California deals big blow to bogus paraphilia diagnoses

Government evaluators in California have been instructed to be more cautious in invoking ad hoc psychiatric diagnoses such as "paraphilia not otherwise specified-nonconsent" to justify the civil commitment of sex offenders.

In a report in today's Psychiatric Times, Allen Frances calls the move by California's Department of Mental Health a "giant step forward in ending the Paraphilia NOS fad."

The new marching orders are likely to have national repercussions. California has a large cadre of sexually violent predator evaluators, many of whom moonlight in other states and in federal court as well.

As Frances reports, evaluators were summoned to a training workshop at which "they were explicitly instructed to adhere closely to the intent of DSM-IV and to desist from making idiosyncratic paraphilia diagnoses. The training made clear that a diagnosis of 'Paraphilia NOS nonconsent' would require affirmative supportive evidence that the rapist is sexually aroused specifically by raping rather than all the many very much more common situations in which rape is simply criminal."

Increasingly, government evaluators had been using so-called "NOS" diagnoses to justify civil commitment of men whose sex offenses were not driven by any recognized mental disorder. Because rape is a crime rather than a mental illness, it is not included as a diagnosis in any psychiatric manual. Similarly, evaluators have taken to labeling men who sexually assaulted post-pubertal minors but did not meet the diagnostic criteria for pedophilia with the ad hoc label of "paraphilia not otherwise specified-hebephilia."

Frances expressed optimism that California's policy change signals the beginning of the end for “paraphilia NOS” in court:

The misdiagnosis of rape as a mental disorder has been a forensic disaster,  allowing the widespread misuse of involuntary psychiatric hospitalization.... [T]he California DMH has only limited control over its errant state SVP evaluators, who by contract are entitled to exercise their individual 'clinical judgment' however mistaken and baseless it may be. 'Paraphilia NOS' will likely linger longer than it should. But the tide has clearly turned in California and California is likely to be a bellweather state; its return to proper diagnostic practice undoubtedly will spread across the country.

Blog readers may also be interested in Frances's commentary on a proposed change in the diagnostic criteria for Posttraumatic Stress Disorder (PTSD) in the upcoming DSM-5. The change could open the door for increased forensic misuse of this controversial diagnosis. Frances's report is HERE.

Combating the pull to overpredict violence

Like the moon's effect on tides, the pull to overpredict violence exerts a powerful influence, even on seasoned forensic evaluators who know its strength.

When directly informed that an event has a low base rate of occurrence -- for example, that a homicide offender has only a 1 in 100 likelihood of being arrested for another homicide -- both laypeople and professionals will markedly overpredict violence.

In an article in the Journal of the American Academy of Psychiatry and Law, eminent forensic psychologist Stanley Brodsky and postdoctoral fellow Sarah L. Miller analyze why this is so.

For one thing, the risk of underpredicting violence has more potential to negatively impact the evaluator. Bad publicity, public outrage, even civil litigation. Not to mention the harm committed by a high-risk individual who reoffends. 

Far safer to "err on the side of public safety," goes clinical lore. A claim of dangerousness is well nigh impossible to disprove. And especially in the context of civil commitment of sex offenders, the issue is not framed as punishment but, rather, as "an acceptable restriction of individual rights in the interest of public safety and rehabilitation." It's not as if these guys are sympathetic characters, with a constituency of supporters looking out for their rights.

Certain psychological mechanisms also contribute to bias in the direction of overpredicting risk. These include confirmation bias, or seeking information to support a preconceived conclusion, and illusory correlation, in which the evaluator assumes two things are related just because they co-occurred.

The purpose of Brodsky and Miller's well-argued review is to make evaluators more aware of the natural overprediction tendency, and to provide a checklist that evaluators can use to assess and correct their potential biases.

It's a great idea, although I am a bit skeptical that such a simple approach will make much of an impact in the adversarial arena.

The full article is available for free download HERE.

Russell Banks' new novel explores sex offender banishment

The Kid is all alone in the world, hiding in the shadows under the freeway, part of an ever-growing mass of exiles electronically shackled to a society that despises and shuns them.

But who are these modern-day lepers? And why are there so many of them? What if sex offending is a symptom of a malfunctioning society, and these men are just the canaries in the coal mine, carrying the burden of society' shame? What if the Internet is the snake in the Garden of Eden, and pornography is the forbidden fruit?

In Lost Memory of Skin, best-selling novelist Russell Banks explores the deeper ironies of a culture that condemns pedophiles even while turning its children into dehumanized sexual commodities. But on a deeper level, the novel is about the profound loneliness and alienation of the digital age, the inability of people to get beyond false facades to truly trust and connect with each other.

My review continues HERE.

(As always, if you appreciate the book review, please click "yes" at the Amazon site, to boost the placement of my Amazon reviews.)

Future orientation a major factor in juvenile competency

Photo credit: Richard Ross, Juvenile in Justice

Unlike adults, most children and adolescents who are found incompetent to stand trial are not psychotic. Rather, they have cognitive impairments. And, in a factor gaining greater attention from courts and legislatures, they are often immature.

Indeed, developmental maturity is so important that in California and some other states, juvenile competency evaluators are now required by law to assess for it.

That’s easier said than done. After all, what is immaturity, and how does it affect competency?

In a study just published in the Journal of the American Academy of Psychiatry and Law, four scholars state that one big chunk of maturity is future orientation, or the extent to which a youngster takes long-range consequences into account in making decisions. One reason that youngsters engage in risky behaviors, the theory goes, is because they are present-focused and lack a more mature perspective on the future.

Testing the influence of future orientation on competency, the researchers found that the well-established relationship between age and competency is moderated by a child's degree of future orientation.

Further, competency is particularly "fragile" in immature children. In other words, smaller deficits in cognitive abilities are more likely to influence competency in immature children as opposed to their more mature peers.

I recommend the full article, by Aaron Kivisto, Todd Moore, Paula Fite and Bruce Seidner. It is available for free online, HERE.

What does it take to prove innocence?

Thomas Haynesworth hugs his mother.
Photo: P. Kevin Morley, Richmond Times-Dispatch

One Sunday morning in February 1984, Thomas Haynesworth’s mother sent him to the Trio supermarket to pick up some bread and sweet potatoes. He never got there. Instead, he was stopped and questioned in connection with a recent rape. That began a 27-year odyssey through false accusation, arrest, prison and pain.

So begins yet another Kafkaesque story set in the United States, whose criminal justice system seems to have gone totally berserk. When I was traveling abroad this summer, overseas colleagues expressed amazement about practices they've heard about in our country -- juveniles sent to prison for life, young men placed on lifelong sex offender registries for consensual relationships with teen girlfriends, criminal prosecution of young children. Last week's execution of Troy Davis despite mounting doubts about his guilt is the latest case that has international observers scratching their heads.

But the Haynesworth case is unusual in that prosecutors and even a state attorney general are going to bat for the wrongfully convicted man, yet that still isn't enough to get him an exoneration. 

To recap the facts:

Haynesworth after his release. Photo credit: Morley

When he was 18, Haynesworth was arrested for five rapes in his neighborhood. He had no criminal record, but that didn't matter. He was prosecuted for four rapes, convicted of three, and sentenced to 84 years in prison.

Two years ago, a broad review of old cases in Virginia turned up a DNA match to a serial rapist who was already in prison for a string of rapes that occurred in that same neighborhood after Haynesworth's arrest.

Haynesworth was released this March, on his 46th birthday, and everyone thought his exoneration would follow swiftly.

But, no. 

Instead of apologizing to Haynesworth for robbing him of most of his adult life, what is the court doing? It's asking for more proof of innocence.

Only, there's a slight catch: The state has disposed of the DNA evidence from the other rapes, evidence that could conclusively clear his name.

"It seems paradoxical to demand 'conclusive' evidence from Haynesworth when the commonwealth has deprived him of the opportunity to produce such evidence," said the attorney general of Virginia, a staunch conservative who has even given Haynesworth a job in his office.

Meanwhile, as his bid for exoneration languishes on, Haynesworth must remain on the sex offender registry, with all of the stigma and restrictions that carries. He cannot move without permission, and he must even get approval to visit his nieces.

The trial penalty

This is yet the latest in a string of similar cases focusing public attention on the reliability problems plaguing eyewitness identification and, more broadly, on racial inequities in the administration of justice here in the Land of the Free.

But things are likely to get worse before they get better. That's because across the United States, legal changes have concentrated more and more power in the hands of prosecutors, who can now coerce defendants into pleading guilty by threatening much harsher penalties for those who insist on a trial.

As Richard Oppel reports in an in-depth analysis in the New York Times, prosecutors now wield more discretionary power than judges, and are using that power to punish defendants for exercising their right to a trial:

Threats of harsher charges against defendants who reject plea deals often are the most influential factor in the outcome of a case, but this interplay is never reflected in official data.

Even defendants with winnable cases are opting to plead guilty because the stakes are so high if they lose. The ratio of guilty pleas to trials has nearly doubled in the past two decades, according to Bureau of Justice Statistics reported by Oppel. And the number of acquittals in federal cases has dropped even more dramatically, from one out of every 22 cases 30 years ago to only one out of 212 last year.

So if a young Haynesworth came along today and had the audacity to insist that he was innocent and wanted a trial, he would likely be punished with multiple life prison terms, rather than a mere 84 years.

We may never know how many Haynesworths are being sentenced every year based on faulty eyewitness identification and/or racially biased prosecution. 

New York Times reporter John Schwartz's only-in-America report on the Haynesworth case is HERE.

Richard Oppel's excellent report, Sentencing Shift Gives New Leverage to Prosecutors, is HERE.

Hat tip: J and B

Fiji travelogue: A different approach to murder

Guest post by Jules Burstein*

Three weeks ago while on a vacation in Fiji, I was on the third-largest island, Taveuni, walking in a light rain up a not-so-steep hill, when I encountered the following sign in front of what looked like a series of dormitories:

Fiji Correction Services

Taveuni Prison

Giving a Second Chance

 

I walked inside and explained to a secretary at the front desk that I was a forensic psychologist and was interested in learning something about the criminal justice and prison system in Fiji. She invited me to speak to the Director (Warden) who was just outside the main building and was quite receptive to having an exchange with me.

I was more than a little astonished to learn from him that on an island with 18,000 people there were only a dozen men serving time for murder. But more compelling than that was the Director informing me that all men convicted of murder are sentenced to 10 years.

At that point they are evaluated to see whether they have sufficient remorse for their offense, and have made constructive changes in their character so as to warrant release. If that is the case they are discharged from custody. If not, there are periodic reviews every two years to determine whether inmates are then suitable for release. Thus, all inmates are strongly motivated to effect positive changes while in custody in order to earn the right to be reintegrated into society.

I found it impressive (and sad) to consider that this progressive approach exists in a country that just obtained its independence from Great Britain 40 years ago, while we in America have prisons filled with thousands of men convicted of murder either sentenced to death or to life sentences with little chance of parole.

*Jules Burstein is a clinical and forensic psychologist in Berkeley, California.