atlantic piece, a leading researcher and national expert on sex offender policy has found that placing the names of juveniles on sex offender registries does nothing to make society safer, and has harmful unintended effects on youth and on juvenile case processing.

Based on her research, Elizabeth Letourneau of the Medical University of South Carolina is calling for an end to notification requirements for juveniles.

A summary of her research is HERE.

California releases audit of SVP program

The State Auditor’s Office has issued its long-awaited report on the practical implementation of California’s civil commitment scheme for sex offenders. It isn’t as hard-hitting as I would have liked, but there are a few interesting tidbits.

One I found interesting was the statistic that out of all of the sex offenders who were NOT civilly committed and who were released into the community between 2005 and 2010, only ONE was later convicted for a new sexually violent offense. Talk about a low base rate!

The report also details the program’s meager bang for the buck. From 2005 to 2010, the state paid nearly $49 million in evaluation costs alone to a small group of privately contracted evaluators. Some of these psychologists earned upwards of $1 million per year. And for what return? Last year, the SVP program screened 6,575 prisoners for possible civil commitment. And guess how many were committed? THREE (much less than 1 percent)!

Just think about how much primary prevention work to reduce sexual violence all of those waste millions could have funded.  

The full report is online HERE.

More on the social costs of civil detention 

Unlike the California auditors, who seem to have bought into the promise of the Static-99 as an “actuarial” technique capable of predicting future behavior, law professor Tamara Rice Lave of the Miami School of Law has just published an article in New Criminal Law Review claiming that the Static has little utility in SVP determinations not only because it is inaccurate, but also because it does not link dangerousness to mental illness as U.S. laws require. Here is the abstract of her article, “Controlling Sexually Violent Predators: Continued Incarceration At What Cost?”

Sexually violent predator (SVP) laws are inherently suspicious because they continue to incarcerate people not because of what they have done, but because of what they might do. I focus on three major criticisms of the laws. First, I use recent recidivism data to challenge the core motivation for the SVP laws—that sex offenders are monsters who cannot control themselves. Second, I situate the laws theoretically as examples of what Feeley and Simon call the “new penology.” I argue that the SVP laws show the limited promise of the new penology—that we can use science to predict risk accurately—because the actuarial instruments used in SVP determinations make many mistakes. In making this argument, I focus particularly on the most commonly used such instrument, the Static-99. Finally, I argue that the Static-99 fails to meet the constitutional criteria laid out by the U.S. Supreme Court in Kansas v. Hendricks because it does not link an individual’s mental illness to his dangerousness.

Her full article is available online HERE.

Government SVP reports off target, says Allen Frances

Allen Frances, the chair of the DSM-IV Task Force, has been dabbling with SVP cases as an expert witness for the past year. After reviewing almost 100 cases, he is  – to put it mildly – under-impressed by the reports of government experts:

In not one case did the sexual offender qualify for anything remotely resembling a DSM-IV diagnosis of Paraphilia. And this is in an enriched sample of offenders who have been carefully screened and are presumed to have Paraphilia. Certainly state evaluators are wildly over-diagnosing Paraphilia and the courts are sanctioning unjust psychiatric incarceration based on their misguided opinions.

The evaluators all misinterpreted DSM-IV in just the same way. They routinely equate the act of committing a sex crime with having a mental disorder. Their reports gave remarkably detailed descriptions of the offender's criminal behavior, but provide little or no rationale or justification for a diagnoses of Paraphilia. The write-ups are all long and thorough -- but completely off point and generic. Although written by dozens of different evaluators, they have a rote quality and all repeated exactly the same mistakes.

His full post, at his “Couch in Crisis” blog at the Psychiatric Times, is HERE.

Is porn "driving men crazy"?

Last but not least, the prolific and insightful blogger Vaughan Bell deconstructs a CNN article by social crusader Naomi Wolf, who claims that pornography is “rewiring the male brain” and “causing [men] to have more difficulty controlling their impulses.”

According to her article, … “some men (and women) have a 'dopamine hole' – their brains’ reward systems are less efficient – making them more likely to become addicted to more extreme porn more easily.”

Wolf cites the function of dopamine to back up her argument and says this provides “an increasing body of scientific evidence” to support her ideas.

Porn is portrayed as a dangerous addictive drug that hooks naive users and leads them into sexual depravity and dysfunction. The trouble is, if this is true (which by the way, it isn’t, research suggests both males and females find porn generally enhances their sex lives, it does not effect emotional closeness and it is not linked to risky sexual behaviours) it would also be true for sex itself which relies on, unsurprisingly, a remarkably similar dopamine reward system.

Furthermore, Wolf relies on a cartoon character version of the reward system where dopamine squirts are represented as the brain’s pleasurable pats on the back....

The full post is HERE.

And after all of this if you're still in the mood for further browsing, I highly recommend the wide-ranging Mind Hacks blog; the topics are always fascinating (at least to me).

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). 

ATSA issues call for change in sex offender policy

The Association for the Treatment of Sexual Abusers has just issued a major policy paper calling for a shift in public policy toward sex offending. The balance has tipped too far toward criminal justice punishments, causing unintended consequences such as families who fear coming forward to report sexual abuse, the paper emphasizes.

Experts agree that a criminal justice response alone cannot prevent sexual abuse or keep communities safe. Yet, tougher sentencing and increased monitoring of sex offenders are fully funded in many states, while victim services and prevention programs are woefully underfunded.

Key recommendations of the 54-page policy statement include:

1. Design and implement evidence-informed policy.
   
   
2. Develop successful community policies that expand the notion of what constitutes abuser accountability; encourage community responsibility and healing; and provide safety, restitution, healing, and avenues for input for victims.
   
   
3. Integrate what is known about perpetration into prevention programs, victim services, and public education.

The reported is co-authored by Joan Tabachnick, a well-known educator on sexual violence prevention, and Alisa Klein, ATSA's public policy consultant. It was partly funded by a grant from the Ms. Foundation for Women.

The introductory quote from Eleanor Roosevelt makes me optimistic that this may signal a major shift for ATSA, which has significant legislative influence around the United States, in the direction of primary prevention.

When will our consciences grow so tender that we will
act to prevent human misery rather than avenge it?

-- Eleanor Roosevelt

"Cruel and unusual": Sex offender seeks refuge in Canada

The autobiographical romance "Summer Of '42" depicts a coming-of-age relationship between 15-year-old Hermie and an older married woman. By the time "Dorothy" vanishes from his Nantucket vacation community, Hermie has matured from boy to man.


How much has changed in the 40 years since that movie was made. Today, rather than disappearing for parts unknown, Dorothy would be shackled and riding the bus to the nearest women's penitentiary.


But is it fair to sentence a woman to 30 years in prison for a consensual relationship with a willing teenage boy?

That is the question confronting Canadian authorities in the case of a Florida woman who is seeking refugee status in Saskatchewan. Denise Harvey fled the United States with her husband after she was sentenced to a 30-year prison term for a consensual relationship with her son's 16-year-old friend.

Denise Harvey (photo credit TC Palm)

In Canada, the age of consent is 16 so her conduct would not have been criminal. Saskatchewan authorities have not extradited Harvey because Canada does not extradite people unless the conduct is a crime in both countries. In appealing to the Canadian government for refugee status, Harvey claims her sentence amounts to cruel and unusual punishment, forbidden by the Eighth Amendment to the U.S. Constitution.

More than 10 percent of the residents of her home community of Vero Beach, Florida agree that her sentence was too extreme. They signed a petition demanding that Florida's governor pardon her.

"She didn’t get any justice down here," said petition sponsor George Sigler, a flight trainer. "She's a nice, soft-spoken woman who I believe made a mistake but that doesn't mean she should go to jail for 30 years. No one in their right mind believes a 16-year-old wasn't a willing participant."

Harvey rejected an 11-year plea bargain offer and went to trial. The teen testified that the two flirted and had a long kiss in a car before engaging in brief sexual interludes at his home and elsewhere. Harvey did not testify, but her attorney told jurors the boy stalked her after she rejected his advances. The jury heard a 20-minute recording surreptitiously recorded by police with the boy's cooperation, in which the two discussed what to do if their sexual encounters were disclosed.

After Harvey's conviction on five counts, prosecutors urged the lengthy sentence because she continued to deny wrongdoing. She fled after losing her appeal to the Florida Supreme Court.

With the case now making international headlines, the question becomes whether this is the most sensible face for a world leader to portray to the rest of the world.

The Toronto Star and the Treasure Coast Palm have additional news coverage. 

SVP morass: Will psychologists "just say no"?

 Dr. Franklin,

          My understanding is that psychiatrists and the American Medical Association made a conscious, ethical decision to not get involved in the SVP [Sexually Violent Predator] morass. I am not sure why psychologists dove in. Smelling blood in the water, cash in bank accounts or trying to show up the "real doctors" has led to our participation in one of the largest, most expensive frauds put over on society, with the field of psychology becoming the laughingstock of real researchers. We are now participating in a system that systematically violates the Constitutional rights of individuals and uses the shoddiest of data to rationalize our position. Has there been any thought to a movement by psychologists or the APA to "just say no"?

-- Eugene Braaksma, Licensed Psychologist

What a timely question. Privately, many mainstream forensic psychologists agree with your assessment, and some have even gone public with their concerns. Most recently, two psychologists in the San Francisco Bay Area have gone so far as to echo your call for a professional boycott. But for several reasons, I think the major impetus for change will come not from within, but from larger systemic forces outside psychology.

Photo © Karen Franklin 2011

Calling for a boycott are forensic psychologists Paul Good and Jules Burstein. Writing in the American Journal of Forensic Psychology, they liken preemptive detention laws to a "modern-day witchhunt":

Psychologists testifying for the state in SVP civil commitment trials are using contrived mental disorders and the scientific veneer of actuarial formulae…. [The ‘predator’ paradigm] gives the public a false sense of security by concentrating vast sums of money on incarcerating a small group of sexually violent offenders, in place of a more useful public health approach to the problem of sexual violence. The consequences of this misguided effort include emphasizing incarceration over treatment, draining scarce resources from a multi-pronged approach to preventing sex crimes, demonizing sex offenders, and promoting the "slippery slope" of preventive detention…. Psychologists should put the public interest ahead of their guild interest and expose this mistake in social policy. One dramatic step would be to resign from state SVP panels.

"Full Employment for Psychologists Act"*

But, as this semi-facetious title by Charles Patrick Ewing suggests, two decades into these laws the sheer number of embedded psychologists makes a boycott impractical. These psychologists will not boycott a system that is making them "boatloads" of money, as one testified – up to a cool $1.5 million a year. As Ewing lays bare in Justice Perverted, the opportunity has proved irresistible for psychologists, many with little scientific sophistication or prior expertise in forensic psychology or sex offending:

In the short run the payoff, especially for some individual practitioners, has been great, but in the long run, the damage done to their professions and the people who would be served by them may prove to be much greater…. It is difficult to picture … psychologists who now earn their living developing checklists that purport to predict sex offender recidivism, doing evaluations and testifying in sex offender civil commitment trials, and/or training others who do so, encouraging state legislatures to put them out of work.

Photo © Karen Franklin 2011

Most of these psychologists are well intended. They believe they are doing righteous work to protect the public from dangerous predators. If they thought otherwise, cognitive dissonance would force them to quit the lucrative panels, as a minority of their colleagues have done. Their structural position of embeddedness creates blinders. When one is walking among the trees, one cannot see the forest. And there is an element of group-think. Surrounded by like-minded professionals, they mistake these colleagues' concordance for a consensus in the broader profession.

More alarmingly, as psychiatrists Michael First and Allen Frances point out in the current issue of the Journal of the American Academy of Psychiatry and Law, these practitioners are being systematically mistrained as to proper diagnostic and risk assessment practices. Just last week, I heard about a government evaluator (annual earnings from SVP evaluations: $500,000) who testified in support of civilly detaining a rapist based upon a previously unknown mental disorder called "paraphilia not otherwise specified – attracted to power and control."

You can't make this stuff up. 

Even if psychology had the unified will to step into this minefield, I doubt that our field has the political clout to impact the industry in any significant way. Embedded psychologists are mere functionaries, interchangeable cogs in a machine, scoring checklists and regurgitating memorized formulas. Unless and until legislatures and courts recognize that these laws are not doing much (if anything) to reduce sexual violence or keep the public safe, the growing chorus of critical scholars in the fields of psychology, criminology and law will remain as tiny voices crying out in the wilderness.

Will the courts step up?

In a critical overview just published online in Psychiatry, Psychology and Law, a leading forensic scholar in Australia says the courts shoulder some of the responsibility for failing in their role as gatekeepers. If the courts were more rigorous, fatally flawed approaches to risk assessment would not predominate in sex offender cases, argues Ian Coyle of Bond University in Queensland.

At a minimum, Coyle suggests, the playing field should be leveled. In Australia, as elsewhere around the world, the government has vastly superior resources for expert witnesses than does the defense:

The theoretical equality of all before the law is thus subverted in practice by inequality of means.

Another barrier to justice is the complexity of the statistics and measurement theory invoked in these cases. Lacking advanced scientific training, it is hard for the average judge or attorney to make sense of the competing claims and accurately determine which are valid and which are not.

Making matters worse, even when individual judges educate themselves so that they can detect and reject pseudoscience, for example by rejecting the fictional diagnosis of "hebephilia" as a basis for civil commitment, higher courts often overturn their decisions. The disappointing truth is, judges are mere functionaries, too.

The coming crash

Photo © Karen Franklin 2011

In the end, I predict the system will ultimately crumble not due to principled opposition but by virtue of its own excesses. In the United States, as many states teeter on the edge of bankruptcy, it is hard to justify spending $1 billion per year or more to civilly detain a tiny handful of sex offenders at the expense of public schools, higher education, and even prisons.

It is a tricky business, because legislators and judges do not want to incur public wrath by appearing "soft" on sex offenders. Still, as citizens feel the effects of massive cutbacks in public services, I expect they will become less tolerant of government waste across the board.

The backlash is already starting. For example, last week in Minnesota a legislative auditor released a report slamming the sex offender civil commitment program as costly and ineffective:

Hundreds of sex offenders confined in state treatment facilities receive inadequate therapy from under-qualified staff at excessive cost, according to [the] report…. At the same time, many other offenders present such low risk to the public that they could safely be released to community group homes, saving taxpayers millions of dollars. And in what they describe as a public safety paradox, auditors found that some sex offenders are held indefinitely, even though they pose less risk than dangerous felons in state prisons who are being released back to the streets. Auditors called on state officials to replace this "all or nothing'' system and develop a plan for low-cost alternatives, while spending more on treatment of the most dangerous offenders.

California is following suit, with an audit of its SVP program due out in June. Psychologists may be especially interested in one particular task of the audit, to examine "the qualifications of staff or contractors who conduct the evaluations and determine if they are consistent with professional standards and laws and regulations."

Bottom line, the bough will come crashing down when the massive costs finally become too much for governments to bear, and when citizens figure out that SVP laws -- while symbolically appealing -- are a wasteful and ineffective approach to reducing sexual violence.

How will our misguided colleagues pay their mortgages and fund their children's college educations then? Hopefully they're putting some of those millions in the bank for a rainy day.

*from Justice Perverted 

Positive approach key to sex offender change

Trailblazing authors have walked the walk for 40 years

John distorts his offense history and refuses to accept his sexual deviance. Although the other members of his treatment group vigorously challenge him, they are not fully transparent in their own disclosures. The therapist feels stymied. What should she do?

First, she should abandon confrontation and negative labeling. Next, she should race lickety-split for her computer and order a radical new book that will help her succeed as a therapist and also feel better about herself.

The visionary book is Rehabilitating Sexual Offenders: A Strength-Based Approach, written by the team at Rockwood Psychological Services in Canada. Under the leadership of Bill Marshall, a pioneer in the field, the program has successfully treated sex offenders for 40 years. Unlike most sex offender treatment programs, Rockwood has a negligible refusal rate and a negligible dropout rate. Offenders enter therapy, they complete therapy, and when they get out they are very unlikely to reoffend.

Therapist is the key

As psychologists know from the general treatment research, the therapeutic alliance is a primary factor in successful therapy, with more impact than any specific theory or technique. With sex offenders, who are often mistrustful and reluctant to enter therapy or disclose information that may be used against them, the therapist is even more critical, accounting for between 30% to 60% of change.

Like anyone else (only more so), John isn’t going to benefit from confrontation or shaming. Instead of being critical or judgmental, an effective sex offender therapist is empathetic, warm, respectful, and even humorous at times.

Toss out those iatrogenic labels

Language is powerful. When we call people names -- pedophile, rapist, offender, sex offender, deviant – we encourage their negative and harmful beliefs about themselves. That certainly doesn’t reduce shame or foster change.

Instead, the Rockwood authors (Bill Marshall, his son Liam Marshall, Geris Serran, and Matt O’Brien) focus on strengths, invoking a vocabulary heavily influenced by the positive psychology movement and motivational interviewing.

Their guiding principle:

Inside every offender is a good person waiting to throw off the burden of his dysfunctional past. It is the therapist’s job to facilitate the emergence of that good person.

(Ironically, they do use the term “psychopath,” if only to say that scores on the Psychopathy Checklist  are NOT predictive of treatment failure or recidivism. Of the 70 offenders in their outcome research who scored high on psychopathy, only one reoffended during the 8-year follow-up period.)

The authors do not mince words in critiquing the dominant treatment approach that emphasizes deficits and avoidance. When treatment fails, they say, it is most likely because it was too confrontational. When confronted, patients learn to say what the therapist wants to hear, rather than to genuinely engage.

Denial: Not necessarily a bad thing

One of the most unusual features of the Rockwood program is its emphasis on helping men who continue to deny their offenses despite having been convicted. The therapists do not challenge these offenders to admit their crimes. In fact, they don’t think admissions are that big a deal. They offer several reasons for this:

• Given what we know from the false-confession literature, some deniers truly are innocent. And it is impossible to know which ones.

• Forcing an offender to match his account to his victim’s is silly, because we know from research that victim accounts are highly unreliable. 

• Men who deny offending or offer excuses actually have lower rates of recidivism. As Shadd Maruna found in his research with criminal offenders in the UK, excuse-making is related to good mental health as well as to guilt, which (unlike shame) suggests prosocial values.

For those engaged in treatment, the manual gives loads of practical advice on how to structure and run a program. For forensic evaluators on the outside looking in, who have watched in mounting horror as iatrogenic practices are systematically mislabeled as “treatment,” this book lays out the research that can help you explain real treatment to judges, jurors, and attorneys.

Rehabilitating Sexual Offenders is an auspicious debut for the American Psychological Association series, Psychology, Crime, and Justice, edited by Shadd Maruna. I can’t wait to see what’s next.

If you found this review helpful, please visit my Amazon review (HERE) and click on "yes" (this review was helpful). 

The art on this page is by Ricky Romain, an internationally acclaimed human rights artist in the UK whose work focuses on themes of justice, alienation and sanctuary. Mr. Romain has kindly given permission to showcase his art here. I encourage you to check out his extensive online gallery (HERE).

 

Justice perverted: Sex offense law, psychology and public policy

 Oxford University Press has just released this provocative new title of likely interest to many of my readers. It's written by esteemed forensic psychologist and attorney Charles Patrick Ewing, a law professor at The State University of New York, University at Buffalo Law School.

Summary:

Over the past quarter century Congress, state legislatures and the courts have radically reshaped America's laws dealing with sex offenders in an effort to reduce the prevalence of sex offenses. Most convicted sex offenders must now register with the authorities, who then make information about them available to the public. Possession of child pornography has been made an extremely serious crime often punishable by prison sentences that dwarf those meted out to child molesters, rapists, robbers, and even killers. Federal law now imposes a minimum sentence of ten years in prison for those convicted of using the internet to attempt to lure minors for sex. And the federal government and 20 states have "sexually violent predator" laws that allow the indefinite civil commitment of convicted sex offenders to secure institutions for treatment after they have served their full criminal sentences.

All of these changes in sex offender law, as well as numerous others, have been based at least in part on input from psychology, psychiatry and the social sciences. Moreover, enforcement and administration of many of these laws relies to a large extent on the efforts of mental health professionals. However, many questions about this involvement remain largely unanswered:

• Are these laws supported by empirical evidence, or even by well-reasoned psychological theories? Do these laws actually work? 

• Are mental health professionals capable of reliably determining an offender's future behavior, and how best to manage it? 

• Are experts capable of providing effective treatment for sex offenders -- i.e., treatment that actually reduces the likelihood that an identified sex offender will re-offend?

Drawing on research from across the social and behavioral sciences, Dr. Ewing weighs the evidence for the spectrum of sex offense laws, to occasionally surprising results. A rational look at an intensely emotional subject, Justice Perverted is an essential book for anyone interested in the science behind public practice.

What others are saying:

Ewing …gives a lucid, objective analysis of the laws, easily separating myth from reality in this intensely emotional area.

-- Philip H. Witt, Ph.D., ABPP, President, American Academy of Forensic Psychology, co-author, Evaluation of Sexually Violent Predators

A remarkable, eye-opener of a book—Professor Ewing brings to this highly controversial subject his knowledge as both a law professor and as a practicing forensic mental health expert.

--Alan M. Goldstein, Ph.D., ABPP, Professor Emeritus, John Jay College of Criminal Justice

This book is a breath of fresh air. It debunks the media-driven frenzy of fear, hate mongering, and utterly irrational laws that do far more harm than good. Professor Ewing writes thoughtfully, carefully, and persuasively. This book should be read by all who care about—and think about—this topic.

 --Michael L. Perlin, Law Professor, Director of International Mental Disability Law Reform Project, New York Law School

 Ewing is a prolific author, and never disappoints. His other recent books, which I have reviewed, include:

• Trials of a Forensic Psychologist: A Casebook

• Insanity: Murder, Madness, and the Law

• Minds on Trial: Great Cases in Law and Psychology

How competent are the competency evaluators?

Largest real-world study finds modest agreement among independent alienists

A bad forensic report by a bad evaluator sets bad events in motion.

True story: A judge ordered a robbery suspect to undergo evaluation. A drive-by psychologist opined that the defendant was incompetent to stand trial due to schizophrenia and attention deficit/hyperactivity disorder (ADHD). The judge rubber-stamped the evaluator's opinion. The defendant was shipped off to the dysfunctional state hospital system for competency restoration treatment. There, the psychologist's diagnoses were rubber-stamped. The unruly defendant was shot full of powerful antipsychotics, given a few months of bus therapy, and proclaimed competent. The defendant had never been psychotic in the first place. Years later, he remained just as mentally retarded as ever.

"Penny-wise, pound-foolish" is the expression that comes to mind. The courts try to save money by appointing only one psychologist per case, and by paying a ludicrously small sum that encourages shoddy practices. But cleaning up the resultant messes is costly, inefficient, and fundamentally unfair.

Competency evaluations are the bread and butter of forensic work. An estimated 60,000 defendants per year -- roughly 5% of the total -- are evaluated to see whether they understand their legal situations and can rationally assist their lawyers in their defense. But for all of the importance of accurate assessments, both to a smoothly running court system and to the rights of the mentally ill to a fair trial, surprisingly little is known about the real-world accuracy of forensic evaluators.

In the case I just outlined, the judge viewed psychologists and psychiatrists as equal and interchangeable, all inherently reliable and trustworthy. At the other extreme, some believe forensic opinions are as random as a chimp with a typewriter.

Hawaii: Exemplar or exception?

Only one U.S. state squarely addresses the problem of reliability in competency evaluations. In the Aloha State, when a doubt is raised as to a defendant's competency, three separate evaluators must conduct independent evaluations. One evaluator is a state employee; the other two are independent. One must be a psychiatrist. By law, the three cannot talk with each other about the case.

This makes Hawaii the perfect setting to examine the real-world reliability of competency evaluators. In a study just accepted for publication in Law and Human Behavior, three investigators took advantage of this opportunity to conduct the largest naturalistic study ever of evaluators' agreement about competency to stand trial.

It should not be a surprise that Daniel Murrie and Marcus Boccaccini are two of the investigators. Not the types to run Psych 101 undergrads through artificial lab experiments, these two are committed to examining forensic practice in the courtroom trenches. I've blogged about their previous work exposing "partisan allegiance" effects in the real-world application of the Psychopathy Checklist (PCL-R). For the current innovative study, they teamed up with W. Neil Gowensmith of the Hawaii courts' forensic services unit.

Examining 729 reports authored by 35 evaluators, they found that all three evaluators agreed in just under three out of four -- or 71 percent -- of initial competency referrals. Agreement was a bit lower -- 61 percent -- in cases where defendants were being reevaluated after undergoing competency restoration treatment.

Consistent with the results of a hot-off-the-press meta-analysis of 50 years of competency research, evaluators believed that the broad majority of defendants referred for evaluation, about 73 percent, were competent to stand trial. This figure was somewhat lower for defendants being reevaluated after an initial finding of competency, with evaluators opining competence in about half of such restoration cases.

Why do evaluators differ?

As far as why agreement is not higher, the study raised more questions than it answered. The researchers sifted through the data looking for patterns, but none jumped out. Evaluators did not lean one way or the other by discipline (psychologist vs. psychiatrist) or by employer (state versus private practice). Defendant demographics were not explanatory. Nor were evaluator disagreements about diagnosis.

It would be interesting to conduct qualitative analyses of the 216 cases in this study to see whether those in which evaluators differed were more complex and ambiguous than the others. I suspect that to be the case.

Competency is nebulous. It exists along a continuum, so there is no precise cut point at which a defendant is automatically "competent" or "incompetent" to go forward with his legal case. Thus, evaluator agreement will never be perfect, nor -- necessarily -- should it be.

How did the judges rule?

One of the more intriguing aspects of the study was its exposition of how judges ruled after being presented with three reports. Not surprisingly, when evaluators were unanimous or split 2-1, the judges tended to go with the majority. But unlike the judge in the vignette I described earlier, many Hawaiian judges were independent thinkers who did not just rubber-stamp the evaluators' opinions.

When they disagreed with the opinions of the court-appointed psychologists and psychiatrists, it was typically to find a defendant incompetent. In fact, in a few cases the judges found defendants to be incompetent even when all three evaluators believed a defendant was competent. In this way, they elevated defendants' due-process rights over prosecutorial efficiency. But maybe that's just Hawaii.

Moving forward

I found the results somewhat encouraging. When not subjected to partisan allegiance pressures, forensic practitioners agreed about three-fourths of the time about whether a defendant was competent to stand trial or not.

Still, if these results are generalizable, it means evaluators will disagree in about two or three cases out of every ten. So in jurisdictions that appoint only a single evaluator, the researchers point out, many judges may be unwittingly rubber-stamping an idiosyncratic -- and even patently incorrect -- opinion:

[T]o the extent that there is a factually correct answer to the question of whether or not a defendant is competent to stand trial, relying on one evaluator increases the likelihood that the court reaches an incorrect decision (by following an incorrect single opinion that would have been revealed as a minority opinion if other evaluations were available). In some instances, this may result in delaying a trial while a defendant is unnecessarily hospitalized. In other instances this may result in a defendant proceeding to trial when additional evaluator(s) would have opined the defendant was unable to participate meaningfully in that trial….

The justice system needs to continue to wrestle with how to handle these competing demands -- efficient use of resources versus fair consideration of defendants' right to due process.

Murrie and Boccaccini are on a roll. Let's hope they keep churning out this ground-breaking line of research, examining the real-world vagaries of forensic practice, and that others climb down from the ivory towers and jump on their bandwagon.

As they note, "naturalistic studies of field reliability are an essential first step in gauging wide-scale quality across all manner of forensic practice and targeting areas for improvement."

Another severe attack at Napa Hospital

Less than two months after a psychiatric technician was strangled to death, another staff member has been beaten unconscious at Napa State Hospital, California's largest psychiatric hospital. Already abysmal staff morale is sinking lower as tensions rise among the captive patients, whose privileges have been curtailed since October's slaying.

Four years ago, the U.S. Attorney General's Office negotiated a consent decree mandating sweeping changes aimed at improving patient care and reducing suicides and assaults at the troubled hospital. A federal probe had revealed widespread civil rights violations, including generic "treatment" and overuse of seclusion and restraints. Napa, the only state psychiatric hospital in Northern California, houses defendants undergoing competency restoration treatment and those found not guilty by reason of insanity.

Earlier this year, another scandal hit the hospital, when its executive director was arrested on 35 felony charges stemming from the alleged molestation of a foster son. He was suspected of molesting at least four other boys going back to the 1970s.

Lee Romney of the Los Angeles Times, who has provided the best coverage of California's troubled state hospital system over the past few years, reported that patients at Napa are increasingly agitated in the wake of greater restrictions on their movement, exacerbating an already bleak picture:

Since 2006, the state's mental hospitals have been under a federal court order to improve conditions for patients. Yet safety for both patients and staff has deteriorated markedly at Napa State Hospital over the last year, data show. The other state hospitals subject to the federal consent judgment have also experienced a rise in violence since the state began implementing changes in care.

In case you need a job, by the way, the hospital is hiring.

Hat tip: Kathleen