"Multifaceted Inquiry": Methodology for Evaluation of Individuals for the Statutorily-Described
“Behavioral Abnormality” Required by the Texas Statute to be Adjudicated as a “Sexually Violent Predator”
By John Tennison, MD June 12, 2012
Accepted Methodology is Characterized by "Multifaceted Inquiry"
IN RE COMMITMENT OF DAVID DODSON was an opinion delivered by the Court of Appeals, Ninth District of Texas at Beaumont on April 22, 2010. In this opinion, the court recognized that an evaluation in Texas for the statutorily-described "behavioral abnormality" under the Texas Sexually Violent Predator law is a "multifaceted inquiry." Specifically, on page 2-3 of the opinion, the court wrote"
“Because 'behavioral abnormality' includes by definition an assessment of an individual’s risk of recidivism, as well as determining whether the individual has a congenital or acquired condition that affects his ability to control his behavior, resolving whether an individual has a 'behavioral abnormality' is a multifaceted inquiry.”
Moreover, in this same opinion, the Court of Appeals, Ninth District of Texas at Beaumont also wrote on page 11:
“While courts are authorized to use broad-form submissions to determine disputed issues, the broad-form issue in an SVP case is a multifaceted inquiry.”
The fact that the evaluation of an individual for the condition required to be adjudicated as a sexually violent predator is a "multifaceted inquiry" is corroborated in multiple authoritative sources that describe the accepted methodology for assessing an individual under sexually violent predator laws in Texas and elsewhere.
Philip H. Witt and Mary Alice Conroy
For example, a multifaceted approach clearly evident
in methodological discussions by Philip H. Witt, PhD, and Mary Alice Conroy,
PhD, in their 2009 Oxford University Press book, "Evaluation of Sexually Violent
Predators." This book is one volume in Oxford University Press’s “Best
Practices in Forensic Mental Health Assessment” series. On page v of the
book in a section titled “About Best Practices in Forensic Mental Health
Assessment,” the following is written:
“This series describes the ‘best practice’ as empirically supported
(when the relevant research is available), legally relevant, and consistent with
applicable ethical and professional standards. Authors of the books in this
series identify the approaches that seem best, while incorporating what is
practical and acknowledging that best practice represents a goal to which the
forensic clinician should aspire rather than a standard that can always be met.
The American Academy of Forensic Psychology assisted the editors in enlisting
the consultation of board-certified forensic psychologists specialized in each
topic area. Board-certified forensic psychiatrists were also consultants on many
of the volumes. Their comments on the manuscripts helped to ensure that the
methods described in these volumes represents a generally accepted view of best
practice.”
and
“The series’ authors were selected for their specific
expertise in a particular area.”
Page 205 describes some of the credentials of the authors,
including Philip H. Witt, PhD, being editor-in-chief of the Journal of
Psychiatry and Law, and being president-elect of the American Academy of
Forensic Psychology. Moreover, Mary Alice Conroy, PhD, is cited as president of
the American Academy of Forensic Psychology for (2007-2009), and as being a
dipolomate in forensic psychology.
The methodology described by Witt and Conroy is characterized by "multifaceted inquiry."
On page 10 of their book, Witt and Conroy write:
“SVP civil commitments require an assessment of volitional impairment, whereas traditional civil commitments do not.”
Also on page 10 they write:
The primary elements of SVP statutes are:
“Mental abnormality,”
“Risk of future sex offenses,” and
“Volitional impairment.”
Methodology characterized by "multifaceted inquiry" is further
explemplified in the 4-Step methodology described on Page 132 in the section
tittled “Formulating Opinions Related to SVP Commitment,” where Witt and Conroy
add a 4th step to the 3-step methodology described by Heilburn, Marczyk, and
DeMatteo. On page 132, Witt and Conroy write:
“Formulating an opinion in an SVP case involves gathering
evidence to confirm or disconfirm the presence of the three interrelated
psycholegal constructs of mental abnormality, volitional impairment, and
elevated risk. Heilburn, Marczyk, and DeMatteo (2002) recommend a three-stage
procedure for translating legal constructs into mental health constructs. They
suggest the following:
First, identify the relevant legal construct, by reviewing
the relevant statutory and case law, as well as legal scholarship on the topic.
Second, operationalize the legal constructs. That is,
determine how these constructs can be measured and what methods might be used to
measure them.
Third, gather information in the relevant domains to assess
these constructs.
To the above three steps we would add a fourth step: Use the
information gathered to form and test hypotheses on the fit of the facts to the
legal constructs."
On page 133, Witt and Conroy then summarize these 4 steps
within a flow-chart titled “Steps to Formulating a Opinion.” The 4 steps of this
flow chart are as follows:
1. Understand the legal constructs.
2. Determine what mental health constructs best approximate
the legal constructs.
3. Determine the optimal approach to gathering information on
the relevant mental health constructs.
4. Acknowledge the absence of a precise fit between mental
health and legal constructs.
The reference mentioned by Witt and Conroy is Heilburn, K, Marczyk, G. R., and Dematteo, D. (2002) Forensic mental health assessment: A casebook. New York: Oxford University Press.
In a section titled, “Formulating and Opinion on Volitional Impairment,”
Witt and Conroy write the following on page 139-140 of their book:
“If offering an opinion on volitional impairment, inform
the court of the limits and basis of the opinion. Be guided by case law in this
area, particularly in the relevant jurisdiction.”
and
“Awareness of and careful attention to the psychological
and case law literature in this area (reivewed in Chapter 2) are helpful. The
jurisdiction-specific case law can be particularly valuable in providing
guidance on the parameters most relevant to the court. Although the evaluator is
not expected to be an attorney, awareness of the case law context can aid the
evaluator in determining what aspects of the individual are most relevant to the
court. As Conroy and Murrie suggest,
‘A first step, then, for professional
planning to conduct an SVP risk assessment is to make certain they have current
knowledge of the statutes, case law, and rules in the jurisdiction in which the
evaluation will be done. The legal landscape is ever shifting; new laws are
passed and new case law is decided.’"
Dennis Doren
A multifaceted approach is also clearly evident in
the methodological discussion by Dennis M. Doren, PhD, in his highly-influential
2002 text, "Evaluating Sex Offenders".
In chapter 1 of his text, Doren describes the methodological
process considering how each word or phrase in a statutory definition or
description of a requisite condition makes a contribution to what is being
assessed. For example, in a section in chapter 1 titled, "Clinical Commitment
Criteria," Doren describes the methodological process of making several separate
considerations, each of which is individually considered in one of six sections
of Doren's chapter 1. Those six sections (pages 12-23) are titled:
1. "The Requisite Mental Condition"
2. "Acquired or congenital..."
3. "Emotional or volitional capacity..."
4. "That predisposes the person to commit..."
5. "Risk for Sexual Violence"
6. "The Issue of Predatory Offending"
Richard Rogers and Rebecca Jackson
Another highly-influential author whose publications
demonstrate that the accepted methodological approach for the evaluation of an
individual under sexually violent predator laws is a "multifaceted inquiry" is
Richard Rogers, PhD.
In their 2005 article ("Sexually
Violent Predators: The Risky Enterprise of Risk Assessment") in Volume
33, Number 4, page 525, of the Journal of the American Academy of Psychiatry
and the Law, Richard Rogers, PhD, and Rebecca Jackson, PhD, describe a
multifaceted methodology containing the following 5 steps:
1. Does the defendant have the
requisite clinical condition (e.g. mental abnormality, mental disorder, or
personality disorder), as mandated by the particular jurisdiction?
2. If yes, does the defendant have volitional impairment?
3. If yes, does the volitional impairment directly arise from
the clinical condition?
4. If yes, does the defendant have the statutorily defined
likelihood of sexual violence?
5. If yes, is that likelihood of sexual violence directly the
result of volitional impairment?
Moreover, the fact that evaluations such as these are not simply evaluations for sexual dangerousness is emphasized by Rogers and Jackson on page 524 in the American Journal of Psychiatry and Law in 2005 in their article, "Sexually Violent Predators: The Risky Enterprise of Risk Assessment," where they write:
"Dangerousness alone is insufficient."
Michael B. First and Robert L. Halon
In their 2008 article ("Use of DSM Paraphilia Diagnoses in Sexually Violent Predator Commitment Cases") in Volume 36, pages 443-454, of the Journal of the American Acadamy of Psychiatry and the Law, Michael B. First, MD, and Robert L. Halon, PhD, describe a multifaceted methodology containing the following 3 steps:
Step 1: Establishing the Presence of a Paraphilia
Step 2: Establishing Paraphilia as the Source of the Sexual Offenses
Step 3: Providing Evidence of Volitional Impairment
Although First's and Halon's article was addressing the proper diagnosis of paraphilias in sexually violent predator commitment cases, First's and Halon's 3-step methodology is applicable to diagnosis of any disorders (not just paraphilias) that might manifest themselves in such a way as to satisfy statutory descriptions of a mental condition required for commitment as a "sexually violent predator." For example, other disorders besides paraphilias, such as bipolar disorder, schizophrenia, and impulse control disorders, can potentially manifest themselves in ways that satisfy statutory descriptions of a mental condition required for commitment as a "sexually violent predator." Consequently, if First's and Halon's 3 steps were written more generally to address any mental condition that might satisfy statutory descriptions of a mental condition required for commitment as a "sexually violent predator," the following steps would result:
Step 1: Establish the Presence of a Mental Condition.
Step 2: Establish that Mental Condition as the Source of the Sexual Offenses.
Step 3: Provide Evidence that the Mental Condition causes Volitional Impairment.
Despite the fact that addressing the issue of "Volitional Impairment" is, without exception, considered an accepted and necessary step in "sexually violent predator" evaluations by all of the numerous authoritative sources I have reviewed, I have been shocked to witness mental health evaluators in the state of Texas who write reports which fail to even mention volitional impairment, incapacity, or any other semantically equivalent concept, but who nonetheless conclude in those reports that the evaluee has the requisite "behavioral abnormality" to be civilly committed. Of course, to not consider or provide evidence of volitional impairment is an outrageous deviation from the established and peer-reviewed standards of mental health evaluators who conduct evaluations under sexually violent predator laws. Consequently, I would like to quote First's and Halon's discussion of their Step 3 ("Providing Evidence of Voltional Impairment"), as it seems especially important to emphasize this vital step in any discussion of evaluations conducted in the state of Texas. Although First and Halon are discussing paraphilias in their article, keep in mind that their discussion is applicable to any mental condition that might manifest itself in such a way as to satisfy statutory descriptions of a mental condition required for commitment as a "sexually violent predator." Here is that discussion from page 450-451 of First's and Halon's article:
Step 3: Providing Evidence of Volitional Impairment
"Do not assume that diagnosis of a
paraphilia implies volitional impairment. One needs to provide positive
evidence that the offender has difficulty controlling his sexually assaultive
behavior as a result of the paraphilia or of a comorbid condition.
"Once a diagnosis of paraphilia has been established (Step 1) and other explanations for the sexual offense have been considered and ruled out (Step 2), the next step is to determine whether, as a result of a mental disorder, the paraphilic offender has difficulty controlling his impulse to commit future sex offenses. It is important to understand that having a diagnosis of a paraphilia does not imply that the person also has difficulty controlling his behavior. Diagnostic heterogeneity is the rule with all psychiatric disorders:"
'It is precisely because impairments, abilities, and disabilities vary widely with each diagnostic category that assignment of a particular diagnosis does not imply a specific level of impairment or disability [Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision, p xxxiii].'
"The diagnostic features that are characteristic of all individuals with a paraphilia are the presence of a deviant sexual arousal pattern (i.e., recurrent and intense sexually arousing fantasies and urges) and the fact that the person has either acted on the urges or else the urges or fantasies cause marked distress or interpersonal difficulty. While it is true that some individuals with a paraphilia have difficulty controlling behavior associated with it, many do not. Like most mental disorders, the severity of a paraphilia and its associated features can vary widely between individuals. For some, the paraphilic urges are ego dystonic and result in extreme shame and guilt when they arise during sexual fantasies. Others may collect pornographic material thematically related to their paraphilic urges, which they then use as sexual stimuli during masturbation. Still others may cross the line from fantasy to behavior, acting out their fantasies and urges with others, but only in situations in which they have easy access to potential victims (e.g., a person whose molestation of children is confined to family members). On the most severe end would be an individual who has devoted his life to luring intended victims and makes no effort to control his behavior. All of these individuals would qualify for a DSM-IV diagnosis of paraphilia, but only a subset might be considered to have difficulty controlling their behavior due to the paraphilia."
"Given this wide variability in the levels and types of behavioral control individuals with paraphilic urges are thought to experience, it is crucial in SVP commitment trials to present evidence to show whether the particular individual being evaluated has serious difficulty controlling his behavior and whether the difficulty arises from a mental disorder. However, there are no established, validated scientific methods for measuring impairment in an individual’s ability to control his behavior. Indeed, on this basis, the American Bar Association has argued successfully in some jurisdictions for the elimination of volitional impairment as a basis for the insanity defense. Similarly, in expressing its concerns about the difficulties in operationalizing volition, the American Psychiatric Association, in its statement on the insanity defense, noted “the line between an irresistible impulse and an impulse not resisted is probably no sharper than that between twilight and dusk” (Ref. 35, p 685)."
"Case law provides some indications of what kinds of evidence might be relevant to an inability-to-control standard—for example, the offender verbally acknowledging that he cannot control his sexual desires when “stressed out” (in Kansas v. Hendricks) and evidence of repeated sexual misconduct despite negative consequences such as rearrest.36 However, there is no clear articulation even in these examples of what qualifies as inability to control. In lieu of a direct assessment of volitional capacity, many SVP evaluations have instead focused on the presence of risk factors that predict future sexual violence, on the assumption that those who are scored as being at high risk of sexually reoffending do so because of difficulty controlling their behavior. The validity of this approach has been justifiably criticized.8 Generic risk assessment measures such as the Sexual Violence Risk (SVR)-20 and actuarial measures such as the Static-99 and the Rapid Risk Assessment of Sex Offense Recidivism should therefore be used with caution in SVP evaluations. These generic measures were designed to predict general violence or nonspecific sexual violence rather than the types of predatory sexual violence that are the target of most SVP statutes, and the actuarial measures were and are designed for the purpose of supervising sex offenders in the community.8 Furthermore, having a high risk of reoffending according to one of these instruments does not also imply that there is a mental abnormality causing this high risk or that, even if caused by a mental abnormality, there also exists in the offender the requisite volitional impairment in reference to committing the offenses."
"Ultimately, expert witnesses testifying in SVP commitment trials must clearly inform triers that there is no professional consensus in the field of mental health concerning what constitutes volitional impairment nor even what constitutes adequate psychiatric or psychological evidence of it. Therefore, mental health professionals testifying as “experts” in SVP commitment trials must caution triers of fact that although evidence they present might address the legal question of whether a respondent suffers such impairment, it cannot definitively do so. At the same time the expert should also inform triers that even information yielded by scientifically generated actuarial risk-assessment instruments cannot resolve the question of volitional impairment.
The Texas-specific methodology described below is a
methodology characterized by "multifaceted inquiry," and is consistent with the
multifaceted methodology described above by Witt, Conroy, Doren, Rogers, Jackson, First, and Halon.
Texas-Specific Methodology
1. Review all available records. (These records can include police reports, witness reports, prison records, medical records, depositions/testimony from various individuals; and reports, testing and assessments from other evaluators.)
2. Interview and evaluate the respondent.
3. During the review of records and interview of the respondent, address the following relevant questions (a through g), each of which is consistent with accepted forensic psychiatric methodology and understanding of the Texas Sexually Violent Predator statute. In addition to these, there are other potentially relevant questions that can be addressed.
a.) Is there evidence that the evaluee has engaged in one or more “sexually violent” offenses (as defined by the Texas Statute). If so, how many times does a “sexually violent offense” appear to have been committed?
b.) Was any committed “sexually violent offense” “predatory” in nature (as defined by the statute)?
c.) Are there any sexual behaviors on the part of the evaluee that appear to be the result of “serious difficulty in controlling behavior?” (Such “serious difficulty” can be inferred from records, observations, or from the verbal report of the evaluee, as when an evaluee says the equivalent of “I couldn’t help myself” or “I can’t help myself.”)
d.) If sexual acts have resulted from “serious difficulty in controlling behavior,” was one or more of these sexual acts a “predatory act of sexual violence” (as defined by the Texas statute)?
e.) Was any “predatory act of sexual violence” which was caused by a “serious difficulty in controlling behavior” distinct from the willful (and often ego-syntonic) acts committed by “typical but dangerous sexual offenders?”
f.) If “serious difficulty in controlling behavior” contributed to a “sexually violent offense,” was the offense the result of a “congenital or acquired condition?”
g.) If such a “congenital or acquired condition” is present, does the existence of such a condition make it “likely” that the individual will commit “a predatory act of sexual violence” in the future?
4. Consider scoring at least one actuarial instrument, such as the Static-99R. In addition to the risk factors and protective factors that make up the Static-99R, consider other possible risk factors and protective factors.
5. If actuarial instruments (such as the Static-99-R or MnSOST-R) have been utilized to arrive at an estimate or probability of future behaviors, consider the degree to which such estimates or probabilities are in any way informative or indicative of a future likelihood of occurrence of the specific type of sexual violence as described by the Texas SVP statute, namely “a predatory act of sexual violence” caused by a “serious difficulty in controlling behavior” which in turn, was specifically caused by a “congenital or acquired condition.”
6. If “testing for psychopathy” (in the form of scoring a PCL-R or otherwise) has occurred for the evaluee, consider the degree to which the results of such “testing for psychopathy” in any way indicate the presence of the specific statutorily-described “behavioral abnormality” or in any way indicate a likelihood of engaging in "a predatory act of sexual violence” caused by a “serious difficulty in controlling behavior” which in turn, was specifically caused by a “congenital or acquired condition.”
7. Consider the respondent with regard to DSM-IV-TR diagnostic nomenclature. If the respondent appears to have the statutorily-described “behavioral abnormality” required for adjudication as a “sexually violent predator,” determine which DSM-IV-TR diagnosis or diagnoses are manifesting themselves in a particular way such that the characteristics of the statutorily-described “behavioral abnormality” is present.
8. Collectively consider all data from parts 1-7 above to arrive at an opinion as to whether or not the individual in question has the specific type of statutorily-described “behavioral abnormality” required by the Texas statute to be adjudicated as a “sexually violent predator.”
Texas Statutory Reference
Pertinent Sections from the HEALTH & SAFETY CODE, TITLE 11. CIVIL COMMITMENT OF SEXUALLY VIOLENT PREDATORS,
CHAPTER 841. CIVIL COMMITMENT OF SEXUALLY VIOLENT PREDATORS, SUBCHAPTER A. GENERAL PROVISIONS
Sec. 841.002. DEFINITIONS. In this chapter:
(2) "Behavioral abnormality" means a congenital or acquired condition that, by affecting a person's emotional or volitional capacity, predisposes the person to commit a sexually violent offense, to the extent that the person becomes a menace to the health and safety of another person.
(5) "Predatory act" means an act directed toward individuals, including family members, for the primary purpose of victimization.
Sec. 841.003. SEXUALLY VIOLENT PREDATOR. (a) A person is a sexually violent predator for the purposes of this chapter if the person:
(1) is a repeat sexually violent offender; and
(2) suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence.
Thus, as quoted from the sections of the Texas Sexually Violent Predator Statute above, a composite representation of all the qualifiers and characteristics that the specific type of statutorily-described “behavioral abnormality” must have for a person to be adjudicated as a “sexually-violent predator” is as follows:
The person “suffers from” “a congenital or acquired condition that, by affecting a person's emotional or volitional capacity, predisposes the person to commit a sexually violent offense, to the extent that the person becomes a menace to the health and safety of another person”; And this “congenital or acquired condition” “makes the person likely to engage in an act of “sexual violence” “directed toward individuals, including family members, for the primary purpose of victimization.”