The Only Viable Way to
"Serious Difficulty In Controlling Behavior" (SDCB)
By John Tennison, MD Copyright July 7, 2014
While serving as an expert psychiatric witness on July 1, 2014, I was offering testimony in the 435th District Court of Texas in Conroe, Texas to the jury to explain the meaning of "serious difficulty in controlling behavior." The state prosecution attorney interrupted me and asked if he could approach the bench. Judge Michael Seiler allowed the prosecution and defense attorneys to approach the bench. Judge Seiler, at a volume level where I and most likely the jury could hear him, angrily made statements comparing my understanding of the concept of "serious difficulty in controlling behavior" to that of a third grader. After these comments were made by Judge Seiler, I was not allowed to give any more testimony to the jury regarding the meaning of “serious difficulty in controlling behavior. Consequently, the jury was likely to have discounted anything I had already said about the concept of "serious difficulty in controlling behavior."
Having read numerous research papers, textbooks, and case law that deal with the concept of “serious difficulty in controlling behavior, I was deeply concerned that Judge Seiler would compare my understanding of the concept to that of a third grader. Indeed, from what I have seen, my understanding and knowledge of the term "serious difficulty in controlling behavior" and of the various ways that experts have tried to explain and/or “operationalize it appear to be markedly greater than the knowledge and understanding of the term by other experts that I have personally witnessed offer testimony or depositions for the 435th District Court of Texas.
In some instances, I will abbreviate “serious difficulty in controlling behavior as “SDCB.
The U. S. Supreme Court spoke of “proof of serious difficulty in controlling behavior in the now-famous case of Kansas v. Crane, Syllabus, No. 00-957, Decided January 22, 2002, in which the U. S. Supreme Court opinion clarified that an individual must have “proof of serious difficult in controlling behavior as one of the requirements for being committed as a “Sexually Violent Predator.
As of July 2014, the case of Kansas v. Crane remains the highest authority for legally constraining the nature and degree of volitional incapacity that must be present as an attribute of the statutorily-defined “behavioral abnormality in Texas and for civil commitment under SVP laws elsewhere.
The case of Kansas v. Crane makes several points in its Syllabus:
1. (Page 407): There must be “proof of serious difficulty in controlling behavior.
2. (Page 410): For an individual to be civilly committed, it must be “difficult, if not impossible, for the person to control his behavior.
3. (Page 412): For an individual to be civilly committed, a “lack-of-control determination is necessary.
4. (Page 413): The inability to control behavior must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the “dangerous but typical recidivist�?convicted in an ordinary criminal case.
However, the U. S. Supreme Court did not further elucidate or otherwise quantify what they meant by “serious difficulty in controlling behavior. Consequently, it has been up to psychiatric and psychological experts to “operationalize this term. By “operationalize, I am referring specifically to the methodology or thought process that experts use to assess for or infer the presence or lack thereof of a characteristic in an individual (“serious difficulty in controlling behavior) that must be present for that individual to be civilly committed.
Since the vast majority of such commitments are involuntary and substantially abridge the rights of those so committed, it is vitally important that experts strive for objective and viable standards when attempting to operationalize and/or define the expression, “serious difficulty in controlling behavior.
Despite the desirability of having an objective standard for what is meant by “serious difficulty in controlling behavior, there has nonetheless been great variability in how this term is understood by experts. Such differences in the understanding of this term can be determinative of whether or not someone gets civilly committed, usually against their will.
Nonviable Operationalizations of SDCB
Based on expert testimony that I have personally witnessed, I have seen “serious difficulty in controlling behavior defined in ways that are nonviable. For example, I have seen experts give testimony to juries indicating that the mere repetition of a behavior is sufficient proof that an individual has SDCB, at least with regard to that particular behavior. Obviously, this is not a viable way to operationalize and/or define this term, as we can easily imagine behaviors that we repeat virtually every day for which we are in perfect control and which are consistent with our intentions. For example, we get out of bed, we eat breakfast, etc., etc., almost every day of our lives, yet no reasonable person would suggest that the fact of these behaviors being repeated thousands of times over a lifetime means that we have SDCB. Even if our behaviors were illegal or hurtful to others, or risked incarceration, such facts might be “consistent with,�?but would not be proof of SDCB.
What experts in this first example are doing is mixing up “recidivism (repetition of an illegal behavior) with SDCB. The vast majority of instances of recidivism occur not because the perpetrator is having SDCB but because the perpetrator has willfully chosen to engage in the behavior, with no apparent ambivalence, mixed feelings, or “ego dystonia�?with regard to the behavior having represented their will or intentions before, during, and after the behavior. Of course, if the perpetrator got caught in an illegal behavior, he or she might regret having engaged in the behavior, but such regret would be based on the threat of punishment, not on the fact that he or she felt uncomfortable or ambivalent about the behavior itself.
In a second example of a nonviable way in which experts operationalize SDCB, I have witnessed experts argue that only a person with SDCB would engage in an offense with a high risk of re-incarceration or severe punishment, if caught. Of course this is a nonviable argument, as it is easy to think of numerous examples where individuals engage in high risk behaviors, not because they have SDCB, but because they seemingly find the behaviors thrilling, such as in so-called “extreme sports.�?Of course, some high-risk behaviors are also illegal and hurtful of other people, such as sexual assault.
It is also possible that individuals who perpetrate behaviors with a high risk of re-incarceration or severe punishment are not mindful of the probabilities of these outcomes at the time of their behavior, or that they have miscalculated the probability of being caught. In these 2 instances, the perpetrator would have shown evidence of lack of insight or poor judgment respectively, but not evidence of SDCB.
A third example I have witnessed of a nonviable way that experts attempt to operationalize SDCB is when experts assume that non-conformity, the simple fact of engaging in illegal behavior, regardless of the extent of repetition of such behaviors, is evidence of SDCB. This third nonviable example appears to be the most extremely removed from what the U. S. Supreme Court meant when it used the expression “serious difficulty in controlling behavior.�?Yet, I have actually seen testimony from an expert hired by the Special Prosecution Unit (SPU) of Texas in which the expert said that someone whose behavior does not “comport�? to the behavioral standards that the rest of us hold ourselves to is showing evidence of SDCB.
Summary of 3 Nonviable
Ways In Which
Experts Have Attempted to Operationalize SDCB
1. Recidivism -- Experts mistake “recidivism (repetition of illegal behaviors) as evidence for SDCB.
2. High-Risk Behaviors -- Experts mistake engaging in behaviors with a high risk of severe punishment as evidence for SDCB.
3. Non-Conformity -- Experts mistake non-conformity, the simple fact of engaging in illegal behaviors, as evidence of SDCB, regardless of the extent of repetition of such behaviors.
The Only Viable Operationalization of SDCB
So, if all of the 3 previously-described attempts at operationalization of SDCB are nonviable, is there any hope for a viable way to operationalize “serious difficulty in controlling behavior? Fortunately, the answer is unequivocally “Yes.
After reading many expert treatises which have considered the expression “serious difficulty in controlling behavior in great detail, I have found only one way to operationalize SDCB in way that is viable. By “viable,�? I mean to suggest that this operationalization is the only one that I have found that has the properties of being logical, practical, feasible, workable, usable, realistic, and sustainable.
If I were to consider a possible description for this operationalization of SDCB a name, it could be called a “conflict or mismatch between will or intention with behavior. This viable way of operationalizing SDCB can be described as a chronic or persistent conflict or mismatch between someone's will (a subjective sense of intention) or stated will or intention with how they actually behave, either at the same point in time or at different points in time. SDCB can be classified into two subtypes depending on whether the conflict between the will/intention and behavior occur at the same point in time or whether the conflict occurs between a will/intention at one point time with a behavior that occurs at some other point in time.
SDCB Type 1
At the Same Point in Time -- An example SDCB Type 1 would be a schizophrenic person who experiences voices compelling them to behave in ways that are at odds with their experienced intentions. Another example of SDCB Type 1 would be a quadriplegic person who is exerting a will to move arms or legs, but in which their arms and legs do not respond. Yet another example of SDCB Type 1 would be a person with a resting tremor in their hands who exerts their will to stop their hands from trembling, but cannot do so.
SDCB Type 2
At Different Points in Time -- In SDCB Type 2, there is a periodic and usually cyclical (not simply a one-time change of mind) will or intention to do or not do something at one time that is at odds with the way someone actually behaves at some other time(s). This 2nd kind of “conflict or mismatch between will or intention with behavior is a kind of SDCB or “volitional incapacity that is seen frequently in substance-related and addictive disorders, where someone periodically and sincerely tells themselves and expresses a will to stop using drugs or stop gambling, but continues to do so, and usually is aware that this behavior is inconsistent with their stated will on numerous other occasions. Most people who are lawfully adjudicatable as "Sexuallly Violent Predators" have SDCB Type 2.
Although the DSM-5 does not formally recognize an addictive disorder involving sexual behavior, the DSM-5 nonetheless mentions “sex addiction on page 481:
“Thus, groups of repetitive behaviors, which some term behavioral addictions, with such subcategories as ‘sex addiction,�?‘exercise addiction,�?or ‘shopping addiction,�? are not included because at this time there is insufficient peer-reviewed evidence to establish the diagnostic criteria and course descriptions needed to identify these behaviors as mental disorders.
Nonetheless, SDCB is likely to be more easily understood by a typical juror if SDCB is described as:
“An Addiction to Sexual Behaviors Involving Harmful Physical Contact with Others�?
In particular, Criterion 1 and Criterion 2 of the so-called “impaired control�?/em> criteria of substance use disorders (DSM 5, page 483) describe the type of “volitional incapacity seen with individuals who have SDCB. Of course in the case of SDCB, it is “sexual behaviors involving harmful physical contact with others, rather than substance use. Here are Criterion 1 and Criterion 2 for Substance Use Disorders (DSM 5, page 483):
Criterion 1 of Substance Use Disorders
“The individual may take the substance in larger amounts or over a longer period than was originally intended.
Criterion 2 of Substance Use Disorders
“The individual may express a persistent desire to cut down or regulate substance use and may report multiple unsuccessful efforts to decrease or discontinue use.
Criterion 3 of Gambling Disorder (DSM-5, Page 585) also describes the type of “volitional incapacity seen in individuals with SDCB Type 2. Here is Criterion 3 of Gambling Disorder (DSM 5, page 485):
Criterion 3 of Gambling Disorder
“Has made repeated unsuccessful efforts to control, cut back, or stop gambling.
As can be seen from these criteria from the Substance Use Disorders and from Gambling Disorder, “volitional incapacity analogous to SDCB Type 2 (see above) is very common in these disorders.
Recognizing SDCB as either SDCB Type 1 or SDCB Type 2 seems to be the only viable way to operationalize SDCB. Moreover, the type of “volitional incapacity seen in the three criteria cited from the section on Substance-Related and Addictive Disorders in the DSM-5 offers a useful way, by analogy, of helping juries to understand what seems to be the only viable way to operationalize “serious difficulty in controlling behavior.