A national survey of U.S. statutes on juvenile transfer: implications for policy and practice

A survey of the statutes on juvenile transfer and cecertification in the U.S. federal and 50 state jurisdictions, and the District of Columbia, was performed. Relevant information was obtained on the procedures in each jurisdiction by which a juvenile can be tried in criminal court, whether there are applicable decertification (“transfer back”) procedures in jurisdictions permitting criminal court processing through automatic file or prosecutorial discretion, and the burden and allocation of proof in relevant proceedings. We also identified four criteria relevant to the mental, emotional, and developmental functioning of juveniles that are used in various jurisdictions in making transfer and decertification decisions: treatment needs and amenability, risk assessment of future criminality, the presence of mental retardation or mental illness, and certain kinds of offense characteristics. The majority of jurisdictions now allow 14-year-old juveniles to be tried in criminal court. Treatment needs/amenability and risk assessment are set forth as criteria relevant to transfer in the majority of jurisdictions as well, with the presence of mental retardation or mental illness explicitly relevant in a small number of jurisdictions. The patterns of these findings are discussed in their implications for social policy and for the forensic mental health assessment of juvenile transfer and decertification, with needed areas of research identified within each. ©1997 John Wiley & Sons, Ltd.     

Attitudes among adolescents in a Swedish city toward some sexual crimes

Using data from a representative sample of adolescents in grade ten in Uppsala, the fourth largest city in Sweden, attitudes toward a number of (criminal) sexual acts are studied. These data are contrasted with those from a sample of patients at a school gynecological clinic. It is found that for both samples, only a very limited number of the eight discussed acts are considered to be criminal by the adolescents. Although at least seven or eight acts are criminal in Swedish law, only two acts are considered criminal by about half of the respondents. These acts are pedophilia and rape after petting. The same questions were used by Kutchinsky in 1969 when on behalf of the U.S. Congress Commission on Obscenity and Pornography he studied inhabitants in Copenhagen, Denmark. When comparing data from Uppsala Sweden 1978 with data from Copenhagen, Denmark 1969 we find that Swedish adolescents in the late seventies, on the whole are much less likely to call the discussed acts criminal. The only exception is rape after petting, which in Copenhagen in the late sixties was the act least often seen as criminal but in the Uppsala study in the late seventies it was one of the two acts most often claimed to be criminal. Finally, the effects of coital experience and the effect of sexual knowledge on the percieved criminality of the acts are considered.     

Factors associated with experts' opinions regarding criminal responsibility in The Netherlands

In many jurisdictions, offenders need to have freely chosen to commit their crimes in order to be punishable. A mental defect or disorder may be a reason for diminished or total absence of criminal responsibility and may remove culpability. This study aims to provide an empirically based understanding of the factors on which experts base their judgements concerning criminal responsibility. Clinical, demographic and crime related variables, as well as MMPI-2 profiles, were collected from final reports concerning defendants of serious crime submitted to the observation clinic of the Dutch Ministry of Justice for a criminal responsibility assessment. Criminal responsibility was expressed along a five-point scale corresponding to the Dutch legal practice. Results showed that several variables contributed independently to experts' opinions regarding criminal responsibility: diagnosis (Axis I and II), cultural background, type of weapon used in committing the crime, and whether the defendant committed the crime alone or with others. In contract to jurisdictions involving a sane/insane dichotomy, the Dutch five-point scale of criminal responsibility revealed that Axis II personality disorders turned out to be mostly associated with a diminished responsibility. MMPI-2 scores also turned out to have a small contribution to experts' opinions on criminal responsibility, independently of mere diagnostic variables. These results suggest that experts base their judgements not only on the presence or absence of mental disorders, but also on cultural and crime related characteristics, as well as dimensional information about the defendant's personality and symptomatology.     

The application of civil commitment law and practices to a case of delusional disorder: a cross-national comparison of legal approaches in the United States and the United Kingdom

Legal approaches to civil commitment in the United States and the United Kingdom are compared. A concise overview of the historical evolution of civil commitment in both countries precedes a discussion of the present scheme of commitment standards in each system. These current standards in U.S. and U.K. jurisdictions are then applied to a hypothetical case of delusional disorder. A discussion of the constructive use of civil commitment in patients with delusional disorder who may be dangerous focuses on its value as a preventive measure against potential harm to self or others, as well as the pros and cons of coercive assessment and treatment. Despite the many differences in approach to commitment, the authors concur that in both countries the patient with delusional disorder was committable before the commission of a serious criminal offense.     

Bad or Mad? Personality disorders and legal responsibility-the German situation

Criminal offenders have a high rate of personality disorders (PDS), especially Antisocial Personality Disorders and psychopathy, but criminal acts are not necessarily the result of PD. Findings from psychiatric research suggest that the development of PD is influenced by genetic factors, that can result in deviant traits in temper, emotionality and cognitive style. There is general agreement that those peculiarities and vulnerabilities find their expression and structure only under a complex interplay of stimulating or impairing environmental influences. Do these genetic factors-or other factors-diminish a person's criminal responsibility? There is no difficulty in diagnosing PDs, but the challenging questions arise in forensic assessments of defendants for criminal responsibility who have a PD. This article discusses the German legal situation and special problems created by the term of "diminished" criminal responsibility. In contrast to the Anglo-American legal situation, the German criminal law obliges the court to order an indeterminate forensic - psychiatric confinement, in addition to punishment, if the offender had acted under diminished criminal responsibility and is now still considered to be dangerous. The convicted offender remains under the control of the criminal court during psychiatric hospitalization. The change from handling the personality disordered offender as a criminal to handling him as someone with a mental disorder creates a social option for extended state interventions, including indeterminate hospitalization.     

Potential erosion of psychotherapist-patient privilege beyond California: dangers of "criminalizing" Tarasoff.

The "dangerous patient exception" to psychotherapist-patient privilege, adopted almost a decade before the celebrated case of Tarasoff v. Regents of the University of California (1976), was mentioned in a footnote to that decision in the context of an analogy. Although intended to permit testimony in civil commitment proceedings, this exception has been used to "criminalize" the Tarasoff duty in California. California courts eroded the privilege initially primarily to permit victims to sue psychotherapists and later to require psychotherapists to testify against their patients in criminal proceedings and appear to have confused evidentiary privilege and confidentiality. If consistent, similar reasoning in California in the future should allow therapists to testify against their patients if they were civilly committed in the past for dangerousness and attorneys to testify against their clients in criminal cases if at some earlier time they believed their clients represented a risk of future harm. Although most other jurisdictions may not word their privilege exceptions for civil commitment in the same way as California, most states have some type of privilege exception for civil commitment that could allow for such an interpretation. The United States Supreme Court in Jaffee v. Redmond (1996) found a psychotherapist-patient privilege, but stated in a footnote that an exception to the privilege would exist if a serious threat of harm to the patient could be averted only by means of disclosure by the therapist. Other jurisdictions have begun to consider these issues. Rather than being unique to California, similar reasoning could lead to the "criminalization" of Tarasoff in other jurisdictions and thereby compel therapists outside California to testify against their patients in criminal proceedings.     

Criminal law,multicultural jurisdictions and cultural evidence

This article investigates whether providing minority groups with power over criminal law can create injustices that target lesbians, gays and bisexuals within those groups. In order to carry out the task of evaluating to what extent providing power over criminal law to minority groups can result in negative consequences for lesbian, gay and bisexual individuals, this paper assesses the work of Ayelet Shachar. I contend that her model leaves lesbians, gays and bisexuals within minorities vulnerable because her division of jurisdictions collapses when put into practice; additionally, her principles do not provide normative guidance for avoiding jurisdictions that criminalise homosexuality, and that protect lesbian, gay and bisexual individuals from violence. This rejection of transformative accommodation, however, does not mean that cultural evidence is irrelevant for criminal procedures. Rather, I assert that cultural evidence is relevant for trials and including it does not jeopardise the interests of lesbian, gay and bisexual individuals.     

The Role of a Psychologist in a Forensic Hospital

The role of a psychologist as a forensic specialist in a psychiatric hospital that specializes in patients who are a part of the criminal justice system is discussed. This article describes the dual role of a psychologist in a forensic hospital and pertinent issues that confront a psychologist in such an institution. Emphasis is given to the responsibility that psychologists have, both to the patients in their care and to the society that has entrusted those patients to their care.     

Provider Conscientious Refusal of Abortion,Obstetrical Emergencies,and Criminal Homicide Law

Catholic doctrine’s strict prohibition on abortion can lead clinicians or institutions to conscientiously refuse to provide abortion, although a legal duty to provide abortion would apply to anyone who refused. Conscientious refusals by clinicians to end a pregnancy can constitute murder or reckless homicide under American law if a woman dies as a result of such a refusal. Such refusals are not immunized from criminal liability by the constitutional right to the free exercise of religion or by statutes that confer immunity from criminal homicide prosecution. Core principles of the rule of law require the state to protect the lives of all persons equally and to place the life and health of persons above any the interests of providers have in moral integrity or in respecting the moral status of prenatal humans. In some states criminal liability related to conscientious objection also applies to corporate hospital officials.     

Perceptual reactance and criminal risk-taking

The purpose of this study was to investigate the differential perception of criminal risk by individuals identified as Reducers, Augmenters and Moderates according to their tendency to subjectively alter perceived size. Serious young offenders of both sexes have been found to be overly represented by Reducers. One possible explanation for this is that Reducers, who have a greater tolerance for pain, are less aware of the experiencing of pain by others, rendering them likely to perceive potentially criminal situations as less risky than do Augmenters. The Behavior Prediction Scale and Petrie's kinesthetic aftereffect measure of perceptual reactance were administered to 46 Ss drawn from a university undergraduate population. Reducers were found most willing to take criminal risks. Moderates unwilling to, and Augmenters least willing to. This was not due to differences in sensitivity to the experiencing of pain by others, however, contrary to expectations. The implications of these findings and suggestions for further research are discussed.     

Transitioning Between Systems of Care: Missed Opportunities for Engaging Adults with Serious Mental Illness and Criminal Justice Involvement

Individuals with serious mental illness are overrepresented in the criminal justice system and face difficulties accessing mental health services both during incarceration and upon re‐entry into the community. This study examines how such individuals describe their experiences receiving care both during and after their time in custody and explores the perspectives of mental health service providers who treat this population upon re‐entry. Semi‐structured interviews were conducted with 43 individuals identified as having a history of serious mental illness and criminal justice involvement, as well as with 25 providers who have worked with this population. Clients noted the stress of transitioning to criminal justice settings, the uneven availability of services within jail and prison, and the significant challenges faced upon re‐entry. Providers reported barriers to working with this population, including minimal coordination with the criminal justice system and challenging behaviors and attitudes on the part of both clients and providers. Findings identify potential target areas for improved care coordination as well as for additional provider education regarding the unique needs of this population. Copyright © 2013 John Wiley & Sons, Ltd.     

Mental health criminal defenses in persons with neuropsychiatric disorders

Persons with neuropsychiatric disorders present specific and unique challenges for forensic experts and defense attorneys in the criminal justice system. This article reviews two potential criminal defenses: legal insanity and the various legal standards or tests of criminal responsibility that are used in jurisdictions throughout the United States (i.e., the M’Naghten standard and the American Law Institute's Model Penal Code), and the partial legal defense of diminished capacity (lacking the mental state necessary to be found guilty of a specific intent crime). The process of evaluating criminal responsibility or diminished capacity is also presented with a specific emphasis on common issues that arise in evaluating defendants with Intellectual Developmental Disorder (Intellectual Disability), Parasomnias, Seizure Disorders, and Neurocognitive Disorders.     

Demons are everywhere: The effects of belief in pure evil,demonization, and retribution on punishing criminal perpetrators

Do preconceived beliefs about evil influence perceptions and punishments of those who harm others? We examined the effects of belief in pure evil (BPE), demonization, and belief in retribution on punishment of a stereotypically (vs. non-stereotypically) evil criminal. Participants punished the stereotypically evil perpetrator more (i.e., greater recommended jail time, opposition to parole, and support for his execution) because of increases in demonization (i.e., greater perceptions of the criminal as wicked, evil, and threatening), but not increases in retributive feelings. However, regardless of the criminal’s exhibited stereotypically evil traits, greater BPE predicted harsher punishment of the perpetrator; both greater demonization and stronger retributive feelings mediated the relationship between BPE and severe punishments. Further, effect sizes indicated BPE (vs. the evilness manipulation) more strongly predicted demonization and punishment. Thus, some individuals naturally see perpetrators as demons, and retributively punish them, whether or not there is more explicit stereotypic evidence of their evil dispositions.     

Emerging images of severely battered women and the criminal justice system

The research literature of the 1970s and 1980s created a rather singular image of the battered woman. This image functioned as a standard to be met by battered women who attributed their own acts of violence or their failures to protect their children to the violence they endured. Three severely battered women, Hedda Nussbaum, Frances McMillian and Damian Pizarro illustrate the real diversity that exists. Each woman coped differently with her fear of her abuser's violence and domination. Nonetheless, the experiences of all three were unified by the intensity of their fear and by the fact that their acts (or failures to act) were so serious that they led to these women's involvement with the criminal justice system. The psychological consequences of extraordinary violence and the criminal justice system responses are discussed specifically, in relation to each case. The woman's social class and race are emphasized as important mediators of the criminal justice system response. In the final, general section, questions are addressed about society's role in idealizing the f d y and in silencing, ignoring, acknowledging, and/or solving the problems of severely battered women in desperately violent families.     

Self-harm as a sign of hope

The author describes psychotherapeutic treatment with a woman who uses severe forms of self-harm to express her hope that she can find real understanding and an environment that can respond to her. She discusses the significance of the earliest experiences of maternal care and the particular importance of the skin; she describes how traumatic breakdowns in early care are unconsciously re-created in later assaults on the body, which serve to communicate distress, anger, protest and the hope that a real attempt will be made to relate to the person who self-harms. Self-harm is viewed not as a suicidal gesture, but rather, as an attempt to preserve life, and to represent and contain unbearable states of minds. The author outlines ways in which self-harm can create a narrative and embody unbearable feelings and unspoken thoughts. It is seen as a form of self-expression and communication, both conscious and unconscious, which is not wholly destructive but has important hopeful and self-preservative aims.     

Sexually Violent Predators: Toward Reasonable Estimates of Recidivism Base Rates

The sexual recidivism rate of sex offenders is a controversial issue. Perhaps as controversial is the sexual recidivism rate of the select group of sex offenders who are examined pursuant to sexually violent predator (SVP) statutes. At present, reliable estimates of SVP recidivism are unavailable. We propose that reasonable estimates of SVP recidivism can be reached by considering three available pieces of data: (i) a likely recidivism rate of the general population of sex offenders; (ii) procedures typically followed by jurisdictions that civilly commit sex offenders; and (iii) classification accuracy of procedures. Although sexual recidivism rates vary across jurisdictions, the results of our analyses suggest sex offenders referred for examination pursuant to SVP statutes recidivate at substantially higher rates than typical sex offenders. Our results further suggest that sex offenders recommended for commitment as SVPs recidivate at even greater rates than SVP respondents who are not recommended for commitment. We discuss practice and policy implications of these findings. Copyright © 2013 John Wiley & Sons, Ltd.     

Conflict of interest between therapist-patient confidentiality and the duty to report sexual abuse of children

All 51 jurisdictions in the United States require physicians to report suspected child abuse. In most jurisdictions, reporting requirements override both confidentiality and privilege associated with the physician-patient relationship. The authors review the literature relevant to the conflict between privacy and reporting abuse and report the results of a national survey of therapists at sex offender treatment units. They discuss ethical problems experienced under these statutes by therapists who attempt to provide treatment for sex offenders, and by therapists who are required to report past instances of child abuse even when there is no evidence of ongoing abuse.     

Causation, Liability and Toxic Risk Exposure

ABSTRACT Persons injured as a result of exposure to toxic or carcinogenic substances are seldom able to recover damages from those who are responsible for the exposure. Tort law requires proof of causation, and causation is often unprovable because of long latency periods, because of the relative infrequency of the injuries and because many of the injuries among the exposed population are the result of other factors. A number of proposals for modifying the legal causation requirement to allow those who create hazardous risks to be held liable for the injuries that materialise are considered and found inadequate. A proposal to treat risk exposure itself as an injury for which compensation under private law is possible is also considered and ultimately found incoherent. The paper concludes by arguing for a public law solution, modelled on criminal law, but providing compensation for victims.