Parolees retain right to confidential therapy, court holds

"The SVP Act does not include its own special exception"

Ramiro Gonzales had no idea how far the news would travel, when he confided to his therapist that he had molested more children than those for which he had been convicted and served time in prison.

After all, confidentiality is the cornerstone of psychological treatment. Would you disclose information in therapy if you thought your darkest thoughts and most shameful misdeeds would be trumpeted to the world?

But in response to a subpoena, Mr. Gonzales's therapist handed over his entire treatment record to a prosecutor who was seeking to civilly detain him as a sexually violent predator (SVP), after a judge overruled a defense objection. The government's two psychologists then used the damaging admissions to bolster their trial testimony about future dangerousness, and a jury voted to civilly commit him.

Not so fast, an appellate court ruled last week. "The SVP Act does not include its own special exception" to established rules of patient-therapist confidentiality. Just like everyone else, a parolee is entitled to expect confidentiality in therapy, except as necessary to keep parole authorities informed about whether he is complying with any mandatory treatment requirements. Such information, the court added, must be as minimal as possible, and certainly does not include details of therapy or statements made in therapy.

Mr. Gonzales's admission was so highly prejudicial that the civil commitment must be overturned and he must get a new trial, the appellate court ordered, especially since the government's case overall was "not compelling." There was no evidence that he had molested any children since paroling from prison.

Mr. Gonzales, who is developmentally disabled due to spinal meningitis as a boy, was required to be in treatment as a condition of his parole. The state had already tried to civilly commit him upon his initial parole from prison, but a jury rejected that attempt. It was trying for the second time, after he violated parole by drinking alcohol and being around children, including his sister's children when they came over to visit his mother, where he lived.

The court clarified that people who have been civilly committed, as well as prison inmates, cannot expect the same level of privacy in therapy as parolees or probationers, because they have been found to be dangerous.

The ruling is good news for psychology ethics. Too many therapists seem to harbor the misimpression that a contract with a parole or probation agency trumps our professional ethics codes, giving them carte blanche to discuss their client's confidential business with authorities.

This ruling should serve as a vivid reminder: A subpoena is just a piece of paper filled out by an attorney. You aren't supposed to blindly obey it when it is improper. Indeed, you have an obligation to actively resist turning over confidential records of therapy. The therapist in this case should have voiced an objection, and brought her own attorney to court to fight the subpoena.

The case, People v. Ramiro Gonzales out of Santa Clara County, gives an excellent overview of both federal and California case law on confidentiality in forensic cases. It is online HERE.

Related blog posts:  

• Do sex offenders have right to confidential therapy? (Feb. 22, 2008)

• Confession to prison psychiatrist not confidential (Dec. 11, 2007)

• Treating therapist as police interrogator (Nov. 30, 2008)

• Abandon ethics, all ye who enter here: Special ethics exemption sought for SVP work (Oct. 6, 2010)

International readers: Diagnostic survey please

I am curious about diagnostic practices outside of the United States, as I prepare to give some international trainings later this year. If you are in forensic practice somewhere other than the USA, I would like to invite you to complete this very brief online survey. It is only 10 items, and should take you less than 5 minutes. It will help me out a lot. I will even share the results. I know a convenience sample like this is not scientific, but the more of you who complete it the more educational it will be.

You Americans, please refrain. I already know which manual you use. As a consolation prize, you can complete the one-item trivia poll just below the diagnostic survey. Make your best guess, and instantly learn how others voted.

And if you could pass this along to other colleagues outside of the United States, I would greatly appreciate it. Here's a convenient url that you can just cut and paste to share: http://3.ly/diagnosis. Or, if you would like to bypass this blog page and go directly to the survey site, you can use this url: http://3.ly/diagnosis2.

Thank you very much for your help.

And now, the one-item consolation poll for all readers:

White girl to be tried as black man

Hat tip: Strange Doctrines

California training to feature confession expert

Dr. Richard Leo, Associate Law Professor at USF and a leading scholar in the area of false confessions, will be the keynote speaker at next month's conference of the Forensic Mental Health Association of California. His presentation is titled False Confessions: Causes, Characteristics and Solutions.*

The conference, "Mental Health and the Law: An In-Depth Look at the Evidence," will be March 23-25 in Seaside (just outside of picturesque Monterey).

The FMHAC has scored some other big names, too, including Richard Rogers and Robert Hare. Topics of interest include the effect of high-profile crimes on SVP laws in California, competency restoration treatment in county jails, malingering assessment, and lots more.

*My review of Dr. Leo's book, Police Interrogation and American Justice, is HERE.

Untattoo You

What happens when you cross the Avon Lady with a Neo-Nazi murder defendant?

Guest essay by Sam Sommers*

Several colleagues and students forwarded to me this story from the NY Times describing a criminal defendant in Florida whose attorney successfully petitioned the court to pay for a cosmetologist to help him cover up his swastika tattoos with makeup before trial each morning. The basis for the request was the defense's (quite reasonable) concerns that jurors would have a hard time remaining impartial as they sat in judgment of someone adorned by Neo-Nazi symbols.


The case raises a wide range of interesting questions involving the psychology of law, physical appearance, first impressions, and daily interaction–the very issues often at the heart of this blog. Questions such as:

Should the court have agreed? 

While the unusual nature of the request is what has rendered it newsworthy, similar issues arise in a wide range of cases. Defendants often change clothes before entering court in order to prevent them from having to appear in front of the jury in a prison jumpsuit. Similarly, defendants in custody may be unshackled outside of the presence of the jurors so as to avoid undue bias.

The question becomes, though, should such accommodation apply to tattoos? After all, the defendant in the Florida case presumably chose to decorate himself in Neo-Nazi images. Should the taxpayers foot the bill to cover up decisions that the defendant made of his own free will? Moreover, the prosecution alleges that the attacks in question were motivated by hate: one assault victim was attacked allegedly for associating with a Black man; the homicide victim was gay. Reactions to the case might be different had the defendant gotten the tattoos earlier in life and long since forsworn the ideology associated with them. This wasn't the case here.

Can the issue be reframed? 

Many people I've spoken with have suggested, as alluded to above, that since the defendant chose these tattoos, he should be stuck with the repercussions of that decision. But the issue becomes more complex when you consider that the question for the court was not simply whether the defendant should be allowed to cover his tattoos, but rather whether the court would pay for it. Because a tattooed defendant with the money for his own removal/cover-up would be free to do as he wished.

Most people I've talked to have trouble with the idea that the court would pay for a Neo-Nazi charged with hate crimes to cover up swastika tattoos. But when the same question is reframed, most of the same people agree that a poor defendant charged with capital crimes should be entitled to just as vigorous a defense as a wealthier defendant in the same situation. Pitched this way, the issue becomes more complicated.

Couldn't the judge just remind the jurors to stick to the evidence and ignore the defendant's appearance? 

Sure. And as the division director for the Florida attorney's office argues in the Times article, "We believe the jurors listen to judges' instructions."

But while I have no doubt that jurors often try to follow the rules they're given, examples to the contrary abound. For instance, years ago I published a few research studies indicating that evidence still impacts a jury even after it has been ruled inadmissible. Moreover, judicial instructions to avoid prejudice or partiality have not been sufficient to eliminate other forms of disparity, such as the increased likelihood that a defendant in a capital trial will be sentenced to death when his victim is White as opposed to non-White.

It remains the case that sometimes jurors decide they'd rather not hew to the letter of the judge's instructions. And other times, jurors aren't even aware in the first place of the biases that they're supposed to be avoiding.

If this defendant gets money to change how he looks, what about other defendants similarly disadvantaged by appearance? No good legal debate is complete without the proverbial slippery slope argument, so where do we go from tattoo guy? Should relatively unattractive defendants be allowed to ask for makeovers? Given stereotypes about overweight individuals and self-control, what about an obese defendant in a negligence case? Clearly, the slope isn't so slippery as to allow a defendant from a traditionally disadvantaged minority group to appear in court in whiteface, but where should the line be drawn?

When symphony orchestras wanted to reduce bias in the hiring of musicians, they had candidates audition behind a screen so that gender was not apparent. Accordingly, one of my students in class last week asked, why not do the same to mask the demographics and background of a criminal defendant? Not a proposal that you're likely to see anytime soon in a courtroom near you, but interesting fodder for discussion nonetheless.

So I now turn the question to you, dear readers... Court-sponsored tattoo cover-ups: misguided use of public funds or necessary protection of defendant rights?

Sam Sommers is an award-winning social psychology professor at Tufts University who has served as an expert witness on bias.

*This essay originally appeared on Dr. Sommers' Psychology Today blog, The Science of Small Talk. Reposted with the written permission of Sam Sommers.

Previous guest essay by Sam Sommers: On police, profiling, and Henry Gates (July 28, 2009)

Encephalon carnival: Psychology-neuroscience roundup

The Encephalon carnival is back!

Blog carnivals are an effort to streamline the blogosphere's massive resources through timely and topical online magazines. Encephalon is one such rotating carnival, featuring the blog's best neuroscience and psychology writing.

The 83rd edition, published today, is well worth checking out. There’s something for everyone, whether it's Neuroanthropology's look at prodromal psychosis, Dr. Shock's take on what makes a good bodyguard, Charbonnier's musings on confabulation and free will, Neurocritic's report on how Facebook affects the size of your amygdala, or the latest news and views on autism.

Hosting this month's carnival is Dr. Romeo Vitelli at Providentia (“a biased look at psychology in the world”), who is featuring his two-part series on the historical mystery surrounding Friedrich Nietzsche.

The complete edition is HERE.