Psychiatrist: Time to drop “silly” hebephilia once and for all

"Striking new evidence" should place the nail in the coffin of a "poorly conceived" proposal to turn sexual attraction to pubescent minors into a new mental disorder, says the chair of the DSM-IV Task Force in a new blog post at Psychology Today.

Allen Frances, professor emeritus at Duke University, has vocally opposed efforts to expand psychiatric diagnoses in the upcoming edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-5), due out in 2013.

In the wake of the DSM leadership's recent abandonment of a controversial new diagnosis for rapists, Frances says it is also past time to relegate "hebephilia" to "the obscurity it has so long and so justly deserved":

'Hebephilia' is a medical-sounding term for what is a purely legal issue--the statutory rape of pubescent youngsters aged 11-14. This is a crime deserving punishment, not a mental disorder deserving psychiatric hospitalization…. The 'hebephilia' proposal was always a poorly thought out, obvious non-starter. It failed on conceptual grounds, was unsupported by scientific evidence, and would create disastrous forensic problems. 

Four strikes and you're out

Frances lists four “strikes” against the proposal. In the first place, he points out, attraction to pubescent teenagers is biologically “hard-wired,” not deviant. Second, the research literature is “pathetically thin, methodologically flawed, and mostly completely irrelevant to whether it should be considered a mental disorder.” Third, the construct is a “forensic nightmare” that is already being abused in Sexually Violent Predator (SVP) civil commitment proceedings.

Lastly, Frances lambasts the claim that the number of sex crimes an individual has committed can be the basis for an accurate diagnosis. According to Frances, an independent data analysis just accepted for publication by Behavioral Sciences and the Law debunks that assertion. The article, by Richard Wollert and Elliot Cramer (online HERE), delivers "a piercing nail to seal the coffin" on hebephilia, writes Frances:

Reanalyzing the original raw data with appropriate statistical methods, they found that (contrary to the original report) there was an extremely high false positive rate in identifying 'hebephilia.' This had been obscured by an obvious statistical error in the original analysis--the highly selective sampling of subjects at the poles of the continuum, arbitrarily excluding those in the middle.

Frances’s full essay, at his Psychology Today blog DSM in Distress, is HERE.

SVP verdict overturned for prosecutorial misconduct -- again

Prosecutor impugned defense witness in hebephilia case

In a highly unusual development, a California appeals court has overturned the civil commitment of a convicted sex offender for the second time in a row due to egregious prosecutorial misconduct.

The prosecutor in the most recent trial engaged in a "pervasive pattern" of misconduct and "flagrantly" violated the law by implying that jurors would become social pariahs if they did not vote to civilly commit sex offender Dariel Shazier, the appellate court wrote.

Prosecutor Jay Boyarsky, now the second in command of the district attorney's office in Santa Clara County (San Jose), also improperly impugned the reputation of the forensic psychologist who testified for the defense, according to the scathing opinion by the Sixth District Court of Appeal.

Prosecutor Jay Boyarsky

"This is not a case in which the prosecutor engaged in a few minor incidents of improper conduct. Rather, the prosecutor engaged in a pervasive pattern of inappropriate questions, comments and argument, throughout the entire trial, each one building on the next, to such a degree as to undermine the fairness of the proceedings. The misconduct culminated in the prosecutor flagrantly violating the law in closing argument, telling the jury to consider the reaction of their friends and family to their verdict, implying they would be subject to ridicule and condemnation if they found in favor of defendant."

This was the second civil commitment verdict against Dariel Shazier to be overturned on appeal due to prosecutorial misconduct. The license of the previous prosecutor, Benjamin Field, was suspended in 2010 based on his severe misconduct in several cases, including Shazier's 2006 trial. In the first of Shazier's three trials, a jury deadlocked as to whether the convicted sex offender qualified for civil detention as a sexually violent predator.

The case revolves around the controversial diagnosis of hebephilia. Shazier served nine years in prison for sexual misconduct with teenage boys. At the end of his sentence, in 2003, the district attorney began efforts to commit him indefinitely to a locked hospital based on his risk of reoffense. At Shazier's most recent trial, two state evaluators testified that he suffered from hebephilia, thereby making him eligible for civil commitment. However, they admitted that hebephilia was highly controversial and had only come into vogue with the advent of civil commitment laws.

Incendiary questioning of defense expert witness

The appellate court chastised the prosecutor for stepping far over the line in his questioning of a psychologist who was called by the defense to rebut the diagnosis of hebephilia. Psychologist Ted Donaldson testified that hebephilia is not a legitimate mental disorder, and that socially unacceptable or immoral conduct does not constitute a mental illness.

On cross-examination, Boyarsky questioned Donaldson about previous cases in which he had testified that sex offenders were not mentally disordered. Naturally, Donaldson had not brought the files from all of his old cases to court with him. This, the appellate court wrote, gave the prosecutor an excuse to recite inflammatory facts from select cases, which the defense correctly complained "were only brought up to incite the passions and prejudice of the jury."

The appellate court also chastised Boyarsky for impugning Donaldson's character. In his closing argument, the prosecutor described Donaldson as "completely biased and not helpful," called his opinion "laughable," and implied that he was biased because he had repeatedly testified for the defense:

"He has got a streak that would make Cal Ripken jealous. Cal Ripken the baseball player and the Iron Man that played in something like 4,000 straight games. Dr. Donaldson’s streak of 289 straight times testifying exclusively for the defense. Now he would like to tell you that is not his fault, because he offered to teach the State of California all his wisdom. His brilliance has yet to be fully appreciated by this society. It is appreciated by defense attorneys who pay him...."

Boyarsky also improperly attacked a psychiatric technician at Atascadero State Hospital (where Shazier was undergoing sex offender treatment while awaiting the outcome of his case) who testified for the defense. The appellate court critiqued "rhetorical attempts to degrade and disparage" that witness during cross-examination. The justices highlighted Boyarsky's question: "Mr. Ross, you don't know what you’re talking about, do you?"

"Here, the prosecutor’s questioning … was clearly argumentative, and was not intended to glean relevant information. 'An argumentative question is a speech to the jury masquerading as a question. The questioner is not seeking to elicit relevant testimony. Often it is apparent that the questioner does not even expect an answer. The question may, indeed, be unanswerable. . . . An argumentative question that essentially talks past the witness, and makes an argument to the jury, is improper because it does not seek to elicit relevant, competent testimony, or often any testimony at all.'(People v. Chatman (2006) 38 Cal.4th 344, 384.)"

The appellate opinion strongly rebuked trial judge Alfonso Fernandez for overruling repeated objections by defense attorney Patrick Hoopes. "Defense counsel objected to all of the prosecutor's improper questions, statements and arguments. We observe that not one of counsel's well-taken objections was sustained by the court. The court erred in overruling these objections."

Who’s grooming who?

In a humorous twist, Boyarsky was also reprimanded for misusing the loaded term "grooming" during his closing argument.

During the trial, a government expert had testified that Shazier "groomed" his victims by slowly manipulating them into situations in which he could violate sexual boundaries with them.

The prosecutor tagged off this in his closing argument, warning the jury that Shazier had "groomed" them during his testimony. "The grooming behavior, the manipulation, it still continues," Boyarski stated.

The appellate court agreed with the defense that this statement was "intended to inflame the jury, making them each feel like victims in the case." The justices went even further, noting that Shazier was not necessarily the one doing the grooming:

"During trial, Dr. Murphy defined grooming as a 'slow, steady manipulation to get a person in a compromising position or violate boundaries without awareness.' The irony here is that the prosecutor's conduct toward the jury throughout the trial closely fit Dr. Murphy's definition of grooming."

The unanimous appellate ruling is HERE. San Jose Mercury News coverage is HERE; the San Francisco Chronicle's, HERE.

Open letter opposing DSM-5 paraphilias expansion

Photo credit: Dr. Joanne Cacciatore

As readers of this blog are aware, proposals to expand the sexual disorders in the American Psychiatric Association's upcoming DSM-5 have generated significant controversy among forensic psychologists and psychiatrists. Now, forensic psychologists are banding together to urge APA President John Oldham to reject the proposed diagnoses of pedohebephilia, paraphilic coercive disorder and hypersexual disorder. The text of an open letter drafted by Richard Wollert, an Oregon psychologist with extensive experience in sex offender treatment and evaluation, follows. If, after reading it, you would like to become a signator, just click on the indicated link, and provide Dr. Wollert with your name and professional credentials. Don't delay, as I understand that this important letter is being submitted very soon. 

CLICK HERE TO ADD YOUR NAME TO THE LETTER

 

Dear Dr. Oldham:

As a mental health professional and/or sex educator I am writing to you to encourage the American Psychiatric Association to leave invalid sexual disorders out of DSM-5. 

In 1999, the Dangerous Sex Offender Task Force of the American Psychiatric Association issued a strongly worded statement about psychiatry's failed efforts to meaningfully define and classify sexual deviance. In contrast to the cautious approach advised by the Task Force, a Paraphilias Subworkgroup of the DSM-5 is vigorously lobbying for the adoption of three highly controversial expansions of sexual disorders (Hebephilia, Paraphilic Coercive Disorder, and Hypersexual Disorder). The expansions would be a major mistake, due to poor reliability, unproven validity and -- most of all -- the potential for vast and harmful unintended consequences. 

The Subworkgroup is now proposing to add a "Hebephilic" type to Pedophilia, extending the diagnosis of Pedophilia from covering those with sexual attractions to prepubescent children to those with sexual attractions to pubescent children under age 15. It also proposes to add new diagnoses of "Paraphilic Coercive Disorder" and "Hypersexual Disorder" to the Appendix as "Criteria Sets for Further Study." I am dismayed by each of these recommendations for the following reasons. 

Hebephilia lacks conceptual coherence. Most men are attracted to sexually maturing 14-year-olds, as reflected in the large number of industrialized countries where the age of sexual consent is 14 (Green, 2010). Normative attractions may be criminal when acted upon, but they should not be labeled as mental disorders. "Hebephilia" is an archaic term that languished in psychiatric obscurity until the passage of modern civil commitment laws in the United States (Franklin, 2010). Since then, some evaluators who confuse statutory rape with mental disorder have invoked Hebephilia as a condition that justifies civil commitment (Ewing, 2011). Such usages do not provide a cogent explanation for behavior that is illegal in the United States but legal in other countries being classified as a mental disorder. Finally, Hebephilia lacks adequate diagnostic reliability (Wollert and Cramer, 2011). Most of the research has been conducted by a single Canadian research team that is overly represented on the Paraphilias Subworkgroup. Although the DSM-5 Task Force has indicated that final decisions about proposed revisions will be made on the basis of field trial data, a November 2011 change in the proposed criteria for the diagnosis rules out the application of even this meager safeguard. 

Paraphilic Coercive Disorder (PCD) was initially proposed for inclusion in DSM-5 as a diagnosis that would be limited to men who preferred rape over consensual sex. Because only a very small percentage of rapists prefer rape over consensual intercourse (American Psychiatric Association, 1999), clinicians are unable to reliably apply this label (Wollert, 2011). This is one reason for the American Psychiatric Association's consistent rejection of rape-based paraphilias in three previous editions of the DSM (Zander, 2008). In the face of overwhelming opposition, the Subworkgroup has taken the fallback position of recommending PCD only for inclusion in the Appendix as a condition meriting "further study." However, this would confer an undeserved back-door legitimacy to the invalid construct. Rather than a mental disorder, rape is a crime for which the proper placement is prison. 

The proposed criteria for Hypersexual Disorder (HD) are the product of a recent ad hoc literature review by Martin Kafka, a member of the Subworkgroup. His review indicated their validity has not been empirically confirmed. Given the inherent difficulty in determining at what point a normal human drive becomes abnormal, it is not surprising that the proposed diagnosis is marred by conceptual confusion and vague verbal anchors (Moser, 2011). Its poor reliability and validity will translate to a high rate of false positives in both civil commitment trials and outpatient clinics that serve the community in general. With the proposal becoming a magnet for ridicule both by academic scholars and the popular press, it too has been relegated to the Appendix. However, the Appendix was not intended as a storage site for criteria sets that, like Hypersexuality Disorder, have never been tested. 

These three proposals all lack adequate empirical support. They will increase false positive diagnoses by labeling behaviors that are normative, developmental, or criminal as mental disorders. Promoting the misclassification of juveniles and other vulnerable populations as dangerous sex offenders, they will undermine the reputation of forensic practitioners and those who study sexual behavior. Collectively, professions that endorse the use of unreliable diagnoses run the risk of losing their credibility. 

The British Psychological Society, the American Counseling Association, and the Society for Humanistic Psychology and many other divisions of the American Psychological Association have all submitted petitions or letters of concern to the American Psychiatric Association regarding revisions proposed for the DSM-5. These documents express concerns about the lack of empirical support for many DSM-5 proposals, the likelihood of “false-positive epidemics” flowing from decreased diagnostic thresholds, and the negative effects of "over-medicalizing" human behavior. They also point out that the prevention of false-positive epidemics should take precedence over "nomenclatural exploration" and that the temptation to adopt new diagnoses should be tempered by the recognition that diagnostic labels tend to be confounded with normative social expectations. 

I share these concerns as they apply to sexual disorders. I further support the adoption of sexual disorder criteria sets only after they have been established to have high true positive rates and acceptable false positive rates. Therefore, I urge the DSM Task Force to remove the Hebephilia qualifier from the proposed diagnosis of Pedophilia, and to eliminate Paraphilic Coercive Disorder and Hypersexual Disorder from any inclusion in the DSM-5. 

Sincerely, 

CLICK HERE TO ADD YOUR NAME TO THE LETTER

(email your name and professional credentials to Dr. Wollert)

References 

American Psychiatric Association (1999). Dangerous sex offenders: A task forcereport of the American Psychiatric Association. Washington D. C.: American Psychiatric Association.

Ewing, C. P. (2011). Justice perverted: Sex offense law, psychology, and public policy. New York: Oxford University Press. 

Franklin, K. (2010). Hebephilia: Quintessence of diagnostic pretextuality. BehavioralSciences and the Law, 28, 751-768. 

Green, R. (2010). Sexual preference for 14-year-olds as a mental disorder: You can’t be serious!! [letter to the editor]. Archives of Sexual Behavior, 39, 585-586. 

Moser, C. (2011). Hypersexual Disorder: Just more muddled thinking [letter to theeditor]. Archives of Sexual Behavior, 40, 227-229. 

Wollert, R. (2011). Paraphilic Coercive Disorder does not belong in DSM-5 forstatistical, historical, conceptual, and practical reasons [letter to the editor]. Archives of Sexual Behavior, 40, 1097-1098. 

Wollert, R. & Cramer, E. (2011). Sampling extreme groups invalidates research on the Paraphilias. Behavioral Sciences and the Law, 29, 554-565. 

Zander, T. (2008). Commentary: Inventing diagnosis for civil commitment of rapists. The Journal of the American Academy of Psychiatry and the Law, 36, 459-469.

Federal judge tosses hebephilia as basis for civil detention

Hebephilia is too controversial for the government to use it to claim that a sex offender has a serious mental disorder meriting civil commitment in order to protect the public, a federal judge ruled Thursday.

Judge Terrence Boyle

In ordering the release of convicted sex offender Jeffrey Neuhauser, the judge also found that the government had failed to prove that the prisoner was at high risk to reoffend or would have serious difficulty controlling his impulses.

"The Court finds that it would be inappropriate to predicate civil commitment on a diagnosis that a large number of clinical psychologists believe is not a diagnosis at all, at least for forensic purposes," wrote Judge Terrence W. Boyle of the U.S. District Court for the Eastern District of North Carolina. "Although hebephilia has been proposed to be included as a mental disorder in the revision of the DSM, it has been rejected as a proper mental disorder by numerous psychologists.”

Two of those psychologists, Diane Lytton and Richard Wollert, were retained in the case by Suzanne Little of the Federal Public Defender. Lytton testified that the residual diagnostic category of "paraphilia not otherwise specified" was never intended to turn criminal behaviors such as sex acts with minors into mental illnesses.

Even the government's own expert, Gary Zinik, conceded that the legitimacy of hebephilia is a hotly contested issue in the mental health community, the judge noted.

The pseudoscientific label is typically assigned by government experts when an offender is neither a rapist nor a pedophile, bur rather has offended against more physically mature minors.

Neuhauser acknowledged a sexual preference for pubescent boys. He served federal prison time for distributing child pornography and two counts of interstate travel with the intent to engage in sex with a minor. He also had previous convictions for contributing to the sexual delinquency of a child and assault and battery in connection with the attempted sodomy of a 14-year-old boy.

Disturbance Control Team patch, Butner prison

Boyle's ruling may impact other federal prisoners facing civil detention, as nearly all of the 130 or so federal prisoners that the government is seeking to detain under the Adam Walsh Act of 2006 are housed at a federal prison in Butner, North Carolina, and so are processed through the North Carolina federal court.

Yesterday's ruling follows on the heels of another dismissal of a civil commitment petition by Senior U.S. District Judge Bernard A. Friedman. In a scatching critique of the prosecution's overblown claims of mental illness and risk, Judge Friedman opined that sex offender Markis Revland had fabricated accounts of child molestation in order to placate therapists at the Butner prison.

In Neuhauser's case, Judge Boyle stated that even if hebephilia was a legitimate diagnostic label, the government still did not meet its burden of proving by clear and convincing evidence that the convicted sex offender is at a high risk to reoffend.

He credited the defense experts' analyses of risk as being more accurate than the prosecution's. Wollert relied on an actuarial tool he helped to develop, the Multisample Age-Stratified Table of Sexual Recidivism Rates (MATS-1). (See my review here.) Other actuarial tools used by the various experts included the Static 99-R, the Static 2002-R and the MnSOST-R, which is widely known to overestimate sex offenders' risk of recidivism.

"It should be noted that results of these assessments depend heavily on the choice of reference group to which the respondent is compared," the judge aptly noted. "Because Drs. Wollert and Lytton analyzed their actuarial results in light of Mr. Neuhauser's advanced age, his ability to control his behavior while in the community, his pattern of offending (in particular, the fact that his first victim was by force and later victims willingly participated even though they could not give legal consent due to their age), and the fact that Mr. Neuhauser had not been subject to any deterrent sanctions until his most recent prison sentence, the Court finds their actuarial assessments to more accurately reflect Mr. Neuhauser's likelihood of recidivism."

Boyle said he was impressed by the offender's honesty, remorse and genuine desire to control his illegal behavior: "He openly discussed his sexual orientation toward pubescent boys but demonstrated a true understanding that boys of that age are unable to legally consent to sexual activity, even if they appear to him to be willing to engage in sexual contact…. Mr. Neuhauser's sexual orientation toward pubescent boys … is, standing alone, insufficient to justify his civil commitment under the Adam Walsh Act.… [T]here must be proof of serious difficulty in controlling behavior."

Boyle, by the way, is no political liberal. A former legislative assistant to arch-conservative Senator Jesse Helms of North Carolina, he was appointed to his present post by President Ronald Reagan back in 1984. Democrats later blocked President George W. Bush’s attempt to elevate him to an appellate judgeship, citing concerns over his civil rights record.

Neuhauser will be under parole supervision for five years, during which time he must undergo sex offender treatment and polygraph testing, avoid contact with minors, and submit to other special restrictions.

Further information on the hebephilia controversy is HERE.

New Scientist expose of psychiatry’s "civil war"

Proposed diagnoses of hebephilia and paraphilias NOS critiqued

On Saturday, the world's leading science and technology news weekly is publishing a scathing expose of the political and financial shenanigans underlying the DSM-V revision process. Accompanying the report in the New Scientist is an editorial calling for a halt to the print version of the American Psychiatric Association's money-making diagnostic bible:

The final wording of the new manual will have worldwide significance. DSM is considered the bible of psychiatry, and if the APA broadens the diagnostic criteria for conditions such as schizophrenia and depression, millions more people could be placed on powerful drugs, some of which have serious side effects. Similarly, newly defined mental illnesses that deem certain individuals a danger to society could be used to justify locking these people up for life.

Given such high stakes, we should all be worried by the controversy. Proponents of some of the changes are being accused of running ahead of the science, and there are warnings that the APA is risking "disastrous unintended consequences" if it goes ahead with plans to publish DSM-V, as the new manual will be known, in 2012.

"Psychiatry’s civil war" is the title of the hard-hitting expose by award-winning science writer Peter Aldhous, San Francisco bureau chief for New Scientist magazine.

As Aldhous reports, professional disputes over the form and content of the upcoming edition "are getting ugly." He notes that respected Duke University scholar Jane Costello has resigned from the work group on childhood and adolescence disorders, citing a lack of scientific rigor across the whole DSM revision. "I felt that there was not enough empirical work being achieved or planned," she says.

In a sidebar, Aldhous shines a spotlight on controversial proposals of pivotal importance to forensic psychology, including the pseudoscientific diagnosis of "hebephilia" that I have previously blogged about:

You may have never heard of "hebephilia", but this obscure diagnosis has huge significance in the courts. If it becomes accepted it could lead to hundreds of sex offenders who have served their jail time being locked up indefinitely - on grounds that some say are spurious.

The proposed diagnosis has been condemned by critics as dangerously blurring the boundary between paedophilia and normal male attraction to teenage girls -- which isn't necessarily acted upon. Karen Franklin, a forensic psychologist in El Cerrito, California, argues that the diagnosis makes a disease out of preferences that have been shaped through human evolution. "People didn't used to live so long and mating started earlier," she says.

The work group is also considering whether some men are specifically turned on by rape -- a proposed condition termed paraphilic coercive disorder. Again, the evidence is based largely on measurements of penile blood flow in response to sexual images and stories, and the validity of the condition is hotly contested.

The rows over hebephilia and paraphilic coercive disorder aren't academic, because 20 US states have passed laws that allow sex offenders who have served their sentences to be detained indefinitely in a secure hospital if they are deemed "sexual predators." This can only be done if the offenders have a psychiatric disorder that increases their risk of reoffending -- which few do, according to DSM-IV.

Franklin says that if hebephilia and paraphilic coercive disorder make it into DSM-V, they will be seized upon to consign men to a lifetime of incarceration.

In a call to put the brakes on this speeding train, the New Scientist's accompanying editorial points out that this would hurt the coffers of the American Psychiatric Association, which has earned more than $40 million since 2000 from DSM sales. But, the editorial concludes, "it's hard to see who else stands to gain from the current exercise -- and if the critics' dire predictions come to pass, patients will be the biggest losers."

APA rejects "hebephilia," last standing of three novel sexual disorders

To hear government experts on the witness stand in civil detention trials in recent months, the novel diagnosis of "hebephilia" was a fait accompli, just awaiting its formal acceptance into the upcoming fifth edition of the influential Diagnostic and Statistical Manual of Mental Disorders (DSM).

They were flat-out wrong.

In a stunning blow to psychology's burgeoning sex offender processing industry, the Board of Trustees of the American Psychiatric Association rejected the proposed diagnosis outright, not even relegating it to an appendix as meriting further study, its proponents' fall-back position.

The rejection follows the failure of two other sexual disorders proposed by the DSM-5's paraphilias subworkgroup. These were paraphilic coercive disorder (or a proclivity toward rape) and hypersexuality, an inherently hard-to-define construct that introduced the committee members' value judgments as to how much sex is within acceptable limits.

After abandoning those two disorders, the subworkgroup clung tenaciously to a whittled-down version of its proposed expansion of pedophilia to cover sexual attraction to early pubescent youngsters (generally in the age range of 11-14), ignoring widespread opposition from both within and outside of the APA.

The buzz is that senior psychiatrists in the APA were unhappy with the intransigence of psychologists in the subworkgroup who communicated the belief that if they just stuck to their guns, they could force the ill-considered proposal into the new manual, despite a lack of scientific support.

All three proposed sexual disorder expansions were widely critiqued by mental health professionals, especially those working in the forensic contexts in which they would be deployed. They led to a spate of critical peer-reviewed publications (including a historical overview of hebephilia by yours truly, published in Behavioral Sciences and the Law), and an open letter to APA leadership from more than 100 professionals, including prominent forensic psychologists and psychiatrists in the U.S. and internationally.

The unequivocal rejection sends a strong signal of the American Psychiatric Association's continuing reluctance to be drawn into the civil commitment quagmire, where pretextual diagnoses are being invoked as excuses to indefinitely confine sex offenders who have no genuine mental disorders. In marked contrast with the field of psychology, psychiatry leaders have expressed consistent concerns about the use of psychiatric labels to justify civil detention schemes.

Next time around, the APA might want to do a better job selecting committee members in the first place. The "paraphilias subworkgroup" was heavily biased in favor of hebephilia because of its domination by psychologists from the Canadian sex clinic that proposed the new disorder in the first place, and is the only entity doing research on it. But what a waste of time and energy to create a committee that comes up with wild and wacky proposals that are only going to end up getting shot down when the rubber meets the road.

Backpedaling on paradigm shift

As regular readers of this blog know, the DSM-5 developers' grand ambitions to bring forth a revolutionary "paradigm shift" produced alarm among mental health professionals and consumer advocacy groups both in the United States and internationally. The British Psychological Society, the UK's 50,000-member professional body, issued a strongly worded critique, and a coalition of psychological associations garnered more than 14,000 signatures on a petition opposing the wholesale lowering of diagnostic thresholds for disorder.

Yesterday's news release marked an about-face, with the APA now stressing that diagnostic changes in the DSM-5 were intended to be "very conservative."

"Our work has been aimed at more accurately defining mental disorders that have a real impact on people’s lives, not expanding the scope of psychiatry," said David J. Kupfer, MD, chair of the DSM-5 Task Force.

Consistent with this, several of the proposed changes that generated the most widespread alarm were rejected. The Board of Trustees rejected the highly controversial "attenuated psychosis syndrome" that could have created an epidemic of false positives, stigmatizing eccentric young people and lowering the threshold for prescribing potentially harmful antipsychotic drugs. It also backed away from an equally controversial, and complex, revamping of the personality disorders. These conditions, as well as a contentious Internet gaming disorder, will all be placed in "section 3" of the new manual as conditions meriting further study.

Allen Frances, the DSM-IV Task Force chair and a high-profile critic of the DSM-5 project, called the spin that the DSM-5 will have minimal impact on psychiatric diagnosis and treatment "misleading":

"This is an untenable claim that DSM 5 cannot possibly support because, for completely unfathomable reasons, it never took the simple and inexpensive step of actually studying the impact of DSM on rates in real world settings…. Except for autism, all the DSM 5 changes loosen diagnosis and threaten to turn our current diagnostic inflation into diagnostic hyperinflation. Painful experience with previous DSM's teaches that if anything in the diagnostic system can be misused and turned into a fad, it will be. Many millions of people with normal grief, gluttony, distractibility, worries, reactions to stress, the temper tantrums of childhood, the forgetting of old age, and 'behavioral addictions' will soon be mislabeled as psychiatrically sick and given inappropriate treatment."

Among the controversial diagnostic changes that will go forward in the DSM-5, due to be published in mid-2013:

• Asperger’s syndrome is being eliminated as a separate disorder (it will be folded into an autism spectrum disorder)
• Depression is being expanded to include some grief reactions
• A brand-new "disruptive mood dysregulation disorder" has critics fearing psychiatric labeling of children who have temper tantrums

Two other sets of changes have particular relevance to forensic practitioners. Substance abuse disorders have been reframed as "behavioral addictions," which Frances warns could be a "slippery slope" leading to "careless overdiagnosis of internet and sex addiction and the development of lucrative treatment programs to exploit these new markets."

Posttraumatic stress disorder (PTSD) will be included in a new chapter on trauma and stress-related disorders, with four distinct diagnostic clusters instead of the current three, and "more attention to the behavioral symptoms that accompany PTSD." Some worry that the reconfigured PTSD may lend itself to misuse of the hot-button diagnosis in forensic cases.

Yesterday’s APA news release outlining the changes can be found HERE. My hebephilia resource page is HERE.

Latest hebephilia critiques: Point-counterpoint

I've just updated my Hebephilia and the DSM-5 Controversy resources page with two new articles in the Archives of Sexual Behavior critiquing the proposed diagnosis of pedohebephilia.

Green: Moral standards masquerading as science

In his boldly titled "Sexual Preference for 14-Year-Olds as a Mental Disorder: You Can’t Be Serious!!," prominent psychiatrist and sexologist Richard Green pulls no punches. Green, who teaches at the Imperial College of London, served on the Gender Identity Disorders subcommittee for DSM-IV. Back in the 1970s he was a forceful advocate for removing homosexuality from the manual of mental illnesses, a struggle he references in his current critique:

The parody of science masquerading as democracy made a laughing stock of psychiatry and the APA when it held a popular vote by its membership on whether homosexuality should remain a mental disorder. Decreeing in a few years time that 19-year-olds who prefer sex with 14-year-olds (5 years their junior) have a mental disorder … will not enhance psychiatry’s scientific credibility.

As he points out, the age of legal consent in several European countries falls within the range that the proposed pedohebephilia disorder would make pathological for the older participant:

If the general culture is accepting of participation by the younger party, but psychiatry pathologizes participation by the older party, then the mental health profession pronounces a moralistic standard and, if successful, becomes an agent of social control.

Green goes on to catalog "biased terms" and "logically frail arguments" in the proposal. In this, he joins a growing chorus of voices sounding the alarm about myriad problems with the proposed pedohebephilia diagnosis.

O'Donohue: Let's go even further

Coming at it from the opposite angle of most critics is William O'Donohue, a psychology professor at the University of Nevada at Reno and co-editor of the second edition of the widely consulted text Sexual Deviance.

O'Donohue argues for keeping it simple: "any sexual attraction to children … is a pathological, abnormal condition." His proposed diagnosis reads as follows: "The person is sexually attracted to children or adolescents under the age of 16" as evidenced by (1) self report, (2) laboratory findings, and/or (3) past behavior. Whether the person has acted on his or her attractions would not matter. The number of victims would not matter. And internal distress would not be required.

O'Donohue expresses a lack of concern over the inevitable false positive errors that such a broad net would ensnare. He argues that we should be more concerned about false negative errors -- pedophiles who escape diagnosis when the criteria are too narrow, for example when more than one known victim is required. And he applauds the move to expand pedophilia to include hebephilia, or attraction to pubescent minors.

Prosecution-retained evaluators in U.S. civil commitment cases will be salivating at the prospects for this one. But consider the source. O'Donohue is the psychologist who has argued for subjecting gay and lesbian parents to special scrutiny in child custody evaluations. (Respected child custody experts Jonathan Gould, David Martindale, and Melisse Eidman wrote an outstanding counterpoint, summarizing the empirical research as indicating that "sexual orientation is not a pertinent factor when considering the best psychological interests of children." In the interest of full disclosure, I share that view, as I wrote in an article published in the same journal a few years earlier.)

And, despite his support for diagnostic expansion, even O'Donohue concedes that the psychometric properties of the proposed diagnosis remain unknown. In other words, neither its reliability nor its validity have been empirically established. A wee problem, that.

A list of published articles on the hebephilia debate, with links to the publisher's web pages, is HERE. For the newest additions, look for the "NEW" icon towards the bottom of the page.

Greetings from Bismarck, North Dakota

Here on the northern edge of the Great Plains, the local folk, of hardy Norwegian and Swedish stock, are strolling around as if it's a balmy day. Not me. Breathing steam into the 14-degree (-10 Celsius) air, I’m bundled up in a parka, ear muffs and gloves and still feel like an iceberg!

I’m up here at the behest of the state Supreme Court, giving a training to the judges on psychiatric diagnosis in court.

North Dakota is a sparsely populated state with the lowest crime rate in the nation, and the judicial community is tight-knit. Ninety percent of the state’s judges – from trial judges to Supreme Court justices – were crowded into the hotel ballroom.

It was hard to distill a day-long training into just two hours, but fortunately the well-informed and inquisitive judges brought up some of the omitted topics in the question-and-answer period. They seemed especially intrigued to learn of the reliability issues plaguing DSM-5 diagnoses, and the research on adversarial allegiance and psychopathy by Murrie and Boccaccini’s crew down in Texas and Virginia.

In 1997, North Dakota’s legislature jumped on the bandwagon and enacted a sexually violent predator law (here called a Sexually Dangerous Individual, or SDI, law), ushering in the circus of experts battling over diagnoses and risk assessment techniques that we see in the other 40 percent of U.S. states with such laws. So, naturally, someone asked about hebephilia, which testifying experts had falsely assured them would be in the DSM-5.

That reminds me: I just testified as a pure expert in a Frye evidentiary hearing in Washington on whether hebephilia was a generally accepted construct in the relevant scientific community. The judge ruled against hebephilia, but allowed an even-more-suspect "Paraphilia Not Otherwise Specified" diagnosis that the evaluator candidly admitted he had made up for that specific case.

North Dakota, by the way, holds the distinction of being the only U.S. state that has not adopted either the Daubert or Frye standard for evidence admissibility. It has its own unique rule that is very liberal. Still, as anywhere, judges bear the burden of being the evidentiary gatekeepers.

Talking with the judges after my session gave me a greater appreciation for the difficulties they face. Politicians pass laws, many ill-conceived, and then judges get stuck having to figure out how to enforce them, as best they can.

Sexual violence prevention: Recommended journal issue

The current issue of the International Journal of Law and Psychiatry features an excellent collection of diverse scholarship on the prevention of sexual violence. Papers address the empirical and moral foundations of prevention from the perspectives of law, psychiatry, criminology, psychology, and public policy. Here's a preview of a couple of the articles I've read so far….
 

Paraphilia battle pivotal to future of U.S. civil liberties

Jerome Wakefield, a professor at New York University and an influential theorist of mental disorder, provides a searing analysis of the messy paraphilia debacle that the DSM-5 task force has waded into. After providing a brief history, he dissects the current proposals to show how their conceptual invalidity will open the door to widespread abuse in forensic practice:

 

Needless to say, prosecutors availing themselves of civil commitment processes and wishing to keep offenders from release find it in their interest to argue for the most expansive possible interpretation of the DSM criteria for paraphilic disorders -- lending enormous weight to the details of the diagnostic criteria…. The convenience of these criteria in forensic evaluations seems more than offset by the potential for prosecutorial abuse and the long-term undermining of the credibility of the distinction – sanctioned by the Supreme Court as a constitutionally crucial one – between mental disorder-driven behavior and other motives for criminal behavior.

Wakefield joins the ranks of other respected figures to recognize the high stakes involved in the battle over whether sex crimes equate to mental disorder. As he bluntly puts it, the struggle over how sexual paraphilias are defined is “tactically central to the future of civil liberties in our country.” If the government can indefinitely detain men who have served prison time for sex crimes based on bogus psychiatric labels that supposedly impair their volitional control, it's only a matter of time before other groups are rounded up, too. 

Of all of the controversial paraphilias, Wakefield asserts, the “most flawed and blatantly overpathologizing” is pedohebephilia, which would expand pedophilia to encompass attraction to pubescent minors. Arguments by its proponents are both weak and misleading, he writes:

The first argument for the expanded category is that hebephilia is similar to pedophilia in that both involve attraction to physically immature individuals. This is about as valid an argument as saying that both dyslexia and illiteracy involve difficulties reading, thus illiteracy should be considered a disorder. The kind of immaturity involved in pubescence is vastly different from the kind in prepubescence from the specific perspective of its ability to trigger normal sexual interest, so in fact the dissimilarity is more important than the similarity…. The other two arguments – that some prosecutors are currently using the diagnosis “Paraphilia Not Otherwise Specified (Hebephilia)” and that the ICD [the World Health Organization’s diagnostic system] allows sexual preference for early pubescence as a disorder – ignores the critical question of whether these uses are valid…. Hebephilia as a diagnosis violates the basic constraint that disorder judgments should not be determined by social disapproval. This is a case where crime and disorder are being hopelessly confused.

Although the sexual disorders work group has backed down on two of its three most controversial proposals, it is clinging tenaciously to pedohebephilia, the brainchild of the Canadian laboratory that employs two members of the work group. Hopefully, a newly established scientific review committee for the DSM-5 will heed the increasingly strong warnings emitting from mainstream social scientists and psychology-law practitioners such as Wakefield, and have the common sense to squelch this ridiculous proposal. Otherwise, as Wakefield puts it, “the forensic tail [will be] wagging the validity dog, and we are likely to get criteria that possess a misdirected pseudo-validity that will not serve us in the long run and set a dangerous precedent for future tensions between civil liberties and civil commitment for mental disorder.”

Inevitable recidivism: An urban legend

Tamara Rice Lave, a law professor at the University of Miami, tackles the essential premise underlying current social policy toward sex offending: that apprehended sex offenders (especially child molesters) will continue to re-offend. As Lave shows, the courts and the public accept this premise with an unquestioning and almost religious fervor, ignoring a growing body of empirical evidence to the contrary.

Inevitable recidivism has saturated the media, political and popular discourse, and thus it has become the dominant frame due to its availability…. This sets up a dialectical process in which the public believes that sex offenders inevitably recidivate; the media write stories that bolster this belief, and politicians pass laws that are responsive to this belief. The effect is to have inevitable recidivism become a socially constructed fact.

When actual evidence of sex offender recidivism is examined, a huge gap exists between what is assumed and what the data actually shows because most sex offenders do not in fact recidivate. Thus there is a galaxy of sexually violent predator laws and an entire branch of Supreme Court jurisprudence that is founded upon a demonstrable urban legend.

The special issue, Beyond Myth: Designing Better Sexual Violence Prevention, was co-edited by professors Eric Janus (author of Failure to Protect, an essential text on sex offender law and policy) and John Douard. Both are, like myself, firm believers that we should be focusing scarce resources on primary prevention of sexual violence rather than on misguided campaigns rooted in moral panic and hysteria. Such campaigns are not only ineffectual, but they may actually increase the very problems they are aimed at solving.

The articles are:

Jerome C. Wakefield:  DSM-5 proposed diagnostic criteria for sexual paraphilias: Tensions between diagnostic validity and forensic utility [request from author HERE]

Tamara Rice Lave: Inevitable recidivism: The origin and centrality of an urban legend  [full text available online HERE]

A preview of all of the articles in the special issue, Beyond Myth: Designing Better Sexual Violence Prevention, is HERE. Clicking on a preview of an article allows one to email the author to request a reprint.

USA Today probe: Federal SVP program crumbling

Constitutionality of lengthy sex offender detentions questioned

In the six years since the U.S. government authorized civil detention for dangerous sex offenders, it has sought to commit 136 men. Out of those, it has won civil commitments of only 15, or 11 percent.

In contrast, it has either lost, or been forced to dismiss, 61 cases, or 45 percent. (Actually, make that 62.*)

The remaining 59 men (43 percent) are languishing in prison, locked in legal limbo while their cases await resolution. (A 136th man has died.)

An investigative report by USA Today paints a picture of federal prosecutors and their prison "experts" as flailing in their efforts to establish that they qualify as "sexually dangerous persons." The legal criteria for this designation include a history of sexually violent conduct or child molestation and a mental illness that would cause the person difficulty in refraining from such behavior if released.

I put the word "expert" in quotes because many of the prison psychologists drafted to conduct these evaluations and testify in court had no prior experience and little or no training when the law went into effect. As the former psychologist in charge told USA Today, "It was rushed, and initially, I believe, quality probably suffered."

The government's cases "have crumbled because of weak evidence, faulty psychological evaluations and an inability to convince judges the detainees have mental conditions so serious they will find it difficult to not re-offend," the USA Today reports. Due to the low levels of recidivism among convicted sex offenders, "even when the government can prove someone committed sex crimes, it has struggled to show he remains dangerous."

Brad Heath and Amanda Muscavage reviewed thousands of pages of legal filings and interviewed dozens of attorneys, psychologists and former detainees for their report. Their interactive website includes links to 290 documents that they have made available online.

USA Today reporter Brad Heath

In one amazing quote, the psychologist who formerly ran the civil commitment program at Butner, the prison in North Carolina where the detainees are being held, all but admits that clinicians certified men as sexually dangerous even knowing that they did not meet the legal criteria.

"If we thought someone was really dangerous but there wasn't a strong legal case, we might very well still push it for the public interest," Anthony Jimenez said. "Hopefully justice is served in the end."

This is the "consequentialist" approach advocated by some in the sex offender industry, who claim that sexually violent predator cases represent an exception to general forensic practice, in which the end (protecting the public) justifies the means. If anything, however, the high stakes involved when people are threatened with a loss of liberty for something that they might do in the future would seem to demand the opposite approach, of even greater caution and transparency in diagnosis and risk assessment.

As Fred Berlin, the director of the Sexual Behaviors Consultation Unit at the Johns Hopkins Hospital, told the reporters: "We need to be very, very careful in a free society about a system in which a group of people can make statements that result in someone being deprived of their liberty for a future crime. If it's going to be done, it has to be done in a just and fair manner."

One reason for the government’s quagmire is that the federal cases are decided by a judge, rather than a jury. The seasoned judges hearing these cases are less likely to let their emotional reactions to past crimes, some of them pretty upsetting, distract them from the government's legal burden of proof.

For example, in the recent trial of Markis Revland (which I blogged about HERE), the offender had admitted to 149 child molestations. However, the judge found that the government had failed to prove that any of these incidents actually happened, or that Revland had a genuine mental illness.

Similarly, at the trial of Jeffrey Neuhauser (which I blogged about HERE), the judge rejected the controversial label of "hebephilia" as a legitimate mental illness qualifying someone for involuntary detention.

Unfortunately, because they only had access to records that have been made public, the USA Today team didn't have the 411 on some of the most egregious attempts to civilly detain low-risk prisoners. In one case I am familiar with, the government spent four years pursuing civil commitment against a man who was quite clearly not mentally ill, not a rapist, not a pedophile, and not dangerous, only to dismiss the case on the eve of trial.

This case points to an aspect that I wished the USA Today team had delved into: The unusual nature of the federal sex offender population. Although those eligible for civil commitment are supposed to be the worst of the worst, in reality Butner's population is heavily weighted toward an unlikely admixture of:

• Men convicted of possessing or distributing online child pornography, criminalized in 2003, and

• Native Americans.

The second group was the surprise to me. Unlike routine sex offenses that are prosecuted in state courts, crimes committed on Indian reservations are federal offenses.

Up until now, neither the U.S. Justice Department nor any watchdog agency has expressed public concern with whether the the federal civil commitment scheme, with its haphazard and capricious implementation, passes Constitutional muster.

Hopefully, this USA Today report will bring some much-needed attention to just what is going on down there in North Carolina.

Prior blog posts about the federal civil commitment prosecutions:

• Civil commitment petition against Butner, NC prisoner dismissed (Jan. 5, 2012)
• Federal judge tosses hebephilia as basis for civil detention (Jan. 20, 2012)

*The situation remains fluid. Right after the publication of the USA Today report five days ago, I have learned that the government lost yet another trial. This despite a 200-page report from a government expert assigning Steven Wiseman a panoply of mental disorders, including pedophilia, hebephilia and antisocial personality disorder.

Australians: Proposed paraphilia diagnoses 'dangerously circular'

Proposed expansions of the sexual disorders in the DSM are getting negative attention Down Under, with critics worried about the blurring of lines between bad behavior and mental illness, according to an article in today's Sydney Morning Herald.

The article in Australia's fourth-largest newspaper focuses on the expansion of pedophilia to include a hebephelic subtype and the placement of a "so-called paraphilic coercive disorder" (rape-proneness) in the upcoming manual's appendix as a proposed condition meriting further study.

Most mental health professionals in Australia use the American Psychiatric Association's diagnostic nomenclature, enshrined in the Diagnostic and Statistical Manual of Mental Disorders (DSM), rather than the International Classification of Diseases (IMD), the international standard promulgated by the World Health Organization.

Australian psychiatrists and psychologists worry that the sexual disorder expansions will pave the way for more civil detention, in violation of the United Nations' International Covenant on Civil and Political Rights or, conversely, may be used by sex offenders to minimize or avoid legal punishment.

Indeed, in a case currently in the news in Melbourne, a well-known chef who sexually exploited vulnerable 13- and 14-year-old girls has introduced expert testimony on hebephilia as a mitigating factor. At a presentencing hearing, a defense-retained psychiatrist testified that Simon Humble suffered from hebephilia and would find prison difficult.

In addition to quoting clinicians and scholars in Australia, reporter Amy Corderoy reached across the Pacific to discuss the issue with your faithful blogger, a recent guest in Queensland; her article links back to this blog.

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

Courts cling to DSM as "bible"

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

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

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

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

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

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

Sexual paraphilias

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

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

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

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

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

Antisocial personality disorder

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

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

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

Posttraumatic stress disorder

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

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

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

Intellectual functioning and the death penalty

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

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

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

Other specified or unspecified disorder

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

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

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

Forensic caveat

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

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

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

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

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

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