Psychiatry rejects new rape disorder for DSM-5

Regular blog readers will be familiar with the heated battle over a controversial proposed mental condition of "Paraphilic Coercive Disorder" for rapists. Now, the American Psychiatric Association has issued its latest draft of the DSM-5 diagnostic manual, with the condition relegated to the appendix. The proposal was favored by psychologists working for the government in Sexually Violent Predator (SVP) civil commitment cases, as it would have made it far easier to testify that sex offenders are mentally ill. It had met with strong opposition from scientists, including premier rape researcher Raymond Knight of Brandeis University.

Among other outspoken opponents was psychiatrist Allen Frances, an emeritus professor from Duke University who chaired the DSM-IV Task Force. In blog posts soon to go live at the Psychiatric Times and Psychology Today, he cautions that the battle is not over: The current attempt to place the pseudoscientific condition into the appendix of the DSM 5 as a condition warranting further study is still a mistake.

"Important message"

Dr. Frances said the rejection should send a strong message to those involved in the SVP civil commitment industry:

Dr. Allen Frances

The evaluators, prosecutors, public defenders, judges, and juries must all recognize that the act of being a rapist almost always is an indication of criminality, not of mental disorder. This now makes four DSM's (DSM III, DSM IIIR, DSM IV, DSM 5) that have unanimously rejected the concept that rape is a mental illness. Rapists need to receive longer prison sentences, not psychiatric hospitalizations that are constitutionally quite questionable.

This DSM 5 rejection has huge consequences both for forensic psychiatry and for the legal system. If "coercive paraphilia" had been included as a mental disorder in DSM 5, rapists would be routinely subject to involuntary psychiatric commitment once their prison sentence had been completed. While such continued psychiatric incarceration makes sense from a public safety standpoint, misusing psychiatric diagnosis has grave risks that greatly outweigh the gain…. Preventive psychiatric detention is a slippery slope with possibly disastrous future consequences for both psychiatry and the law. If we ignore the civil rights of rapists today, we risk someday following the lead of other countries in abusing psychiatric commitment to punish political dissent and suppress individual difference.

This DSM 5 rejection of rape as mental disorder will hopefully call attention to, and further undercut, the widespread misuse in SVP hearings of the fake diagnosis "Paraphilia Not Otherwise Specified, nonconsent". Mental health evaluators working for the state have badly misread the DSM definition of Paraphilia and have misapplied it to rapists to facilitate their psychiatric incarceration. They have disregarded the fact that we deliberately excluded rape as an example of Paraphilia NOS in order to avoid such backdoor misuse. Not Otherwise Specified diagnoses are included in DSM only for clinical convenience and are inherently too idiosyncratic and unreliable to be used in consequential forensic proceedings.

Exclude coercive paraphilia from appendix

All along, promoters of this new diagnosis have conceded that this would be a tough sell, given its lack of scientific foundation. Indeed, they said publicly that they would consider it a victory if they could even get paraphilic coercive disorder included in the appendix of the upcoming diagnostic manual (due out in mid-2013), as a condition meriting further study. But as Dr. Frances points out, even that would be a major error:

The sexual disorders work group proposes placing "coercive paraphilia" in an appendix for disorders requiring further research. We created such an appendix for DSM IV. It was meant as a placement for proposed new mental disorders that were clearly not suitable for inclusion in the official body of the manual, but might nonetheless be of some interest to clinicians and researchers….

If "Coercive Paraphilia" were like the average rejected DSM suggestion, it would similarly make sense to park it in the appendix -- as has been suggested by the DSM 5 sexual disorders work group. This might facilitate the work of researchers and also provide some guidance to clinicians....

But "coercive paraphilia" is not the average rejected DSM diagnosis. It has been, and is continuing to be, badly misused to facilitate what amounts to an unconstitutional abuse of psychiatry. Whether naively or purposefully, many SVP evaluators continue to widely misapply the concept that rape signifies mental disorder and to inappropriately use NOS categories where they do not belong in forensic hearings.

Including "Coercive Paraphilia" in the DSM 5 appendix might confer some unintended and undeserved back-door legal legitimacy on a disavowed psychiatric construct. Little would be gained by such inclusion and the risks of promoting continued sloppy psychiatric diagnosis and questionable legal proceedings are simply not worth taking. The rejection of rape as grounds for mental disorder must be unequivocal in order to eliminate any possible ambiguity and harmful confusion. We did not include any reference to "coercive paraphilia" in DSM IV and it should not find its way in any form, however humble and unofficial, into DSM 5. 

If you agree that this pseudoscientific condition needs to be placed in the wastebasket once and for all, now is the time to speak up. The current public comment period ends June 15. While you’re at it, you might want to state your opposition to a couple of the other controversial proposals with potential for profound negative consequences in the forensic realm – pedohebephilia and hypersexuality.

Postscript: Thanks to the suggestion of an alert reader, I have added the direct links to the DSM-5 comments pages. You must register in order to submit a comment.

• Click HERE to comment on the proposed diagnosis of Pedohebephilia.
• Click HERE to comment on the proposed diagnosis of Paraphillic Coercive Disorder.

Related posts:

• Psychiatrists ramp up opposition to forensic misuse of DSM: "Pedohebephilia" would make bad situation worse, they warn (March 10, 2011)
• Europeans first to shoot down controversial paraphilia (Oct 26, 2010)
• Psychiatrists vote no on controversial paraphilias (Oct. 24, 2010)
• Rape as psychiatric illness: Battle heats up (June 24, 2010)
• Latest hebephilia critiques: Point-counterpoint (March 12, 2010)
• More prominent voices join chorus of DSM-5 critics (March 1, 2010)
• DSM-V: Will shoddy manual implode years before launch date? (Feb. 20, 2010)
• New Scientist expose of psychiatry’s "civil war" (Dec. 10, 2009)
• Scientist razes proposed "Paraphilic Coercive Disorder" (Nov. 6, 2009)
• Hebephilia struck by third blow: Down but not out? (June 5, 2009)
• Wrangling over psychiatry's bible (Nov 16, 2008)
• DSM makeover: What will they come up with next? (Oct 13, 2008)
• Invasion of the hebephile hunters (Oct 31, 2007)

Blogger wins scientific achievement award

Accepting the award. Photo credit: Michael Donner

I am pleased to report that I have been awarded the 2012 Distinguished Scientific Contribution in Psychology award. It struck like a thunderbolt in a clear blue sky; I had no idea I had even been nominated for an award until I got a phone call notifying me I had won. 

It was especially meaningful to come from the California Psychology Association. The only voice for California’s 18,000 licensed psychologists, the CPA tirelessly advocates for the profession as well as for the mental health needs of the general public in California.

For those of you who only know me as a blogger and/or a forensic psychology practitioner, I conducted pioneering research in the late 1990s into the motivations of hate crime perpetrators. I later extended that work to group rape, likening both forms of violence to cultural theater in which the actors publicly demonstrate masculinity, with their victims as dramatic props. (I'm excited about a forthcoming chapter in a cutting-edge text on multiple-perpetrator rape, due out next year.) I have also conducted historical research and published on the ethics of forensic diagnosis, and especially the contested sexual paraphilia of "hebephilia." More information on my research is available on my website and on Wikipedia.

The location of the awards ceremony could not have been more idyllic -- the gorgeous Monterey coast on a balmy weekend. The 270-degree view of the Monterey Bay and the surrounding hills from the 10th floor of the Marriott Hotel was breathtaking; unfortunately, a photo just can't capture it.

CPA President Craig Lareau presents award.
Photo credit: Patricia VanWoerkom

The quality of this year's convention trainings was impressive. Perhaps because the current president, Craig Lareau, is a forensic psychologist and attorney, there was a good deal of forensic programming. Alan Goldstein presented the latest on Miranda waiver evaluations (including the new instrument), Professor Gail Goodman gave an overview of the research on child witness accuracy, and there were workshops on forensic neuropsychology.

I especially enjoyed a presentation by Keely Kolmes of San Francisco and Heather Wittenberg of Maui designed to help psychologists step up their online presence. For anyone interested, Dr. Kolmes has some nice resources (HERE) for psychologists on the ethics of social media and on managing one's online reputation.

By the way, if you practice in California and don't belong to the CPA, I encourage you to join. The reconfigured CPA has a forward-looking leadership team headed by the dynamic Jo Linder-Crow and is doing essential advocacy work on behalf of psychologists and the public. It appears to have defeated (at least for the time being) an effort to axe our regulatory agency, the Board of Psychology, which would have left psychologists at the mercy of other professions. It's working hard to promote parity for mental health consumers. And it's tangibly supporting legislators who will lobby for progressive causes, for example prisoner rehabilitation instead of endless warehousing. So do your share, whether it's just paying dues or volunteering, so that all of the heavy lifting does not fall on just a few shoulders.

Sea Otter, Monterey Bay

Whether or not you belong to the CPA, if you are in California you might also consider donating to its Political Action Committee, which funds progressive politicians and reforms. The unfortunate reality is, politics is money-driven.

And now, sadly, it's back to the grindstone.

Related news: Your blogger profiled in the 2012 edition of advanced high school textbook, Forensic Science: Advanced Investigations.

More developments on the sex offender front

Study finds problems with real-world reliability of Static-99

Evaluators differ almost half of the time in their scoring of the most widely used risk assessment instrument for sex offenders, the Static-99, according to a report in the current issue of Criminal Justice and Behavior. Even a one-point difference on the instrument can have substantial practical implications, both for individual sex offenders and for public policy. In by far the largest and most ecologically valid study of interrater agreement in Static-99 scoring, the research examined paired risk ratings for about 700 offenders in Texas and New Jersey. The findings call into question the typical practice of reporting only a single raw score, without providing confidence intervals that would take into account measurement error. The study, the latest in a line of similar research by Marcus Boccaccini, Daniel Murrie and colleagues, can be requested HERE.

California reining in SVP cowboys

Psychiatrist Allen Frances has more news coverage of a memorable state-sponsored training at which Sexually Violent Predator (SVP) evaluators were cautioned to be more prudent in their diagnostic practices. Ronald Mihordin, MD, JD, acting clinical director of the Department of Mental Health program, warned evaluators against cavalierly diagnosing men who have molested teenagers with “hebephilia” and rapists with “paraphilias not otherwise specified-nonconsent,” unofficial diagnoses not found in the current edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders. California evaluators have come under fire in the past for billing upwards of $1 million per year conducting SVP evaluations of paroling prisoners. The PowerPoints of the 3-day training are now available online, at the DMH's website.

The neuroscience of sex offending

In preventive detention trials of sex offenders, forensic evaluators often testify about whether an offender lacks volitional control over his conduct. But how much do we really know about this? In the current issue of Aggression and Violent Behavior, forensic psychologist John Matthew Fabian explores the neuroscience literature on sex offending as it applies to civil commitment proceedings. The article can be viewed online, or requested from the author HERE.

Challenge to sex offender registry

Although the sex offender niche is by far the most partisan and contentious in forensic psychology, one thing that just about all informed professionals agree about is that sex offender registration laws do more harm than good. By permanently stigmatizing individuals, they hamper rehabilitation and reintegration; as Elizabeth Berenguer Megale of the Barry University School of Law explores in an essay in the Journal of Law and Social Deviance (full-text available HERE), they lead to a form of “social death.” Now, the California Coalition on Sexual Offending (CCOSO) and the Association for the Treatment of Sexual Abusers (ATSA) have filed a joint amicus brief in a challenge to California's "Jessica's Law," which bars registered sex offenders from living within 2,000 feet of any school or park. The amicus contends that the restriction is punishment without any rational purpose, in that it does not enhance public safely or deter future criminality. The challenge was brought by Steven Lloyd Mosley. After a jury found Mosley guilty of misdemeanor assault, a non-registerable offense, the sentencing judge ordered him to register anyway, ruling that the assault was sexually motivated. The 4th District Court of Appeal granted Mosley’s appeal, and the California Department of Corrections has appealed to the state's supreme court. We'll have to wait and see whether the high court will tackle the issue of registration laws directly, or will sidestep with a narrow, technical ruling.

"DSM-5 and sexual disorders: Just say no"

Psychology urged to oppose psychiatric monopoly

When one introduces new chickens into an existing flock, the flock establishes a pecking order. The older birds peck the new ones into submission. With lower status, the new birds feel -- to anthropomorphise a bit -- inferior.

That's what happened when the upstart field of psychology pushed its way into the bastions of psychiatry. Psychiatrists bristled at the intrusion. Psychologists of necessity submitted to psychiatric authority. Now, years later, psychologists vastly outnumber higher paid psychiatrists in many mental health niches, but as a profession we still have an inferiority complex. Thus, we let a single psychiatric association in the United States dictate how mental functioning and impairment are conceptualized.

As the chorus of critical voices over the American Psychiatric Association's poorly drawn draft DSM-5 manual grows ever louder, some are urging psychology to issue a formal opposition paper. For example, Stephen Diamond, a clinical and forensic psychologist in Los Angeles, writes in Psychology Today that our profession's apathy "is a big part of the problem":

While clinical psychology has to some extent leaped onto this same biological bandwagon driven by contemporary psychiatry, seeking prescription privileges, some psychologists and other non-medical mental health professionals have practically written off the value and importance of psychodiagnosis today -- in part precisely due to its inherent medicalization, biological bias, dehumanizing labeling, and notorious inaccuracy…. [I]t is time for the leadership of the American Psychological Association to take a far more active and public role in the revision and direction of the DSM-5…. What, if anything, [is] the American Psychological Association is doing about DSM-V? Or about the hypermedicalization of psychology?

Allen Frances, the psychiatrist who chaired the DSM-IV task force, has become one of the most vocal critics of the manual's proposals. He too is calling on organized psychology to step up before it is too late. Taking his campaign directly to psychology and the general public, he hosts a "DSM5 in distress" column in the popular magazine Psychology Today that shines a spotlight by turn on various problematic aspects of the draft manual. In his recent call for an organized response from psychology, he writes that:

the American Psychiatric Association (APA) came to hold the DSM franchise only by historical accident…. Now that the DSMs have attained such importance, there have been repeated questions about the appropriateness of its continued sponsorship by more than just one professional organization…. The numerous problems that have bedeviled the development of DSM5 again raise the question whether the American Psychiatric Association should be sole steward of an official diagnostic system that impacts on all mental health disciplines…. Individual psychologists and the professional associations within psychology can play an important role in pointing the way forward for DSM5 and in protecting it from costly mistakes.

Perilous forensic consequences

Frances is increasingly focusing on the monumental potential for negative and unintended consequences in the forensic realm of the proposed changes:

The most obviously detrimental suggestions are in the paraphilia section, where the proposed change to the definition of paraphilia and the likely suggestion to introduce a new diagnosis of "paraphilic coercive rapism" will greatly compound the significant mischief already initiated by a seemingly trivial change in DSM-IV. More generally, even small changes in wording can result in large forensic confusion once parsed by lawyers in their peculiarly rigorous and tendentious fashion. The wording of every suggested option in DSM5 needs careful review by forensic experts.

"DSM-5 sexual disorders make no sense"

In a more recent column, Frances specifically targets the Big 3 sexual disorders that I have extensively blogged about. Of all of the DSM-5 work groups, he writes:

the Sexual Disorders Work Group has strayed furthest off the reservation. It has made a series of radical and dangerous suggestions that need to be dropped.... Each of the Work Group's suggestions is based on the thinnest of research support-usually a handful of studies often done by members of the committee making the suggestion. None has been subjected to, or could possibly survive, anything resembling a serious risk/benefit or forensic analysis.

As he points out, there are few researchers and little good research on sexuality. Consensus on the bounds of "normalcy" does not exist, and cultural bias plays a major role in what is defined as pathological (a point cogently made by Richard Green in his critique of the proposed hebephilia diagnosis). Especially important for my readers, "decisions regarding the diagnosis of sexual disorders can have profound and unanticipated forensic ... implications."

Regarding the three paraphilia proposals that will have the most impact in civil commitment proceedings in the United States, Frances had the following to say:

"Paraphilic Coercive Disorder"

This proposal was explicitly rejected for DSM IIIR and was given no serious consideration for DSM IV. The problem is the impossibility of reliably distinguishing between the small group of hypothesized "paraphilic" rapists (who would be given a mental disorder diagnosis) and the much larger group of rapists who are simple criminals.

The distinction has taken on huge significance because [of] SVP statutes mandating indefinite (usually in practice lifelong) inpatient civil psychiatric commitment for individuals who have (1) completed their prison sentence for a sexually violent crime, (2) have a diagnosed mental disorder, and (3) are deemed likely to repeat.... Although the SVP statutes have twice passed Supreme Court tests, they rest on questionable constitutional grounds and may sometimes result in a misuse of psychiatry.

Most disturbingly, an ad hoc and idiosyncratic suggested diagnosis -- Paraphilia Not Otherwise Specified -- has become a frequent justification for the psychiatric commitment of rapists who are really no more than simple criminals. Raising this diagnosis to official status would greatly compound this misuse of civil psychiatric commitment.

"Hypersexuality Disorder"

This is the strangest of constructs.... The fundamental problem with "hypersexuality" is that it represents a half baked, poorly conceptualized medicalization of the expected variability in sexual behavior.... The authors are trying to provide a diagnosis for the small group whose sexual behaviors are compulsive -- but their label would quickly expand to provide a psychiatric excuse for the very large group whose misbehaviors are pleasure driven, recreational, and impulsive. The offloading of personal responsibility in this way has already captured the public and media fancy and would spread like wildfire. Making an official mental disorder category of "hypersexuality" would also have serious unintended forensic consequences inthe evaluations of sexually violent predators (SVP).

"Pedohebephilia"

This new category would extend the traditional definition of Pedophilia ... to include pubescent teenagers. Clearly, sex with underage teenagers is reprehensible and deserves appropriate punishment under the penal code. It is, however, anything but clear when (and if) sexual behaviors with teenagers should qualify as a mental disorder. This diagnosis would be subject to the same misuses in SVP cases as has been described above.

With such widespread and vigorous opposition, it's hard to imagine these nutty proposals slipping into the DSM-5. But, stranger things have happened in the field of psychiatry.

Related article:

DSM-5 and "Psychosis Risk Syndrome": Not Ready For Prime Time
Dr. Frances' latest piece, in Psychiatric Times, is on Psychosis Risk Syndrome, one of the scariest diagnostic proposals. If adopted, it would likely lead to a wave of false-positive errors in which teenagers are wrongly identified as future schizophrenics and placed on dangerous antipsychotic medications.

Hat tips: Ken Pope, Andrew H.
Graphics credit: Raul Crimson (Creative Commons license 2.0)

California deals big blow to bogus paraphilia diagnoses

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

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

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

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

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

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

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

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

Diagnosing Michael Jackson

You have probably seen some of the postmortem efforts to pin psychiatric diagnoses on Michael Jackson, in the wake of his untimely demise. It's a pedantic enterprise, with no shortage of diagnostic contenders: Pedophilia, anorexia, body dysmorphic disorder, and a dual diagnosis (that's a psychiatric disorder plus a substance abuse disorder). Most recently, we've got J. Michael Bailey, the man transgender activists love to hate, wading into the fray with erotic identity disorder and a paraphilia called autogynephilia.

"Whoa, folks! Not so fast!" say others.

Calling for a little reflection on this whole paraphilia-hebephilia-whateverphilia diagnostic craze is Scientific American columnist Jesse Bering, a research psychologist at Queen's University Belfast:

Would you really have wanted Oscar Wilde euthanized as though he were a sick animal? Should André Gide, whom the New York Times hailed in their obituary as a man 'judged the greatest French writer of this century by the literary cognoscenti,' have been deprived of his pen, torn to pieces by illiterate thugs? It's complicated. And although in principle we know that all men are equal in the eyes of the law, just as we did for Michael Jackson during his child molestation trials, I have a hunch that many people tend to feel (and uncomfortably so) a little sympathy for the Devil under such circumstances.

I highly recommend Bering's muse, "Pedophiles, Hebephiles, and Ephebophiles, Oh My: Erotic Age Orientation" (which, by way of full disclosure, cites yours truly).

Who will write the next DSM?

Would you believe: Pfizer, Eli Lilly, Wyeth, Merck, AstraZeneca and Bristol-Myers Squibb?

Or, at least, those are some of the BigPharma corporations with whom members of the task force charged with creating the 5th Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders have contracts.

It shouldn't come as a surprise. But it ought to alarm the public, given BigPharma's enormous and growing influence in so many spheres of public life all around the world.

More than half of the experts involved in the previous edition of the psychiatric bible also had monetary relationships with drug makers, according to a Tufts University study. The percentage was up to 100 percent for experts working on certain severe mental illnesses, such as schizophrenia. (The New York Times story on that 2006 research is here.)

A just-published book, The Medicalization of Society: On the Transformation of Human Conditions into Treatable Disorders, has more on this construction of difference as illness. Trends that author Peter Conrad notes include the medicalization of "male" problems such as baldness and sexual impotence, and the pathologizing of children's behavior and appearance (short kids now have idiopathic short stature which requires synthetic human growth hormone).

Another new book, The Rise of Viagra, further documents the pathologizing of sexual variation, including an effort by BigPharma's spin doctors to create public hysteria and a new market for medicines to treat Female Sexual Dysfunction."

Meanwhile, as I've blogged about elsewhere, the sex offender industry is lobbying for new diagnoses to medicalize illegal sexual conduct, including "hebephilia" for men who are sexually attracted to teens, and "Paraphilia Not Otherwise Specified-Nonconsent" for men who rape.

Look for all these, and more, as possible candidates for the new and expanded DSM-V. Each edition of the DSM contains more diagnoses than its predecessor, and each diagnosis is supposedly treatable with meds. DSM-I (1952) listed 106 mental disorders, DSM-II (1968) had 185, DSM-III (1980) had 265, and DSM-IV (1994) has 357. That's an average of about 84 new diagnoses per edition, so the DSM-V should have 440 or more diagnoses.

Hopefully, this week's blog post by New York Times health writer Tara Parker-Pope about the conflict of interest signals that the public will be kept informed.

The consumer watchdog group Integrity in Science, a project of the Center for Science in the Public Interest, is also following the scent of money. See my Amazon book list, Critical Perspectives on Psychiatry, for other books on the DSM and the construction of illness.

Pornography sentence unconstitutionally cruel, judge rules

A must-read case for forensic psychologists  

"C.R." grew up in a chaotic, highly conflictual home. He was immature, socially klutzy, anxious and depressed. Friends introduced him to online pornography, readily accessible for free via peer-to-peer file sharing. He took to smoking marijuana and escaping into sexual fantasy. Between the ages of 15 and 19, he downloaded pornography, much of it involving boys ages 10-12, and shared files with other users.

When he was 19 years old, the FBI ensnared him in a sting and the world came crashing down. Under federal law, “C.R.” faced a statutory minimum of five years in prison.

Until Judge Jack B. Weinstein intervened, ruling that the 5-year minimum is unconstitutional in C.R.’s case, due to the youth’s age and immaturity.

The ruling is part of a crusade by Weinstein, one of the United States' most accomplished and respected jurists, against what he calls “the unnecessary cruelty of the law.” Previously, the 89-year-old federal judge in the Eastern District of New York led a similar campaign against rigid drug sentencing. 

Weinstein’s 401-page tome in United States v. C.R. should be on the required reading list of every forensic psychologist, tackling as it does many of the front-burner issues and controversies currently facing the field:

• Adolescent brain development and immaturity
• Risk for hands-on offending among pornography offenders
• The misuse of risk assessment instruments (including the circular reasoning involved in assigning an offender to the “high risk” group on the Static-99)
• The bogus disorder of “hebephilia” that you've heard about here
• Morality and prejudice masquerading as science

Before sentencing C.R., Weinstein ordered an evidentiary hearing that would enable him to determine how best to protect the community while not unnecessarily destroying the young man’s life. Well-known experts including Robert Prentky and Meg Kaplan testified about C.R.’s low risk of recidivism, the likelihood he would face abuse in prison, and the impact of adolescent immaturity on youths’ judgment.They are quoted at length, as is a prosecution psychologist who found C.R. to be at high risk based in part upon factually erroneous information (that C.R. had visited gay "glory holes").

Ultimately, the judge still imposed a prison sentence, but cut it in half to 30 months. A longer term "lacks any legitimate penological justification" and violates the 8th Amendment’s bar on cruel and unusual punishment, he wrote:

This case illustrates some of the troubling problems in sentencing adolescents who download child pornography on a file-sharing computer service. Posed is the question: To protect the public and the abused children who are shown in a sexually explicit manner in computer images, do we need to destroy defendants like C.R.? ... C.R. should be prepared to assume a useful law-abiding life rather than one of a broken and dangerous, ex-prisoner deviant. Were it not for Congress‘s strongly expressed preference for incarceration in these cases, the court would have imposed a long term of supervised release with medical treatment outside of prison.

Weinstein echoed the reasoning of the U.S. Supreme Court in two recent back-to-back cases involving juveniles. One (Roper v Simmons) invalidated the death penalty for juveniles; the other (Graham v Florida) held that juveniles could not be sentenced to life without the possibility of parole for crimes other than homicide.

This is not Weinstein's first foray into the thicket of child pornography sentencing. Last year, he vacated the conviction of Pietro Polizzi on the grounds that the jury had a right to know what punishment a guilty verdict would produce. Several jurors told the judge they might not have convicted the married father of five had they known he would have gone to prison for at least five years.

"I don’t approve of child pornography, obviously,” Judge Weinstein told the New York Times at the time. But he also said he did not believe that those who merely view images, as opposed to producing or selling them, present a significant threat to children. “We’re destroying lives unnecessarily. At the most, they should be receiving treatment and supervision.”

Although Weinstein is more outspoken than some, an increasing number of judges are balking at giving pornography viewers longer prison terms than actual child molesters and rapists often get. “Across the country, an increasing number of federal judges [are] criticizing changes to sentencing laws that have effectively quadrupled their average prison term over the last decade,” noted the Times report.

In his erudite, data-rich dissection of pornography and risk, Weinstein cites everyone from Malcolm Gladwell to Alex Kotlowitz (long one of my favorite authors) and Laurence Steinberg, and to our very own forensic psychology colleagues John Monahan, Jennifer Skeem, and Charles Patrick Ewing (whose newest book is another must-read).

Weinstein, by the way, has had a fascinating and colorful career. He put himself through Brooklyn College by working on the docks in New York Harbor before forging multiple and overlapping careers as a teacher, lawyer, and public servant. Back in his early days of lawyering, he helped the NAACP with the landmark desegregation case of Brown v. Board of Education. As a jurist, he’s handled many of the biggest mass tort cases in the United States, involving Agent Orange, asbestos, tobacco, breast implants, DES, Zyprexa, and handguns. More on Judge Weinstein’s interesting life and career is HERE.

I have made the case of United States v. C.R. available for download HERE. Again, I recommend that you read it for yourself. It's a great primer, packed full of useful information and references -- many of them available online.