By far the most important event in the sad history of the Sexually Violent Predator (SVP) statutes occurred in Sacramento between September 9 and September 11, 2011. The California Department of Mental Health (DMH) conducted a 3-day workshop to educate its evaluators on proper procedures in diagnosing DSM-IV mental disorders. This could be a turning point in solving what has been the most vexing problem at the delicate interface between psychiatry and the law.
Accurate diagnosis is absolutely crucial in SVP hearings because the potential outcome is so consequential—involuntary incarceration in a psychiatric hospital that may well last a lifetime. In no other clinical or forensic situation does so much ride on the presence or absence of a psychiatric diagnosis. How disturbing then that some SVP evaluators remain ignorant of DSM-IV, leading them to provide supposedly “expert” testimony that is simply incompetent. They blithely write reports filled with idiosyncratic and incorrect diagnostic opinions that can result in the unjustified psychiatric hospitalization of simple criminals who have already served their apportioned prison terms.
The most egregious error is the creative misuse of the designation “Paraphilia NOS.” Many SVP evaluators incorrectly assume that rape by itself is grounds for diagnosing paraphilia—ignoring the fact that this notion has been explicitly rejected by DSM-III, DSM-IIIR, DSM-IV, and DSM-5.
Experience has shown that SVP cases can often (but not always) be won when DSM-IV mistakes are systematically exposed. There are 3 mechanisms of redress: (i) evaluators sometimes retract wrong opinions once their errors are identified; (ii) prosecutors sometimes drop cases they decide are too weak to pursue; and (iii) juries may elect to free defendants they decide have no legitimate DSM-IV mental disorder. But this retail case-by-case correction is uncertain, expensive, and time consuming.
Originally, I had hoped the courts would find a better, more wholesale way to correct the messy SVP misuse of psychiatric diagnosis. But legal scholars have convinced me that judges will do everything possible to avoid the difficult task of providing a precise definition of which are the qualifying SVP mental disorders and how they are to be diagnosed. It seemed that we might forever be stuck having to battle bad diagnostic habits on an inefficient, unfair, and costly case-by-case basis.
The great news is that the California (DMH) has taken upon itself the responsibility to improve diagnostic practice in SVP cases. It sponsored a landmark workshop for its evaluators, conducted by Ronald J Mihordin, MD, JD, the acting Clinical Director of its Sexual Disorders Evaluation Program. Pursuant to the Public Records Information Act, I requested and received the printouts of the PowerPoint presentation (“Sexually Violent Predator Evaluations: An Introduction, A Reintroduction”). To obtain a copy, you can contact [email protected].
After studying the slides and speaking to a number of attendees of the Sacramento conference, I concluded that Dr Mihordin was instructing the SVP evaluators to:
1) NOT carelessly confuse the relatively common crime of rape with the very infrequent mental disorder of paraphilia. Any diagnosis of “Paraphilia NOS, nonconsent” should contain both affirmative evidence that the act of rape was a precondition for attaining sexual arousal and a complete differential diagnosis that rules out the much more common contexts of rape.
2) NOT use “hebephilia” as an excuse for making a “Paraphilia NOS” diagnosis because having sex with pubescent youngsters is not a DSM-IV mental disorder.
3) NOT confuse the violence inherent in all rapes with the sexually arousing use of violence that specifically defines the extremely rare DSM disorder of Sexual Sadism. Violence in rapes is ubiquitous—most often as an instrumental means of forcing the victim's compliance; sometimes also as an expression of anger or of substance-induced disinhibition. Sexual Sadism requires that the violence be inflicted specifically because causing pain and humiliation is necessary for sexual arousal.
Although it was brilliantly conducted and under the powerful auspices of California DMH, there is no guarantee that this one conference will by itself solve the SVP problem for California, much less for the rest of the country. The psychologists doing SVP evaluations are independent contractors and are free to exercise their independent clinical judgment of any given case—however mistaken and incompetent it may sometimes be. Some evaluators have shown great resistance to conform to proper diagnostic practice and they may constitute a hard corps of stubborn dead-enders who resist even the definitive clarity of the diagnostic recommendations made by California DMH.
But the tide has definitively turned against careless SVP diagnosis. The combination of the DSM-5 rejection of “coercive paraphilia” and the California DMH’s reigning in of idiosyncratic evaluators should together presage the beginning of the end for the misuse of DSM in SVP cases.
This has been a sad episode for forensic psychology, for psychiatric commitment, for civil rights, and for constitutional law. Hats off and much thanks to California DMH for rescuing proper diagnostic practice and for redeeming forensic psychology. Hopefully, other states and the Federal government will soon follow this valuable example.