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What Does "Mental Disorder" Mean in Wisconsin’s SVP
Commitment Law (ch. 980)?© Copyright. All rights reserved.
By:
Thomas K. Zander, Psy.D., J.D.Clinical & Forensic Psychologist
How does Wisconsin define “Sexually Violent Person”? [980.01(7)]
• Delinquent, convicted, or NGI for specified sex crime or other “sexually motivated” crime specified in 980.01(6)(b).
• Dangerous because s/he suffers from a mental disorder that makes it likely that the s/he will engage in one or more acts of sexual violence.
How does Wisconsin define “mental disorder” for SVP commitment? [980.01(2)]
• A congenital or acquired condition affecting the emotional or volitional capacity that predisposes a person to engage in acts of sexual violence.
• 3 required, linked elements:– congenital/acquired condition,– affected emotional or volitional capacity, &– predisposition to engage in sexual
violence.
Justice Abrahamson on the ch. 980 definition of “mental disorder”
Since every condition is necessarily either congenital or acquired, and since emotional or volitional capacity simply describes the decision-making processes affecting how people act, mental disorder under chapter 980 means no more than a predisposition to engage in acts of sexual violence. Thus chapter 980 attempts to create a mental disorder authorizing lifetime commitment based not on mental illness but on past crimes for which the prospective committee has already served the prescribed sentence. This definition is entirely circular: a prospective committee’s “mental disorder” is derived from past sexual offenses which, in turn, are used to establish a predisposition to commit future sexual offenses. Wisconsin v. Post (1995, pp. 142�144)
“congenital or acquired condition”?
• What conditions that affect human behavior are not either “congenital” (present at birth) or “acquired” (learned, the result of injury or disease)?
• For a far-fetched suggestion that this definition may exclude genetic disorders (e.g., Personality Disorders), see Zander (2005), pp. 26-27.
“congenital or acquired condition”?In State v. Post, 197 Wis.2d 279, 307 (1995), the Wisconsin Supreme Court cited the official compendium of psychodiagnosis: the Diagnostic and Statistical Manual, 4th ed., now in Text Revision edition, abbreviated as DSM-IV-TR (American Psychiatric Association, 2000). The Court said, “[P]ersons will not fall within chapter 980's reach unless they are diagnosed with a disorder that has the specific effect of predisposing them to engage in acts of sexual violence.”
Most common diagnoses in WI. SVP commitment cases (Zander, 2005)
• Pedophilia: 59%• Antisocial Personality Disorder: 42%• Paraphilia NOS: 40.5%• Personality Disorder NOS: 39% (89%
of which had specifier “with antisocial features”)
What is a Paraphilia?• The paraphilias, as listed in DSM-IV-TR, include the
following diagnoses: Exhibitionism, Fetishism, Frotteurism, Pedophilia, Sexual Masochism, Sexual Sadism, Transvestic Fetishism, Voyeurism, and Paraphilia Not Otherwise Specified (Paraphilia NOS).
• Definition of Paraphilias requires that the person demonstrate recurrent, intense, sexually arousing fantasies, sexual urges, or behaviors involving: (1) nonhuman objects, (2) the suffering or humiliation of oneself or one’s partner, or (3) children or other nonconsenting persons that occur over a period of at least 6 months. The person must be distressed or have impaired functioning, except for Exhibitionism, Frotteurism, Pedophilia, Voyeurism, and Sexual Sadism, which can be based solely on person’s having acted on paraphilic urges.
Can a Paraphilia dx. be based on behavior without evidence of sexual fantasies/urges?• “Unfortunately, many forensic evaluators have
mistakenly concluded that the revised wording of criterion A (i.e., including "or behaviors") allows them to diagnose Paraphilia based on a history of repeated acts of sexual violence and that this satisfies the statutory mandate for the presence of mental disorder. This was never our intent in DSM-IV. Defining Paraphilia based on acts alone blurs the distinction between mental disorder and ordinary criminality. Decisions regarding possible lifelong psychiatric commitment should not be made based on a misreading of a poorly worded DSM-IV criterion item (First & Frances, in press, p. 3).
• First urges deletion of “or behaviors” in Criterion A.
How far can the Paraphilia diagnosis reach?
• Does a woman have a Paraphilia (Fetishism) if she masturbates while holding and sniffing an undershirt (a “nonhuman object”) worn by a sexy carpenter who worked at a neighbor’s home years ago? Her husband will divorce her if she continues this practice, but she wants to continue. Some clinicians might consider a marital breakup to constitute the “impairment in social functioning” needed to apply the diagnosis.
• Does a man have a Paraphilia (Sexual Sadism) if he engages in consensual sexual activity that involves the humiliation of his sexual partner, and if he is fired from his job when his boss discovers the couple’s sexual-role-play dungeon during a visit to their home? Again, loss of a job could be considered “impairment of occupational functioning" so as to qualify for a Paraphilia diagnosis.
How far could States go to justify Paraphilia as basis for commitment?A Paraphilia diagnosis of Fetishism, could form the basis for an SVP commitment, if, for example, a man was sexually aroused by women’s underwear and committed a burglary to steal it to satisfy this sexual arousal. Wisconsin’s ch. 980 permits the civil commitment of persons whose only offense is burglary, if the crime is found to have been “sexually motivated.”
DSM-IV-TR criteria for Pedophilia (302.2):
• A. Over a period of at least 6 months, recurrent, intense sexually arousing fantasies, sexual urges, or behaviors involving sexual activity with a prepubescent child or children (generally age 13 years or younger).
• B. The person has acted on these sexual urges, or the sexual urges or fantasies cause marked distress or interpersonal difficulty.
• C. The person is at least age 16 years and at least 5 years older than the child or children in Criterion A.
• Note: Do not include an individual in late adolescence involved in an ongoing sexual relationship with a 12 or 13-year old.
Analysis of DSM-IV-TR criteria for Pedophilia (302.2):
• Durational requirements:–Intense sexually arousing fantasies,
sexual urges, or behaviors involving sexual activity with a prepubescent child or children must be recurrent, implying at least more than once.
–They must have occurred over a period of at least 6 months.
Analysis of DSM-IV-TR criteria for Pedophilia (cont’d)
• Age requirements for examinee:–At least age 16.–At least 5 years older than child(ren).–Exclusion for late adolescent
involved in an ongoing sexual relationship with a 12 or 13-year old.
Analysis of DSM-IV-TR criteria for Pedophilia (cont’d)
• Requirement that child(ren) be prepubescent:– Object of sexual urges must be prepubescent
(generally age 13 or younger).– But research shows that the average age of
pubescence is declining in the U.S. E.g., Herman-Giddens (1997) found the mean age of breast development to be 8.87 and 9.96 in a sample of 17,077 African-American and European-American girls, respectively. See: Tanner Scale of Development.
– Realistically, a Pedophilia diagnosis turns on whether the examinee was aroused by the absenceof secondary sexual characteristics, e.g., breasts, pubic hair in girls; penile/testicular development, voice changes, facial/body hair in boys.
Pedophilia ≠ Child Molestation,Child Molestation ≠ Pedophilia
• Not all persons diagnosable with Pedophilia have sexual contact with children. They may act on their sexual fantasies simply through masturbation.
• Not all child molesters are diagnosable with Pedophilia. They may have nonsexual motivations, e.g., retaliation against child’s parent.
• DSM does not require that paraphilic fantasies or urges be obligatory or exclusive. Persons with Pedophilia (or other Paraphilias) may also engage in normal sexual activity.
Sexual Sadism (302.84): A Rare Paraphilia
• A. Over a period of at least 6 months, recurrent, intense sexually arousing fantasies, sexual urges, or behaviors involving acts (real, not simulated) in which the psychological or physical suffering (including humiliation) of the victim is sexually exciting to the person.
• B. The person has acted on these sexual urges with a nonconsenting person, or the sexual urges or fantasies cause marked distress or interpersonal difficulty.
• Only 5-10% of rapists satisfy criteria (Abel, et al., 1988).
Can the diagnosis of Paraphilia NOS be appropriately applied to a rapist?History: In 1985, a workgroup of the American Psychiatric Association proposed a new diagnosis for DSM-III-R called Paraphilic Rapism – later renamed Paraphilic Coercive Disorder. This proposal followed a previous unsuccessful attempt to insert a similar diagnosis called Sexual Assault Disorder, which had been opposed by the American Academy of Psychiatry & Law.
Reasons Offered by Opponents of “Paraphilic Coercive Disorder”
• Insufficient evidence of discriminant validity , i.e., no way of reliably differentiating between paraphilic rapists from nonparaphilic rapists.
• Controversy over whether rape behavior is pathological as opposed to only criminal.
• Social policy argument that conceptualizing rape behavior as pathology will lead to over-diagnosis and inappropriate exculpation of criminal behavior by the legal system.
Can the diagnosis of Paraphilia NOS be appropriately applied to a rapist?• After much public debate and strong
opposition to the proposed diagnosis of Paraphilic Coercive Disorder, the APA’s Board of Trustees rejected the proposed diagnosis on a vote of 10-4.
• After these two rejections of proposed diagnoses for non-sadistic rapists, there were no proposals for such a diagnosis for DSM-IV or DSM-IV-TR.
Can the diagnosis of Paraphilia NOS be appropriately applied to a rapist?In the 1990’s, with new SVP commitment laws and the desire of prosecutors to civilly commit rapists, some psychologists began diagnosing rapists with Paraphilia NOS, which DSM-IV-TR defines as “paraphilias that do not meet the criteria for any of the specific categories. Examples include, but are not limited to, telephone scatologia (obscene phone calls), necrophilia (corpses), partialism (exclusive focus on part of body), zoophilia (animals), coprophilia (feces), klismaphilia (enemas), and urophilia (urine).”
Can the diagnosis of Paraphilia NOS be appropriately applied to a rapist?“If the offender has repetitively and knowingly enacted sexual contact with nonconsenting persons over a period of at least 6 months (specifically for sexual arousal to the nonconsensual interaction), and the behavior has caused him significant impairment in social, occupational, or other areas of functioning, then criteria for a paraphilia are met” (Doren, 2002, p. 67).
Can the diagnosis of Paraphilia NOS be appropriately applied to a rapist?• Is it appropriate to use Paraphilia NOS to create a
diagnosis that is equivalent to one that was specifically rejected for inclusion in the DSM?
• DSM-IV-TR text describes Paraphilia NOS diagnosis as being for “Paraphilias that are less frequently encountered” (p. 567). Why list rare paraphilias, e.g., klismaphilia, if a behavior as common as rape is intended to be included?
• Rapists can be assigned a DSM “focus of clinical attention” V-code (V61.12 or V62.83). Why diagnose Paraphilia NOS for the same thing?
Can the diagnosis of Paraphilia NOS be appropriately applied to a rapist?
“As explained above, not all rapists, even rapists who are repetitively caught for their crimes, are paraphiliacs. A clinician needs to review an individual’s sexual fantasies , urges, and/or behaviors to see if a paraphilia diagnosis is appropriate. Under civil commitment assessment circumstances, the likelihood of obtaining truthful descriptions of the offender’s fantasies and urges is not high. Hence, evaluators often need to rely solely on the documented behavior of the subject to determine diagnoses” [Emphasis supplied.]
(Doren. 2002, pp. 67-68).
Can the diagnosis of Paraphilia NOS be appropriately applied to a rapist?“The core construct of a paraphilia, which involves a deviant focus for sexual arousal, is the historical sine qua non of the diagnosis, and is so well-established as to be irrefutable… [P]ast behavior cannot by itselfbe considered sufficient evidence of the existence of the sexual fantasies and urges that are sine qua non to a diagnosis of paraphilia.” (First & Halon, in press, p. 18).
Can the diagnosis of Paraphilia NOS be appropriately applied to a rapist?…[W]e recommend that a diagnosis of Paraphilia NOS be used only with extreme caution for sexual offenders incarcerated for raping adults... It is crucial that in addition to the behavioral history of the rapes themselves there be evidence to establish that the offender has a paraphilia in which he is sexually aroused specifically by the non-consensual nature of the act… Even though obtaining such clear evidence may be problematic due to the offender not being forthcoming about such information, it is nonetheless essential to have such information in order to prevent misuse of the paraphilia diagnosis in these cases (First & Halon. in press, pp. 32-22).
Does Paraphilia NOS apply to adults who have sex with adolescents?
• Research shows that at least 1/3 of heterosexual and homosexual men are sexually aroused by images of adolescent girls and boys, respectively.
• If such sexual attraction is so common, how can it be “abnormal” or “pathological?”
• Doren (2002) maintained that Paraphilia NOS-Hebephilia applies if “someone is repetitively or chronically impaired by that attraction,” e.g., criminally prosecuted.
Does Paraphilia NOS apply to adults who have sex with adolescents?
• If sexual pathology is defined by the consequences of adverse societal reaction, would that rationale justify reclassifying homosexuality as a mental disorder given the discrimination and violence to which many openly gay people are subject?
• In some cultures, adult-adolescent sex is accepted and in others it is taboo. Should diagnosis be culture-dependent?
Does Paraphilia NOS apply to adults who have sex with adolescents?
• Paraphilia NOS-Hebephilia is based on application of a legalistic definition of “non-consenting,” to mutual adult-adolescent sex that violates that jurisdiction’s age-of-consent law. Can diagnosis be jurisdictionally-dependent?
• American Psychiatric Association has never sanctioned diagnosing adult-adolescent sex as mental disorder. (The diagnosis of Pedophilia is specifically limited to adult sexual activity involving prepubescent children.)
What is a Personality Disorder?DSM-IV-TR defines Personality D/O as an endur-ing pattern of inner experience and behavior that:• deviates markedly from cultural expectations;•is manifested in the person’s cognition, affect, interpersonal functioning, impulse control (≥ 2);•is inflexible;•is pervasive across broad range of situations;•is stable over time;•has an onset in adolescence or early adulthood;•leads to significant distress or impairment.
Personality Disorders: The Most Controversial Diagnostic Category?“Researchers have been unable to identify a qualita-tive distinction between normal personality function-ing and personality disorder. DSM-IV provides specific and explicit rules for distinguishing between the presence and absence of each of the personality disorders ... but the thresholds for diagnosis provided in DSM-IV are largely unexplained and are weakly justified ... The maladaptive traits included within the diagnostic criteria for the DSM-IV persona-lity disorders appear to be present within members of the general population who would not be diagnosed with a DSM-IV personality disorder” (First, Bell, Cuthbert et al., 2002, p. 125).
What is Antisocial Personality D/O?A pervasive pattern of disregard for and violation of the rights
of others occurring since age 15 years, indicated by ≥ 3:(1) failure to conform to social norms with respect to lawful
behaviors as indicated by repeatedly performing acts that are grounds for arrest;
(2) deceitfulness, as indicated by repeated lying, use of aliases, or conning others for personal profit or pleasure;
(3) impulsivity or failure to plan ahead;(4) irritability and aggressiveness, as indicated by repeated physical
fights or assaults;(5) reckless disregard for safety of self or others;(6) consistent irresponsibility, i.e., repeated failure to sustain
consistent work behavior or honor financial obligations;(7) lack of remorse, indicated by being indifferent to or rationalizing
having hurt, mistreated, or stolen from another.
• The individual is at least age 18 years.• Evidence of Conduct Disorder with onset before age 15.
Implications of ASPD Criteria•“[T]hey say pick 3 out of a list of 7. You could pick out habitually doesn’t work, doesn’t pay debts, is reckless, irritable... There are a lot of ordinary people who would fit that description.” (Justice Ginsburg, Kansas v. Crane Oral Argument, 2001, pp. 8-9)
•Moran (1999) reported the proportion of prisoners diagnosed with antisocial personality disorder at 60-80%, commenting, “Such high prevalence estimates raise important questions about the validity of the diagnosis and the medicalization of criminality.”
ASPD: Legal & Diagnostic Issues
• ASPD can be sole diagnosis to establish “mental disorder” under ch. 980. State v. Adams (Ct. App., 1998).
• “[E]ven when state SVP ... laws allow for broad interpretation of mental disorders, it is not clinically appropriate to make a finding of SVP ... without a diagnosis of paraphilia” (Vognsen & Phenix, 2004, p. 440).
ASPD vs. Personality Disorder NOS• Some forensic evaluators will diagnose
“Personality Disorder NOS with Antisocial Features” if there is insufficient data to establish the ASPD criterion requiring evidence of Conduct Disorder (312.81/312.82) before age 15.
• However, DSM-IV-TR requires that, for any PD, including PD NOS, “The pattern [of inner experience and behavior that deviates markedly from the expectations of the individual’s culture] is stable and of long duration, and its onset can be traced back at least to adolescence or early adulthood” (p. 689) [italics supplied].
Is psychopathy a “mental disorder”?
• Psychopathy is a construct that was popularized in the 1950’s by Cleckley, but reinvigorated by Hare’s Psychopathy Checklist (now PCL-R) in the past 25 years.
• Not a DSM-IV-TR mental disorder (despite Hare’s efforts), but a subset of ASPD.
• Poor interrater reliability in forensic practice.• Raters often over-rely on biased records,
ignoring requirement that behavior being assessed must be across domains.
From what type of test data may a Personality D/O diagnosis be made?• Widiger & Samuel (2005) recommend a two-step
approach to Personality Disorder diagnosis:–Administer a self-report personality inventory, e.g., MMPI, PAI.–If self-report inventory suggests PD, then administer a semi-structured interview for the assessment of PD, e.g., SCID-II.
• Correctional/institutional records are notoriously biased. School records and collateral informant interviews are needed to assess age of onset, stability, and pervasiveness of personality-disordered inner experience and behavior.
Problems with NOS Diagnoses• How can a forensic evaluator opine “to a
reasonable degree of professional certainty” with respect to a miscellaneous diagnosis?
• NOS diagnoses, unlike specific ones:– Lack broad professional consensus– Lack field testing or other research.– Are ad hoc and may be arbitrarily assigned.– Are rarely used in other forensic contexts
because of their questionable validity.– Were intended to allow insurance billing for
clinical treatment, not form the basis for a potentially lifelong civil commitment.
What does “affecting the emotionalor volitional capacity” mean?
• Paraphilias are not considered “emotional” disorders. They are behavioral/sexual.
• ASPD is also primarily behavioral, though, if psychopathy is at its core, there may be an emotional component.
• Borderline Personality Disorder is an example of a more clearly “emotional” disorder (symptoms include “feelings of emptiness,” “anger,” etc.).
• “The Court in Hendricks had no occasion to consider whether confinement based solely on ‘emotional’ abnormality would be constitutional, and we likewise have no occasion to do so in the present case.” Kansas v. Crane, 534 U.S. 407, 415 (2002).
What does “affecting the emotional or volitional capacity” mean?
“It is enough to say that there must be proof of serious difficulty in controlling behavior. And this, when viewed in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, 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.” Kansas v. Crane, 534 U.S. 407 (2002).
What does “affecting the emotional or volitional capacity” mean?
• The Wis. Supreme Court decision in State v. Laxton, and Wisconsin Jury Instructions, adopted the Crane standard requiring “serious difficulty in controlling behavior.”
• Do forensic evaluators have any more expertise to determine volitional control in this context when their ability to do so in insanity defense cases has been found suspect?
Do SVP Diagnoses Imply Volitional Incapacity Required by Crane & ch. 980?
• None of the Paraphilias or Personality Disorders require evidence of volitional impairment.
• DSM-IV-TR cautions, “[T]he fact that an individual’s presentation meets the criteria for a DSM-IV diagnosis does not carry any necessary implication regarding the individual’s degree of control over the behaviors that may be associated with the disorder. Even when diminished control over one’s behavior is a feature of the disorder, having the diagnosis in itself does not demonstrate that a particular individual is (or was) unable to control his or her behavior at a particular time.” (p. xxxiii)
Does Volitional Impairment Requirement of Crane Add Diagnostic Validity?
“Unfortunately, clinicians have no meaningful understanding of the mental components underlying individual control. Legal precedent, theoretical literatures, empirical research, and practice guidelines all lack clear operationali-zations or conceptions of the criteria relevant to volitional impairment. Instead, there is pervasive ambiguity and uncertainty, with frequent overlap between the notions of impulsive behavior and low self-control.” Mercado, Schopp, & Bornstein (2005)
Considerations in Forensic Assessment of Volitional Capacity
• Were the respondent’s sexual offenses planned or impulsive? Planning (e.g., “grooming”) suggest volitional control, not lack of volitional capacity.
• Has the respondent exhibited sexually violent behavior while in custody? It is unlikely that a respondent with a mental disorder that predisposed him to engage in acts of sexual violence would be able to control his aggressive sexual impulses for years, even in a custodial environment, given the high prevalence of sexually predatory behavior in prisons. See, e.g., (Jones & Pratt, 2008).
“…that predisposes a person to engage in acts of sexual violence”• In State v. Post, 197 Wis.2d 279, 307
(1995), the Wis. Supreme Court equated the term “predisposes” with “specifically causes that person to be prone…”
• None of the foregoing diagnoses necessarily “specifically causes the person to be prone” to engage in acts of sexual violence, as evidenced by the fact that most people with these diagnoses are not sexually violent.
Concluding Rhetorical Question:Does civil commitment based on
Paraphilia NOS, ASPD, or PD NOS Pass Justice Kennedy’s Test?
In Hendricks, Justice Kennedy’s potentially tie-breaking vote with the majority in this 5-4 decision included the following caveat: “[I]f it were shown that mental abnormality is too imprecise a category to offer a solid basis for concluding that civil detention is justified, our precedents would not suffice to validate it.”
ReferencesAmerican Psychiatric Association (2000b). Diagnostic and statistical manual of
mental disorders (4th ed., text rev.). Washington, DC: Author.
Doren, D. M. (2002). Evaluating sex offenders: A manual for civil commitments and beyond. Thousand Oaks, CA: Sage.
First, M. B., Bell, C. C., Cuthbert, B., Krystal, J. H., Malison, R., Offord, D. R., Reiss, D., Shea, M.T., Widiger, T., Wisner, K. L. (2002). Personality disorders and relational disorders: A research agenda for addressing crucial gaps in DSM. In D.J. Kupfer, M.B. First, & D.A. Regier (Eds.), A research agenda for DSM�V (pp. 123�199). Washington, DC: American Psychiatric Association.
First, M.B. & Frances, A. (in press). Issues for DSM-V; Unintended consequences of small changes: The case of Paraphilias. American Journal of Psychiatry.
Jones, T.R. & Pratt, T.C. (2008). The prevalence of sexual violence in prison. International Journal of Offender Therapy & Comparative Criminology, 52(3), 280-295.
References (continued)Mercado, C.C., Schopp, R.F. & Bornstein, B.H. (2005). Evaluating sex
offenders under sexually violent predator laws: How might mental health professionals conceptualize the notion of volitional impairment? Aggression and Violent Behavior, 10, 289–309
Vognsen, J. & Phenix, A. (2004). Antisocial personality disorder is not enough: A reply to Sreenivasan, Weinberger, and Garrick. Journal of the American Academy of Psychiatry & the Law, 32, 440-442.
Widiger, T.A. & Samuel, D.B. (2005). Evidence-based assessment of personality disorders. Psychological Assessment, 17(3), 278–287.
Zander, T.K. (2005). Civil commitment without psychosis: The law’s reliance on the weakest links in psychodiagnosis. Journal of Sexual Offender Civil Commitment, 1, 17-82.
