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July 5, 2016

The Trauma Myth, Revisited

The Trauma Myth may be one of the most misunderstood books of the past decade. Based on its regrettable title, pedophiles erroneously believe it minimizes the harm of child sexual abuse; in the opposite corner, some misguided anti-abuse crusaders have demonized the Harvard-trained author as a pedophile apologist. As guest blogger Jon Brandt explains in this review -- first published in the Summer 2016 issue of The Forum, the newsletter of the Association for the Treatment of Sexual Abusers (ATSA) -- both fans and detractors of Susan Clancy have gotten the courageous researcher all wrong.

The Trauma Myth

by Susan Clancy

Book review by Jon Brandt, MSW, LICSW*

As a former child protection social worker, and now working with both victims and offenders, I was drawn to The Trauma Myth because of both the title, and subtitle: “The Truth About the Sexual Abuse of Children – and its aftermath.” When I first read Susan Clancy’s book, in 2010, nearly every page confirmed my professional experience with victims. I’m offering this review some six years after the book's publication because I believe most experienced professionals will agree that Clancy’s thesis is not just well-researched, but articulate and luminously persuasive.

Dr. Clancy is a Harvard-trained experimental psychologist. Her expertise is not in the field of sexual abuse; it is in the field of memory. This information is important in understanding how Clancy endeavored to interview adults who had been victims of childhood sexual abuse (CSA) – in part, to further understand the role of memory in how adults recalled traumatic experiences. Clancy acknowledges that her career had a rocky start – not only investigating adult memories of childhood sexual abuse, but to understand why some people seemed to believe in alien abductions. Clancy writes about the challenge of having to reconcile her research with two deep concerns: first, she had to abandon some of what she had been taught about the ‘trauma’ of sexual abuse, and second, she had to try to save her reputation and career.

After Clancy interviewed more than 200 Boston-area adult victims of CSA, she came to recognize that most victims’ memories were consistent with previous research – the vast majority of victims knew, liked, and/or trusted their abusers. And she confirmed another finding – that most CSA was tricked and manipulated, not the product of threats, force, pain, or injury. Even young children intuitively understand that when an older person inflicts pain, injury, or fear (elements of trauma), something is very wrong. But when sexual violations occur in the absence of violence and in the presence of trust, most victims reported being confused by the encounter, rather than traumatized. Less than one in ten adults that Clancy interviewed described being sexually abused as “traumatic.” Clancy considered that perhaps CSA is so traumatic that adults had repressed their memories, but that hypothesis ran counter to research that: (1) discredits repressed memories and (2) indicates that the more powerful life experiences are to an individual, the more the events are both strongly embedded and vividly recalled. Clancy goes on to articulately detail how children are indeed harmed by sexual abuse – in the aftermath.

Dr. Clancy has expressed some regret about the title of her book, but does not back-peddle from her findings – that CSA is not universally traumatic. She asserts that many professionals don’t really understand how, why, and when CSA is harmful, and imputing trauma when it’s not present might actually introduce secondary harm. Clancy expresses that children clearly do not have the developmental capabilities to understand interpersonal sex, that acceding to sexual touching is not the same as sexual consent, and that naïve cooperation is not complicity. In the absence of veritable trauma, the harm of CSA comes not from sexual touching, per se, but from relationship violations – a sense of betrayal, shame, and misplaced blame. Clancy explains that as a CSA victim begins to sexually and socially mature, and comes to understand what motivated their abuser, they feel duped and exploited. As victims try to reconcile how and why someone of trust would use them for sexual purposes, the ‘harm’ evolves. Clancy’s message is clear: if we don’t talk to kids about sex, we leave them vulnerable; if we don’t listen to kids who have been sexually abused, we re-victimize them; when we truly listen to child victims, we empower them to guide their own recovery – that helps to turn victims into survivors.

Dr. Clancy uses the controversies around her book to illustrate how difficult it is for professionals to navigate the nuances of CSA, and that it is incumbent on adults to protect children until they are mature enough to navigate the world of interpersonal sex. Clancy acknowledges that she was perhaps naïve in believing that rigorous science would protect the integrity of her research. What she was not prepared for was that CSA is virtually unspeakable – so abhorrent that, even among the educated, it was difficult to separate legitimate research from prevailing public opinion, or simply the politics of sex.

In 1998, psychologist, Bruce Rind and colleagues published an article on CSA in the American Psychological Association journal Psychological Bulletin. It was peer-reviewed, sound research, but so contrary to conventional beliefs of CSA that it resulted in an Act of Congress condemning his work. In 1981, Professor Alfred Kadushin (one of my graduate school advisors at the University of Wisconsin) published a book titled Child Abuse, an Interactional Event. He spent the rest of his career explaining that he was not blaming children for being abused.

The truth is, there has never been any time in history that sex could be separated from politics, or that science hasn’t waged an uphill battle against public opinion. The Socratic Method, or the applications of logic and scrutiny to understanding complex problems, is a predecessor of the Scientific Method, and one of the most important legacies of Socrates. It is ironic that Socrates could not survive the politics of his own time – he was condemned to death as a heretic. Nearly two millennia later, perhaps Galileo had taken note of the fate of Socrates. When Galileo found himself charged with heresy, to avoid being executed, he recanted his theory of the heliocentric solar system, and lived out his life under house arrest. It took another 350 years for the Catholic Church to acknowledge that Galileo had been right all along.

Susan Clancy wasn’t charged with heresy, at least not formally, but by her own admission, after a firestorm of controversy over The Trauma Myth, she fled the US to work in Nicaragua for several years. If Clancy was flattered by a favorable book review in the NY Times, she must have been horrified by a book review by NAMBLA [the North American Man/Boy Love Association]. Clancy’s book, and her story, are a testimony to professional courage in the face of deeply held, widespread, long-standing beliefs about the sexual abuse of children. Apparently, Clancy no longer writes or teaches about sexual abuse, based on a Google search, but she is still professionally active in research and education about the functions of memory.

There is so much right about The Trauma Myth that I am hesitant to be critical, but I think Clancy missed the mark on a few points. In my experience, some victims of CSA have the internal constitution to avoid both the trauma and the harm of sexual abuse. Other victims seem to have the resiliency and tenacity, with or without professional help, to truly earn the moniker of ‘survivor.’ Clancy views CSA as dichotomous – if there is a victim, there is an offender, who must be punished. If Clancy understood offending with the same verve, complexity, and nuances with which she understands victims, I think she would forgo the black and white, victim-offender paradigm in favor of the complex dynamics of offending, and the range of uniquely tailored interventions that serve victims, offenders, and their families. With a focus on the etiology and aftermath of CSA, it might not be obvious that Clancy was also advocating for both more prevention and better public policies.

The Trauma Myth is well researched, with endnotes in APA format. With just over 200 pages, and still professionally sound, it is easy reading. Most individuals are likely to approach the book with the same skepticism with which Clancy pursued her research. In the end, I think most professionals are likely to agree with many conclusions that Dr. Clancy found unassailable: that the popular, one-dimensional understanding of ‘trauma’ caused by child sexual abuse is largely a myth – a vestige of the 20th century.

*Jon Brandt is a clinical social worker who specializes in the evaluation, treatment and supervision to sexual offenders. His previous guest posts have reported on the link between pornography and contact sex offending and on an ongoing legal challenge to Minnesota's civil commitment of sex offenders. Many thanks to the editors of The Forum for granting me permission to post Mr. Brandt's review. The original review can be found HERE.

January 16, 2013

Pornography and contact sex offending


Many people have grave concerns about the potential for a relationship between pornography and inappropriate sexual behavior. For obvious reasons, there are apprehensions about the sexual behaviors of those who have sexually abused. As a result, it is not uncommon for persons who have sexually abused to be restricted from certain activities that would have remained available to them had they not sexually offended. However, questions remain as to whether we are using our professional energy and resources wisely in trying to prevent persons convicted of sexual crimes from being sexually active. This point extends to whether persons who have sexually abused should have access to sexually explicit materials.

There are many reasons not to like pornography. Perhaps women, more than men, are objectified by pornography. Both women and men have raised questions about how pornography cheapens and depersonalizes sex. As men dedicated to sexual violence prevention, we are concerned about both the demeaning representation of women and the unflattering portrayal of men (e.g., piggish, self-absorbed, or uncaring) in much commercial pornography. There are also concerns about the effects of the depiction of unhealthy, violent, or potentially harmful sexual behaviors. There is an open question about the long-term effects of exposure to sexually explicit media. These are important considerations, but as offensive as pornography is to many people, extant research does not support a causal relationship between pornography and sexual offending.

Not just academic

Defining pornography remains a challenge. In our field, this is not simply an academic discussion. Sexual offenders are typically restricted from possessing any type of pornography, but there are no clear demarcation points between artistic expressions of the human form, sexually suggestive images, erotica, or hardcore pornography. When the legal consequences for possession of any sexual media are so severe, defining pornography has never been more important.

Jon Brandt
In the US, numerous court decisions, presidential task forces, and various think tanks have been unable to produce an agreement or useful definition of "pornography." With the need for greater precision within our profession than perhaps elsewhere in public discourse, our field would benefit from fine-tuning and distinguishing between various types of sexual media. Using "pornography" to describe all forms of sexual media is both imprecise and emotionally loaded. It can obscure treatment needs and interventions. Missed opportunities of therapeutically beneficial sexual imagery could inadvertently lead to more harm.

Good science or moral panic?

The historical perspective that sexually explicit images are offensive and therefore must be harmful is such a powerful narrative that it is difficult to close the gap between what we know about private sexual behavior and widespread public perceptions. We wonder whether some restrictions imposed on our clients are the considered application of good science or a default result of moral panic. If the latter is true, are therapists complicit in the unwarranted enforcement of social controls more than the healing arts of rehabilitation?

Gone are the days when pornography originated in adult bookstores or arrived discreetly in the mail. Most sexual media today is user-produced and shared through cell phones and the Internet. The use of sexual media by male teens and adults today is not just normative, it is pervasive. Science has yet to show any key differences between those who "sext" and those who do not, except for the behavior itself. Consumption of sexually explicit imagery has been explosive in the last decade. Sexual content in cyberspace may account for more than 30 percent of the data transfer of the entire Internet. Starting as teenagers, consumers are overwhelmingly male, but also include a significant percentage of women.

David Prescott
Though controversial and perhaps even counterintuitive, evidence of the adverse effects of sexual media has not been established. Other than child pornography, broad sexual media restrictions for most persons who have sexually abused do not appear to be supported by research. Frequently, restrictions on "pornography" for such clients include prohibition of every type of sexual media. Without knowing whether some level of exposure to some form of sexual media might have some adverse effects on human behavior, we use a shotgun approach to such restrictions. These squishy definitions and operatives also compromise research.

We each entered the field of treating sexual aggression at a time when professionals assumed that all persons who had sexually abused were at high risk to persist. Not only has this turned out to be untrue, but the rates of sexual aggression and re-offense have declined at the very same time as access to sexually explicit imagery has never been easier. Although we know of no interactive relationship between these co-occurring trends, they should each cause us to reconsider our attitudes and beliefs about what is important in the treatment and supervision of persons who have sexually abused.

There has been limited research involving pornography's influence on sexual aggression. The strongest concerns in studies published in refereed journals include a potentially aggravating influence of routine pornography use by men already at high risk for re-offending (and/or higher in entrenched antisociality, sometimes referred to as psychopathy). Certain types of pornography with high-risk offenders may also increase risk. Researchers such as Drew Kingston and Neil Malamuth appear to support the cautious position that without more conclusive research we should evaluate higher risk situations on a case by case basis. To our knowledge, no studies have as yet produced a credible indictment of pornography usage among persons who have sexually abused.

No definitive link found

Two additional facts are worthy of consideration. First, both biased and impartial groups have been funding research for more than 50 years to find a connection between pornography and sexual offending, and none have been able to find any definitive link. Second, despite the explosion of sexual media since the advent of the Internet and rapid transfer of visual imagery, there has been no increase in rates of sexual offending—everywhere it has been studied, around the world. Arguably, the same information superhighway that provides access to pornography has also brought attention to the numerous media outlets that remind us that true sexual violence is intolerable.

Robin Wilson
Several researchers have suggested that the correlation between pornography and sexual offending is either absent or inverse. A noteworthy advocate for this theory is sexologist Milton Diamond of the University of Hawaii. His published research on pornography and sexual offending in the US, Japan, and Europe persuasively argues that the relationship between pornography and sexual offending is negatively correlated. Diamond's research appears to also hold true for the relationship between child pornography and engagement in contact offenses. If validated, consider the implications of such findings in mitigating contact offenses against children, as offensive as it may seem. Perhaps adult pornography really is more offensive than actually harmful in the treatment and supervision of people who have sexually abused.

What might account for a negative correlation between pornography and contact offenses? Diamond and others have theorized that sexual media may provide a vicarious satisfaction of sexual curiosity and/or a cathartic venting effect for libido. If this theory turns out to be correct, restricting most sexual offenders from having sexual media might not just be overly cautious, it might, in individual circumstances, be counterproductive.

Individual differences proposed

Kingston and Malamuth have challenged some of Diamond's research, but only to the extent that Diamond's aggregate data, while compelling, might not apply to certain individuals. Theirs is an important point for consideration. Michael Seto has raised similar concerns with respect to certain risk factors and child pornography. We can also see how this is an important aspect to consider. However, a ban on all sexual media for all persons who have sexually abused appears neither science-based nor justified.

At what point does research become conclusive? It may be that pornography currently remains too controversial and emotionally charged for effective public policy to emanate from good science. Nonetheless, our concern is that broad bans on sexual media may be squandering resources, at the expense of truly science-based treatment and supervision elsewhere. 

These are not simply academic points. Revoking a person's parole or violating their probation because of behaviors that are socially undesirable, rather than an established characteristic of risk or harm, can be costly to society as well as the individual. All too often, we implement public policies and impose restrictions on offenders because we feel better to believe we are doing something to help stop victimization. However, we should also consider that when we overreach with risk management, limited resources are stretched thin.

Recommendations

We are not suggesting that pornography use by clients should be ignored. Following the model of Risk-Needs-Responsivity, the risk and need principles may guide the formation of effective therapeutic and correctional interventions. To that end, clinicians would be wise to thoroughly assess the effects of sexual media on individual clients (see appendix). Professionals should avoid restricting clients' access to sexual media based only on personal values, unsupported professional beliefs, or undocumented theories. Therapeutic efforts should be focused on managing abuse-related sexual interests (as opposed to all sexual interests). Therapists can provide clients with education about healthy sexuality, with the end goal of a safe, fulfilling, and non-exploitive sex life.

Given that science continues to better inform us about the psychological and social dynamics of sexual behavior, we should periodically review status quo. When scientific trending suggests current policies or practices might be unfounded, outdated, or perhaps even counterproductive, we should gather the professional courage to explore better pathways that might more effectively prevent or mitigate sexual offending.

Appendix

In assessing the effects of sexual media with individual clients, clinicians might explore:

1) The client's history, current use, and experience with different types of sexual media.
2) The client's use of sexual media compared to normative data.
3) Possible connections between certain sexual media and problematic sexual behavior.
4) Escalating or compulsive patterns of the use of sexual media.
5) The possible relationships of sexual media to the index offense(s).
6) The use of sexual media as socially or psychologically protective measures.
7) How sexual media could be interfering with relationships.
8) The use of sexual media to explore or satisfy sexuality curiosity.
9) How sexual media is an element of libido management.
10) Whether clients might benefit from a modified use of sexual media.
11) The possible therapeutic or conditioning benefits of proscriptive sexual media.
12) Sexual media that might be contraindicated therapeutically or socially.
13) The legal hazards or consequences for accessing certain types of sexual media.
14) Limitations on certain sexual media for specific higher-risk offenders.
15) The various risk factors involved in client’s access to sexual media via the Internet, cell phones, digital cameras, Wi-Fi communication devices, and social networking websites.
16) The degree to which clients can exercise internal controls in managing sexual media or to what level external controls might be beneficial to aid in risk management.
17) How clients can move from external controls to internal controls prior to discharge from treatment or supervision in anticipation of independent management.

References

Andrews, D.A. and Bonta, J. (2010). The psychology of criminal conduct. 5th Ed. Cincinnati, OH: Anderson.

Bensimon, P. (2007). The role of pornography in sexual offending. Sexual Addiction and Compulsivity, 14.

Burton, D. (2010). Comparison by crime type of juvenile delinquents on pornography exposure: The absence of relationships between exposure to pornography and sexual offense characteristics. Journal of Forensic Nursing, 6.

D’Amato, A. (2006). Porn up, rape down. Northwestern Public Law Research Paper No. 913013.

Diamond, M. (1999). The effects of pornography: An international perspective. International Journal of Law and Psychiatry.

Diamond, M. (2009). Pornography, public acceptance and sex related crime: A review. International Journal of Law and Psychiatry.

Diamond, M., et al. (2010). Pornography and sex crimes in the Czech Republic. Archives of Sexual Behavior, 40, 1037-1043.

Diamond, M., et al. (2011) Rejoinder to Kingston and Malamuth. Archives of Sexual Behavior, 40, 1049-50.

Ferguson, C.J. and Hartley, R.D. (2009). The pleasure is momentary… the expense damnable?: The influence of pornography on rape and sexual assault. Aggression and Violent Behavior, 14, 323-329.

Kingston, D. and Fedoroff, P. (2008). Pornography use and sexual aggression: The impact of frequency and type of pornography use on recidivism among sexual offenders. Aggressive Behavior, 34, 1-11.

Kingston, D. and Malamuth, N. (2009). The importance of individual differences in pornography use: Theoretical perspectives and implications for treating sexual offenders. Journal of Sex Research, 46, 216-232.

Kingston, D.A. and Malamuth, N.M. (2011). Problems with aggregate data and the importance of individual differences in the study of pornography and sexual aggression: Comment on Diamond, Jozikova, and Weiss (2010). Archives of Sexual Behavior, 40.

Seto, M.C., et al. (2010). Contact sexual offending by men with online sexual offenses. Sexual Abuse: A Journal of Research and Treatment, Vol. 23.

Williams, K.M., et al. (2009). Inferring sexually deviant behavior from corresponding fantasies: The role of personality and pornography consumption. Criminal Justice and Behavior, Vol. 36, 198-222.

Winick, C. and Evans, J.T. (1996). The relationship between non-enforcement of state pornography laws and rates of sex crime arrests. Archives of Sexual Behavior, 25.

*Originally published at the Sexual Abuse: A Journal of Research and Treatment (SAJRT) blog. Republished by permission of the authors.

Of related interest: Salon - Did porn warp me forever? Like other boys my age, I grew up with unlimited access to smut. At 23, I wonder if it's totally screwed me up, by Isaac Abel.

March 16, 2014

Federal judge calls Minnesota civil commitment program “draconian”

State lawmakers remain in paralysis as judge threatens action

This is one in a series of on-the-ground reports from clinician Jon Brandt of Minnesota on the high-profile legal battle over the civil commitment of sex offenders in his state, a battle with potentially national repercussions. 
 
Guest post by Jon Brandt, MSW, LICSW*

Three weeks ago, a federal judge issued his long-awaited ruling in a civil rights case brought by civil detainees over the constitutionality of the Minnesota Sex Offender Program (MSOP). Although stopping short, for now, of declaring the program unconstitutional, the judge ordered new procedures to make release attainable for the 700 detainees. He warned that he may ultimately find the program to be unconstitutional if he determines that it is essentially punitive or if it confines men who are no longer dangerous. “The time for legislative action is now," wrote US District Judge Donovan Frank.

Now, in mid-March, with about eight weeks left in a short legislative session, Minnesota lawmakers are indicating that they are not likely to find bipartisan support to accomplish the reforms demanded by the federal court. If the state legislature adjourns without taking action, it seems likely that the US District Court will impose federal oversight.

Withholding "unconstitutional"

Fully aware that he is knee-deep in constitutional law and up to his neck in public antipathy, Judge Frank’s Feb. 20 ruling in Karsjens v. Jesson is a demonstration of judicial restraint. Judge Frank expressed several times in his 75-page decision that it is too early, in what will be protracted litigation, to rule on the constitutionality of any part of MSOP. However, his ruling leaves little doubt that he will hold the status quo to be an unconstitutional encroachment on civil liberties:
"[I]t appears that MSOP may very well be serving the constitutionally impermissible purposes of retribution and deterrence. … If, with the benefit of discovery, [the detainees] are able to demonstrate that the commitment statutes are systematically applied in such a way as to indefinitely commit individual class members who are no longer dangerous, or that MSOP is administered as a punitive system despite its statutory treatment purpose, Plaintiffs will likely prove up their claims."
Over the past two decades, more than 700 sexual offenders, deemed dangerous by state courts, have been sent to the program for treatment. Once there, detainees complain, disingenuous treatment and onerous program goals make release virtually impossible.

Judge Frank’s ruling appears to vindicate widespread complaints over conditions of confinement and concerns of civil liberties violations. Noted the judge:
"Whether or not the system is constitutionally infirm, without prompt action on the part of the legislature and [the state Department of Human Services], MSOP’s reputation as one of the most draconian sex offender programs in existence will continue."
Right to treatment?

Detainee at Moose Lake detention facility in Minnesota
If the position of the detainees can be reduced to the maxim that “no one has ever gotten out,” perhaps the State’s (defendant’s) position can be oversimplified to, “MSOP clients have no constitutional right to treatment.”   Judge Frank begged to differ with this latter position, expressing that legitimate treatment is, by judicial precedent, one of the essential constitutional underpinnings of civil detention programs for sex offenders (as distinct from criminal punishment). Judge Frank more than hinted at an ultimate finding in support of the detainees’ position, saying:
"Given the prison-like conditions described by Plaintiffs, and the lack of treatment and essentially no-exit regime alleged in this case, it may well be that, with a fully developed record, the Court will find the totality of the MSOP system to be unacceptably and unconstitutionally punitive."
He noted that it would be unconstitutional, under existing U.S. Supreme Court rulings, to operate a civil commitment program under the guise of providing treatment, if this is just “a sham or mere pretext,” and the true purpose is to punish.

Landmark ruling

Judge Donovan Frank
In his ruling, Judge Frank issued a landmark change, effectively shifting the burden of proof on how clients exit civil detention. Prior to this ruling, in order to gain release, detainees had to clear several tall hurdles. They had to prove they had completed the treatment program, demonstrate their readiness for community re-entry, and get the green light for release from two review panels. Under that scheme, in 20 years only two of more than 700 men gained even a conditional release. Citing substantial case law and programs in other states, Judge Frank turned that process upside down:
“It is unquestionable that commitment, at the outset, must be justified by law. Similarly, … continued commitment must also be justified. A statute that -- as written, as applied, or as implemented -- renders discharge from a sex offender civil commitment program more onerous than admission to it, such that individuals who no longer meet commitment criteria remain confined, raises grave due process questions. In that regard, the Court expresses serious doubts as to the constitutionality of Minnesota’s sex offender commitment statutes and their implementation through MSOP.

“Today, the Court finds that it is constitutionally mandated that only individuals who constitute a “real, continuing, and serious danger to society” may continue to be civilly committed to MSOP. See Hendricks, 521 U.S. at 372 (Kennedy, J., concurring). If the evidence demonstrates that MSOP systematically continues to confine individuals who are not 'a real, continuing, and serious danger to society,' then such confinement will be held unconstitutional."
State government paralyzed

A powerful amicus brief filed jointly by law professor Eric Janus and the ACLU of Minnesota is highly critical of the Minnesota program. Laying out relevant case law, the Brief claims that all three branches of Minnesota’s government have abdicated responsibilities for ensuring the program’s tenuous promises. The Brief observes that after the Federal Court advised the State Legislature in 2012 that urgent changes were needed, the 2013 Legislature failed to act; by executive order, the last two Minnesota Governors put constitutionally questionable moratoriums on releases; and state appellate courts have repeatedly failed to correct program deficiencies. 

Citing “massive deprivations of liberties,” and accumulating evidence that civil detention is punitive in nature, the Brief refers to the Minnesota experiment as an “utter betrayal.” If -- as now appears likely -- another legislative session expires without lawmakers taking action, there is little doubt that the federal court will intervene, perhaps as it did in the State of Washington .

Change coming to MSOP

To reassure, it is not the intent of this legal challenge that dangerous individuals be released into the community. Reforming MSOP is clearly a forensic minefield and Judge Frank has been deliberate in navigating solutions. Drawing on a critical 2011 report from the Minnesota Office of the Legislative Auditor, he appointed experts to conduct an initial review of MSOP. He also ordered the state’s Department of Human Services to assemble a Task Force of prominent stakeholders to explore program challenges and make recommendations. The Task Force issued their first report in December 2012 and their second report in December 2013.

In December 2013, in anticipation of his ruling, Judge Frank wisely appointed a team of four nationally recognized experts (identified in this previous blog) to help credibly guide the process. He asked both parties to the lawsuit, and the experts themselves, to identify the tasks and goals to which the “dream team” should endeavor, and then, leaving no doubt that change is coming to MSOP, Judge Frank’s order exceeded the cumulative list, and established priorities.

In addition to a complete review of the MSOP program, Judge Frank indicated that all current detainees will be reevaluated by independent experts to determine whether they currently meet criteria for civil commitment and, if so, whether they could be treated in less restrictive settings. He ordered reevaluations to begin with those likely to be most eligible for a reduction in custody. He even threw a bone to the 100 or so discouraged (or obstinate) detainees who have withdrawn from treatment:
“It defies reason that individuals who are comatose or otherwise completely incapacitated would be considered so dangerous as to require continued confinement in a secure, prison-like facility. Moreover, an individual who refuses to participate in treatment, but is no longer dangerous, cannot constitutionally continue to be confined in such a facility. See Foucha, 504 U.S. at 77.”
Judge Frank directed his final admonition to state administrators and the Minnesota Legislature, which just convened its 2014 session, stating that the time for “substantial changes” is now:
“If the evidence requires it, the Court will act. But it is the Minnesota Legislature that is best equipped to develop policies and pass laws -- within the limits of the Constitution -- that both protect public safety and preserve the rights of the class. The time for legislative action is now. Time and again, professional assessments have identified grave deficiencies in the program. Regardless of the claims raised in this case, and irrespective of the Court’s ultimate rulings on any constitutional questions with which it is presented, the interests of justice require that substantial changes be made to Minnesota’s sex offender civil commitment scheme.

“The program’s systemic problems will only worsen as hundreds of additional detainees are driven into MSOP over the next few years. The politicians of this great State must now ask themselves if they will act to revise a system that is clearly broken, or stand idly by and do nothing, simply awaiting Court intervention.”
In reserving a ruling of “unconstitutional,” Judge Frank has been shrewd in attempting to force Minnesota’s government leadership to the table.   If state leaders acknowledge the federal court directives, seize good research, understand the limits of forensic psychology, and muster the professional courage to marshal bold legislative initiatives, Minnesota could potentially develop a national model for the civil commitment of sex offenders. If not, Judge Frank has left little doubt that the US District Court for Minnesota will rebalance legitimate concerns of public safety, effective treatment, and civil liberties for those under civil commitment.

Either way, these proceedings are likely to contribute to the national debate about whether civil commitment can be effectively reconciled with sound public policy and constitutional law, or whether civil commitment schemes, now in place in 20 U.S. states, are fundamentally “preventive detention,” derived from “society’s opprobrium” of sexual offenders.

* * * * *

Judge Frank’s  ruling (HERE) is a compelling read for anyone interested in the civil commitment of sex offenders.

*Jon Brandt is a clinical social worker in Minnesota, for 35 years working in the prevention of sexual abuse. He provides evaluations, treatment, and supervision to sexual offenders, and professional consultation and training to colleagues. His previous post on this case, a report on the December 2013 federal court hearing, can be found HERE. To contact Mr. Brandt, click HERE

December 24, 2013

Legal challenge may force changes to Minnesota civil commitment

Guest post by Jon Brandt, MSW, LICSW

It has been 16 years since the U.S. Supreme Court narrowly upheld the constitutionality of controversial preventive detention schemes for dangerous sex offenders. Now, with 20 U.S. states incarcerating many thousands of men at an annual cost of more than $500 million, Minnesota has become Ground Zero for a new round of legal challenges alleging that the state’s treatment program is a sham from which no one is ever released. In this guest post, Jon Brandt gives a first-person report on last week’s momentous federal hearing.

U.S. District Court Judge Donovan Frank
SAINT PAUL, MINNESOTA -- On December 18 at the Federal District Courthouse, Judge Donovan Frank heard motions in a federal lawsuit that promises to dramatically change the civil commitment landscape in Minnesota and, by extension, around the country.

The case began modestly two years ago as a pro se complaint by about a dozen detainees at the Minnesota Sex Offender Program (MSOP).* The Federal District Court for Minnesota determined the case had merit, appointed counsel, and in 2012 Judge Frank certified it as a class action.  At a hearing last Wednesday, Dan Gustafson, lead attorney for the plaintiffs, argued motions alleging that civil commitment as administered in Minnesota is unconstitutional. 

An inauspicious start

When the court convened there was a sparse audience that included a few families of MSOP clients, a handful of reporters, and several professional stakeholders. Conspicuously absent were any plaintiffs.   Perhaps there’s some irony in the fact that, in 20 years, not only has no one ever been fully discharged from MSOP, apparently all current clients are too dangerous for any of them to be shackled and accompanied by security personnel to a federal courtroom to hear arguments on the conditions of their own confinement. Given that courtrooms are designed to contain dangerous people, whether the decision to exclude clients was made by executive or judicial authorities, it seems like a missed opportunity to allow some representative plaintiffs to bear direct witness to the wheels of justice.   

The hearing had an inauspicious start for the 698 plaintiffs civilly detained 90 miles away – the audio feed via phone lines failed. So, after waiting 15 years for the courts to reconsider their plight, the plaintiffs missed the first hour of legal arguments.   When the audio connection was finally restored, Judge Frank assured wary plaintiffs that the technical problems were not deliberate, and personally took responsibility.
The hearing began with attorney Gustafson arguing for “declaratory judgment,” or a legal finding that the state’s civil commitment program is operating in an unconstitutional manner.   He cited case law that clients have a constitutional right to rehabilitation and claimed that the program breaches civil liberties and offers neither adequate rehabilitation nor acceptable living conditions.

No one ever released

Detainee at Moose Lake MSOP facility
The state’s attorney, Assistant Attorney General Nate Brennaman, countered that the program does provide appropriate treatment, that there is no constitutional right to treatment, and that the plaintiffs are basing their entire case on a single fact, “That no one has ever gotten out.”

Gustafson seemed amused that the defense was making his case. The fact that no one is released is strong evidence, he asserted. He pointed out that nearby states have far better track records. Wisconsin, with demographics nearly identical to Minnesota’s, has civilly committed only 351 people, and nearly half are now on either conditional or full release. Iowa has committed only about 103 people, and about 30 of those have been provisionally or fully released. He pointed out that treatment which was originally estimated to be completed in 32 months is now anticipated to last eight to nine years. Not a single one of the more than 700 individuals (including one female) who have been detained has ever completed the treatment program, and only one is on conditional release.

The plaintiff next argued for a court order mandating that each detainee be individually evaluated to determine whether he might safely be released to a “less restrictive alternative,” or LRA.

Judge Frank peppered the hearing with comments and questions that frequently interrupted attorneys on both legal teams, and also gave clues to his persuasion.   Noting that Justice Kennedy was the swing vote in the 5-4 ruling in Kansas v. Hendricks, he read a passage from Kennedy’s concurring opinion whereby Kennedy cautioned that “an improvident plea bargain” by the criminal justice system cannot be remedied by the civil commitment system, and that retribution is exclusively within the domain of criminal justice. Judge Frank also raised concerns about 18 infirmed clients (one who is 91) who require assisted living and questioned the “dangerousness” of such relatively incapacitated clients. He also questioned conditions of confinement that mimic prison. When the state’s attorney argued that conditions of criminal versus civil confinement had been decided by the US Supreme Court in the 1982 Youngberg v. Romeo case, Judge Frank interrupted with, “No, it wasn’t… but continue.”

Judge Frank expressed concern that most of the clients at the MSOP were still in the first phase of treatment, and twice pointed to his understanding that treatment progress is not only slow but that some clients are apparently sent back to redo previous phases. He also seemed concerned that detainees get less treatment than sexual offenders incarcerated in state prisons. He pondered rhetorically, “How much treatment is enough,” and questioned how the “Youngberg standard” of professional judgment might determine completion of treatment.

Motion for federal oversight

Moose Lake
The plaintiffs’ third motion was for the appointment of a “special master” and federal supervision of both the facility and the system. A special master is an administrator who would oversee MSOP operations and implement federal court directives. The state’s attorney responded that clients are getting effective treatment at MSOP, that treatment is subject to quarterly reviews, which is more stringent than other states that only require annual reviews, that MSOP has filled most of its open clinical positions, and that there is nothing that a special master could do that isn’t either already being done, or that DHS couldn’t manage if so directed by the federal court.

If Judge Frank grants the first motion, finding conditions unconstitutional, the other two motions might be automatic -- MSOP could be put under federal supervision in a similar manner as the state of Washington from 1994 to 2007. 

Judge Frank confirmed that on December 6 he appointed four sex offender treatment experts to guide the proceedings, under Federal Court Rule 706 . The four experts are: 
  • Mike Miner, Professor and Research Director of the Program in Human Sexuality at the University of Minnesota Medical School
  • Naomi Freeman, who leads New York’s unit for Strict and Intensive Supervision and Treatment that manages civilly committed individuals outside of secure facilities
  • Deborah McCulloch, director of Wisconsin’s sex offender civil commitment program, and 
  • Robin Wilson, former clinical director at the Florida sex offender civil commitment program from 2006 to 2011, during which time there was a class action and settlement
Judge Frank seems to have exercised judicial restraint over the two years since the original complaint was filed. In an effort to prod state government, in 2012 he ordered the establishment of a special task force  to make recommendations to the state legislature. The Task Force held several hearings and collected relevant documents. It issued its first report in December 2012, with general recommendations for public-private partnerships to establish a statewide network of less restrictive alternatives. The report echoed critical findings by the Minnesota Office of the Legislative Auditor in 2011. Unfortunately the state legislature adjourned in May 2013 without enacting legislative changes. 

Events may force action

Wednesday’s motions, the critical reports, and two other events in 2013 will likely force Judge Frank to act soon. Last summer Dr. Grant Duwe, chief researcher for the Minnesota Department of Corrections, published research that challenges the government’s foundational claim that civil detainees are “highly likely” to reoffend. Duwe’s research indicates that most of the detainees are highly likely to NOT reoffend.   

Then, last month, Minnesota Governor Mark Dayton issued an executive order that continued the eight-year moratorium of his predecessor -- that there will be no further releases of clients from MSOP, except by court order. With this abdication of executive oversight, all three branches of the state government seem to be in perpetual paralysis. 

Minnesota’s government is managing the Sex Offender Civil Commitment program (SOCC)  like holding a wolf by the ears -- don’t want to hold on and afraid to let go.   Modest reforms that are in progress at MSOP are being sabotaged by systemic failures. Clinical staff have the impossible job of trying to maintain the integrity of endless treatment goals for clients trapped in a treatment paradox and have come to realize that the promise of rehabilitation is disingenuous.

Legal scholar Eric Janus
One of the highly principled critics of SOCC who is likely to be vindicated by imminent rulings from Judge Frank is Eric Janus. Janus is the President and Dean of the William Mitchell College of Law, and author of, “Failure to Protect; America’s Sexual Predator Laws and the Rise of the Preventive State” (Cornell University Press, 2006). Janus led an unsuccessful challenge to SOCC before the Minnesota Supreme Court in the 1990s. Since then, he has been warning that the SOCC, as public policy, is deceptively enticing, deeply flawed, and destined to overreach its stated intent. Janus was also a member of the Minnesota SOCC Task Force. 

Judge Frank indicated that he will accept a joint amicus brief from Janus and the ACLU, due Dec. 27, and will rule on the motions within 60 days.

My take is that the federal courts can no longer ignore repeated judicial admonishments; if the SOCC begins to look like retribution or prison in disguise, the courts will intervene. With precedence in the state of Washington, Judge Frank seems poised to put MSOP under federal supervision. Depending on the strength of any finding of “unconstitutional,” the ruling could have far-reaching implications that echo around the United States.    

Relevant legal cases:

*Karsjens, et al. v. MN Department of Human Services, et al., CV 11-3659 DWF/JJK

Foucha v. Louisiana, (90-5844), 504 U.S. 71 (1992).

Strutton v. Meade, (10–2029) 668 F.3d 549, US Court of Appeals for the Eighth Circuit (2012)

Youngberg v. Romeo, (80-1429) 457 U.S. 307 (1982)

Call v. Gomez, 535 N.W.2d 312, Supreme Court of Minnesota (1995)

Seling v. Young (99-1185) 531 U.S. 250 (2001)

Jon Brandt is a clinical social worker in Minnesota, for 35 years working in the prevention of sexual abuse. He has provided evaluations, treatment, and supervision to several hundred sexual offenders, and provided professional consultation and training to colleagues. He is a Clinical Member of the Association for the Treatment of Sexual Abusers (ATSA) and is a blogger for ATSA’s website, Sexual Abuse: A Journal of Research and Treatment.   In February 2012 his post, “Doubts about SVP Programs,” was re-blogged here.
 

February 23, 2012

Blogger urges new paradigm for sex offenders

Clarence Opheim, sentenced to 4 years
in prison back in 1988
Among sex offenders in Minnesota, Clarence Opheim is a very important man. After 20 years of treatment, the 64-year-old pedophile will be the second person ever released from civil detention in the North Star State, which holds the dubious distinction of having the highest per capita civil commitment rate.

The other 639 detainees are pinning all their hopes on next month's provisional release. If Opheim can make it, maybe they can too. The only other guy who came out except in a body bag violated his release conditions and in 2003 was returned to detention, where he died at age 45 of a heart attack. [See comments section for more on him.]

The program has been under pressure to release someone; otherwise, it might be found Unconstitutional: The legal premise behind civilly detaining people for crimes that are only remote future possibilities is not that they will be locked up forever, but that they will be treated and then released.

Although some are cheering this as a major turning point in the civil commitment industry, one prominent Minnesota clinician says the celebration is premature: What we really need is a bold paradigm shift in which industry leaders reject civil commitment altogether.

Comparing the civil commitment of sex offenders to the interment of Japanese during World War II, Jon Brandt asks, “If hindsight is 20/20, when we look back at sex offender civil commitment many years in the future, will we be proud of the roles that we had today?"

Brandt, a social worker, directs a residential treatment program for adolescent boys. He is also an expert witness in juvenile proceedings and a frequent professional trainer and media commentator who has addressed the Minnesota legislature on child welfare issues.

In his guest post on the blog of the influential Association for the Treatment of Sexual Abusers (ATSA), Brandt says the industry may have painted itself into a corner through its timidity about releasing sex offenders back into the community:
The Moose Lake detention site
It is not just in everyone's interest that Mr. Opheim succeeds; it is imperative. Consider the alternative: If the second of only two discharges in MSOP [the Minnesota Sex Offender Program] history fails, for any reason, both failures will be seen as a malfunction of both MSOP and SOCC [sex offender civil commitment]. A second unsuccessful discharge is not only likely to have far-reaching consequences for sexual offender management in Minnesota; a seismic "thud" may well be heard at ATSA listening posts across the country. In addition, it would be hard for the courts to ignore.

SOCC in Minnesota may now be painted into a corner. In the interest of public safety we may have compromised Constitutional protections beyond integrity. Perhaps Ben Franklin's quote is apt, that "those who would give up essential liberty to purchase a little safety deserve neither liberty nor safety."
Brandt urges ATSA to take the lead in challenging civil commitment, based on the low rates of sex offender recidivism established through empirical research including a new survey in Connecticut that found that only 3.6 percent of parolees who had served a prison term for a sex crime were arrested and charged with a new sex crime:
We have very solid empirical evidence to challenge current misguided public policies. We need to get good research to the right folks. We need to infuse policy makers with the necessary information for bureaucracies to champion productive recommendations into meaningful change…. If we use our knowledge and expertise to educate the public, inform our colleagues, and persuade policymakers that best practices should emanate from good science, we might not have to settle for incremental changes. We can help create new paradigms….
If professionals who work with sexual offenders do not challenge the politics, misinformation, and misguided management of sex offender civil commitment, where is a more credible voice going to come from? In an area of public policy where reason is often eclipsed by emotion, ATSA members may be in the best position to know the research, understand competing principles, and advocate for sound rationales. If forensic psychology with sexual offenders is being dominated more by forensics than psychology, I would suggest that the tail might be wagging the dog.
I recommend reading the entire post, available HERE.

August 26, 2014

Patience is no virtue on MSOP injustice

A federal judge seems willing to give the state more time. There's scant evidence it will be used well.


Guest essay by D. J. Tice, Minnesota Star Tribune*

For many years, critics of the Minnesota Sex Offender Program have worried that this state may be guilty of cruel injustices.

They’ve worried that Minnesota’s sweeping, inconsistent system for dumping sex offenders who have completed prison sentences into so-called “treatment centers” may be imposing retroactive life sentences on some “clients” who pose no serious threat to the public, while giving them no effective treatment.

As of this summer, this is no longer a worry.

Now it’s a fact.

It took experts appointed by a federal court about two months to find what Minnesota officialdom has been unable to find in two decades — people buried alive in MSOP who have no earthly business there and should be released or transferred to another program.

And they’ve barely begun to look.

Unfortunately, a combination of legal complexities and deference toward state officials has caused even U.S. District Judge Donovan Frank to let injustice continue awhile longer. Earlier this month,Frank declined to release or transfer the MSOP inmates his experts had asked him to liberate. Instead, he ordered an expedited trial of class-action claims that the entire MSOP program is unconstitutional.

About 20 states have “civil commitment” programs like Minnesota’s. Most were enacted in the crime-plagued early 1990s out of legitimate fears that some habitual sex offenders are too dangerous to be released. But many of the other states with such programs regularly review clients’ cases and have developed less-restrictive forms of supervision for offenders who are less dangerous or are making progress in treatment.

In Minnesota, attempts to contain or reform MSOP have repeatedly become politicized. The result is that the state boasts the largest per-capita population of committed offenders in the nation (nearly 700, costing about $120,000 a year each), in a program offering nothing but prison-like incarceration and no serious path toward success in treatment and release. Just two clients have emerged in the program’s whole history.

Only last winter, Gov. Mark Dayton released a letter to his Department of Human Services, which runs MSOP, noting that he likes the program just fine the way it is and ordering the department to abandon its efforts to move some clients toward release. He cited “gamesmanship” by his political opponents as the reason.

Judge Frank seems rather less sanguine about MSOP. In February, as part of the class-action suit challenging the program’s constitutionality, he put four experts to work examining MSOP — including a sample of individual client files. They quickly brought forward two cases they wanted the judge to see right away.

One involves 24-year-old Eric Terhaar, who has been in MSOP for five years on the basis of offenses committed before he was 15. Insisting that a juvenile record of this kind should be viewed differently than adult sex crimes, the court experts unanimously insisted that “there is little evidence to suggest that Mr. Terhaar is a dangerous sexual offender … .” He should be “unconditionally discharged,” they said.

The other case brought to the judge is that of Rhonda Bailey, 48, locked inside MSOP since 1993 as the program’s only woman. Suffering an “intellectual disability,” a deeply troubled victim of abuse and trauma since childhood, Bailey, the judge wrote, is being “housed on the St. Peter campus of MSOP as the only female on a unit of all male high risk sexual offenders.”

The court’s experts, unanimously, have “exceptionally grave concerns” about Bailey’s “current housing and treatment scenario.” They declare her situation “unprecedented in contemporary sexual offender treatment and management … .”

This “unprecedented” achievement isn’t the sort of distinction Minnesota usually boasts of. The experts have a notion that Bailey, while clearly needing treatment and supervision, might do better in “a facility where she can receive care and treatment that is sensitive to both her gender and her clinical presentation.”

Suddenly, the state seems to think so, too. Confronted with the Bailey and Terhaar cases in hearings before Frank this summer, state officials are now apparently scrambling to find an alternative treatment setting for Bailey and to move Terhaar toward provisional release. (It’s also worth noting that lately state courts have been scrutinizing MSOP commitments more rigorously.)

For now, Judge Frank seems willing to be patient while the state’s processes unfold. On Aug. 11, he declined to find continued confinement of Terhaar and Bailey unconstitutional, but said he would revisit the questions if the state’s efforts prove inadequate.

Meanwhile, Frank wants to get on with the trial in the broader class-action case. Last week, he set Feb. 9 as the trial date.

“It is obvious,” Frank wrote in his Aug. 11 order, “that but for this litigation, Terhaar … would likely have languished for years in the prison-like environment of MSOP-Moose Lake without any realistic hope of gaining his freedom. And of course it is of great concern to the Court that this may not be an aberrant case [but] symptomatic of a larger systemic problem. … This concern is heightened by the experts’ opinion about the grossly inadequate — even shocking — treatment of Bailey … .”

There is as yet no explanation, the judge wrote, of “how this troubling state of affairs came about.”

That one’s easy, your honor. It came about because too many judges over too many years have been too patient waiting for Minnesota’s politicians to do the right thing.

* * * * *

*D. J. Tice is Commentary Editor for the Star Tribune, and is a member of the newspaper's Editorial Board. He has been a writer, editor and publisher in Twin Cities journalism for more than 30 years. A former political editor, he is the author of two books of popular history. This essay originally appeared in the Star Tribune on August 26, 2014 and was reprinted with the written permission of Mr. Tice. 

Previous guest coverage of the Minnesota civil commitment crisis by Minnesota social worker Jon Brandt can be found HERE.