Hebephilia flunks Frye test

Photo credit: NY Law Journal

In a strongly worded rejection of hebephilia, a New York judge has ruled that the controversial diagnosis cannot be used in legal proceedings because of “overwhelming opposition” to its validity among the psychiatric community.

Judge Daniel Conviser heard testimony from six experts (including this blogger) and reviewed more than 100 scholarly articles before issuing a long-awaited opinion this week in the case of “Ralph P.,” a 72-year-old man convicted in 2001 of a sex offense against a 14-year-old boy. The state of New York is seeking to civilly detain Ralph P. on the basis of alleged future dangerousness.

State psychologist Joel Lord had initially labeled Ralph P. with the unique diagnosis of sexual attraction to “sexually inexperienced young teenage males,” but later changed his diagnosis to hebephilia, a condition proposed but rejected for the current edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-5).

Under the Frye evidentiary standard, designed to bar novel scientific methods that are not sufficiently validated, a construct must be “generally accepted” by the relevant scientific community before it can be relied upon in legal proceedings.

Judge Conviser found that hebephilia (generally defined as sexual attraction to children in the early stages of puberty, or around the ages of 11 or 12 to 14) is being promoted by a tiny fringe of researchers and in practice is used almost exclusively as a tool to civilly commit convicted sex offenders. Under U.S. Supreme Court rulings, such offenders must have a mental disorder in order to qualify for prolonged detention after they have served their prison terms.

“It is not an accident, as Dr. Franklin outlined, that hebephilia became a prominent diagnosis only with the advent of SVP laws,” the judge wrote in his 75-page opinion. “It is also not a coincidence that each of the three expert witnesses who testified for the State at the instant hearing either work or formerly worked for state [Sexually Violent Predator] programs.”

Conviser’s ruling analyzed both the practical problems in reliably identifying hebephilia and the political controversies swirling around it: Without any standardized criteria, “clinicians are free to assign hebephilia diagnoses in widely disparate ways, many of which are just plainly wrong.” Using age as a proxy for pubertal stage is no guarantee of reliability because pubertal onset is highly variable. Ultimately, he concluded, whether erotic interest in pubescent minors is deemed "pathological" is more about moral values than science.

APA secrecy faulted

The judge was harshly critical of the American Psychiatric Association for its refusal to publicly explain why it rejected hebephilia from the DSM-5 in 2013. The diagnosis was aggressively promoted by a Canadian psychologist, Ray Blanchard, and fellow researchers from Canada’s Centre for Addiction and Mental Health (CAMH), who dominated the DSM-5 subcommittee on paraphilias.

Blanchard rewrote the DSM section on paraphilias (sexual deviances) in a broad way such that virtually all sexual interests other than a narrowly defined “normophilic” pattern became pathological. However, the APA rejected Blanchard’s proposal to expand pedophilia to pathologize adult sexual attractions to pubescent-aged (rather than just prepubescent) minors.

“The proposal was apparently rejected because it was greeted with a firestorm of criticism by the sex offender psychiatric community, which was communicated to the APA board…. As best as this Court can surmise, the APA rejected the pedohebephilia proposal because it was opposed by most of the psychiatrists and psychologists who worked in the field.”

“[S]trikingly,” wrote Judge Conviser, “the process through which proposed new diagnoses are approved or rejected is shrouded in a degree of secrecy which would be the envy of many totalitarian regimes…. With respect to hebephilia, the APA board’s actions will have a direct impact on both public safety and the fundamental liberty interests of hundreds or thousands of people.”

The APA forces those involved in the DSM revision process to sign nondisclosure contracts. That policy came in the wake of a series of published exposes – including Christopher Lane’s Shyness: How Normal Behavior Became a Sickness, Jonathan Metzl's The Protest Psychosis, and Ethan Watters’s Crazy Like Us (to name just a few of my favorites) -- that embarrassed the world’s largest psychiatric organization by shining a light inside the often subjective and political process of diagnosis creation and expansion.

“Overwhelming” opposition

Blanchard and his CAMH colleagues’ 2009 proposal to expand pedophilia into a new “pedohebephilia” diagnosis in the DSM-5 spawned a massive outcry, which mushroomed into at least five dozen published critiques.

In preparation for my testimony at this and similar Frye hearings in New York, I expanded on my 2010 article in Behavioral Sciences and the Law tracing hebephilia’s rise from obscurity, to produce an updated chart containing all 116 articles addressing the construct. If one tallies only those articles that take a position (pro or con) on hebephilia and are not written by members of the CAMH team, fully 83% are critical as compared to only 17% that are favorable. This, Judge Conviser noted, is strong evidence against the government’s position that hebephilia is “generally accepted” by the relevant scientific communities.

“The thrust of the evidence at the hearing was … clear: there was overwhelming opposition to the pedohebephilia proposal in the sex offender psychiatric community,” he wrote. “There is overwhelming opposition to the hebephilia diagnosis today.”

Courts scrutinizing nouveau diagnoses

With the APA’s rejection of hebephilia as well as two other proposed sexual disorders (one for preferential rape and another for hypersexuality), government evaluators continue to shoehorn novel, case-specific diagnostic labels into the catchall DSM-5 category of “other specified paraphilic disorder” (OSPD) as a basis for civil commitment.

Under a 2012 New York appellate court ruling in the case of State v. Shannon S., upon a defense request, a Frye evidentiary hearing must be held on any such attempt to introduce an OSPD diagnosis into a Sexually Violent Predator (SVP) case. That has triggered a spate of Frye hearings in the Empire State, affording greater scrutiny and judicial gatekeeping of scientifically questionable diagnoses.

Ironically, although the Shannon S. court upheld hebephilia by a narrow 4-3 margin, Shannon S. would not have met diagnostic criteria under the narrower definitions presented by the government experts at Ralph P.’s Frye hearing four years later, because his victims were older than 14.

“Assuming hebephilia is a legitimate diagnosis, Shannon S., like many SVP respondents, was apparently diagnosed with the condition not based on evidence he was preferentially attracted to underdeveloped pubescent body types but because he offended against underage victims,” Judge Conviser observed in his detailed summary of prior New York cases.

The three dissenting judges in Shannon S. were adamant that hebephilia was “absurd,” and an example of “junk science,” deployed with the pretextual goal of “locking up dangerous criminals” who had committed statutory rapes.

The opening of the Frye floodgates has led to a flurry of sometimes-competing opinions.

In 2015, in State v. Mercado, Judge Dineen Riviezzo ruled against “OSPD--sexually attracted to teenage females” as a legitimate diagnosis. However, she declined to rule on the general acceptance of hebephilia because it was not specifically diagnosed in that case.

A year later, relying on similar evidence, a judge in upstate New York ruled in State v. Paul V. that hebephilia was generally accepted, in large part because it was backed by the APA’s paraphilias sub-workgroup. Judge Conviser found that reasoning unpersuasive, pointing out that the subworkgroup was dominated by the very same CAMH researchers who were hebephilia’s primary advocates; it was therefore “not a valid proxy" for the scientific community.

In July, another court rejected both hebephilia and “OSPD--underage males” as valid diagnoses, in the cases of Hugh H. and Martello A. The court noted that hebephilia is inconsistently defined, was rejected for the DSM-5, and is primarily advanced by one research group; further, attraction to pubescent minors is not intrinsically abnormal.

Cynthia Calkins, a professor at John Jay College of Criminal Justice in New York, echoed those points in her testimony at Ralph P.'s hearing. She noted that in the United States, the main psychologists advocating for hebephilia are government-retained evaluators in SVP cases, who make up only perhaps one-fourth of one percent of psychologists and psychiatrists in the U.S. and so cannot be a proxy for “general acceptance” in the scientific community.

The government’s choice of experts illustrated Calkins’ point: Testifying for the government were Christopher Kunkle, director of New York’s civil management program for sex offenders, David Thornton of Wisconsin’s civil commitment center, and Robin Wilson, formerly of Florida’s civil commitment center and a protégé of Ray Blanchard’s.

The third expert called by Ralph P.’s attorneys was Charles Ewing, a distinguished professor at the University at Buffalo Law School who is both an attorney and a forensic psychologist and has authored several books on forensic psychology.

Defense attorneys Maura Klugman and Jessica Botticelli of Mental Hygiene Legal Service represented Ralph P. Assistant New York Attorney General Elaine Yacyshyn represented the state.

Ultimately, New York State’s highest court may have to weigh in to resolve once and for all the question of whether novel psychiatric diagnoses like hebephilia are admissible for civil commitment purposes. But that could be years down the road.

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The ruling in State v. Ralph P. is HERE. The subsequent order of Sept. 28, 2016 granting Ralph P.'s motion for summary judgment and dismissal of the civil commitment petition is HERE.

A New York Law Journal report on the case, "judge Rejects Diagnosis for Civil Confinement," is HERE.

A search of this blog site using the term hebephilia will produce my reports on this construct dating all the way back to my original post from 2007, "Invasion of the Hebephile Hunters."

The Trauma Myth, Revisited

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

The Trauma Myth

by Susan Clancy

Book review by Jon Brandt, MSW, LICSW*

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

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

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

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

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

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

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

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

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

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

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

Non-testifying consultants: Does attorney-client privilege apply?

Is the work product of an expert who is retained only as a consultant -- not as a testifying witness -- confidential under the doctrine of attorney-client privilege?

With courts around the United States divided, that was the question before the Georgia Supreme Court in the case of Henry Neuman of Georgia, which I reported on back in 2012.

During Neuman’s high-profile murder trial, the trial judge had allowed prosecutors to introduce the notes of two confidential defense consultants, whom they had identified by snooping through jail visiting logs. The notes contradicted the testimony of the defense’s testifying experts, and Neuman was convicted.

In a 6-1 decision, the Georgia Supreme Court came down solidly on the side of protecting confidentiality. The trial judge's error was harmful enough for the state high court to reverse Neuman’s conviction, paving the way for a retrial.

Non-testifying experts serve as “agent[s] of the defense team,” the court held, so all communication between them and attorneys falls under the privacy umbrella of attorney-client privilege. Even when an insanity defense is raised, “the cloak of privilege” only falls away at the point that defense counsel elects to call an expert as a witness, ruled the court.

Such protection is essential so that attorneys can vigorously defend the accused, by obtaining expert advice on evidentiary strategy or by consulting with multiple experts who may hold conflicting views, without worrying that they are creating adverse witnesses against their client, the court explained:

“The attorney-client privilege is vital in cases such as this one where the defendant’s sanity is at issue because the privilege allows the attorneys to consult with the non-testifying expert in order to familiarize themselves with central medical concepts, assess the soundness and advantages of an insanity defense, evaluate potential specialists, and probe adverse testimony…. [W]ithout the protection of privilege, the defendant’s attorneys run the risk that the psychiatric expert they have hired to evaluate the defendant will render an opinion inconsistent with the defense’s insanity theory and the expert will then be made an involuntary witness for the State.”

This is precisely what happened at Neuman’s trial. Psychologist Peter Thomas and forensic psychiatrist Rand Dorney had conducted initial screenings to assist Neuman’s attorneys in assessing the viability of a criminal responsibility defense. After the trial judge permitted prosecutors to subpoena their records, the defense was forced to call the two as witnesses in order to keep the prosecution from calling them as rebuttal witnesses.

The Georgia Supreme Court ruling is HERE. My prior blog post on the case is HERE. A Fordham Law Review article on this topic is HERE.

Hat tip: Denis Zavodny