Sex offender news roundup

As always, there are lots of developments on the sex offender front. I haven't had time to blog about each individually, so here are a few brief reports with links.

State and federal civil commitment continues to unravel

Piggy-backing off of USA Today's recent expose, Prison Legal News takes an in-depth look at the status of the federal sex offender civil commitment process. As I’ve reported here on various occasions, federal judges in North Carolina are being thoughtful in their application of the “Sexually Dangerous Person” law (18 USC 4248). Rather than simply rubber-stamping government reports as truth, the judges “have shown a willingness to carefully sift through the facts” and the relevant law in each individual case.

Increasingly, federal judges are agreeing with the findings of private psychologists and defense experts in civil commitment cases, which has put the DOJ in the unusual position of losing more contested hearings than it wins. Courts have repeatedly found that the federal government failed to meet its burden of proof that prisoners certified for civil commitment are sexually dangerous or have a high risk of reoffending, as required by 4248.

Gratifying for independent forensic professionals is the fact that judges are finding outside psychologists more objective and reliable than psychologists on the payroll of the Board of Prison Terms, whose reports are “sometimes questionable.” Notes PLN reporter Derek Gilna, the judges are “consistently realizing that independent psychologists are “more objective, thorough and nuanced in their observations and findings.”

Despite its string of losses, the federal government is still holding ex-convicts for years after they complete their prison terms, pending civil commitment hearings. That’s “a chilling reminder of the power of the DOJ to arbitrarily deprive prisoners of their freedom,” writes Gilna.

Challenge to Minnesota commitment gains ground

Meanwhile, another federal judge has issued a court order mandating changes in the civil commitment system in Minnesota, after detainees brought a class action challenge. That state’s civil detention program is infamous around the world for its failure to release inmate “patients” even after years of sex offender treatment; it was on that basis that Britain recently rejected a U.S. bid to extradite an accused child molester.

Reports the Star Tribune:

Moose Lake detention facility

Chief U.S. Magistrate Judge Arthur Boylan [has] ordered state Human Services Commissioner Lucinda Jesson to convene a task force of experts to recommend options less restrictive than the state's prison-like treatment centers and to suggest changes in how offenders are selected for civil commitment, as well as how they might earn release from the program. The order came during pretrial discussions in a class-action lawsuit brought by patients who argued that their indefinite detention after completing their prison sentences is unconstitutional. Critics of the Minnesota Sex Offender Program (MSOP) hailed Boylan's order as an unprecedented and significant step toward changing a system that has been a magnet for controversy since its creation in 1994 with the construction in Moose Lake of a sprawling campus surrounded by razor wire.

The 63-page class action complaint can be found HERE.

New book: The Myth of Sex Addiction

I’ve been meaning to blog about this topic; I’ve got a half-finished post stashed away somewhere. But now I don’t have to: David Ley has written a whole book about it (proving that sometimes procrastination pays off).

In The Myth of Sex Addiction, Ley presents the cultural history, moral judgments and junk science underlying this disorder that has recently arisen in the public’s imagination. As described in the book’s summary:

David Ley

He exposes the subjective values embedded in the concept, as well as the significant economic factors that drive the label of sex addiction in clinical practice and the popular media. Ley outlines how this label represents a social attack on many forms of sexuality--male sexuality in particular--as well as presenting the difficulty this label creates in holding people responsible for their sexual behaviors. Going against current assumptions and trends, Ley debunks the idea that sex addiction is real. Instead, he suggests that the high-sex behaviors of some men is something that has been tacitly condoned for countless years and is only now labeled as a disorder as men are being held accountable to the same rules that have been applied to women. He suggests we should expect men to take responsibility for sexual choices, rather than supporting an approach that labels male sexual desire as a "demonic force" that must be resisted, feared, treated, and exorcised.  

In a review in the online newsletter of the influential Association for the Treatment of Sexual Abusers (ATSA), David Prescott calls the book indispensable for individuals engaged in the assessment and/or treatment of sex offenders, because "our clients typically do not have the luxury of selecting a treatment provider and can quickly find themselves in legally tenuous situations should they hold different beliefs than their therapist."

Study: Sexting not risky or psychologically problematic

Here’s another myth-buster: Sexting is not associated with sexually risky behavior or other problems.

That's according to a study published online in the Journal of Adolescent Health. More than four out of ten youngsters in a large U.S. sample of 3,447 had engaged in sexting, the researchers found. There was no association between sexting and either psychological well-being or engagement in sexual risk behaviors. The study flies in the face of alarmist hype over this increasingly ubiquitous phenomenon of the electronic age.

Sex offender recidivism through a therapeutic jurisprudence lens

Legal scholars Michael Perlin and Heather Cucolo of New York Law School have turned their focus to the effects of sex offender laws on rehabilitation and community reintegration. Their new article, published in the fall issue of the Temple Political and Civil Rights Law and also available online, suggests public policy changes that would minimize re-offense rates while still protecting human rights. As summarized in the abstract:

[The article] highlights the failure of community containment laws and ordinances by focusing on (1) the myths/perceptions that have arisen about sex offenders, and how society incorporates those myths into legislation, (2) the lack of rehabilitation offered to incarcerated or civilly committed offenders, resulting in inadequate re-entry preparation, (3) the anti-therapeutic and inhumane effect of the laws and ordinances created to restrict sex offenders in the community, and (4) the reluctance and resistance of courts to incorporate therapeutic jurisprudence in seeking to remediate this set of circumstances. It concludes by offering some modest suggestions, based on the adoption of a therapeutic jurisprudence model of analysis.

The only odd thing about the article is that its title is not derived from Bob Dylan lyrics, as Perlin's articles usually are. That must have been the influence of his co-author.

Alarmist study amps up sex offender fears

At the opposite end of the ideological spectrum, here's yet another piece of alarmist reporting:

"Nearly one in six convicted sex offenders is using sophisticated techniques invented by identity thieves" in order to escape registration requirements, blurts a news story that received quite a bit of press a bit ago.

My first reaction: ONLY one-sixth? After all, how many of us would want to wear a scarlet letter everywhere we went, a letter that effectively banished us from housing, jobs, school, community -- basically, from any kind of normal life.

Don Rebovich, the lead researcher in this study, who heads the ominously named Center for Identity Management and Information Protection (CIMIP) at Utica College, hyped former sex offenders' attempts to navigate around registration laws as "a growing societal problem."

"We have to dig deeper to find out why this is happening," he said.

Really?! If he cannot figure it out without further digging, he must not know how to walk in another's shoes. We’re talking about onerous laws that severely restrict where ex-offenders can live and require them to broadcast the addresses of any employment or school they attend. Laws that incite the prurient interests of nosy neighbors. Laws that invade the privacy of loved ones. Laws that have even led to a string of vigilante murders. People on these registries are motivated by the desire to protect family members, shield themselves from nosy neighbors, and get jobs.

Even the New York Daily News, certainly no sympathizer toward ex-offenders, notes in its coverage of the study that the various attempts to evade scrutiny "don't mean the offenders aren't checking in regularly with their parole officers. Actual absconder rates -- the percentage of sex offenders who get released and disappear -- are extremely low."

Ironically, as highlighted in the Perlin and Cucolo article referenced above, a growing body of empirical research suggests that registration laws do nothing to protect the public or reduce recidivism. Indeed, they may foster recidivism, by isolating former sex offenders and destroying all hope of leading productive, law-abiding lives.

Frank Kuni, New Jersey sexual registry entry

Meanwhile, what was the heinous crime of the so-called “poster child” for violating the registration rules -- the worst violator they could find?

Frank Kuni of New Jersey did not commit a new sex crime. Rather, he changed his name in order to land a job. With the US Census Service, no less. In other words, as one article put it, he had the audacity to try to "slip back into society" and become a productive citizen.

Further resources:

I  recommend the Prison Legal News article, Federal Sex Offender Civil Commitment Process Under Fire, for those interested in an in-depth report on recent federal decisions. Prison Legal News has lots of other cutting-edge news coverage, as well; I recommend browsing the site and signing up if you find the information useful. There is a free email alert option. 

My blog list of online sexting resources can be found HERE. 

Preventing Sex-Offender Recidivism Through Therapeutic Jurisprudence Approaches and Specialized Community Integration by Heather Cucolo and Michael L. Perlin can be freely downloaded from the Social Science Research Network site. 

My 2007 blog post on sex offender banishment, Exiles in their own land: Sex offenders and the history of banishment in Western culture, is HERE.  

Hat tips: Bruce, Sandi, Ken Pope 

Prisoner "reentry": Paradigm shift or empty rhetoric?

  Vindictive "imagined public" a barricade to real reintegration   

For many who have broken the law, the real punishment begins not when they are processed into prison, but when they are finally ejected from their concertina-enclosed cages into a vengeful society that won't allow them to redeem themselves, branding them as forever bad.

Despite the stacked deck, some former prisoners do manage to find a sense of hope and turn their lives around. Such desistance is especially likely when society welcomes prisoners and restores their status as full citizens. Indeed, a study by Florida's Parole Commission found that prisoners whose civil rights were restored were far less likely to reoffend than those who remained unable to vote, hold public office, sit on juries, or obtain certain state licenses.

This process of criminal desistance is the topic of a new film out of Scotland. The Road from Crime -- a 48-minute film that can be viewed by clicking on the image below -- is narrated by Allan Weaver, a Scottish ex-offender turned probation officer and author of the book So You Think You Know Me? The script was co-written by my friend Shadd Maruna of the Institute of Criminology and Criminal Justice at Queen's University Belfast, who wrote the groundbreaking book, Making Good: How Ex-Convicts Reform and Rebuild Their Lives.

Study: Reentry doesn’t equal reintegration

The film strikes an optimistic note, citing increasing government interest in alternatives to incarceration in these lean economic times. But a new study out of Colorado is less sanguine, at least as far as the USA is concerned. Even as policy makers give lip service to facilitating prisoners' successful "reentry" into the community, they cling to a risk reduction model that hamstrings true reintegration, the researchers found.

The researchers tracked the work of a Colorado state commission tasked with recommending changes in sentencing policies aimed at reducing sentencing costs while increasing efficacy. Analyzing the commission's discourse, study co-authors Sara Steen, Traci Lacock and Shelby McKinzey of the University of Colorado discovered that a powerful "imagined public" held these public servants hostage, forcing them to look over their shoulders and censor their humanistic impulses lest they be perceived as soft on crime.

The public of the commissioners' imaginations is a vengeful one, which promotes "victims’ rights" as antithetical to the rights of offenders. In this "zero-sum" wordlview (as David Garland labeled it in The Culture of Control), "concerns about offenders translate into attacks on victims and vice versa, so that actors have to forge an allegiance with one group or the other."

"This narrative implies that the real reentry problem is that this population is reentering society at all (if it were not for the expense, the reentry problem could be solved by keeping people who commit crimes in prison forever). The moral undertone to this narrative is one of anger and disgust toward (or, more mildly, frustration with) a group of dangerous people who need to be watched. [Former prisoners] are not people we want to help -- in part because they are, in some sense, beyond help…. [It] is clear that there is some interest in improving offenders' lives, but the main story driving the recidivism reduction narrative is that we (nonoffenders) should invest in reentry to make ourselves safer."

Indeed, risk-driven discourse has so become so naturalized that it takes a very active effort to step back and realize that it is only one of several possible ways of thinking about citizens who have committed crimes. Indeed, Shadd Maruna and Thomas LeBel (in an article available online) identified two dominant recidivism-reduction narratives:

• The CONTROL NARRATIVE views ex-prisoners as dangerous creatures who require close supervision at all times.

• The SUPPORT NARRATIVE regards ex-convicts as bundles of deficits with “needs” that must be attended to.

Although these narratives are superficially dissimilar, in essence they are fundamentally alike in that both dehumanize and problematize former offenders. Indeed, the so-called "risk/needs" paradigm so popular in forensic psychology circles arose squarely from the recidivism reduction discourse that overarches both the control and support narratives. As the researchers discovered in the Colorado case, much more time and energy is put into risk assessment than in providing the external resources necessary for change; “no matter how precisely one can measure an individual’s needs, without resources to attend to those needs the measurement is in some sense meaningless.”

Source: Steen et al (2012)

Imagined public: More vitriolic than actual public opinion?

The irony is that, in their hearts, many public officials and practitioners would like to do more for paroling prisoners, but are paralyzed by fear of a public that in reality may be less vengeful than they imagine. As Steen and her colleagues note:

"Commissioners routinely raised the specter of public discomfort with their recommendations, and they always assumed that the public was punitive and would oppose reforms that benefited offenders in any significant way. While the commissioners themselves had complex views of crime and punishment, they  almost universally assumed a deeply simplistic view on the part of the public, a view based on retribution  to the exclusion of all other considerations. Despite its mandate to continually draw on evidence to support its conclusions, the Commission completely ignored (or was unaware of) recent social scientific evidence of a shift in public opinion about crime and punishment."

They cited a 2002 poll conducted for the Open Society Institute in which the majority of those surveyed believed that the primary goals of the criminal justice system should be rehabilitation and crime prevention.

In other words, public officials may be generalizing about the public's attitudes based on a skewed perception created by handful of vocal -- and often rabid -- constituents. Because of this, public policy remains firmly entrenched in an irrational, hysterical loop tape from which escape is nigh impossible. As the Colorado researchers conclude:

"Many academics equate reentry with rehabilitation, and assume that the popularity of the reentry concept has resulted in discourse and policy that are friendly toward offenders, decreasing the distance between 'us' and 'them'. Our analysis suggests that reentry has not significantly changed the discourse, and we show how practitioners and policy-makers have molded the reentry concept to fit comfortably within the existing punitive discourse by focusing on recidivism reduction rather than reintegration…. In the end, we rather pessimistically conclude that the high hopes of many that reentry could fundamentally change the nature of punishment discourse in the 21st century is to date misplaced."

Resources:

For more information about The Road from Crime and the wider desistance project visit the Discovering Desistance Blog. An evidence summary on desistance, How and why people stop offending, is also available online. The film was funded by the Economic and Social Research Council and George Mason University.  In addition to Shadd Maruna, project members include Fergus McNeill of the Scottish Centre for Crime and Justice Research at the University of Glasgow, Stephen Farrall of the University of Sheffield and Claire Lightowler of the Institute for Research and Innovation in Social Services.

The featured article is: Unsettling the discourse of punishment? Competing narratives of reentry and the possibilities for change by Sara Steen, Traci Lacock and Shelby McKinzey Punishment and Society 2012 14: 29 DOI: 10.1177/1462474511424681. Click HERE to request a copy from the first author.

Related blog posts: 

• Systems failure or black swan? New frame needed to stop "Memorial Crime Control" frenzy

• Book highlights prisoner reentry obstacles: Marked: Race, Crime, and Finding Work in an Era of Mass Incarceration

• Brooklyn, NY prisoner reentry program: Prosecutors push alternatives to crime 

Evaluating vets for disability: Recommended reading

As thousands of U.S. vets stream back from the battlefields of the Middle East with physical and/or psychological problems, more and more forensic practitioners are being called into service to perform disability evaluations. Veterans who suffered illness or injury due to military service are eligible for disability compensation. But first, they must meet eligibility requirements, which typically include undergoing a disability evaluation (referred to as a "Compensation and Pension examination" or "C and P" in VA parlance).

Not surprisingly, the majority of psychiatric evaluations are for PTSD.

A group of psychologists and psychiatrists who conduct such evaluations has put together a reading list of recommended resources for evaluators. Although one obvious audience is the mental health staff of the Veteran's Administration, the group is also reaching out to clinicians in private practice who conduct mental disability evaluations with veterans, either directly for the veteran or via private companies who have contracts with the VA.

For questions about this reading list, please contact Mark D Worthen, PsyD, who has blogged here before and led the effort to compile the list. Dr. Worthen is also co-author of the only article published in a peer-reviewed journal that describes how to conduct mental disability evaluations with veterans.

Best of all, many of these resources are available online; just click on the embedded links.

ARTICLES AND BOOK CHAPTERS ON PSYCHOLOGY AND PSYCHIATRY

Foote, W. E. (2008). Evaluations of individuals for disability in insurance and Social Security contexts. In R. Jackson (Ed.), Learning forensic assessment (international perspectives on forensic mental health) (pp. 449–479). New York: Taylor and Francis Group.

Moering, R. G. (2011). Military service records: Searching for the truth. Psychological Injury and Law, 4(3-4), 217-234. doi:10.1007/s12207-011-9114-3

Rubenzer, S. (2009). Posttraumatic stress disorder: Assessing response style and malingering. Psychological Injury and Law, 2(2), 114–142. doi:10.1007/s12207-009-9045-4.

Strasburger, L. G., Gutheil, T. G. and Brodsky, A. (1997). On wearing two hats: Role conflict in serving as both psychotherapist and expert witness. American Journal of Psychiatry, 154(4), 448–456. (Available online.)

Worthen, M. D. and Moering, R. G. (2011). A practical guide to conducting VA compensation and pension exams for PTSD and other mental disorders. Psychological Injury and Law, 4(3-4), 187-216. doi:10.1007/s12207-011-9115-2.

ARTICLES ON THE LAW

Allen, M. P. (2011). The law of veteran's benefits 2008-2010: Significant developments, trends, and a glimpse into the future. Veterans Law Review, 3, 1-66. (Available online.)

Ogilvie, B. and Tamlyn, E. (2012). Coming full circle: How VBA can complement recent changes in DoD and VHA policy regarding military sexual trauma. Veterans Law Review, 4, 1-40. (Available online.)

Ridgway, J. D. (2011). The splendid isolation revisited: Lessons from the history of veterans’ benefits before judicial review. Veterans Law Review, 3, 135-219. (Available online.)

Ridgway, J. D. (2012). Erratum to: Mind reading and the art of drafting medical opinions in veterans benefits claims. Psychological Injury and Law, 5(1), 72-87. doi:10.1007/s12207-012-9119-6. (Available online.)

BOOKS

Cocchiarella, L. and Gunnar, B. J. A. (2001). Mental and behavioral disorders. In Guides to the Evaluation of Permanent Impairment, 5th Edition. Chicago: American Medical Association Press. [Although there is a 6th edition of this text, most jurisdictions still refer to the 5th edition]

Institute of Medicine and National Research Council (2007). PTSD compensation and military service. Washington, DC: National Academies Press. (Available online.)

Kennedy, C. H. and Zillmer, E. A. (Eds.) (2012). Military psychology: Clinical and operational applications, 2nd Edition. New York: Guilford Press.

Rogers, R. (Ed.). (2008). Clinical assessment of malingering and deception (3rd ed.). New York: Guilford Press.

COURT CASES

Jones v. Shinseki, 23 Vet. App. 382 (2010). (Available online.)

Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). (Available online.)

GUIDELINES

American Academy of Psychiatry and the Law (2008). AAPL practice guideline for the forensic evaluation of psychiatric disability. Journal of the American Academy of Psychiatry and the Law, 36(4), S3–S50. (Available online.)

Committee on Ethical Guidelines for Forensic Psychologists (2011). Specialty guidelines for forensic psychologists. (Available online.)

VA PUBLICATIONS

Department of Veterans Affairs (2001). C and P clinicians guide. (Available online.)

Department of Veterans Affairs (2002). Best practice manual for posttraumatic stress disorder (PTSD) compensation and pension examinations. (Available online.)

WEBSITES

National Center for PTSD

MST SharePoint (VA intranet only). In particular, see the PowerPoint presentation, MST C and P exams and the VBA Training Letter - Adjudicating Posttraumatic Stress Disorder Claims Based on Military Sexual Trauma.

Veterans Law Library

Caveat: This list is not an official recommendation of the U.S. Department of Veterans Affairs.

Mass Shootings and Mental Illness: KQED Forum 9:00 a.m. Wednesday

If you’re free at 9:00 a.m. PST this Wednesday morning (Aug. 15), I invite you to listen to KQED's Forum show, where I will be a featured guest discussing the topic of MASS SHOOTINGS AND MENTAL ILLNESS: “Can anything be done to predict and prevent such violent acts, and what do we know about what causes people to commit them?” Also featured will be Dave Cullen, journalist and author of the book Columbine, and David Eagleman, director of the Initiative of Neuroscience and the Law at the Baylor College of Medicine. The guest host is Spencer Michaels of PBS NewsHour.

If you are not local to the San Francisco Bay Area, you can still listen live, by clicking HERE.

If you missed this Forum episode, listening is easy: Simply click on the below arrow icon. Or you can download an MP3 audio podcast at the show's website (HERE).

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Thanks very much to those of you who listened and sent me feedback via email. I appreciate the support.

Related blog posts:

Arizona rampage: Analyzing the analyzers (Jan. 23, 2011)

 Can school shootings be prevented? (April 19, 2007)

Aurora massacre: To speak or not to speak? (July 22, 2012)

Mental health expert witnesses slammed in court

A pint-sized hired gun

Are accusations of bias on the rise?

Hired gun.
Charlatan.
Quack.
Hack.

It's every expert witness's worst nightmare. Vitriolic accusations of bias hurled at us on the witness stand, just because the cross-examining attorney doesn't like our opinion, or we have the audacity to charge for our services. (Have you heard of auto mechanics, plumbers or attorneys being called "whores" because they don't work for free?)

Unfortunately, it goes with the territory.

Now, a group of psychologists has tried to figure out just how big a part of the legal landscape accusations of bias against mental health expert witnesses are. The researchers scoured the LexisNexis legal database for insinuations of bias, with an eye to quantifying and categorizing the name-calling. In an article just published online in the journal Psychological Services, prominent forensic psychologists John Edens and John Petrila and four colleagues divided accusations of bias into five major categories:

Starting with a list of 46 different ways of calling an expert biased, the authors searched and found 160 legal cases in which attorneys and judges made disparaging comments about forensic mental health experts. In these cases, 185 individual case participants made a total of 245 separable statements asserting a lack of objectivity and impartiality among mental health experts and/or the fields of psychology and psychiatry more generally.

• FOR SALE: In the largest category, 28 percent of the total, experts were disparaged as financially biased (e.g., "hired guns" or "prostitutes").

• PARTISANSHIP: Following close behind, with 27 percent  of cases, were accusations of advocacy, or having an "axe to grind."

• PSEUDOSCIENCE: About 14 percent of cases involved accusations of non-scientific testimony (e.g., "charlatans" or "junk science").

• MYSTICISM: Psychologists and psychiatrists were accused of babbling nonsense (e.g., "witch doctor," "voodoo" or "hocus pocus") in 6 percent  of the cases.

• NONSPECIFIC BIAS: About one fourth, or 24 percent, of cases involved nonspecific accusations or other types of allegations of bias. 

Interestingly, in more than a fourth of the cases, the disparaging comments were a basis for an appeal, typically by the defense calling foul over prosecutorial slurs against mental health experts. Such appeals were relatively unsuccessful, with only 18 percent of cases being reversed in part due to on-the-record accusations of expert bias. All of the successful appeals were in criminal trials, eight involving sanity or diminished capacity. 

Uptick in nasty name-calling?

Similar to a 1999 study by Doug Mossman, which was the only other known study to look at this issue, the researchers noticed a steady upward trend in disparaging comments in more recent years.

It might be tempting to get depressed by this study, which at first blush seems to validate what we all know and fear. However, if we think about it, the results could be seen as mildly encouraging.

First of all, if a thorough search of the massive LexisNexis database could locate only 160 cases, then blatant accusations of bias may be rarer than we think.

Secondly, there are a heck of a lot more expert witnesses in court these days than ever before. Courts and attorneys increasingly rely on forensic psychologists and psychiatrists to assist in a wide range of psycholegal areas, from child custody to tort damages to criminal sentencing and civil commitment. As well, we are increasingly called upon to explain broader social science research, such as the accuracy of eyewitness identification, to judges and juries. So, as the authors acknowledge, any increase in accusations of bias could just be an artifact of our growing presence in court.

Third, and perhaps most importantly, there really are hacks and quacks, charlatans and hired guns among are ranks. The methodology of the current study did not enable analysis of whether the accusations of partiality or bias were legitimate. In other words, attorneys may not have been just engaging in legal gamesmanship in some of these cases; they might have been righteously upset over actual bias or pseudoscientific methodology on the part of forensic psychologists or psychiatrists.

Hopefully, that's a study someone else will take up on another day.

For now, we're left with a couple of take-home messages:

First, this is not a field for the thin-skinned. We must steel themselves to have our objectivity challenged, sometimes very rudely and without basis.

More fundamentally, assuming that these accusations are tapping into popular perceptions and prejudices, forensic professionals need to work harder to reduce both actual bias and the perception of bias in our work.

The articles are:

" 'Hired Guns,' 'Charlatans,' and Their 'Voodoo Psychobabble': Case Law References to Various Forms of Perceived Bias Among Mental Health Expert Witnesses" by John F. Edens, Shannon Toney Smith, Melissa S. Magyar, Kacy Mullen, Amy Pitta and John Petrila, Psychological Services, 2012. 

" 'Hired Guns,' 'whores,' and 'prostitutes': Case law references to clinicians of ill repute" by Doug Mossman, Journal of the American Academy of Psychiatry and the Law, 1999. 

Psychiatrist accused of faking dementia to thwart retrial

Ayres found competent to stand trial in long-running molest case

William Ayres

In a dramatic twist to a case that's already had as many twists and turns as a roller coaster, allegations surfaced this week that psychiatrist William Ayres faked severe dementia in order to avoid a retrial on multiple charges of child molestation.

Ayres used his knowledge of psychiatry to circumvent psychological testing in an elaborate, two-year hoax, according to a report by state hospital psychologist John McIlnay. Around-the-clock observation at Napa State Hospital uncovered discrepancies between the dementia diagnosis and the day-to-day conduct of the former president of the American Academy of Child and Adolescent Psychiatry, the psychologist reportedly wrote in a report filed under seal with the San Mateo County, California court.

Ayres, 80, was arrested in 2007 on suspicion of sexually abusing six boys, some of them sent to him by the juvenile courts, between 1988 and 1996. As I reported at the time, his 2009 criminal trial ended with a hung jury.

After that trial, a new lawyer took over the case and raised the issue of competency to stand trial. A jury trial on competency last year ended with another hung jury. The defense and the prosecution eventually stipulated that Ayres was incompetent and should be sent to Napa State Hospital. He was there for about nine months.

Vincent "The Chin" Gigante

Faking dementia is not commonplace or easy, but it can be done. The most famous case of a defendant faking dementia in order to avoid criminal trial was that of Vincent "The Chin" Gigante, a Mafia don who for years wandered the streets of New York City in a bathrobe. He fooled a bevy of eminent forensic psychologists for psychiatrists into believing he was both insane and demented.

Due to his medical training, a psychiatrist would have an advantage in faking a dementia and in avoiding obvious mistakes. But never letting down one's guard would be difficult in an environment of 24/7 observation. According to news reports, line staff such as nurses and janitors were among those who noticed discrepancies between Ayres's day-to-day functioning and his purported dementia. This was also what eventually tripped up Vincente Gigante; forensic evaluators who interviewed line staff in that case learned that "The Chin" had dropped his guard in jail, when outside the presence of evaluating psychologists and psychiatrists.

On the other hand, state hospital clinicians are rather notorious in local circles for being quick to label defendants as malingering, a topic on which I published a peer-reviewed case study a few years ago. The diagnosis helps open up space in the overcrowded competency restoration wards, which are under pressure from California judges to become more efficient and reduce long waiting periods for beds, and can rid staff of nettlesome criminal patients.

Also, as regular blog readers know, reasonable clinicians often differ as to whether someone is incompetent. In this case, the competency trial featured a 2-2 split of experts. The two original court-appointed psychologists, Paul Good and Jatinder Singh, both initially opined that Ayres was competent to stand trial. However, Singh later changed his mind, which prompted the appointment of a third, "tie-breaker" evaluator, psychiatrist George L Wilkenson, who also thought Ayres was competent. Joining those three as witnesses at last year's competency trial was a defense-retained neuropsychologist, Amanda Gregory, who opined that Ayres was incompetent.

The new hospital report will prompt yet another court hearing on competency. This time, a judge rather than a jury will make the decision on competency, with the defense having the burden of proving that the defendant is unfit for trial on nine felony child molestation charges. The October hearing will include a string of lay and expert witnesses and is anticipated to last about seven days.

My prior posts  (it's been a while) on the case: 

• Lesson to abusers: Target socially disempowered (April 23, 2007)  
• Professionals behaving badly: Mistrial in psychiatrist molestation case (July 27, 2009) 
• Ayres exposer wins award (Aug. 19, 2009)