Rape as psychiatric illness: Battle heats up

Prosecutor lobbying for new diagnosis

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

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

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

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

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

Frances critiques "Paraphilia NOS"

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

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

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

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

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

Wisconsin exemplar: Bartow v. McGee

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

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

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

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

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

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

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

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

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

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

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

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

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

Related blog posts:

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

Fed court OK's unorthodox diagnoses for sex offenders

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

Winter's Bone: Crank's ravages revealed

Doing any doing forensic work in rural communities these days? I just got back from a trip to some distal towns of Northern California, where gaunt, straggly haired, gap-toothed phantoms glide through the Walmart aisles and trailer parks. As crack cocaine is to inner cities and alcohol is to Indian reservations, so methamphetamine is devastating rural white communities across the United States.

Winter's Bone, set in the remote Ozark Mountains, hauntingly depicts this plague. The story focuses on 17-year-old Ree Dolly, whose father has disappeared after putting up the family home as bail collateral. Unless she can find him, Ree and her younger brother and sister will be without a roof over their heads.

Ree's father is a "cooker" and her mother has been driven into a catatonic state. Ree is on her own in the hostile, clannish, and male-dominated community where she stumbles from trailer to trailer in her frantic search. Crank's ravages are everywhere, in the gaunt and grim faces, the harsh and sudden violence, the cruelty and hopelessness. Her father's only brother, Teardrop (flawlessly played by John Hawkes), holds a spoonful of the white powder out to her and asks, "Gotten the taste for it yet?" "Not yet," she recoils.

Aside from the down-home soundtrack, Winter's Bone is not easy to watch. Its gritty realism never lets up. The characters look like they climbed from Dorothea Lange’s Depression and Dust Bowl images, only with a touch of meth-induced paranoia added to the hunger and despair. The dialogue is sparse, and not once in 100 minutes do we hear laughter or feel much hope for Ree's future. What makes it all bearable is the strength and determination of Ree, movingly played by 19-year-old Jennifer Lawrence.

Winter's Bone is winning awards and earning rave reviews. The acclaim is well deserved. To achieve authenticity, director and co-writer Debra Granik and her team spent two years immersing themselves in the local community. Ree's younger sister is even played by a child who lives in the main house in which the movie is set. The film's power makes me want to see Granik's 2005 debut film, "Down to the Bone," another award winner focused on drug addiction and featuring a strong female lead.

Highly recommended.

NOTE: If you enjoyed this review, I encourage you to visit my Amazon review (HERE) and click on the "YES" button to leave me positive feedback that boosts my reviewer ranking.
Click on the above Movie Review icon to see past forensically focused film reviews.

SVP laws bankrupting U.S. states

AP probe: $500 million-a-year hemorrhage

Today's MSNBC website has an excellent report by Martiga Lohn of the Associated Press on the hefty price tag of Sexually Violent Predator laws in the United States. Lawmakers are stymied because they don't want to appear "soft on crime," yet the mushrooming detention facilities are squeezing out social programs such as schools and health care.

The costs of incarceration alone are more than $500 million a year and rising, according to the analysis, and that does not include the "considerable legal expenses" of the actual commitment process. Last year, New York and California spent about $175,000 PER OFFENDER. In the 20 states with SVP laws, the average cost per offender was more than five times that of a regular prison bed, and more than double the cost of a year at an Ivy League university. For a fraction of these costs, imagine how many high-risk offenders could be enrolled in comprehensive "Circles of Support" to protect the public.

As Ms. Lohn reports, "these 'civil commitment' programs are costing states hundreds of millions of dollars more than anyone envisioned, and they've created a political quandary for lawmakers who need to cut spending but don't want to be seen as soft on rapists and child molesters."

Bang for the buck?

In many places, treatment costs are up sharply since 2005, raising doubts about whether the system is still worthwhile in an era of ruthless budget cuts brought on by the recession.

"I've heard people in a lot of the states quietly say, 'Oh, my God, I wish we'd never gotten this law,'" said W. Lawrence Fitch, a professor at the University of Maryland School of Law. "No one would ever dare offer repeal because it's just untenable." …

The heavy financial burden of treating confined sex offenders has left lawmakers with less money as they make agonizing cuts to areas like education and health care. Politicians who spent years cracking down on sex crimes now struggle to pay for their tougher laws.

"It's easy to say, 'Lock everybody up and throw away the key,'" said state Rep. Michael Paymar, a St. Paul Democrat who heads a public safety budget panel. "But it's just not practical." …

"They had no idea 10 years ago, seven years ago, what this program was going to cost," said Dennis Benson, a former prison warden who now oversees Minnesota's civilly committed sex offenders.

In most states, the number of confined sex offenders has steadily increased, requiring ever-greater spending….

Some states have steered clear of the civil-commitment system, partly because of financial reasons. In Louisiana, legislation died last year after top lawmakers questioned the cost and constitutional issues. Vermont legislators rejected a similar proposal....

The full story is HERE.

Online alert: Ethics and peer review articles

I said I was done blogging about the psychopathy controversy for awhile. But I did want to alert readers to the fact that the International Journal of Forensic Mental Health has opened up its two articles so that you can download them for free for a limited time. Those articles pertain to ethics and the peer-review process. The articles are:

• Threats to Sue, Peer Review, and Potential Implications for Science and Law: A Commentary by Norman Poythress and John P. Petrila

• The Dark Side of Peer Review by Stephen D. Hart

Click on either title to go to the downloadable pdf.

"I'm a criminal and so are you"

We are living in an "age of prohibition," says Scott Henson over at Grits for Breakfast. Texas, he notes, has 11 felonies just involving oysters. Youth are especially criminalized, for everything from copyright piracy to "sexting" to truancy. As laws proliferate, so do the number of violators, bringing us to the point of this guest essay by author and activist Michelle Alexander:

"I'm a criminal and so are you"

Guest essay by Michelle Alexander*

Who am I? How do I identify?

Lately, I've been telling people that I'm a criminal. This shocks most people, since I don't "look like" one. I'm a fairly clean-cut, light-skinned black woman with fancy degrees from Vanderbilt University and Stanford Law School. I'm a law professor and I once clerked for a U.S. Supreme Court Justice -- not the sort of thing you'd expect a criminal to do.

What'd you get convicted of? people ask. Nothing, I say. Well, then why do you say you're a criminal? Because I am a criminal, I say, just like you.

This is where the conversation gets interesting. Most of my acquaintances don't think of themselves as criminals. No matter what their color, age or gender, most of the people in my neighborhood and in my workplace seem to think criminals exist somewhere else -- in ghettos, mainly.

They have an unspoken, but deeply rooted identity as "law-abiding citizens." I ask them, "Haven't you ever committed a crime?" Oddly, people often seem perplexed by this question. What do you mean? they say. I mean, haven't you ever smoked pot, didn't you ever drink underage, don't you sometimes speed on the freeway, haven't you gotten behind the wheel after having a couple of drinks? Haven't you broken the law?

Well, yeah, they say, but I'm not a criminal. Oh, really? What are you, then? As I see it, you're just somebody who hasn't been caught. You're still a criminal, no better than many of those who've been branded felons for life.

Perhaps there should be a box on the census form that says "I'm a criminal." Everyone who has ever committed a crime would be required to check it. If everyone were forced to acknowledge their own criminality, maybe we, as a nation, would second-guess our apparent zeal for denying full citizenship to those branded felons.

In this country, we force millions of people -- who are largely black and brown -- into a permanent second-class status, simply because they once committed a crime. Once labeled a felon, you are ushered into a parallel social universe. You can be denied the right to vote, automatically excluded from juries and legally discriminated against in employment, housing, access to education and public benefits -- forms of discrimination that we supposedly left behind.

This kind of stigma, discrimination and social exclusion may befall you for no reason other than you were once caught with drugs.

I doubt Barack Obama thinks of himself as a criminal, though he should. He has admitted to using illegal drugs during his college years -- lots, in fact. What if he thought of himself as a criminal? What if he identified that way? Would it lead him to feel a bit more compassion for those who are branded drug felons for life, unable to find work or housing, and deemed ineligible even for food stamps?

Maybe if Obama thought of himself as a criminal he wouldn't have just endorsed spending even more money on prisons at a time when scarce resources would be much better spent on education or health care, or just about anything else.

I am a criminal. Coming to terms with this aspect of my identity has helped me to see more clearly -- with blinders off -- the ways in which I have been encouraged not to feel any connection to "them," those labeled criminals. I see now that "they" are me, and I am them.

*This essay was first posted at CNN, and is reposted here with the permission of Michelle Alexander. Ms. Alexander is author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New Press, 2010). She is former director of the Racial Justice Project of the ACLU of Northern California and of the Civil Rights Clinic at Stanford Law School. She holds a joint appointment with the Kirwan Institute for the Study of Race and Ethnicity and the Moritz College of Law at The Ohio State University.

New study on juvenile sex offender treatment

Efficacy claimed, but control group questionable

I previously reviewed forensic psychologist Frank DiCataldo's excellent book on juvenile sex offenders, in which he claims there is very little good research to show that sex offender-specific treatment is useful with adolescents. As DiCataldo points out, most of the studies (and the meta-analyses of studies) purporting to show a treatment effect have serious flaws. One big problem is the lack of control groups. This makes it impossible to know whether juveniles who did well after sex-offender treatment would have done equally well without treatment or with generic treatment not focused on sex offending.

But now, a study out of Canada (where else?!) is being trumpeted as methodologically sound proof that -- drum roll here -- treatment works. The study followed 148 adolescents for up to 20 years, which is a very long time for this type of research. Overall, only 17 of the subjects (about 11.5%) picked up a new sex offense as adults, with another 7 getting a new charge only in adolescence, for a total of 24 recidivists (16%). That's in line with a growing body of data on the very low recidivism rates of juvenile sex offenders, ranging from about 4% to 15%.

When they broke it down by those who underwent their specialized treatment, compared with a comparison group that did not, they found that only 9% (5 out of 58) of the youths who had gone through their program got charged with a new sex offense over the next 20 years, compared with 21% (19 out of 90) of those who had not. That's a significant difference.

But here's the rub. The participants were not randomly assigned to treatment (versus no treatment), which is how it's supposed to be done in psychotherapy treatment outcome research. Otherwise, you never know if there is something about the selection process that affected the results. Not only was assignment to groups not random, but the researchers put the kids who refused to undergo treatment, along with those who dropped out of treatment early, into their so-called "control" group! In fact, these bad boys comprised fully half of the non-treatment group. My guess is that these dropouts and refusers were probably a whole lot more delinquent than the other kids in the first place.

So it's possible that what the research really shows is not that treatment works, but that hardcore delinquents who refuse or drop out of treatment are likely to get into more trouble in their later teens and early 20s. It would be interesting to see if the control group still showed a higher recidivism rate if they removed the dropouts and refusers from the analyses. In fact, I would love to see some qualitative analyses of who those 19 recidivists (out of the total of 90 in the control group) are.

Another potential confounder I noticed was that many of the adolescents in the non-treatment control group were apparently in some different kind of treatment at the time. That treatment is not described, so perhaps this study is more of a between-treatments design, rather than a study of treatment versus no treatment.

Again, as I've discussed previously, part of the "problem" both with accurately predicting which juveniles will reoffend and also with designing treatment programs that work is the very low overall rate of recidivism among juveniles who have sexually offended. As DiCataldo and others have pointed out, if you just predict that no juvenile caught for a sex crime will reoffend, you will be correct in the broad majority of cases.

Flattening trajectory

The study, by psychologist James Worling and his colleagues at the Sexual Abuse: Family Education & Treatment Program (SAFE-T) program in Ontario, did have some other interesting findings. The researchers found that most recidivism -- both sexual and nonsexual -- happens within the first few years. Offending flattens out significantly at about the 10-year mark, when folks hit about the age of 25. This is consistent with the recent study by Lussier and colleagues of sex offender trajectories, as well as the general criminology literature on desistance. Crime, including sex offending, is a young man's game.

The finding that only 11.5% of the participants were charged with subsequent sexual offenses as adults is also in line with other research showing very low recidivism for juveniles. A strength of this study is its long course; it followed kids all the way up to an average age of 31.

The study is: Worling, J.R., Littlejohn, A., & Bookalam, D. (2010). 20-year prospective follow-up study of specialized treatment for adolescents who offended sexually. Behavioral Sciences and the Law, 28, 46-57.

Special journal issue on adolescent sex offenders

NOTE: It looks like this entire special issue of Behavioral Sciences and the Law is available online. Other interesting articles in the issue include:

Inter-rater reliability of the PCL-R total and factor scores among psychopathic sex offenders: are personality features more prone to disagreement than behavioral features?
John F. Edens, Marcus T. Boccaccini, Darryl W. Johnson

Searching for the developmental origins of sexual violence: examining the co-occurrence of physical aggression and sexual behaviors in early childhood
Patrick Lussier, Jay Healey

Assessing risk of sexually abusive behavior among youth in a child welfare sample
Robert A. Prentky, Nien-Chen Li, Sue Righthand, Ann Schuler, Deborah Cavanaugh, Austin F. Lee

Psychological mechanisms underlying support for juvenile sex offender registry laws: prototypes, moral outrage, and perceived threat
Jessica M. Salerno, Cynthia J. Najdowski, Margaret C. Stevenson, Tisha R. A. Wiley, Bette L. Bottoms, Roberto Vaca Jr., Pamela S. Pimentel

Legal, ethical, and methodological considerations in the Internet-based study of child pornography offenders (p 84-105)
James V. Ray, Eva R. Kimonis, Christine Donoghue