What’s Wrong With “Making A Murderer”?

Making A Murderer is generating huge buzz on social media; dual petitions calling for Steven Avery’s exoneration have garnered more than 600,000 signatures to date. But after slogging through the 10-hour Netflix “documentary,” I was left feeling disturbed by the drama’s narrative and premises. Here's why:

1. The narrative is grossly misleading.

The hook to this story is protagonist Steven Avery’s prior exoneration: He served 18 years in prison for a rape of which he was ultimately exonerated by DNA evidence; just three years after his release, he was arrested for the unrelated murder and mutilation of another young woman in rural Manitowoc County, Wisconsin.

It’s an intriguing hook. But others – including the superb podcasters at Radiolab in 2013 – had already mined it. So filmmakers Moira Demos and Laura Ricciardi went for a different twist: Avery was innocent, framed by corrupt police whose reputations were tarnished by the wrongful conviction scandal.

Viewers are treated to interminable audio clips of the convicted killer proclaiming his innocence and whining about the injustice of it all. With its sympathetic focus on Avery and his socially marginal family, the documentary excludes much of the hard evidence pointing to Avery.

Perhaps the most blatant example of misinformation is the portrayal of Avery and his victim as strangers. In fact, the evidence presented at trial suggested that Avery not only knew Teresa Halbach, a photographer for Auto Trader magazine, but was targeting her. After a photo assignment at his family's auto salvage yard in which he greeted her wearing only a towel, she complained to her bosses that she was “creeped out” by him. Yet he continued to call and ask for her to be sent back out. Phone records revealed that on the day of her murder, he repeatedly called her cell phone, using *67 to block his ID. Not only was her cremated body found in his burn pit just a few steps from his trailer, but two separate witnesses testified they had seen Avery putting items into a barrel of his from which police later recovered her incinerated cell phone and camera. Avery's nephew also told police he had helped Avery hide the victim's vehicle in the salvage yard, and DNA evidence of Avery's sweat under the hood corroborated his account.

This brief list is not exhaustive; there's lots more inculpatory evidence that the series omits or glosses over.

2. It lionizes a sexual predator.

There are plenty of sympathetic characters in prison. A great many of them are unquestionably guilty. Steven Avery – innocent or guilty – is not one of them. He comes across as shallow, callous and self-absorbed, fitting the part of a cold and calculating predator.

Prisoners who served time with him during his first bid confirmed that he was not a nice guy. They told investigators that he showed them diagrams of a torture chamber he planned to build when he was released, so that he could "torture and rape and murder young women.”

There is further evidence of tremendous rage toward women. While in prison, he threatened to mutilate and kill his former wife. And despite his exoneration in the original rape for which he was convicted, prosecutors presented evidence in a pretrial affidavit of two other rapes of girls and women for which he was never prosecuted. There are also allegations that he sexually molested child relatives, including his codefendant and nephew, Brendan Dassey.

Perhaps most ominously, just three weeks before Halbach’s murder, he bought a set of leg irons and handcuffs, suggesting that the crime was premeditated and elaborately planned.

It is only if we know this background information -- excluded from the Netflix series -- that we can make proper sense of the trial judge’s admonition to Avery at his sentencing hearing:

“You are probably the most dangerous individual ever to set foot in this courtroom.”

3. Journalistic bias of this magnitude is unethical.

Filmmakers Laura Ricciardi and Moira Demos

In several drawn-out scenes, the filmmakers depict the TV news crews covering the trial as bottom-feeding hyenas, lacking any compassion or mercy as they circle and nip at the heels of the beleaguered Avery clan.

This is a clever cinematic device. It imparts the illusion that the documentarians are above the fray, more neutral and trustworthy than the media rabble. 

In reality, they are no less superficial. We get no greater clarity, and certainly no deeper analysis. The difference is merely one of perspective. Lengthy scenes in the Avery kitchen, watching Steven's mother Dolores prepare and eat her lunch, emphasize the one-sidedness of the series: Demos and Ricciardi are essentially mouthpieces for Steven Avery.

It’s not that police do not lie, or plant evidence. They do it all the time. So it's certainly possible that police planted the victim's car key in Avery’s bedroom, as the Averys claim. But framing Avery would have required much more. Police would have had to know the location of Halbach's body in order to move it to Avery's burn pit. They would have had to plant Avery's sweat under the hood of Halbach's car, where his nephew's account predicted it would be. All told, this convoluted conspiracy theory stretches credulity.

Ironically, while the filmmakers castigate police for going after Avery’s nephew (instead, they cast unsupported aspersions on the victim's male friends and relatives), Avery and his defense team had no such compunctions. Their alternate suspect list included the boy, along with other male members of the Avery clan.

Some observers, such as journalist and private investigator Ann Brocklehurst, imply that business interests may have contributed to this over-solicitude toward the Averys:

“Ma and Pa Avery are portrayed lovingly as salt-of-the-earth types. They’re never asked how they managed to raise three sons with such a long and documented history of violence.... [I]f the filmmakers had decided one of the brothers, nephews or brother-in-law likely did it, Ma and Pa might have pulled right out of the multi-year film project and left the directors empty-handed. A Shakespearian or Faulkneresque tale of a dysfunctional and dangerous family is of no use to anyone if you don’t have the legal rights to tell it.”

Journalists’ code of ethics warns reporters not to distort either facts or context, and to take special care to avoid misrepresentation or oversimplification. Intentionally or not, Demos and Ricciardi clearly violated this standard.

4. “Innocence porn” exceptionalizes criminal justice problems.

The trope of the wrongfully convicted is a time-honored sub-genre of true crime. New Yorker writer Kathryn Shultz traces it back to the late 1880s, with a popular magazine column called “The Court of Last Resort” by criminal defense lawyer turned author Erle Stanley Gardner, better known for his Perry Mason detective series. As Shultz notes, recent films and TV series in this genre have been quite successful in getting criminal cases reopened and convictions overturned: 

“Although it subsequently faded from memory, 'The Court of Last Resort' stands as the progenitor of one of today’s most popular true-crime subgenres, in which reporters, dissatisfied with the outcome of a criminal case, conduct their own extrajudicial investigations. Until recently, the standout representatives of this form were 'The Thin Blue Line,' a 1988 Errol Morris documentary about Randall Dale Adams, who was sentenced to death for the 1976 murder of a police officer; 'Paradise Lost,' a series of documentaries by Joe Berlinger and Bruce Sinofsky about three teen-agers found guilty of murdering three second-grade boys in West Memphis in 1993; and 'The Staircase,' a television miniseries by Jean-Xavier de Lestrade about the novelist Michael Peterson, found guilty of murdering his wife in 2001. Peterson has been granted a new trial. Randall Dale Adams was exonerated a year after 'The Thin Blue Line' was released. Shortly before the final 'Paradise Lost' documentary was completed, in 2011, all three of its subjects were freed from prison on the basis of DNA evidence.”

Last year’s NPR  podcast series, Serial, probing the case of a young man named Adnan Syed who had been convicted of killing his former high school girlfriend, became an overnight sensation. (And, guess what: A judge has just granted a motion for a new post-conviction review of the evidence in that case.) What with the popular success of Making A Murderer, more such cultural events can be anticipated.

But while documentaries like Serial or Making A Murderer may seem progressive in shining a spotlight on the legal system and exposing flaws therein, they may actually further a narrative of exceptionalism. In other words, miscarriages of justice are rare events caused not by systemic problems, but by ___ (fill in the blank: corrupt police, shyster attorneys, bungled evidence handling or analysis, etc.).

And only the innocents -- the exceptions to the rule -- are worthy of attention. 

5. The nephew got second billing.

Instead of hanging their tale on the threadbare hook of Avery’s prior exoneration, the filmmakers could have delved more deeply into the routine misfiring of the legal system by centralizing Avery’s nephew and codefendant, 16-year-old Brendan Dassey.

Brendan Dassey, the 16-year-old nephew

Like his uncle, Dassey may very well be guilty. But in his case, neither innocence nor deliberate corruption is essential to the narrative. Guilty or innocent, framed or not, the manner of his prosecution was rotten to the core, illustrating more common and systemic flaws in the criminal justice system.

“Innocent people don’t confess,” prosecutor Ken Kratz told the jury.

That false gospel went unchallenged because – for reasons never explained in the series – the juvenile’s defense team chose not to call a confession expert, who could have dissected Massey’s statements and explained to the jury how the detectives’ skillful manipulations produced a potentially unreliable confession.

This was a boy with a low IQ and limited education, who was interviewed by detectives on multiple occasions, for hours and hours on end, without either his mother or his attorney present. He was easily confused and misled into believing that if he confessed, all would be forgiven and he would go home. His statements were contaminated when police fed him facts, which he then regurgitated. 

Private investigator Michael O'Kelly

Dassey also had the misfortune to be initially represented by an unethical attorney who decided early on that Dassey was guilty, ignoring the boy’s protestations to the contrary. The attorney, Len Kachinsky, in turn hired a private investigator with highly confused loyalties. Indeed, the PI wrote a eugenics-laced email to the defense attorney revealing his unabashed antipathy toward his client's family:

“This [family] is truly where the devil resides in comfort. I can find no good in any member. These people are pure evil.... We need to end the gene pool here.”

Together, the loyalty-challenged attorney and investigator brow-beat a detailed confession from their client, which they promptly turned over to police. Although both the attorney and his investigator were removed from the case before trial, neither suffered any official sanction for their betrayal of their duties, or the damage caused to Dassey's case.

6. The entertainment spectacle has produced a destructive backlash.

In perhaps the most poignant moment in the series, defense attorney Dean Strang -- the show’s moral compass -- critiques the “unwarranted certitude” rampant within the criminal justice system, with everyone from police and prosecutors to defense lawyers, judges and jurors far too convinced that they are privy to The Truth.

Across the board, he mourned, the system suffers from “a tragic lack of humility.”

Steven Avery with rape victim Penny Beerntsen

Unfortunately, the filmmakers fell into that very same trap. It was apparent to many that they had naively embarked on their 10-year project wearing blinders. Penny Beerntsen, the original rape victim (whose misidentification sent Avery to prison), was one such observer. A remarkable woman who is active in the innocence movement, Beerntsen told the New Yorker that the filmmakers’ certitude troubled her:

“It was very clear from the outset that they believed Steve was innocent,” she told me. “I didn’t feel they were journalists seeking the truth. I felt like they had a foregone conclusion and were looking for a forum in which to express it.”

It is no surprise that Avery and his family have staunchly denied his guilt: He was framed once, so why not twice? After all, they point out, the $36 million judgment he was seeking for his false imprisonment could have bankrupted Manitowoc County. But for the filmmakers to fall so under the Averys’ spell that they would radically distort the facts is disconcerting. Their bias was transparent, and the excluded evidence easily available. It seems arrogant to regard the public as too gullible to do any basic fact-checking.

Predictably, a furious backlash has ensued, with social media pundits and entertainment outlets competing to debunk the series. Rather than systemic flaws in the system, the discourse has devolved into a pointless, dichotomous debate over guilt or innocence.

Worst of all from the interests of the innocence movement, some are asking the question: If Steven Avery had never been exonerated, would Teresa Halbach be alive today?

The innocence movement can counter with the fact that Avery is an extreme outlier: Of all the many hundreds of people who have been exonerated and freed from prison, only a tiny handful have reoffended with a serious offense.

But Avery is an outlier for another reason as well: He may not have raped Penny Beerntsen, but he was far from innocent even back then. Police in his rural community already had him on their radar screen, as a dangerous young man, someone who thought nothing of assaulting a female relative with a gun or dousing a cat with oil and throwing it on a bonfire to watch it burn.

The filmmakers insist that it was never their intent to manipulate their audience, nor to propel such a mass rush to judgment – in either direction. In hindsight, however, perhaps the grisly murder of Teresa Halbach was not the best choice for a documentary about innocence?

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 POSTSCRIPTS

On Aug. 12, 2016, U.S. District Court Judge William Duffin granted Brendan Dassey's petition for a writ of habeas corpus, based on the false promises that were made to him (in conjunction with other relevant factors, including his age, intellectual deficits, and the absence of a supportive adult), and ordered that he either be released or granted a new trial. The 91-page ruling is HERE. 

On June 22 2017, a three-judge panel of the 7th Circuit Court of Appeals upheld the District Court's decision. Its 128-page ruling is HERE. As of that date, Dassey remained in custody while prosecutors decided whether to appeal to the Supreme Court. New York Times reporting on that appellate ruling is HERE.

On Dec. 8, 2017, by a narrow vote of 4-3, the full 7th Circuit Court of Appeals reversed the decision of its three-judge panel. Citing the need for appellate courts to be deferential of trial courts, it held that the original trial court decision upholding Dassey's conviction was not patently erroneous or unreasonable. In a strongly worded dissent, Justice Ilana Rovner called the decision "a profound miscarriage of justice" that condoned the use of psychologically coercive techniques and condemned "an impaired teenager" to spend his life in prison. The majority decision and two dissenting opinions are HERE. They are highly recommended reading as they illuminate the current state of tension surrounding psychologically coerced confessions and especially the controversial Reid interrogation method.  

In June of 2018, the U.S. Supreme Court declined to hear Dassey's appeal, meaning Dassey will continue to serve his life sentence.

And in July of 2018, Dassey's ethically challenged attorney Len Kachinsky, who later became a judge, was charged with stalking his former court clerk. He has been suspended from practice, and faces up to five years in prison if convicted. The allegations against him are creepy enough that they might make for a good true-crime show in their own right.

“Help! I am being held hostage in a reality show!”

The Suspicion System: How the social world shapes delusions

Not so long ago, any decent-sized psychiatric hospital had at least two or three Jesus Christs in residence, and plenty of other patients serving as conduits for the CIA or the KGB.

Nowadays, Jesus Christ is harder to find. You are far more likely to encounter reality TV stars: patients whose every move is choreographed by hidden directors, videotaped by hidden camera crews, and broadcast without consent to an audience of millions. “We see many, many young people who have had the sensation of being filmed,” a psychiatrist at a public clinic in London told the New Yorker. His estimate: One or two out of every 10 patients he sees. 

This so-called Truman Show Delusion is not so irrational in our modern surveillance state, where we (and our cars) are photographed and videotaped whenever we venture into the public space, microphones capable of recording our conversations and instantly beaming them to authorities are hidden in street lighting, and – as exposed by Edward Snowden – the NSA is intercepting vast swaths of our communications and storing them in a massive, top-secret vault in the Utah desert. Soon, our homes will afford no privacy; the CIA is cheering the advent of the “smart home” as a bonanza for clandestine eavesdropping. If you scoff at the notion that They are watching you, revisit the chilling scene in the Bourne Ultimatum (2007) in which Matt Damon tries to avoid the cameras in London’s Waterloo Station.   

The solipsist premise of Peter Weir’s 1998 Truman Show, starring Jim Carrey as an insurance adjuster who realizes that his entire life is actually a TV show, was not original. The psychiatric patient in Robert Heinlein’s 1941 short story, “They—,” was convinced that he was an actor on a stage; the troubled protagonist of Philip K. Dick’s 1959 novel, Time Out of Joint, also starred in his own self-constructed reality. But in an innocent era before the entrenchment of the panoptical gaze or reality TV – in which any random person, it seems, can wake up to find him- or herself an instant social media celebrity – these stories were fantastical, and thus incapable of producing mass contagion. 

But the cultural environment influences more than just the superficial content of persecutory or grandiose delusions. Far more profoundly, it impacts who will catch psychosis, and why. This blog’s readers may know that early use of cannabis significantly increases the risk of psychosis, as does experiencing childhood adversity such as severe abuse or parental loss. You may also be aware that merely growing up in a city puts one at heightened risk of mental breakdown; there is a near-linear correlation between population density and psychosis. But consider these further research findings:

• The greater a nation’s income inequality, the higher its per capita rate of psychosis. 

• Immigration is a major risk factor for psychosis – and not just for the immigrants themselves, but for their first-generation offspring. Nor is this risk equally distributed: It is highest for darker-skinned people relocating to whiter countries, especially if they settle outside of ethnic enclaves.

The burden of social defeat

In Suspicious Minds: How Culture Shapes Madness, psychiatrist Joel Gold and his philosopher brother Ian identify social fragmentation as the construct tying these seemingly disparate strands together. More precisely, the experience of social defeat, in which a person who is persistently demeaned, humiliated, or subordinated ultimately comes to see himself as a second-class citizen.

I have long found delusional beliefs fascinating. In particular, I enjoy talking with delusional people, and trying to understand the meaning of their beliefs. In this, I’ve gained a lot from the theories of luminaries in the field such as Brendan Maher, Richard Bentall and John Read. But Suspicious Minds is brilliant in pulling together all of the extant research to create a single unified theory, one that foregrounds and humanizes the delusional person’s experience.

The theory developed out of Joel Gold’s experiences as attending psychiatrist at New York City’s notorious Bellevue Hospital. After treating several patients with Truman Show delusions, he – in partnership with his brother Ian, a philosophy professor at McGill University in Canada – published a 2012 article on the phenomenon in Cognitive Neuropsychiatry. That, in turn, generated a deluge of emails from people all around the world who were relieved to realize they were not the only one who thought their lives were being secretly filmed and broadcast to the masses.

The Gold brothers’ theory of delusions as a social phenomenon goes against the grain in this era of pharmaceutical industry domination and biological reductionism, especially here in the United States, where the social context of mental illness has been systematically suppressed in favor of simplistic theories of genetic or chemical imbalances.

But things have a way of circling back around. Almost 50 years ago, against the backdrop of the assassination of Martin Luther King and the ensuing inner-city rebellions, African American psychiatrists William Grier and Price Cobbs dissected the psychic burden of prejudice. To survive, they wrote in their influential 1968 book Black Rage, oppressed people must maintain a delicate balancing act of being ever-vigilant and suspicious, yet without succumbing to frank paranoia:

“[S]urvival in America depends in large measure on the development of a ‘healthy’ cultural paranoia. [The black man] must maintain a high degree of suspicion toward the motives of every white man and at the same time never allow this suspicion to impair his grasp of reality. It is a demanding requirement and not everyone can manage it with grace…. Of all the varieties of functional psychosis, those that include paranoid symptoms are by far the most prevalent among black people.”

The panoptical gaze in The Bourne Ultimatum

Suspicion, then, is necessary and adaptive, especially for those most vulnerable to exploitation. But when chronic stressors overwhelm the brain’s capacity to cope, delusions are kindled. This is the essence of the Golds’ theory of delusions as the product of an overtaxed “Suspicion System.”

Drawing on recent research in neuroscience and evolutionary psychiatry, the Golds locate the Suspicion System in the amygdala – evolved to anticipate threat by interpreting ambiguous signs of potential social danger – and connected brain regions. Delusions take hold, they posit, with a breakdown in communication between this early-warning Suspicion System and the more rational, slower-thinking (“System 2” in Daniel Kahneman’s formulation) cognitive network that should be dampening the amygdala’s over-enthusiasm.

A solid theory should not only be logical, elegant, and empirically supportable, but should also explain diverse manifestations of a phenomenon. The Golds’ theory explains not just persecutory delusions, but each of the other 11 major delusional themes (e.g., grandiose, religious, erotomanic) as well. For example, grandiosity  – which we see in the Truman Delusion  – can be interpreted as a way of deflecting threat, much like a puffer fish blows itself up or a cat arches it back when faced with danger:

“Flexing your social muscles makes you less vulnerable to exploitation by others, and putting your high status front and center in a potential exploiter’s mind might make them think twice about victimizing you…. Grandiosity is thus a symptom of a Suspicion System on overdrive, a caricature of the normal adaptive strategies we employ every day…. Paranoia and grandiosity … are functionally connected: paranoia is a broken form of threat detection, and grandiosity is a broken threat response.”

With ever-growing income disparity and economic stress, social network disintegration, loss of privacy,  and social media's increasingly panoptical reach, we may expect more and more alienated people with trouble psyches to succumb to Truman Show delusions. Let us hope that, in treating them, we do not lose sight of their humanity, for they really are  not so different from us. As the Golds put it, “mental illness is just a frayed, weakened version of mental health.”

Indeed, if we listen, these frantic souls may even have something to teach.

Sex addiction: Science or pop fad?

Thirty-one years ago, when Patrick Carnes walked onto the Phil Donahue television show to promote his new book on sexual compulsivity as an addiction, his notion was – in his own words – “widely perceived as a joke.” 

But Carnes got the last laugh. With the mainstreaming of the addiction industry (eating, gambling, exercising and working are all potential addictions now), Carnes has risen to become guru of a lucrative empire with dozens of rehab centers staffed by thousands of paraprofessionals. Media outlets including Newsweek have uncritically jumped aboard, warning of a grim, pornography-fueled plague afflicting up to 5 percent of the U.S. population.  

With neuroscience all the rage, celebrities including Bill Clinton and Tiger Woods have been recast from mere cads to tragic victims of a progressive and often-fatal “brain disease.” The push for scientific legitimacy reached a zenith in 2013, with an unsuccessful bid to legitimize “hypersexuality” by adding it to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-5).

So, what changed over the course of the last three decades that made the public more receptive to seeing sexual misconduct through the lens of addiction?

In their meticulously researched Sex Addiction: A Critical History, three cultural historians from the University of Auckland in New Zealand trace the rise of this social movement primarily to a politically conservative, sex-negative backlash against the sexual liberation movement of the 1960s and 1970s. 

One clue to its underlying cultural values, historians Barry Reay, Nina Attwood and Claire Gooder observe, is the movement's enduring strand of homophobia. Even before Carnes's 1983 book Out of the Shadows popularized sexual addiction, the term had been invoked by Lawrence Hatterer, a psychiatrist whose work in the 1950s-1960s focused on curing the “illness” of homosexuality. Heteronormativity remains prominent in the field, with gay men who violate heterosexual norms of sexuality labeled as sex addicts.

Unlike many purported disorders that are promoted by researchers or the pharmaceutical industry, sex addiction is a bottoms-up movement, with people self-diagnosing themselves via self-help books or quick-and-dirty Internet surveys. Its infiltration into popular culture owes in large part to the media’s abdication of its role as scientific gatekeeper, argue the authors of Sex Addiction. As the Columbia Journalism Review also pointed out in a critique of the Newsweek puff piece, “The problem with relying on therapists, as most of the articles over the years have done, rather than qualified experts in academia, is that they have a vested interest in promoting the idea that there’s a widespread problem. The more people believe it, the more money they make."


In contrast to the lay public, academic scholars have remained skeptical of a construct that is too broad and amorphous to have any scientific validity; everything from viewing pornography or having an illicit affair to feeling ashamed about one's sexuality can count toward a diagnosis. Indeed, research studies have found that people’s anxiety over their sexual behavior is tied more to their moral values and level of religiosity than to the actual intensity of their behavior.

It is findings such as these that open sexual addiction up to ridicule. One prominent critic, David Ley, author of The Myth of Sex Addiction, has mocked sexual addiction literature as "valley-girl science" -- a hodge-podge of anecdote and metaphor rather than any provable theory. As he told a Salon interviewer:

“All of these behaviors have been happening for millennium — people cheating, people having lots of sex…. There’s nothing new about this…. For every one of the behaviors they raise as addictive — whether it’s porn, strip clubs, masturbation, infidelity, going to prostitutes — I can present 10,000 people who engage in the exact same behavior and have no problems, and they can’t explain why that is.”

Historically, hysteria over sexual depravity is somewhat cyclical. Way back in the 1870s, a crusade against "smut" by a U.S. Postal Inspector and politician named Anthony Comstock resulted in thousands of arrests and the destruction of 15 tons of books. Interestingly, Comstock's passion for moral purity stemmed from his own personal demons; as a youth, he was said to have masturbated so compulsively that it almost drove him to suicide.

Treating a case of "Madness of the Womb" (1600s)

The pathologizing of female lust has a particularly long tradition, dating back hundreds if not thousands of years. In the late 1600s, women were diagnosed with nymphomania (a diagnosis that still exists in the World Health Organization's International Classification of Diseases, or ICD), or “madness of the womb," a disease said to be triggered by amorous courtings, lascivious books and dancing. As with today’s sexual addiction, the condition was considered progressive; if not promptly treated it would lead to “true and perfect madness.” Treatment included bleeding, cool baths with lettuce and flowers, marriage to "a lusty young man" or -- no kidding -- rubbing of the afflicted woman's genitals by "a cunning midwife."

Nowadays, as then, there is a common pattern in the way proponents of scientifically questionable new problems attempt to establish their legitimacy. First, they announce discovery of the problem; next, the problem’s lineage is traced back through time to show that it existed all along but was overlooked or neglected. Finally, and most critically, alarmist claims are made about a growing epidemic.

This pattern could be observed in the 2013 campaign to legitimize “hypersexuality” by making it a DSM disorder. For example, the claims-making process included articles by psychiatrist Martin Kafka  tracing hypersexuality’s lineage back to the pioneering sexologists of the 19th century. But in their first-rate scholarship, the Auckland historians scoured those primary sources – the writings of early sexology heavyweights such as Magnus Hirschfeld, Havelock Ellis, Richard von Krafft-Ebing and Iwan Bloch – and found that their descriptions of the sexually compulsive bore little resemblance to contemporary hypersexuality or sex addiction. Rather, the early sexologists described tortured souls who were both rare and bizarre, typically suffering from more global psychiatric or organic maladies rather than a primary sexual disorder. For example, writing in 1908 about the “sexually insane,” Iwan Bloch described him as resembling a “wild animal” who:

“rush[es] at the first creature he meets … to gratify his lust …. He seizes in sexual embrace any other living or lifeless object, and in this state may perform acts of paederasty, bestiality, violation of children, etc. In these most severe cases we can always demonstrate the existence of mental disorder, general paralysis, mania, or periodical insanity … as a cause.”

Judging from singular descriptions like this, the early hypersexual was an extraordinary creature, a far cry from the mundane individual proposed for the DSM-5. Indeed, the proposed operational definitions for contemporary hypersexuality are striking in their breadth. For example, one diagnostic criteria proposed for the DSM-5 was experiencing seven or more orgasms per week by any method. Based on one survey of the general population in Sweden, this arbitrary cutoff would have pathologized almost half of all men (44%) and more than one out of five women.

Despite official rejection of hypersexuality by the American Psychiatric Association in 2013, the ideology of sexual addiction is gradually seeping into forensic quarters. For example, in some civil detention sites for sex offenders, minimally trained "treatment providers" play the role of moral arbiters, determining what forms of sexual desire are "appropriate" based not on their illegality or potential harm but whether the providers find them "healthy."

To be deemed “healthy” in some such programs, captive patients are required to develop vanilla “masturbation fantasy scripts” that resemble a corny Hallmark card:

"My masturbation fantasy involves Amanda. She is 40* years old, with flowing auburn hair and large green eyes. We enjoy cuddling by the fireplace, taking long walks on the beach in the moonlight, and gazing into each other’s eyes by candlelight."

(*The fantasy object must be the same approximate age as the offender; if she is more than five years younger, he will be told to rewrite his script to make it more "appropriate.")

Despite the enduring popularity of teachers, nurses and -- especially -- librarians as objects of male fantasy, in the burgeoning sexual offender treatment industry, even these cultural tropes may be labeled as "deviant." In one case I was involved in, a man's fantasy of seducing a librarian was advanced as evidence of sexual danger, based on the notion that the library (even after hours) is a public setting.

Of course, this not-so-thinly veiled moralism masquerading as treatment has no empirical support as a method to reduce former sex offenders’ risk to the public. But it does comport with popular cultural notions of addiction and sexual compulsivity, however unproven -- even bizarre -- they may at times be.

* * * * *

Sex Addiction: A Critical History by Barry Reay, Nina Attwood and Claire Gooder is as well written as it is insightful; I highly recommend it. Also recommended is clinical psychologist David Ley’s thoughtful work, The Myth of Sex Addiction.  

The mysterious nature of the "juvenile sex offender"

New research casts doubt on practical meaningfulness of emergent category

If you ask John Q. Public about the public safety risk posed by a juvenile who has been arrested for a sex offense, chances are he will estimate too high. The public is woefully uninformed when it comes to risk of sexual reoffense in general, and nowhere is the gap between reality and media-driven anxiety wider than in the case of juvenile sex offenders.

Michael Caldwell, a prominent expert on juvenile delinquency at the University of Wisconsin in Madison, has decided to take the bull by the horns and nail down an accurate risk estimate. His goal is to collect and analyze every single study that exists, whether from peer-reviewed and published research or government studies. So far, he's put together an impressive 88 data sets comprising a whopping 25,716 juvenile sex offenders.*

The data are remarkably consistent: Overall, people who committed a sex offense prior to age 18 have less than a 5% risk of being arrested or convicted for another sex offense as an adult.

Although the average followup period in these 88 studies was more than five years, Caldwell says the length of the followup isn't as critical as you might think. That's because risk is highest in the months immediately following the last offense, and plummets dramatically as time goes on.

That's not surprising, given what we know about adolescent immaturity. Juvenile sex offenders are plagued by raging hormones, poor impulse control, and even poorer judgment. Often, their sex offending is part of a broader pattern of general delinquency that includes behavior like stealing, truancy, fighting, rule-breaking and drug use.

But perhaps more remarkable than their low risk for sexual reoffense as adults is the finding by other researchers that most adult men who are arrested for committing sexual offenses were never part of this juvenile sex offender pool in the first place.

In other words, there's a good chance we are looking at apples and oranges -- that most juveniles who are arrested for a sex offense are just screwed-up kids, rather than budding pedophiles or preferential rapists like some adult offenders.

Are juvenile sex offenders special?

Indeed, many scholars of delinquency are coming to the conclusion that the "juvenile sex offender" – a category that has come into vogue largely due to growing interest in adult sex offending over the past couple of decades – may not actually exist as a distinguishable entity.

That would be very good news from a public safety standpoint, because the majority of young people who get into trouble with the law gradually cease offending and fade into the carpet of the community as they mature and settle down into their adult lives.

Amanda Fanniff, of Palo Alto University's Juvenile Forensic Research Group, is one such scholar. She is testing the uniqueness of juvenile sex offenders by comparing them with other delinquent boys from the federally funded Pathways to Desistance project, a large-scale, multi-site, longitudinal study of serious juvenile offenders in Arizona and Pennsylvania.

So far, Dr. Fanniff has not found much to distinguish the 127 boys with sex offenses from the 1,021 boys with serious non-sexual crime, in terms of measurable things like school problems, parental pathology, antisocial history, or deviant peers. 

If anything, based on followup periods averaging about seven years, the juveniles who offended sexually have lower risk of both general and sexual recidivism than the other delinquents, she reported this week to a meeting of the California Coalition on Sex Offending.**

Consistent with other research, Fanniff found that in sheer numbers, more of the juveniles without a prior sex offense case picked up a sex crime as an adult. Out of the 1,148 boys she tracked, 10 sex offenders and 29 general delinquents were arrested for a sex offense during the average 7-year followup period. Because there were far more general delinquents overall, that translates to a sexual recidivism rate of about 8% for the juvenile sex offenders, and 3% for the other boys, or about 3% overall. (See chart, left. The fact that her juvenile sex offenders recidivated at a slightly higher rate than Caldwell's aggregate average likely owes to the small size of her sample, 127 versus his vast pool of 25,716.)

If the perception of uniqueness is just a projection of the beholder's, says Fanniff, we might do better to focus on treatment programs that are proven to work for delinquents, such as multisystemic therapy that targets family and community variables, rather than focusing too heavily on sex offender-specific treatment with its uneven track record and sometimes-counterproductive methods.  

What this growing body of research evidence tells us, agree Fanniff, Caldwell and other researchers such as Jodi Viljoen at Simon Fraser University in British Columbia and her colleagues, is that it is extremely hard to accurately identify a juvenile sex offender who is going to reoffend.

The task is so hard, indeed, that even risk assessment instruments designed specifically for this population – like the ERASOR and the J-SOAP – are doomed to fail most of the time.

But from a purely statistical point of view, prediction is actually a no-brainer:

If you bet that any juvenile sex offender is NOT going to reoffend, you will be correct 95% of the time. It's pretty doggone hard to improve on that good news.

* * * * *

*These new data are not yet published. Dr. Caldwell's 2010 review article in the International Journal of Offender Therapy and Comparative Criminology found the same pattern, but with only 66 data sets comprising about 11,000 offenders.

**Dr. Fanniff's study has been accepted for publication in the Temple Law Review. In the meantime, you can request information from her via email.

As courts censure civil detention practices, is it time for professionals to speak up?

Guest commentary by David S. Prescott, LICSW*

David S. Prescott. Photo by J. Lloyd.

Last week, a federal judge ruled that Missouri's civil commitment program is unconstitutional, the second such court decision in three months. For readers unfamiliar with the US civil commitment laws (AKA “SVP” laws), the short version is that 20 states and the federal government have laws that allow states to indefinitely confine sex offenders who are assessed as having a mental diagnosis that predisposes them to commit future sexual violence. There are controversies at every possible turn in these laws, their processes, and subsequent programs, and the US Supreme Court decisions allowing civil commitment have passed by as little as one vote. Because the author was an expert witness in the Missouri case, this essay looks more at the big-picture issues rather than at that specific case. What seems clear is that there is an evolving consensus in the courts that civil commitment as it is being practiced in many places is unconstitutional and that governments and programs must work together closely to rein in widespread abuses.

As in the Minnesota case decided this June, the Missouri case involved a treatment program in operation for many years (roughly 15 in Missouri’s case and 20 in Minnesota’s) from which few have been released and no one has ever been fully discharged. On one hand it is clear that some people who are civilly committed are truly dangerous; I have worked with men who openly vow to re-offend. On the other hand, no bona fide form of treatment takes a minimum of 15 years to complete. Add to this a political climate that is at best unconducive to genuine rehabilitation, and the die for these court decisions was cast long, long ago.

Prison researcher Grant Duwe

For all of our profession's advances in assessment and treatment, we seem to be producing no improved outcomes whatsoever in the civil commitment arena. A study that has not garnered the amount of discussion that it deserves is Grant Duwe’s research finding that only 28% of a sample of civilly committed offenders would likely have re-offended again in their lifetimes, raising questions as to whether states have cast their nets too wide. In a nation in which “Blackstone’s Formulation” -- "It is better that ten guilty persons escape than that one innocent suffer" -- is taught in schools as a fundamental principle of justice, the practice of holding thousands of people indefinitely beyond the expiration of their criminal sentences ought to give anyone pause. In fact, the principle behind Blackstone’s Formulation goes back to antiquity. For example, in the Bible, Genesis 18:23-24 quotes Abraham as asking: “Will you sweep away the righteous with the wicked? What if there are fifty righteous people in the city? Will you really sweep it away and not spare the place for the sake of the fifty righteous people in it?” What are the implications for civil commitment?

Closer to street level, two cases among many made prominent headlines in Minnesota last year. The first was that of a young man who had sexually abused others at an early age. From a media account:

The four court-appointed experts argued that T’s early sexual offenses as a juvenile were influenced by his own sexual victimization, and that his behavior was likely exacerbated by his attention deficit hyperactivity disorder (ADHD) and untreated trauma. The experts also noted that most juveniles who act out sexually do not continue to offend as adults. “There is little evidence to suggest that T is a dangerous sexual offender who poses a significant risk to public safety,” the experts wrote.

Another case involved the only woman civilly committed as a sex offender in that state. From a different news report:

B’s case has proven to be even more vexing for the state….[I]t’s clear officials had little idea what to do or how to treat her.… She suffered a traumatic upbringing: abused by her father, brother and two of her uncles starting as early as 5 years old and continuing through young adulthood. She had a child at 14, and as an adult, sexually abused two boys. [One] of the court-appointed experts … characterized B’s offenses as “reactive” to her trauma as a child. As an adult, B is “flirtatious” and “forward” and easily stimulated in discussions of sexual activities. All of which means that treating her in an all-male program, with group therapy sessions, might have actually made things worse.

Despite expert consensus that continued civil confinement was not likely to be helpful in either case, neither T nor B were released. This represents a trend. Similar cases (such as this other juvenile-only offender or this 65-year-old man who reports being shuffled among no less than 24 therapists in more than two decades of commitment) have been reported in the media, and yet the status quo continues.

Missouri's Sex Offender Rehabilitation and Treatment Services (SORTS). 
Photo credit: Jesse Bogan, St. Louis Post-Dispatch

Clearly, these cases involve people who are difficult to treat. For a sense of scale, though, the woman described above was civilly committed during Bill Clinton’s first year in office, 22 years ago; others have been committed for even longer. One commentator described the lack of outcry as having the same emotional valence as fishermen noting that they sometimes catch dolphins in their tuna nets. At what point is remaining silent about the judicial findings, and the many task force reports and outside evaluations they rest on, no longer acceptable?

Sadly, the people working at the front lines are often directed by policy and supervisors not to openly discuss these issues. In my experience, some people care more deeply than others about balancing the rights and welfare of the community with the principle of beneficence toward clients in treatment. There is no question that there are good people at the front lines trying to do the right thing and wrestling with deeply personal questions about the way forward. Still, given that two exercises of civil commitment statutes have been deemed unconstitutional -- and in the eyes of many that is another way of saying fundamentally un-American -- questions emerge for all practitioners:

At what point do professionals in these settings openly acknowledge to them/ourselves that we are participating in systems that are openly unconstitutional and therefore unlawful according to the standards of much of the Western world? Even beyond American law, consider the case of Shawn Sullivan, who fled the US and was on Interpol’s most-wanted list. One of the UK’s highest courts denied a U.S. extradition request on the basis that Minnesota's program to commit sex offenders indefinitely to treatment violates European human rights law. From the article:

The case of Shawn Sullivan garnered international headlines

Lord Justice Alan Moses said returning Sullivan for trial with the possibility of later being placed in the sex offender system would be a "flagrant denial of his rights" under European law.

With that in mind, professionals might also want to ask at what point we are violating basic human rights when we render "treatment" that no one can ever complete.

Meanwhile, even in states such as Wisconsin, New York and Texas, where some committed sex offenders have successfully completed treatment and been released into the community, the constitutionality of civil commitment is threatened by broad residency restrictions and policies that severely restrict where these residents can live once discharged.

As a profession, we have the research, the tools, and the templates to provide prompt and adequate treatment and to reduce the harm of sexual abuse, and yet we find ourselves in political climates where we cannot use them. At what point do we as individual professionals, or as professional organizations, take a stand against practices that are clearly not working to anyone’s long-term benefit? One need only look at the recent scandal of the American Psychological Association and its involvement with torture to see how collective inaction can ultimately bring disgrace to a profession.

Personally, my belief is that we all need to talk about these issues much more than we do. Legal action and journal articles are one matter, public dialog is something else. Critical self-examination takes courage. Perhaps it starts with all of us when we say to ourselves: All sexual abuse is unacceptable, but I will not violate the rights of others in the name of reducing harm. It is time to take a stand for the rights of all human beings.

*David Prescott is Director of Professional Development for a youth services organization in New England, and is a widely published author and lecturer on sex offender treatment, motivational interviewing, adolescent offenders and related topics. He was an expert witness in the Missouri class action case decided Sept. 11 by U.S. District Court Judge Audrey Fleissig, Van Orden v. Schafer (the full text of which is available HERE). More information is available at his website. An earlier version of this essay appeared at the blogspot of Sexual Abuse: A Journal of Research and Treatment.   

Adversarial allegiance: Frontier of forensic psychology research

A colleague recently commented on how favorably impressed he was about the open-mindedness of two other forensic examiners, who had had the courage to change their opinions in the face of new evidence. The two had initially recommended that a man be civilly committed as a sexually violent predator, but changed their minds three years later .

My colleague's admiration was short-lived. It evaporated when he realized that the experts’ change of heart had come only after they switched teams: Initially retained by the government, they were now in the employ of the defense.

"Adversarial allegiance" is the name of this well-known phenomenon in which some experts' opinions tend to drift toward the party retaining their services. This bias is insidious because it operates largely outside of conscious awareness, and can affect even ostensibly objective procedures such as the scoring and interpretation of standardized psychological tests.

Partisan bias is nothing new to legal observers, but formal research on its workings is in its infancy. Now, the researchers spearheading the exploration of this intriguing topic have put together a summary review of the empirical evidence they have developed over the course of the past decade. The review, by Daniel Murrie of the Institute of Law, Psychiatry and Public Policy at the University of Virginia and Marcus Boccaccini of Sam Houston State University, is forthcoming in the Annual Review of Law and Social Science.

Forensic psychologists’ growing reliance on structured assessment instruments gave Murrie and Boccaccini a way to systematically explore partisan bias. Because many forensic assessment tools boast excellent interrater reliability in the laboratory, the team could quantify the degradation of fidelity that occurs in real-world settings. And when scoring trends correlate systematically with which side the evaluator is testifying for, adversarial allegiance is a plausible culprit.

Daniel Murrie

Such bias has been especially pronounced with the Psychopathy Checklist-Revised, which is increasingly deployed as a weapon by prosecutors in cases involving future risk, such as capital murder sentencing hearings, juvenile transfer to adult courts, and sexually violent predator commitment trials. In a series of ground-breaking experiments, the Murrie-Boccaccini team found that scores on the PCL-R vary hugely and systematically based on whether an expert is retained by the prosecution or the defense, with the differences often exceeding what is statistically plausible based on chance.

Systematic bias was also found in the scoring of two measures designed to predict future sexual offending, the popular Static-99 and the now-defunct Minnesota Sex Offender Screening Tool Revised (MnSOST-R).

One shortcoming of the team’s initial observational research was that it couldn’t eliminate the possibility that savvy attorneys preselected who were predisposed toward one side or the other. To test this possibility, two years ago the team designed a devious experimental study in which they recruited forensic psychologists and psychiatrists and randomly assigned them to either a prosecution or defense legal unit. To increase validity, the experts were even paid $400 a day for their services.

Marcus Boccaccini

The findings provided proof-positive of the strength of the adversarial allegiance effect. Forensic experts assigned to the bogus prosecution unit gave higher scores on both the PCL-R and the Static-99R than did those assigned to the defense. The pattern was especially pronounced on the PCL-R, due to the subjectivity of many of its items. ("Glibness" and "superficiality," for example, cannot be objectively measured.)

The research brought further bad tidings. Even when experts assign the same score on the relatively simple Static-99R instrument, they often present these scores in such a way as to exaggerate or downplay risk, depending on which side they are on. Specifically, prosecution-retained experts are far more likely to endorse use of "high-risk" norms that significantly elevate risk.

Several somewhat complimentary theories have been advanced to explain why adversarial allegiance occurs. Prominent forensic psychologist Stanley Brodsky has attributed it to the social psychological process of in-group allegiance. Forensic psychologists Tess Neal and Tom Grisso have favored a more cognitive explanation, positing heuristic biases such as the human tendency to favor confirmatory over disconfirmatory information. More cynically, others have attributed partisan bias to conscious machinations in the service of earning more money. Murrie and Boccaccini remain agnostic, saying that all of these factors could play a role, depending upon the evaluator and the situation.   

One glimmer of hope is that the allegiance effect is not universal. The research team found that only some of the forensic experts they studied are swayed by which side retains them. Hopefully, the burgeoning interest in adversarial allegiance will lead to future research exploring not only the individual and situational factors that trigger bias, but also what keeps some experts from shading their opinions toward the retaining party.

Even better would be if the courts took an active interest in this problem of bias. Some Australian courts, for example, have introduced a method called "hot tubs" in which experts for all of the sides must come together and hash out their differences outside of court. 

In the meantime, watch out if someone tries to recruit you at $400 a day to come and work for a newly formed legal unit. It might be another ruse, designed to see how you hold up to adversarial pressure.

* * * * *

The article is: Adversarial Allegiance among Expert Witnesses, forthcoming from The Annual Review of Law and Social Science. To request it from the first author, click HERE. 

Related blog posts:

• Remarkable experiment proves pull of adversarial allegiance (March 5 2013)  
• Psychopathy: A Rorschach test for psychologists? (March 25, 2011) 
• "Hot tubbing": Counterbalance for expert partisanship? (Aug. 11, 2008)