Expert Testimony and Sexual Predator Statutes after Hendricks

The recent decision of the United States Supreme Court in Kansas v. Hendricks (1997) upheld a sexual predator statute that authorizes civil commitment of certain sex offenders who have been convicted of sexual offenses and have served criminal sentences for those offenses. This case raises a variety of Constitutional questions in the United States, but it also raises a series of interesting questions about the appropriate scope of expert testimony by psychologists regarding commitments under these statutes. These issues regarding expert testimony are significant both in their own right and because addressing them confronts one with serious difficulties regarding the normative foundations of the statutes. This paper examines the significance of the Court's brief substantive due process analysis for the role of psychological expert testimony regarding commitment under these statutes, and it identifies but does not attempt to resolve the associated normative concerns regarding the justification for commitment under these statutes.     

Sexual predator commitment laws: lessons for law and the behavioral sciences

Sex offender commitment laws use a mental health commitment model to lock up the "most dangerous" sex offenders after their prison sentences expire. In Kansas v. Hendricks, the United States Supreme Court rejected the major constitutional challenges to these laws. The Hendricks case clarifies important ambiguities about the use of civil commitment to enforce "police power" interests, as opposed to "parens patriae" interests. Hendricks also clarifies the role of "treatment" in justifying civil commitment. While there remain some important legal issues to be resolved, the future direction of sex offender commitment schemes will turn most significantly on policy decisions. The behavioral sciences can play an important role in shaping these decisions. The most significant questions concern whether expensive commitment programs are the most effective use of scarce treatment and supervision dollars. Additional research should be directed to improving dynamic predictors of recidivism, operationalizing "inability to control" standards, judging the "social meaning" of commitment laws, and assessing the potential treatment disincentives of these laws.     

Predicting the present: expert testimony and civil commitment

This article uses the Supreme Court's decision in Daubert as an opportunity to address a chronic concern regarding the disparity between mental health law as officially enunciated and the practical application of that law. After Daubert, admissibility of expert evidence under the federal rules requires a qualified expert, a reliable basis for the testimony, and relevance to the legal issue. Ongoing psychological research pursues empirical data that expands the scope of psychological expertise and clarifies its limits. This article addresses the requirement of relevance by examining the logical relationship between the psychologist's actuarial and clinical expertise and the legal issues addressed by the court in civil commitment proceedings. Ideally, Daubert might stimulate a process of cooperative analysis in which psychologists and lawyers clarify the proper roles of psychological experts and of the courts with which those experts interact. This article begins that project by clarifying the legal determination required in civil commitment proceedings and by explicating the relationship between the responsibilities of experts and those of courts.     

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.     

The function of punishment in the "civil" commitment of sexually violent predators

Two experiments find that support for civil commitment procedures for sexually violent predators is based primarily upon the retributive rather than incapacitative goals of respondents. Two discrete samples composed of students (N = 175) and jury-eligible citizens (N = 200) completed experimental surveys assessing their support or opposition to scenarios in which a sexual predator was to be released after completing his criminal sentence. Respondents were sensitive to likelihood of recidivism only when the initial sentence was sufficiently punitive. When initial sentence was lenient, respondents strongly supported civil commitment without regard to future risk. Results are discussed in light of the U.S. Supreme Court's ruling in Kansas v. Hendricks (1997) on the constitutionality of civil commitment laws for sexually violent predators.     

Civil commitment laws in nineteenth-century New York

The roots of nineteenth-century American civil commitment law lay in English common law, in particular poor law, with its mixed motives of helping lunatics and of protecting the community from them. As state institutions assumed an increasingly large share of the burden of restraint in the 1840s and 1850s, such confinement decisions became subject to greater public scrutiny. This can be seen particularly clearly in New York State, which in 1842 passed a law requiring that two physicians examine each alleged lunatic and report their findings to a judge who then made the final commitment decision. After the Civil War, a number of legal decisions limited the state's power to initiate civil commitments to cases of clear social danger, though families were not so confined. An 1874 statute further tightened procedural guidelines for civil commitments. A State Commissioner in Lunacy was appointed to oversee the internal workings of lunatic asylums. Yet such legal “reforms” failed to slow the increasing tendency of both families and communities to use such institutions as long-term holding places for the socially marginal or threatening.     

The future of involuntary civil commitment in the U.S.A. after Kansas v. Hendricks

This article examines new sexual predator commitment laws enacted recently in the United States to civilly commit dangerous sex offenders after they have served their prison sentences. It then examines Kansas v. Hendricks, a Supreme Court case that upheld these laws as constitutionally permitted. The article next describes the broad parameters that demarcate the government's civil commitment authority identified by the Supreme Court in that case. The author concludes that Hendricks establishes that the state has expansive civil commitment power much greater than our previous understanding. The government may use civil commitment solely to protect the public from dangerous individuals without proving a medically recognized mental disorder, recent evidence of dangerousness, or a treatment purpose or possibility. Moreover, this quarantine system may be justified by proving the same unlawful behavior for which the individual has already been criminally punished.     

societal reaction to sex offenders: a review of the origins and results of the myths surrounding their crimes and treatment amenability

Examination of societal reaction to sexual offenders reveals a history of harshness exemplified by the sexual psychopath laws of the 1930s. The latest round of legal attempts to control sex offenders uses Severe sentencing laws, civil commitment procedures and community notification statutes to confine and shame sex offenders. This paper shows these laws to be based on popular beliefs about the predatory nature of these men, the probability of their re-offense and their amenability to treatment rather than the facts about the sex offenses and offenders. The severe reaction to sexual offenders is a vindictive one based on myth and misunderstanding that serves many interests. The paper exposes the contradictory myths and skewed emotions that guide our view of sex crimes and compares these with the facts about re-offense rates and the effects of treatment.     

Neuropsychology, neuroscience, volitional impairment and sexually violent predators: A review of the literature and the law and their application to civil commitment proceedings

The U.S. Supreme Court held in Kansas v. Crane, the person's mental abnormality or personality disorder must cause the individual to have “serious difficulty in controlling his sexual behavior,” rather than “total or complete lack of control.” While most state civil commitment statutes do not mandate this volitional impairment language relevant to loss of control, they instead incorporate the requirement of findings of “likely” or “likelihood” to reoffend. Yet in some of these state SVP hearings, the forensic mental health expert witnesses testify as to the offender's ability to control his sex offending behaviors. Occasionally, some of these experts are neuropsychologists and neurologists who testify about a sex offender's neurological and cognitive impairment resulting in sexually deviant behavior, volitional impairment, and likelihood of reoffending. This article's focus is to assess deviant sexual offending behaviors and volitional impairment through a neuropsychological and neurological lens. The author will provide an analysis of the literature as to the structural and functional neurocognitive processes of sex offending pertaining to neuropathology, neuropsychology, and neuroimaging data. The author will attempt to apply these findings to the legal requirements outlined in Crane necessitating commitment of sex offenders who experience some volitional impairment in their behaviors that lead them to be likely to sexually reoffend. The author will review state case law addressing neuroscience in SVP proceedings.     

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.     

Imminent suicide: the illusion of short-term prediction

The concept of imminent suicide is examined. A search of National Electronic Library for Mental Health, the Cochrane Library, PubMed, OVID and MD Consult databases was conducted using the terms "suicide, imminent." The term imminent frequently appears in the mental health literature, finding common usage among clinicians. It is also a legal term of art embedded in civil commitment statutes; duty to warn and protect statutes and case law, usually under the rubric of dangerousness; and in seclusion and restraint policies. Managed care admission protocols may contain imminence criteria for patients at risk for suicide before approving insurance benefits, yet no suicide risk factors exist for the short-term prediction of suicide.     

Adults sexually abused as children: Legal actions and Issues

This article first briefly discusses the problem of delayed memories and long-term effects of child sexual abuse and the current trend to bring civil lawsuits or criminal prosecutions for childhood sexual abuse. The article addresses the primary obstacle to such actions—the statute of limitations—which in most states places a time limit on when legal actions can be commenced. It describes the purpose of the statute of limitations and the need for changing or extending it in child sexual abuse cases; it then summarizes and analyzes the methods used by state legislation and judicial decisions to change or extend the statute of limitations in both criminal and civil actions. The article examines the pros and cons of bringing legal actions for child sexual abuse many years later, and concludes with a discussion regarding the current debate about the accuracy and authenticity of long-term memory and the advisability of legal reforms to extend or eliminate the statute of limitations in this area.     

Juror decision-making in a mock sexually violent predator trial: gender differences in the impact of divergent types of expert testimony

Despite widespread use of mental health testimony in cases where violence risk is at issue, relatively little is known about the impact of such information on juror decision-making. This study addressed the effects of testimony based on three types of risk assessment instrument or method (clinical opinion, actuarial assessment, and ratings of psychopathy) to examine whether they would have differential impact on jurors' perceptions of the defendant. In a mock sexually violent predator civil commitment trial, 172 undergraduates were presented a case summary that included prosecution and defense expert testimony related to violence risk based on one of the three methods noted above. Consistent with earlier research, the hypothesis that a defendant described as a "high risk psychopath" by the prosecution would be judged more severely than a defendant judged as "high risk" based on other evaluation procedures was supported, but only among female jurors. Unlike prior studies, little support was found for the hypothesis that clinical opinion testimony would be more influential than actuarially based testimony for either gender. Mechanisms that may underlie the observed gender differences are discussed, as are the potential implications of these findings for civil commitment proceedings.     

Hebephilia: quintessence of diagnostic pretextuality

Hebephilia is an archaic term used to describe adult sexual attraction to adolescents. Prior to the advent of contemporary sexually violent predator laws, the term was not found in any dictionary or formal diagnostic system. Overnight, it is on the fast track toward recognition as a psychiatric condition meriting inclusion in the upcoming fifth edition of the Diagnostic and Statistical Manual of Mental Disorders. This article traces the sudden emergence and popularity of hebephilia to pressure from the legal arena and, specifically, to the legal mandate of a serious mental abnormality for civil commitment of sex offenders. Hebephilia is proposed as a quintessential example of pretextuality, in which special interests promote a pseudoscientific construct that furthers an implicit, instrumental goal. Inherent problems with the construct's reliability and validity are discussed. A warning is issued about unintended consequences if hebephilia or its relative, pedohebephilia, make their way into the DSM-5, due out in 2013.     

Justification,excuse, and proof beyond reasonable doubt

The law requires criminal guilt to be proved beyond a reasonable doubt. There are two different approaches to construing this legal rule. On an epistemic approach, the rule is construed in terms of justified belief or knowledge; on a probabilistic approach, the rule is construed in terms of satisfying a probabilistic threshold. An epistemic construction of the rule has this advantage over a probabilistic construction: the former can while the latter cannot excuse the state from blame for a false conviction. This claim rests on an understanding of legal rules, legal justification for a finding of guilt and the central purpose of a criminal trial.     

Levels of psychopathy and its correlates: a study of incarcerated youths in three states

We report the results of a study on psychopathy and its correlates among 203 youths incarcerated in residential commitment programs in Pennsylvania, Ohio, and Delaware. Latent class analysis of the psychopathy data identified three classes of youths: low psychopathy, moderate psychopathy, and high psychopathy. Significant differences were found among the three groups in regard to their criminal thinking, delinquency, experience of stressful events, family relationships, and drug use. Conduct disordered, psychopathic youths were the most troubled among the youths studied.     

Patient's choice to suicide v. treater's duty to prevent suicide: Some changing clinical dilemmas

The evolution of civil commitment procedures is seen as reflecting changing social and ethical values regarding individual liberty versus protection of self and others. The dilemma of dealing with the modern suicidal patient places the psychiatrist at the interface of conflicting societal expectations. The legal aspects of civil commitment are seen as not necessarily compatible with the best clinical course for the suicidal patient. The relationship of the process of the civil commitment to the process of treatment is briefly explored.     

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.