Newspaper unfairly maligned forensic psychologist, news council holds

In an unprecedented case, a Washington news council has determined that the Seattle Times was inaccurate and unfair to a forensic psychologist targeted in an investigative series on the state's sexually violent predator program.

Reporter Christine Willmsen went too far in her four-part investigative series on the costs of implementing SVP laws by singling out psychologist Richard Wollert for public censure. Relying on prosecution sources, she portrayed Wollert as a defense hack who promulgated unorthodox theories in order to line his own pockets, quoting detractors who called him an "outlier" and "a symphony with one note" who spoke "mumbo jumbo."

During Saturday's three-hour hearing, Wollert testified that the Times series had "tainted the Washington jury pool" by implying that psychologists who testified for the defense were not credible, and damaged his professional reputation. He said his annual income plummeted from about $450,000 to between $175,000 and $200,000 in the wake of the January 2012 series. 

Click on the video to watch the three-hour hearing. Then vote (HERE).

By a 7-to-2 vote, the Washington News Council found that the Times did not make sufficient efforts to contact sources other than prosecutors. On the larger question of whether the "Price of Protection" series was "accurate, fair, complete and balanced" in its portrayal of Wollert, the council sided with Wollert by a narrower, 6-to-4 margin. The council was evenly split on whether the headline of the first article in the series, "State Wastes Millions Helping Sex Predators Avoid Lock-up," was "accurate and fair." The votes by the ombudsman body, after a public hearing live-streamed from Seattle Town Hall, have no legal authority. The Times refused to attend what it labeled a "quasi-judicial spectacle," objecting to the council's "assumed authority." 

Accuracy, fairness and journalistic ethics

This is the second investigative series by Times reporter Willmsen to raise protests; in 2004, a local school board challenged the fairness of a series on "Coaches Who Prey." The SVP series illustrates how what passes for investigative journalism these days is often just piling on against the underdog. Reflective of the corporate monopolization of daily media, it bears little resemblance to the muckraking spirit that dominated when I was in journalism school, in the heady afterglow of Woodward and Bernstein's Watergate expose.  

Web page of the Seattle Times series

The basic premise of this series was certainly newsworthy: That Washington’s SVP law-- the first in the United States -- created "a cottage industry of forensic psychologists" who are gorging themselves at the public troughs. (That's a theme of this blog as well.) But by relying almost exclusively on prosecution sources, Willmsen became nothing more than a mouthpiece for government efforts to discredit and silence experts who present judges and juries with information that they don't like.

The case raises important distinctions among accuracy, balance and fairness in journalism. Journalists' voluntary code of ethics calls for accuracy, fairness and honesty in reporting and interpreting information. Balance, on the other hand, is not always desirable. As the Times noted in its rebuttal letter to the news council, "The pursuit of balance resulted in years of articles and broadcasts that gave the 1 percent of scientists who were climate-change deniers the same weight as the 99 percent who were certain that human activities were having an adverse impact on global climate."

Yet in this case, Willmsen's embeddedness with prosecutors resulted in such a profound lack of balance that the series was blatantly biased, and crossed the line from news reporting into advocacy. Consider Willmsen's one-sidedness in reporting on three of her major themes:

Money:

Richard Wollert testifying (from Seattle Times video)

The main theme of the series was that defense-retained experts were gouging the state. Willmsen wrote that Wollert made more than $100,000 on one SVP case; in a video from the series, Wollert is shown testifying that he earned $1.2 million from sexually violent predator cases in Washington and other states over a two-year period. That's a big chunk of taxpayer money, and the revelation undoubtedly caused public outrage against defense attorneys and their experts.

Willmsen wrote that government experts were not paid that much. However, this is demonstrably false. During the period that Willmsen was collecting data for the series, a California psychiatrist who is popular with Washington prosecutors was charging $450 per hour (the average among forensic psychologists being about half that) and -- like Wollert -- had billed more than $100,000 in a single case. His name does not show up anywhere in the series.

Following publication of the series, Washington capped the fees of defense-retained SVP experts at $10,000 for evaluations, a fee that includes all travel expenses, and $6,000 for testifying (including preparation time, travel, and deposition testimony). The fees of prosecution-retained experts were not capped.

Boilerplate reports:

In the video, Willmsen targets defense-retained expert Ted Donaldson for writing boilerplate reports in which the names were changed, but the text remained virtually the same.

Boilerplate reports are indeed a travesty. Especially when someone is facing potentially lifelong detention for a crime that is only a future possibility, experts should present a keen understanding of what makes that specific individual tick. But, having reviewed dozens of reports in Washington SVP cases, I can attest to the fact that government hacks are at least as guilty of this sin. In fact, one of the most popular of prosecution-retained experts in Washington is infamous for writing novel-length boilerplate reports. In two recent cases that I am aware of, he even forgot to excise the name of the previous individual. So, one will be reading along in his report on Mr. Smith, and suddenly come across big chunks of material describing Mr. Jones.

Faulty science:

In her reporting, Willmsen lambasted an actuarial tool developed by Wollert, the MATS-1, as being illegitimate. The idea behind the MATS-1 is to fully account for the reduction in risk that occurs as offenders age. The reporter quoted Karl Hanson, a Canadian researcher who is unhappy with Wollert because Wollert modified his popular Static-99 tool to create the MATS-1. But a fair and unbiased report would not rely for the unvarnished truth on a source who is essentially a business rival. In truth, as I've blogged about myriad times, there are plenty of grounds to critique the methodology and accuracy of any actuarial technique. In contrast to her disdain for the newer MATS-1, Willmsen lauds the Static-99 as the most widely used actuarial tool for assessing sex offender risk. But just because McDonald's sells way more burgers than In and Out Burgers does not mean their beef is any purer. 

As Wollert told the council members, "When we're talking about the advancement of science, people have different ideas"; one test of good research is whether "it's accepted over time." By that standard, Wollert's theories are doing pretty well. His published thesis that actuarial tools overestimated risk among elderly offenders was once controversial but is now widely accepted. Similarly, he was one of the first to publish criticism of the predictive abilities of the MnSOST-R actuarial tool; recently, that instrument was pulled from use because of its inaccuracy in predicting sex offender recidivism. And Wollert was emphasizing Bayesian reasoning -- most recently popularized by Nate Silver in The Signal and the Noise -- before many in our field realized how essential it was. 

While it is certainly laudable for the press to investigate bloated fees and the waste of taxpayer money, by laying all blame on the defense, the Times likely prejudiced the jury pool and squelched zealous representation by defense attorneys, who in terms of both resources and legal clout are like David battling the state’s mighty Goliath. Instead of proffering Wollert as a whipping boy, then, an impartial investigation would have uncovered exemplars of problematic practices on both sides of the legal aisle.

A true muckracking journalist would have dug even further, to ask:

• How did opportunist politicians bamboozle the public into enacting costly laws that do little to protect the public, while simultaneously distracting from more fruitful efforts at reducing sexual violence? 

• How has the SVP laws' legal requirement of a mental disorder expanded the influence of forensic psychology, with battles of the experts over sham diagnoses boosting the fortunes of shrewd practitioners, many of whom were toiling away as lowly prison and hospital hacks prior to these laws?  

Talking to the press

During their public deliberations, several council members chastised Wollert for declining Willmsen's repeated requests for an interview. Wollert said that the reporter had been rude and exuded bias when she approached him. But the panelists said Wollert had no legitimate expectation of deference or politeness.

"You cut your own throat," said John Knowlton, a council member and journalism professor at Green River Community College.

But must a source submit to an interview, even if he knows that it is a trap, and that his words will be twisted and used against him? This is a dodgy question. While many journalists are conscientious and above-board, others are not. Recall Janet Malcolm's provocative opening words in The Journalist and the Murderer, examining the ethics and morality of journalism in connection with journalist Joseph McGuiness's betrayal of murder suspect Jeffrey MacDonald in Fatal Vision:

"Every journalist who is not too stupid or too full of himself to notice what is going on knows that what he does is morally indefensible. He is a kind of confidence man, preying on people's vanity, ignorance or loneliness, gaining their trust and betraying them without remorse. Like the credulous widow who wakes up one day to find the charming young man and all her savings gone, so the consenting subject of a piece of nonfiction learns -- when the article or book appears -- his hard lesson."

Perhaps Wollert could have adequately protected himself by asking the reporter to submit her questions in advance, and by responding in writing, via email. But who knows?

His decision to trust his instincts may have come back to bite him. Then again, he might have been bit even worse had he let down his guard with an agenda-driven journalist who had him in her crosshairs.

THE WASHINGTON NEWS COUNCIL ENCOURAGES THE PUBLIC TO JOIN IN THE DEBATE. CLICK HERE TO VIEW THE VIDEO AND HERE TO CAST YOUR VOTE. COMPREHENSIVE RESOURCES ON THE CASE ARE AVAILABLE HERE. SEATTLE'S NONPROFIT JOURNALISM PROJECT CROSSCUT HAS A GOOD REPORT ON THE NEWS COUNCIL DECISION; YOU CAN ADD YOUR COMMENTS ON THAT WEBSITE.

DSM-5: Forensic applications (Part II of II)

Courts cling to DSM as "bible"

As alluded to yesterday, in Part I, mental health professionals know not to take the DSM (or the ICD, for that matter) too seriously. It's just convenient fiction, or at best "useful constructs," mainly used to attain insurance reimbursement.

Only, there's this curious phenomenon: In the legal system, where the consequences of error can be grave, DSM diagnoses have taken on a mantra of grand truth. Increasingly, I find myself being asked during court testimony about some nit-picky little criterion or another (such as the six-month specifier for pedophilia) as if it is sacred gospel, rather than the arbitrary creation of some idiosyncratic back-room committee.

One bold colleague, when asked on the witness stand to confirm that the DSM is indeed "the bible of psychiatry," answers with a resounding "YES!" But, he adds, "Bible is Greek for 'book,' and the DSM's are a collection of books or chapters submitted by sundry subcommittees and approved or not based on politics. As with the Christian Bible, some known books (like the Book of Thomas) did not make the cut."

I don't recommend that tactic unless you are well grounded in theological studies. I myself cannot state under oath that the DSM is "the bible," when the attorney is really seeking to have me confirm its status as a learned treatise, that is, sufficiently authoritative that it should be relied upon in court. It may be the only game in town, but it's hardly known for its empirical fidelity. The text's assortment of vague generalities are not even referenced, so we don't know where they came from. If you are going to testify about a specific mental condition, such as delusional disorder, I recommend relying on empirical research from reliable sources that you can cite. 

Turning now to specific changes in the DSM-5 of most potential relevance to forensic work....

The good news is that some of the more outlandish proposals -- such as parental alienation syndrome and hebephilia -- got a resounding thumbs-down. So, here's my first-glance summary of what's new and different. 

Sexual paraphilias

An attempt by an ambitious minority to add a slew of new sexual disorders fell flat. So, you won’t find hebephilia, paraphilic coercive disorder or hypersexuality in the DSM-5. They didn’t even make the appendix for "conditions for further study" (which is populated by such non-starters as caffeine use disorder, internet gaming disorder, and the more worrisome attenuated psychosis syndrome).

These defeats are a big blow for the civil commitment industry, which lobbied for them to replace the shady "not otherwise specified" diagnoses being used to justify indefinite detention of offenders who don't have legitimate mental illnesses.

The section does, however, contain a few pesky little wording changes that may come into play in forensic cases. Each  disorder except pedophilia in the paraphilias chapter now has two remission qualifiers. If the person has not been impaired for five years, the disorder can be said to be "in full remission." This is a nod to the reality that sexual kinks often come and go over time. But there's a catch: The remission must be while the person was "in an uncontrolled environment." Otherwise, a new remission specifier of "in a controlled environment" can be applied. I anticipate that government evaluators in sexually violent predator trials may use this language to argue that a prisoner whose predicate offense was decades in the past is still disordered and at risk today, despite no objective evidence of such.

Another important change is in the text accompanying sexual sadism disorder, which now reads more like it was written for adversarial deployment. There are now two types of sadists -- "admitting individuals" and deniers. For deniers, the fact of having "inflicted pain or suffering on multiple victims on separate occasions" may be sufficient for a diagnosis. As a "general rule," the text instructs, recurrent can be interpreted to mean "three or more victims on separate occasions."

As discussed yesterday in Part I, the DSM-5 does not provide citations to empirical research to back up its recommendations. This is especially problematic in the case of sexual sadism, because even most chronic rapists are not necessarily aroused by a victim's suffering; rather, the victim's suffering fails to inhibit their arousal as it would for other men. The fact of inflicting pain or suffering also says nothing about what is going on in the mind of the inflicter, and three is just an arbitrary number pulled from a hat. These new guidelines will only complicate a problematic diagnosis with abysmally poor reliability and no predictive validity.

Antisocial personality disorder

Early buzz was that this pejorative label -- which can be applied to essentially any chronic offender -- would be revised to more closely align it with the even more pejorative and controversial construct of psychopathy. But the APA abandoned all proposed personality disorder changes (including a radical move to drop half of them altogether and to place the rest of them on a dimensional spectrum), so this diagnosis remains unchanged.

The real news here comes from the field trials. In regard to reliability, antisocial personality disorder came in at the bottom of the barrel, down there with the new mixed anxiety-depressive disorder with a kappa reliability rating of only 0.2. Historically, kappas below 0.4 have been considered poor. Although DSM-5 chief statistician Helena Kraemer is arguing that lower kappas should be deemed "acceptable," a 0.2 essentially means that even trained professionals cannot agree on whether a given individual has a disorder. This makes antisocial personality disorder far too unreliable for use in court.

Speaking of empirically dubious disorders, intermittent explosive disorder got a change worth noting. Whereas the aggressive outbursts at the core of this disorder used to require physical aggression, now "verbal aggression" suffices. If you've ever reviewed psychiatric hospital charts, you know that this is how hospital technicians chart episodes of disquiet among patients. For example, I recently saw a chart notation that "John Doe was verbally aggressive" stemming from an incident in which the involuntarily hospitalized Mr. Doe muttered profanities at hospital orderlies who had barged into his room while he was sleeping and confiscated the gauze pads he was using for an acute injury. In short, look for upticks of this disorder wherever the powerless are concentrated.

Posttraumatic stress disorder

Psychologist Richard Samuels checks his DSM
"bible" during testimony in Jodi Arias murder trial

PTSD got some significant tweaking in the DSM-5, mostly in directions that could increase its prevalence. The requirement of experiencing “fear, helplessness or horror” in reaction to the trauma was eliminated. There are now four "symptom clusters" rather than three. A new symptom of "reckless or self-destructive behavior" has been added, and the symptom of irritable behavior or angry outbursts has some added language, "typically expressed as verbal or physical aggression toward people or objects" and "with little or no provocation" (have fun explaining that one in court!).

In clinical practice, these changes won’t much matter. As Greenberg noted, "Mostly we’re content to find a label that matches people in some vague way and then get on with the business of helping them figure out what's going on in their lives that landed them in our offices." However, in court the devil is in the details. Difference between an "and" or an "or," or a three-month versus a six-month time specifier, can be critical. Unfortunately, there are no side-to-side charts with the changes from DSM-IV to DSM-5 highlighted or crossed out. The biggest benefactor of all this tweaking will be psychological test companies, whose psychometric tests for PTSD will have to be revamped. So get out your pocketbooks now.

Intellectual functioning and the death penalty

Last but not least, changes to the developmental disabilities section could make more criminals eligible for execution. Under the U.S. Supreme Court's Atkins standard, an IQ score of below 70 had been like a magic line in the sand, below which one becomes ineligible for capital punishment. However, the DSM-5's intellectual developmental disorder (renamed from mental retardation) drops IQ scores in favor of the more subjective construct of adaptive functioning, or the ability to live independently in the world.

"There are a lot of courts that are hostile to the basic legal doctrine the Atkins case established," death penalty lawyer David Dow told Reuters. "When you replace a test that is one part objective, one part subjective with a solely subjective test, it becomes easier for courts that are hostile to the constitutional principle of Atkins to evade that criterion."

"We believe that we are providing the courts with a more fine-grained means to consider adaptive functioning more comprehensively and more meaningfully," countered James Harris, of the DSM-5 work group.

Other specified or unspecified disorder

As I just mentioned, the devil is in the details. When a person does not meet minimum criteria for a diagnosis, clinicians can choose between the new categories of other specified disorder and unspecified disorder (the listed example being the unwieldy "other specified depressive disorder, depressive episode with insufficient symptoms"). These quick-and-dirty options are meant for use in the emergency department, where clinicians have little time and not much background information to go on. But the DSM-5 authors open the door for forensic misuse by stating their desire for "maximum flexibility for diagnosis." How's this for a loophole large enough to drive a Mack truck through:

"When the clinician is not able to further specify and describe the clinical presentation, the unspecified diagnosis can be given. This is left entirely up to clinical judgment."

Look to shady evaluators to misuse these "other" and "unspecified" labels to create nonexistent disorders for forensic use. That won't be anything new; it's essentially the same phenomenon we now see in sexually violent predator proceedings with the deployment of the DSM-IV-TR classifier "paraphilia not otherwise specified (NOS)," which these new categories replace. Such improper diagnosis may be legal, but that doesn't make it ethical.

Forensic caveat

One welcome change in the new manual is that the old cautionary statement about use of the DSM in forensic contexts gets more prominent play. Rather than being buried in the introduction, it's got its own little page in the DSM-5:

"... In most situations the clinical diagnosis of a DSM-5 mental disorder ... does not imply that an individual with such a condition meets legal criteria for the presence of a mental disorder or a specified legal standard...."

But when push comes to shove, judges and juries are going to do what they want to do, forensic cautions or no. As Texas lawyer Susan Orlansky -- whose client is slated for execution despite a lower-than-70 IQ -- told Reuters, "If the Texas court system is willing to ignore the DSM-IV, I don't know why they wouldn't be just as willing to ignore the DSM-5."

By all means take a moment to familiarize yourself with the changes in the new diagnostic manual that are relevant to your work. Just don't be conned into taking this whole diagnostic enterprise too seriously. After all, that's what the American Psychiatric Association is counting on to keep itself financially solvent.

I welcome comments, especially if you know of other changes of potential forensic relevance that are not listed here, or if you have a different take on the changes I highlighted.

And, if you are planning to attend the American Psychological Association convention in Honolulu, I invite you to my full-day CE training on psychiatric diagnosis in legal settings on July 31.

DSM-5: Much ado about nothing? (Part I of II)

Ambitious "paradigm shift" fizzles 

By now, you've seen the bad press about the American Psychiatric Association's new diagnostic codebook: Media pundits are labeling it "a manual run amok," so ambitious in scope that almost everyone qualifies for some mental illness or another.

But browsing through my crisp new copy, I find myself curiously dispassionate. Sure, it's even more bloated than the DSM-IV. But mainly, they just moved the chapters around and renamed a diagnosis here and there (dysthymia, for example, is now persistent depressive disorder). Even the typefaces will look familiar.

It's downright anticlimactic.

Remember when they first announced work on the new DSM? It was going to be a revolutionary "paradigm shift," aligning diagnoses with modern science. Disorders were going to be dimensional rather than categorical. All kinds of novel proposals were in play: Parental Alienation Syndrome. Paraphilic Coercive Disorder. Psychosis Risk Syndrome.

Then came the backlash. Prominent work group members walked out over the lack of science in the revision process. Petitions were launched. Special interest groups lobbied. ("Aspies," for example, were furious that psychiatry had bequeathed them an identity and were now taking it back.) The field trials fell apart. Even the National Institute of Mental Health announced it was breaking away from the DSM's diagnostic schema (although switching to its biology-worshipping Research Domain Criteria is like jumping from the frying pan to the fire).

Ultimately, the psychiatrists retreated. With both drug money and membership numbers down, the last thing the American Psychiatric Association needed was more negative flak. Especially when the DSM rakes in a steady profit, $5 to $6 million per year, giving them "fabulous riches" over time.

So, you'll find a few notable changes: There’s disruptive mood dysregulation disorder, a belated effort to undo the damage wrought by overdiagnosis of childhood bipolar disorder. Hoarding disorder and the Big-Pharma-inspired premenstrual dysphoric disorder made the cut. But overall, it's just business as usual.

In the short term, the new manual will give the APA's coffers a big boost. The book alone retails for $130 or more, and -- like a blockbuster Disney movie -- there will be ancillary products including cell phone apps, how-to guides, trainings, and such.

Eventually, however, the DSM will become increasingly irrelevant. It's already being superseded by the World Health Organization's International Classification of Diseases, which even on the APA's home turf of the United States is now required for insurance reimbursement. While some tout ICD codes as preferable, the only real advantage of the ICD is that it is freely available online.

By design, the DSM codes are almost precisely parallel to the ICD's. And the entire diagnostic enterprise, as psychotherapist Gary Greenberg explores in The Book of Woe, is an elaborate fiction -- a shell game perpetrated by psychiatrists on patients, insurance companies, and (most critically for our purposes here) the courts. Greenberg spent two years mucking about in the DSM-5 development trenches, where work group members frankly acknowledged that psychiatric diagnoses are just "fictive placeholders" or "useful constructs" rather than real conditions that carve nature at its joints.

Tomorrow, in Part II, I will highlight some specific changes (and non-changes) potentially relevant to forensic practice. 

If you are planning to attend the American Psychological Association convention in Honolulu, I also invite you to my full-day CE training on psychiatric diagnosis in legal settings on July 31.

Military sexual assault scandal unearths "illegal" psychiatric diagnoses

If you haven't been following the sexual assault scandals in the U.S. military, tune in: It’s yet another arena where bogus psychiatric diagnoses are playing a sordid role.

Women soldiers who report sexual assault are diagnosed with psychiatric conditions such as borderline personality disorder or bipolar disorder that get them drummed out. Not only are their careers ruined, but they are denied benefits and sometimes must even repay any bonuses they got for enlisting.

Because the symptoms of these "preexisting" disorders overlap with the emotional sequelae of trauma -- anger, fear, depression, anxiety, avoidance -- it can be hard to tell the difference.

Women in every branch of the U.S. military are being disproportionately discharged with personality disorders, according to an investigative series, Twice Betrayed, in the San Antonio (Texas) Express-News. The Air Force has the widest disparity: Women make up 20 percent of the force, but 35 percent of personality discharges.

Sometimes, as in one case featured in the Express-News series, military psychologists and psychiatrists are being influenced by officers in the accused's or accuser's chain of command to view accusers as mentally unstable and/or sexually promiscuous.

In a report on "illegal" psychiatric diagnoses, the Vietnam Veterans of America say that in addition to rape victims, many combat soldiers with organic brain trauma or posttraumatic stress disorder continue to be drummed out of the military with bogus personality disorders and adjustment disorders that block their disability benefits, despite Congressional efforts to crack down on this abuse (for example, by requiring that the diagnoses be issued by psychiatrists or PhD-level psychologists).

It was a bit incongruous to find myself sitting in an Air Force courtroom, consulting on a sexual assault case, when the news broke that the chief of the Air Force's Sexual Assault Prevention and Response program had been arrested for sexually assaulting a female stranger in a parking lot.Talk about the fox guarding the hen coop.

That bizarre twist came on the heels of a headline-grabbing survey documenting skyrocketing rates of sexual assault in the military: An estimated 26,000 soldiers were sexually assaulted in 2012, up from 19,000 the year before. Women in the military face about twice the risk of sexual assault as civilian women (one in three versus about one in six). And only a tiny fraction of assaults -- 3,374 last year-- are reported.

That's likely due to the fact that women who do report rape are shunned, disbelieved, and retaliated against, and their assailants are rarely punished. The seven-month investigation by Karisa King of the San Antonio Express-News found that only about 10 percent (302 of 2,900) of the accused were court martialed, with only 177 sentenced to confinement. (The airman in my case was one of those rare few, but then again he was a low-level airman, not an officer. And it probably didn't help his case that all of these scandals were busting out that very week.)

It’s no coincidence that the San Antonio paper ran the series: Outside that city sits the sprawling Lackland base, the Air Force's basic training center for enlisted personnel. In an unfolding investigation there, at least 33 training instructors are suspected of sexually assaulting 63 or more trainees.

If this latest scandal isn't enough to convince people of the link between sexual violence and a climate of hostile masculinity (as researchers such as Neil Malamuth have been arguing for decades), I don't know what is. On the other hand, if psychologists in the sex offender treatment industry got their hands on these training officers, they'd probably label them with some fictional disorder like "paraphilia not otherwise specified (nonconsent)" that decontextualized their behaviors beyond recognition. 

Consulting in a military court martial one week and a sexually violent predator civil commitment hearing the next, I can't help but notice how mental illness strikes in clusters, afflicting sexual assault victims in one setting and offenders in the other. The clue that situational exigency is in play is that in neither case is the diagnosis about helping the supposed sufferer. It's all about punishment, with diagnosis as the weapon.

I highly recommend the series, Twice Betrayed. An in-depth report by the The Vietnam Veterans of America on the misuse of psychiatric diagnoses in the military, Casting Troops Aside, is HERE.

Miracle Village: A leper colony for bogeymen

Almost 750,000 Americans are now on sex offender registries, and the numbers just keep growing. Because the truly dangerous are mixed in with the far more numerous low-risk offenders, registries are useless from a public safety perspective. But they do have a pernicious effect on ex-offenders, who -- like the lepers of yore -- oftentimes find themselves with nowhere to go and no hope of ever reintegrating into society.

Enter "Miracle Village" in Florida. Built in 1964 for sugar cane workers (some of whom still live there), it was transformed into a haven by an evangelical pastor and his wife (both of whom, ironically, were sexually molested as children). It's now home to about 100 convicted sex offenders, a place they can be among others like themselves and feel a bit more human. Since the community was established in 2009, there has not been one reported sex crime, according to the local sheriff's office.

But it's only a drop in the bucket. The demand is extraordinary; more than 100 people per week apply for the limited housing.

The short video Sex Offender Village was put together by two people who come from what might be seen as opposite ends of the spectrum: Documentary filmmaker Lisa Jackson has spent years examining sex crimes from the victim’s point of view; David Feige is a former chief public defender from the Bronx turned TV writer. But they agree on one thing: U.S. sex offender laws are "doing more harm than good":

In the past 25 years, the laws governing sex offenses have gone from punitive to draconian to senseless. The term 'sex offender' simply covers too wide a range now, painting the few truly heinous crimes and the many relatively innocuous ones with the same broad brush. This overly broad approach wastes resources that could be better spent, for instance, on clearing the huge and unforgivable backlog of untested rape evidence kits. We see even deeper problems: the explosion of sex offender registries, stringent yet demonstrably ineffective residency restrictions, and the bizarre world of 'civil commitment,' where we punish what someone might do rather than what he or she has done. All of this suggests that our entire approach to dealing with sex offenders has gone tragically off the rails.

CLICK ON ABOVE IMAGE TO VIEW THE 5-MINUTE VIDEO AT THE NEW YORK TIMES OP-ED WEBSITE.

Attorney-client privilege trumps child abuse reporting law, court rules

Elijah W. ruling clarifies thorny issue in California

Forensic psychologists are split as to whether we must breach confidentiality when a criminal defendant divulges child abuse or threatens physical harm to others.

On the one hand, here in California a psychologist can be criminally prosecuted under the Child Abuse and Neglect Reporting Act (CANRA) for failure to report suspected child abuse. On the other hand, a psychologist hired as a defense consultant assumes a legal duty to maintain attorney-client confidentiality.

But a welcome appellate ruling this week at least partially resolves this vexing dilemma. A psychologist hired by a criminal defense attorney is bound by the same rules as the attorney, and must uphold the client's Constitutional right to confidentiality rather than report child abuse, the court held.

"In the absence of clear legislative guidance, we decline to read into CANRA [the Child Abuse and Neglect Reporting Act] a reporting requirement that contravenes established law on confidentiality and privilege governing defense experts and potentially jeopardizes a criminal defendant’s right to a fair trial," ruled the Second Appellate District.

The question of whether, or how, to report threatened violence (as mandated under Tarasoff and related case law) remains a bit vaguer; in some cases, warning the retaining attorney might discharge the duty to protect, but in other cases it might not. 

The appellate ruling also does not clarify the reporting requirements of psychologists retained by litigants in child custody or civil cases. However, an attorney colleague said it likely extends to any situation in which the psychologist is hired to consult on a privileged matter, such as in civil or child custody cases. The colleague's opinion was based in part on the fact that the court specifically declined to decide the issue on Constitutional grounds, basing its decision instead on California laws regarding attorney-client privilege. In contrast, under California's Evidence Code (Section 1017), there is no privilege if the expert is appointed by the court as a neutral expert. Also, if the psychologist shifts from the consultant role to become a testifying expert, once-privileged information is no longer protected.

The ruling is good news for forensic practitioners in that it reduces the ethical tension between protecting the privacy rights of the accused and protecting our own skins. Psychologists who fail to report suspected child abuse may be subject to criminal and civil penalties and are often treated very harshly by licensing boards.

The ruling puts California in the lead among U.S. states in clarifying psychologists' duties in navigating a confusing mishmash of reporting laws. Maryland is an exception to the general vagueness; that state's Attorney General issued an opinion that defense-retained psychiatrists in criminal cases are exempt from mandated reporting.

Judge had nixed child's request for independent expert

The case involved Elijah W., a 10-year-old Los Angeles boy arrested on an arson charge. When the defense team requested an expert to help prepare the fourth-grader's defense, the juvenile judge limited them to a member of the local juvenile competency to stand trial (JCST) panel. However, panel members had told Elijah's attorneys that they would report to authorities any information that Elijah revealed about suspected child abuse or neglect.

In contrast, a member of the local superior court's regular panel of psychiatrists and psychologists, Dr. Catherine Scarf, had assured the defense team she would respect attorney-client privilege and only report threats or child abuse to Elijah's counsel. The judge refused to appoint Dr. Scarf, scoffing at the defense team's concerns as "merely academic" because the judge could not recall any juvenile disclosing reportable information during a competency evaluation. 

Los Angeles created the juvenile panel in response to a recent California law mandating that juvenile competency evaluators have special training and experience in child development and juvenile forensic issues. The Los Angeles court's juvenile protocol allows a minor's defense counsel to obtain an assessment and not disclose it unless a doubt is declared as to the minor's competency. 

Elijah's attorney argued that appointment of a defense expert who would not defer to lawyer-client privilege violated Elijah's Constitutional right to effective assistance of counsel.

The appellate court agreed, noting that child abuse reporting requirements might interfere with full and open communication between a minor and his defense team.

"It is certainly plausible, for example, that a young child accused of setting fires is acting out following some form of traumatic experience, perhaps even child abuse…. Similarly, if the child is warned of the defense psychologist's intention to disclose information concerning child abuse or neglect prior to the assessment ... disclosures necessary for effective representation may be inhibited."

The appellate court also considered whether the attorney-client privilege trumps the so-called Tarasoff warning, or psychologists' duty to protect reasonably identifiable victims from threatened violence. The justices wrote favorably of Dr. Scarf's position that notifying the defense attorney would discharge the duty; in California, an attorney may reveal confidential information if necessary to prevent a criminal act likely to result in death or great bodily harm:

"We cannot evaluate in advance whether Dr. Scarf's intended notification of Elijah's attorney will insulate her from liability in any particular situation…. But her position is certainly reasonable, and her willingness to safeguard the confidentiality of Elijah's communications at the risk of personal liability should not have been discounted by the juvenile court."

Bottom line: The appellate court ordered that the juvenile court approve Dr. Scarf's appointment.

Practical implications

Forensic psychologists in California will want to carefully review this ruling for themselves, and tailor their consent forms based on the nature of the case and who the client is -- the court, the defense, or the prosecution. In preparing one's informed consent documents, consulting with an attorney knowledgeable in this tricky area is certainly not a bad idea.

Likewise, the case serves as a reminder for practitioners outside of California, who should determine the relevant statutes and case law in the jurisdictions in which they practice. In their book Evaluation for personal injury claims, Kane and Dvoskin opine that in jurisdictions in which attorneys are mandated to report child abuse, expert consultants likely must report as well. (The American Bar Association has an online chart listing state-by-state laws pertaining to attorneys' child-abuse reporting requirements.)

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The published case, Elijah J. versus Superior Court of Los Angeles County, can be found HERE. 

Related resources available online include: 

• Forensic evaluations and mandated reporting of child abuse, Kapoor and Zonana (2010), Journal of the American Academy of Psychiatry and Law

• Expert Opinion: Does mandatory reporting trump attorney-client opinion? Connell, Golding, Morgan and Niland (2004), American Psychology-Law Society News  

 
Hat tip: Adam Alban, PhD, JD