Last September, I posted about two legal challenges to the use of controversial psychiatric diagnoses to justify the civil commitment of sex offenders.
The US District Court for the Eastern District of Wisconsin has since issued final opinions on both challenges, allowing the use of the diagnoses of "Paraphilia Not Otherwise Specified-Nonconsent" and "Personality Disorder Not Otherwise Specified with Antisocial Features." Neither diagnosis is included in the psychiatric bible, the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR), nor are they commonly invoked in mainstream psychology or psychiatry. In the DSM, "NOS" is a residual category used when someone does not meet all criteria for a listed disorder; many clinicians refer to it as a "garbage diagnosis." (For a facetious take on the NOS label, see this essay.)
The twin rulings, against sex offenders Bruce Brown and Michael McGee, echo similar rulings in other states that make it easier for the government to get sex offenders involuntarily hospitalized after they finish serving their prison terms. To be Constitutional, according to the U.S. Supreme Court, such civil commitment based on a likelihood of future sex offending must be linked to a "mental disorder" or "mental abnormality." This is where psychologists and psychiatrists come in, and the industry has become a lucrative cash cow for some evaluators.
"Paraphilia Not Otherwise Specified-Nonconsent"
The tone of Judge Lynn Adelman's decision in the case of Brown v. Watters was a turnaround from his earlier ruling in the same case, in which he had sent the case back to the state court for additional proceedings. At that time, last July, he expressed doubts about use of the diagnosis of Paraphilia NOS-Nonconsent to justify civil commitment, saying it might be too broad to pass Constitutional muster: "[I]t may be that every criminal convicted of a sexual crime could be diagnosed with the disorder."
As the judge noted, a paraphilia is defined in the DSM as a chronic pattern of intense, sexually arousing fantasies, sexual urges, or behaviors generally involving nonhuman objects, suffering or humiliation, or children or other nonconsenting persons.
Rape is not included as one of the paraphilias in the DSM, and use of the residual category of "Not Otherwise Specified" for this legal purpose is controversial.
As of this writing, Brown's case is on appeal to the U.S. Court of Appeals for the 7th Circuit.
"Personality Disorder Not Otherwise Specified with Antisocial Features"
In a related case brought by sex offender Michael McGee, the same court also upheld the use of the diagnosis "Personality Disorder Not Otherwise Specified with Antisocial Features" as a basis for civil commitment.
The parallel opinions interpret the landmark U.S. Supreme Court case of Kansas v. Crane as allowing such unorthodox diagnoses in the service of "practicality." The Crane case, said the opinion in McGee v. Bartow, "made clear that courts should be driven more by practical considerations than the technical distinctions underlying much of psychiatry." The government "has wide latitude in defining a term like 'mental illness' or 'mental abnormality,' " echoed the ruling in Brown v. Watters, and need not limit itself to diagnoses that are "generally recognized in the medical community."
In other words, so long as experts testify that a sex offender has a disorder that causes him to have serious difficulty controlling his sexually violent behavior, the offender's Constitutional right to due process is satisfied.
Evaluator disputes characterization
Meanwhile, Dennis Doren, a prominent sex offender evaluator who testified in the Brown case, has issued a written statement in response to the Brown v. Watters opinion and my blog post last September reporting on the ruling.
In his statement, "Setting the Record Straight," Doren said the court was mistaken in claiming that he testified that he had created the diagnosis of Paraphilia NOS-Nonconsent. Rather, he wrote, he simply changed the extant phraseology from Paraphilia NOS-Rape (a more legal term) to Paraphilia NOS-Nonconsent (a more medical term), while creating a list of diagnostic indicators which he published in a manual for sex offender evaluators.
It is certainly true that Doren did not invent the concept of a preferential desire to rape, which has been recognized for a long time and has been called everything from bioastophilia to rapism. But most observers agree that Doren's manual did popularize and legitimize use of the "NOS" diagnosis in the sex offender civil commitment industry.
Doren said he made his recommendations not only to "bridge the gap or defiiciency of the DSM-IV" but also out of concern that evaluators were overdiagnosing Paraphilia NOS based simply on behavior, without regard to the requirement that the offender demonstrate a preference for forcible sex.
This type of overdiagnosis in the pursuit of civil commitment is a valid concern. Research suggests that only a small percentage of rapists are motivated by a preferential sexual attraction to rape. And offenders who are mislabeled face the daunting prospect of lifelong hospitalization without the due-process protections afforded by the criminal justice system.
These controversial diagnostic issues in civil commitment proceedings may finally be about to get some much-needed scrutiny and debate. The editor of the DSM-IV-TR, Michael First, has two articles in press taking issue with the way the DSM paraphilia diagnosis has been interpreted in civil commitment proceedings. His forthcoming editorial in the American Journal of Psychiatry is entitled "Issues for DSM-V; Unintended Consequences of Small Changes: The Case of Paraphilias." A lengthier analysis in the Journal of American Academy of Psychiatry and the Law is entitled "Use of DSM Paraphilia Diagnoses in Sexually Violent Predator Commitment Cases." Meanwhile, Doren's essay, "Setting the Record Straight," has also been accepted for publication, in Sex Offender Law Report.
Hat tip to Susan Sachsenmaier for alerting me to the Wisconsin case developments
May 1, 2008
A bridge as a last resort
Seattle Times staff columnist
SNOHOMISH — The patch under the bridge is closed in by brambles. Rodent tracks crisscross in the dirt. It may be dry, but still it's not fit for human habitation.Unless you're a sex offender, that is. The underside of the 88th Street bridge, near this river town's greenhouses and horse farms, is where state government last week assigned a released rapist to sleep.
David J. Torrence, who assaulted a 16-year-old girl in 1995, had completed his latest prison term (for failing to register as a sex offender.) He had no place to go. So officials gave him a sleeping bag and a rain poncho, then told him to stay under this bridge, 9 p.m. to 6 a.m., until further notice.
"We're not proud of it," says Mary Rehberg, parole officer for the state Department of Corrections. "We did it because this is what it has come to. Under a bridge is the best of the options we had left."
That we're now storing sex offenders under bridges is hardly the worst thing to happen in the long struggle over sex crimes. Not compared with what happened to the victims.
But it is a sign of a looming breakdown. There's got to be a better way.
Nobody wants sex offenders around. It can be infuriating to see taxes spent on their treatment or care. But putting them under bridges, like trolls? Set aside whether that's inhuman. It's about the worst outcome possible, for public safety.
Torrence was released from state prison at Monroe on April 20. He is a Level 3 — high risk for reoffending. He is not deemed so dangerous, or his crimes so serious, that he qualifies to be locked up longer.
Rehberg tried for months to find him a place to live.
He's barred by local ordinance from living in the town of Monroe (it bans all Level 2 and 3 offenders.) So she tried his relatives in another state. That state, like Monroe, rejected having him come there.
She called motels, shelters, landlords known to rent to sex offenders. All said no.
Almost any apartment building was likely to be off-limits because there would be families living there.
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That's increasingly the way it goes. Sex offenders are the new lepers. She fitted him with a GPS bracelet and drove him to the 88th Street bridge.
"At least we could check on him," she said. "We could keep trying to find him a place. I'm sorry to say it, but it was the best we had to offer."
On the fourth night, he cut off his monitor and fled. So far he hasn't been found.
Some version of this sorry story is about to happen again. Rehberg is trying, but failing, to find housing for three more sex offenders, all due out soon.
The state has got to build some monitored halfway houses for sex offenders. Like you, I don't especially want one on my block. It also strikes me as unfair to pay for housing for criminals while many taxpaying folks are hurting.
But forget about fair. This system is shot. Our government just put a Level 3 sex offender under a bridge.
I asked Rehberg: Did you get much criticism for this?
"Not as much as we get when we actually find them a place to live," she said.
Reprinted with the written permission of the author. Danny Westneat can be reached via email. The column originally appeared here.
April 28, 2008
Platypus defense falls flat
The highly anticipated verdict in the Hans Reiser case came in just moments ago: Despite the absence of his wife's body, the Oakland, California computer programmer is guilty of first-degree murder.
You will recall from my previous blog post that Reiser mounted a highly unusual defense, saying he was a platypus but not a murderer.
Unfortunately, the comparison to the odd, quasi-reptilian mammal may have backfired when it turned out that the platypus is not as cute and cuddly as the defense attorney tried to portray it. Indeed, it is one of the few venomous mammals: A spur on the male's hind foot delivers a powerful venom capable of killing other animals its size.
As is not uncommon in high-profile murder cases, the two sides also posited competing psychiatric diagnoses for the oddball computer programmer.
The defense asserted that Reiser suffers from Asperger's Disorder, a developmental disorder in the autism spectrum in which an individual has normal to high intelligence but major problems in social interaction. The prosecution countered that Reiser has Narcissistic Personality Disorder, a diagnosis more in line with cold-bloodedly killing your wife when she decides to divorce you.
Some pundits doubted that the prosecution could win a first-degree murder verdict. After all, the body of Reiser's wife was never found, and the case was purely circumstantial.
But in his rebuttal argument to the jury last week, prosecutor Paul Hora handled those case weaknesses masterfully. He placed two large easels in front of the jury. On one was a jigsaw puzzle with all of the many pieces of circumstantial evidence against Reiser. On the other was a picture of Reiser's Russian immigrant wife, Nina Reiser. One by one, prosecutor Paul Hora transferred the puzzle pieces onto the picture of the victim. As he removed pieces from the original puzzle, an underlying image of defendant Hans Reiser emerged. At the end, only two jigsaw pieces were missing: "location of body" and "method of murder."
Ultimately, those missing pieces did not seem to bother the jury. After a five-month trial, it deliberated less than three full days before discarding potential compromise verdicts such as second-degree murder or voluntary manslaughter and rendering the most severe verdict allowable.
The verdict is notable because the prosecution did not present any evidence of premeditation or deliberation, required elements in first-degree murder. The jury apparently inferred the necessary mental state based on Reiser's arrogant, off-putting performance during 10 days on the witness stand.
"I'm sure he negatively impressed the jurors." defense attorney William Du Bois told journalists outside the courtroom. The verdict, he acknowledged, was not a complete surprise.
My previous essay on the platypus defense is here. Newspaper reporter Henry K. Lee’s contemporaneous news blog on the trial is here. A new book, Erased, describes dozens of similar wife-killing cases in recent U.S. jurisprudence, some of which were similar to the Reiser case in that juries returned first-degree murder convictions despite missing bodies. (See my review of that book here.)
You will recall from my previous blog post that Reiser mounted a highly unusual defense, saying he was a platypus but not a murderer.
Unfortunately, the comparison to the odd, quasi-reptilian mammal may have backfired when it turned out that the platypus is not as cute and cuddly as the defense attorney tried to portray it. Indeed, it is one of the few venomous mammals: A spur on the male's hind foot delivers a powerful venom capable of killing other animals its size.
As is not uncommon in high-profile murder cases, the two sides also posited competing psychiatric diagnoses for the oddball computer programmer.
The defense asserted that Reiser suffers from Asperger's Disorder, a developmental disorder in the autism spectrum in which an individual has normal to high intelligence but major problems in social interaction. The prosecution countered that Reiser has Narcissistic Personality Disorder, a diagnosis more in line with cold-bloodedly killing your wife when she decides to divorce you.
Some pundits doubted that the prosecution could win a first-degree murder verdict. After all, the body of Reiser's wife was never found, and the case was purely circumstantial.
But in his rebuttal argument to the jury last week, prosecutor Paul Hora handled those case weaknesses masterfully. He placed two large easels in front of the jury. On one was a jigsaw puzzle with all of the many pieces of circumstantial evidence against Reiser. On the other was a picture of Reiser's Russian immigrant wife, Nina Reiser. One by one, prosecutor Paul Hora transferred the puzzle pieces onto the picture of the victim. As he removed pieces from the original puzzle, an underlying image of defendant Hans Reiser emerged. At the end, only two jigsaw pieces were missing: "location of body" and "method of murder."
Ultimately, those missing pieces did not seem to bother the jury. After a five-month trial, it deliberated less than three full days before discarding potential compromise verdicts such as second-degree murder or voluntary manslaughter and rendering the most severe verdict allowable.
The verdict is notable because the prosecution did not present any evidence of premeditation or deliberation, required elements in first-degree murder. The jury apparently inferred the necessary mental state based on Reiser's arrogant, off-putting performance during 10 days on the witness stand.
"I'm sure he negatively impressed the jurors." defense attorney William Du Bois told journalists outside the courtroom. The verdict, he acknowledged, was not a complete surprise.
My previous essay on the platypus defense is here. Newspaper reporter Henry K. Lee’s contemporaneous news blog on the trial is here. A new book, Erased, describes dozens of similar wife-killing cases in recent U.S. jurisprudence, some of which were similar to the Reiser case in that juries returned first-degree murder convictions despite missing bodies. (See my review of that book here.)
April 25, 2008
Amazon book reviews
I haven't forgotten about you loyal readers and subscribers. I've just been so busy lately that I haven't found any time to blog. My list of news to report is growing! In the meantime, some of you might be interested in checking out my book reviews over at Amazon.com. (I'm a frequent reviewer, and indeed just made the top 10,000. Whoopee!) To check out my reviews, you can either start at my Amazon profile page or go directly to one of the listed books. I've put an asterisk next-to a few that I strongly recommend. In the interest of shameless self-promotion, I should let you know that highly ranked reviewers get better positioning on the Amazon book pages, so if you like a review be sure to click on the "Yes" button beneath it.
April 17, 2008
The platypus defense
Preparing his closing arguments in an Oakland wife-killing trial, a defense attorney did some unusual zoological research. To understand oddity, he reasoned, the jury should hear about the duck-billed platypus.The platypus, as most readers will know, is a semi-aquatic Australian creature. When Europeans first discovered it, some considered it an elaborate fraud due to its bizarre, cobbled-together appearance - a duck's bill, a beaver's tail, an otter's feet, and - as we will see - some characteristics of a reptile.
William DuBois likened his client to a genetic mistake while looking at him disdainfully, according to the trial blog of newspaper reporter Henry K. Lee:
"Did you know that the platypus is the only mammal that lays eggs?"* DuBois asked the jury, smiling. "I was trying to think recently how a platypus could even evolve. It must have been a genetic mistake. That's why it reminded me of --" DuBois trailed off but turned his head and gave a disdainful look at his client. Some laughter in the courtroom.Whether or not the jury convicts Hans Reiser of killing his missing wife, the defense attorney's closing argument is likely to go down in the annals of novel defenses.
Explaining the computer programmer's strange and off-putting behavior both after his wife's mysterious disappearance and during the five-month trial, attorney DuBois showed the jury a stuffed platypus, and later a slide image of a real-life platypus.
Reiser, the attorney said, is the "duck-billed platypus of criminal defendants, the duck-billed platypus amongst some of his peers, the duck-billed platypus amongst normal people."
"He is odd in every way. Odd in the way he carries himself. Odd in the way he acts. Odd in the way he speaks."
Reiser's platypus nature explains not only his strange behavior but also his victimization by law enforcement, the attorney contended.
After all, as everyone knows, "It's easy to screw a platypus."
DuBois characterized the platypus as helpless, telling the jury, "I don't know how they stay away from predators. They must taste terrible."
DuBois will resume his closing argument on Monday, after which prosecutor Paul Hora will have a second shot at the jury. If he's smart, Hora may do his own research on the platypus.
As it turns out, the quasi-reptilian creature is not as cute and cuddly as the stuffed animal might make him appear. Indeed, it is one of the few venomous mammals: A spur on the male's hind foot delivers a powerful venom capable of killing other animals its size.Listen for yourself to the platypus growl:
*The platypus is actually not the only egg-laying mammal. There's one other, in the same Monotreme family. It's called an echidna.
My subsequent essay, on the jury verdict, is here. Henry K. Lee’s blog on the trial is here. Wikipedia has more on the platypus.
Why the Next Civil Rights Battle Will Be Over the Mind
Guest essay by Clive Thompson*
Trolling down the street in Manhattan, I suddenly hear a woman's voice.
"Who's there? Who's there?" she whispers. I look around but can't figure out where it's coming from. It seems to emanate from inside my skull.
Was I going nuts? Nope. I had simply encountered a new advertising medium: hypersonic sound. It broadcasts audio in a focused beam, so that only a person standing directly in its path hears the message. In this case, the cable channel A&E was using the technology to promote a show about, naturally, the paranormal.
I'm a geek, so my first reaction was, "Cool!" But it also felt creepy.
We think of our brains as the ultimate private sanctuary, a zone where other people can't intrude without our knowledge or permission. But its boundaries are gradually eroding. Hypersonic sound is just a portent of what's coming, one of a host of emerging technologies aimed at tapping into our heads. These tools raise a fascinating, and queasy, new ethical question: Do we have a right to "mental privacy"?
"We're going to be facing this question more and more, and nobody is really ready for it," says Paul Root Wolpe, a bioethicist and board member of the nonprofit Center for Cognitive Liberty and Ethics. "If the skull is not an absolute domain of privacy, there are no privacy domains left." He argues that the big personal liberty issues of the 21st century will all be in our heads - the "civil rights of the mind," he calls it.
It's true that most of this technology is still gestational. But the early experiments are compelling: Some researchers say that fMRI brain scans can detect surprisingly specific mental acts - like whether you're entertaining racist thoughts, doing arithmetic, reading, or recognizing something. Entrepreneurs are already pushing dubious forms of the tech into the marketplace: You can now hire a firm, No Lie MRI, to conduct a "truth verification" scan if you're trying to prove you're on the level. Give it 10 years, ethicists say, and brain tools will be used regularly - sometimes responsibly, often shoddily.
Both situations scare civil libertarians. What happens when the government starts using brain scans in criminal investigations - to figure out if, say, a suspect is lying about a terrorist plot? Will the Fifth Amendment protect you from self-incrimination by your own brain? Think about your workplace, too: Your boss can already demand that you pee in a cup. Should she also be allowed to stick your head in an MRI tube as part of your performance review?
But this isn't just about reading minds; it's also about bombarding them with messages or tweaking their chemistry. Transcranial magnetic stimulation - now used to treat epilepsy - has shown that it can artificially generate states of empathy and euphoria. And you've probably heard of propranolol, a drug that can help erase traumatic memories.
Let's say you've been assaulted and you want to take propranolol to delete the memory. The state needs that memory to prosecute the assailant. Can it prevent you from taking the drug? "To a certain extent, memories are societal properties," says Adam Kolber, a visiting professor at Princeton. "Society has always made claims on your memory, such as subpoenaing you." Or what if you use transcranial stimulation to increase your empathy. Would you be required to disclose that? Could a judge throw you off a jury? Could the Army turn you away?
I'd love to give you answers. But the truth is no one knows. Privacy rights vary from state to state, and it's unclear how, or even if, the protections would apply to mental sanctity. "We really need to articulate a moral code that governs all this," warns Arthur Caplan, a University of Pennsylvania bioethicist.
The good news is that scholars are holding conferences to hash out legal positions. But we'll need a broad public debate about it, too. Civil liberties thrive only when the public demands them - and understands they're at risk. That means we need to stop seeing this stuff as science fiction and start thinking about how we'll react to it. Otherwise, we could all lose our minds.
*Reprinted with the written permission of the author from Wired magazine. Clive Thompson writes about science, technology, and culture for the New York Times Magazine, Wired, Discover, and others. Find out more about him at his blog, Collision Detection.
Trolling down the street in Manhattan, I suddenly hear a woman's voice.
"Who's there? Who's there?" she whispers. I look around but can't figure out where it's coming from. It seems to emanate from inside my skull.
Was I going nuts? Nope. I had simply encountered a new advertising medium: hypersonic sound. It broadcasts audio in a focused beam, so that only a person standing directly in its path hears the message. In this case, the cable channel A&E was using the technology to promote a show about, naturally, the paranormal.
I'm a geek, so my first reaction was, "Cool!" But it also felt creepy.
We think of our brains as the ultimate private sanctuary, a zone where other people can't intrude without our knowledge or permission. But its boundaries are gradually eroding. Hypersonic sound is just a portent of what's coming, one of a host of emerging technologies aimed at tapping into our heads. These tools raise a fascinating, and queasy, new ethical question: Do we have a right to "mental privacy"?
"We're going to be facing this question more and more, and nobody is really ready for it," says Paul Root Wolpe, a bioethicist and board member of the nonprofit Center for Cognitive Liberty and Ethics. "If the skull is not an absolute domain of privacy, there are no privacy domains left." He argues that the big personal liberty issues of the 21st century will all be in our heads - the "civil rights of the mind," he calls it.
It's true that most of this technology is still gestational. But the early experiments are compelling: Some researchers say that fMRI brain scans can detect surprisingly specific mental acts - like whether you're entertaining racist thoughts, doing arithmetic, reading, or recognizing something. Entrepreneurs are already pushing dubious forms of the tech into the marketplace: You can now hire a firm, No Lie MRI, to conduct a "truth verification" scan if you're trying to prove you're on the level. Give it 10 years, ethicists say, and brain tools will be used regularly - sometimes responsibly, often shoddily.
Both situations scare civil libertarians. What happens when the government starts using brain scans in criminal investigations - to figure out if, say, a suspect is lying about a terrorist plot? Will the Fifth Amendment protect you from self-incrimination by your own brain? Think about your workplace, too: Your boss can already demand that you pee in a cup. Should she also be allowed to stick your head in an MRI tube as part of your performance review?
But this isn't just about reading minds; it's also about bombarding them with messages or tweaking their chemistry. Transcranial magnetic stimulation - now used to treat epilepsy - has shown that it can artificially generate states of empathy and euphoria. And you've probably heard of propranolol, a drug that can help erase traumatic memories.
Let's say you've been assaulted and you want to take propranolol to delete the memory. The state needs that memory to prosecute the assailant. Can it prevent you from taking the drug? "To a certain extent, memories are societal properties," says Adam Kolber, a visiting professor at Princeton. "Society has always made claims on your memory, such as subpoenaing you." Or what if you use transcranial stimulation to increase your empathy. Would you be required to disclose that? Could a judge throw you off a jury? Could the Army turn you away?
I'd love to give you answers. But the truth is no one knows. Privacy rights vary from state to state, and it's unclear how, or even if, the protections would apply to mental sanctity. "We really need to articulate a moral code that governs all this," warns Arthur Caplan, a University of Pennsylvania bioethicist.
The good news is that scholars are holding conferences to hash out legal positions. But we'll need a broad public debate about it, too. Civil liberties thrive only when the public demands them - and understands they're at risk. That means we need to stop seeing this stuff as science fiction and start thinking about how we'll react to it. Otherwise, we could all lose our minds.
*Reprinted with the written permission of the author from Wired magazine. Clive Thompson writes about science, technology, and culture for the New York Times Magazine, Wired, Discover, and others. Find out more about him at his blog, Collision Detection.
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