Polysemy & Semantics in Psychology & Law

Federal prosecutors announced on January 3, 2015 that John Hinckley will not face new charges in the death last summer of President Reagan’s former press secretary, James Brady.  Going back to 1981, Hinckley was charged with the shootings of Reagan, Brady, a Secret Service agent, and a police officer.

As a “matter of law”, Hinckley is precluded from being charged in Brady’s death.

Here we see an interface of psychology and law at play.

Psychology:

John Hinckley was found not guilty by reason of insanity in the shootings of Reagan, his then-press secretary James Brady, a Secret Service agent and a police officer. Hinckley, 59, has been committed to a psychiatric hospital for the past 32 years, although he now spends more than half of each month at his mother’s home in Virginia.

<snip>

U.S. Attorney Ronald Machen announced Friday that Hinckley won’t be charged, in part because prosecutors are barred from arguing now that Hinckley was sane at the time of the shootings.

And law:

A prosecution would also be precluded by law because District of Columbia courts before 1987 did not allow homicide cases to be brought if the victim died more than a year and a day after the injury.

“The conclusion, I think, was inevitable. The prosecution would have been barred as a matter of fact, as a matter of law,” said Barry Levine, Hinckley’s attorney.

http://www.foxnews.com/politics/2015/01/03/reagan-shooter-wont-face-new-charges-in-james-brady-death/

Law wins out. In cases I’ve worked on, I’ve seen the ADAs and AAGs look for every wiggle room possible in how a statute is interpreted – to their advantage of course – just as the defense does the same to its advantage.

Look at the following statutory definition of “mental abnormality” in New York Mental Hygiene’s Article 10 sex offender statute:

“Mental abnormality” means a  congenital  or  acquired  condition,
disease or disorder that affects the emotional, cognitive, or volitional
capacity  of  a  person  in  a manner that predisposes him or her to the
commission of conduct constituting a sex offense  and  that  results  in
that person having serious difficulty in controlling such conduct.

What does “predisposes” mean? How do you get there? How does the AAG develop its case to show that a respondent does in a fact have a predisposition to commit sex offenses?

What do “emotional”, “cognitive”, or “volitional” capacity mean? You only need one (as indicated by the word “or”). Do you look at all three? Pick and choose the best?

How does one distinguish “congenital” v. “acquired?” One would think that you’d need an excellent historical data base, no? Does it even matter since the statue allows for either one (again, the word “or”)? If you can’t get “congenital”, so what, you must have “acquired” by default? Is it a matter of six of one and half a dozen of the other?

What about diagnosis? Doesn’t a diagnosis at least to some extent inform as to etiology? But the statute is silent about “diagnosis”, and nowhere does “DSM-IV-TR” or modernly “DSM-5” appear. But, arguably, don’t psychologists communicate with the DSM? Is it fair to legally preclude a diagnostic methodology that at least puts forth professional effort at making it possible for psychologists to share with reasonable consistency in usage of terms how they arrive at a finding of mental illness?

Would a term such as “rage reaction” towards women manifested by sexual conduct suffice as a measure of diagnostic certainty? Is there such a thing as diagnostic certainty? Is there such a thing as diagnostic destiny: you are what you were? Does it matter in as much as the word “diagnosis” is not included in the statute?

What happens when different DSM publications are used? In describing a past report of a respondent in which a DSM-III diagnosis had been used, what do you do with it now? Use standards then? Try to fit it in some diagnostic category now? Do you even mention it?

And making matters more difficult, what about a case presently litigated that has dragged on a bit, and one state examiner used DSM-IV-TR and another state examiner used DSM-5? Both examiners already testified. Both used the diagnoses they established. Aside from the fact that both arrived at different diagnoses (a problem?), neither attempted to “update” the DSM-IV-TR diagnoses that were made by the first examiner. Was – or is – there an affirmative duty to do this? By whom?

Look below at the requirements to establish that a respondent found to have a mental abnormality is a “dangerous sex offender” requiring confinement in a secure treatment facility.

…respondent  has  a mental  abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the respondent  is likely to be a danger to others and to commit  sex  offenses  if  not confined  to  a secure treatment facility.

What does “strong” mean? How much of “such a strong” modifier does the AAG need to satisfy its burden of establishing “such a strong predisposition?”

What about “inability to control behavior?” How much is “such an inability?” How do you get there? And inability to control exactly what? Sexual behavior? The statute doesn’t say that, does it? It says “inability to control behavior.” What behavior, therefore?

In practice, general self-control is looked at; not just sexual self-control.

How does the AAG make its case for “likely?” This is where we tend to see a “battle of the actuarials” and other tools used in the sex offender evaluation industry.

The marriage of law and psychology often seems to boil down to words. What’s there? What’s not? Left to navigate a sea of polysemy and semantics, forensic psychologists must be guided by cases. And this involves a lot of reading. This is where you see how the “wiggle room” was handled by different judges in different jurisdictions.

But not so fast! Enter the top court, the New York Court of Appeals that has had recent involvement in sex offender cases. See:

http://www.newyorklawjournal.com/id=1202675012229/Split-Court-Clarifies-Role-of-ASPD-in-Civil-Confinement?slreturn=20150003155217

The diagnosis, ASPD, is featured prominently. And the diagnosis Paraphilia NOS was viewed as “junk science devised for the purpose of locking up dangerous criminals” in the eyes of dissenters in the Shannon S. case.

Thus, we do look at diagnoses. At least the Court of Appeals did. And they have the final say; in NY anyway.

And some diagnoses are “junkier” than others.

And at least one – a biggie – ASPD is insufficient “without any other condition linked to sexual violence…to support the finding of mental abnormality needed for civil commitment to a mental health facility.”

As for the matter of Paraphilia NOS, a thin diagnosis, Judge Eugene Pigott wrote in the Matter of State of New York v. Donald DD:

Paraphilia NOS is a controversial diagnosis. It is listed in the current edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, but only as a “catch-all” category for paraphilias that are not specifically enumerated elsewhere in the manual because they are “less frequently encountered” (American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, at 567 [4th Edition Text Revision 2000])…and we expressed “grave doubt” whether such a “diagnosis would survive a Frye hearing to determine whether it is ‘sufficiently established to have gained general acceptance’ in the psychiatric community” (Shannon S., 20 NY3d at 110 [Smith, J., dissenting, joined by Lippman, C.J. and Pigott, J.], quoting Frye v United States, 293 F 1013, 1014 [DC Cir 1923]).[FN6]

http://law.justia.com/cases/new-york/court-of-appeals/2014/172.html

Look for Frye hearings to be forthcoming.

See NY may need to free sex offenders:

“We are reviewing the diagnoses of civilly confined individuals on a case-by-case basis as to the applicability of this decision,” Benjamin Rosen, a spokesman for the state Office of Mental Health, said in an email.

http://www.democratandchronicle.com/story/news/2014/12/28/new-york-civil-confinement-sex-offenders/20916567/

The photo in the background is Central New York Psychiatric Center.

And see NY court frees sex offender from civil confinement:

The Court of Appeals in its recent ruling said there isn’t enough evidence that Michael M. is unable to control himself and likely to be dangerous to others unless locked in a secure facility.

The court, divided 5-to-1, said he should return instead to close supervision in the community.

“The testimony in this case tended to show only that respondent was struggling with his sexual urges, not that he was unable to control himself,” Judge Eugene Pigott Jr. wrote. “The inability to control sexual misconduct would have to be shown to prove that respondent was a dangerous sex offender requiring confinement.”

http://www.syracuse.com/news/index.ssf/2015/01/ny_court_frees_sex_offender_from_civil_confinement.html

Changes on the horizon blend diagnoses, terms of statutory definitions, and offer new parameters at arriving at what it takes to find “mental abnormality” and what it takes to find that a sex offender requires confinement. Stare decisis in Shannon S. is upheld, but a key via Frye hearings is offered as a means of enacting further change.

Moral of the story: read, a lot, and stay on top of research in psychology, applicable law in kinds of cases worked on, statutes, relevant rulings, and of course, appeals.

And look for faux pas in the world of Psychology & Law and Cultural Competence where interpretational errors are likely to be exponentially magnified. There are many threats to interpretation, differences stemming from different values, ideologies, word usage, and knowledge that varies by culture that may result in false positive or false negative results. What cultural and language barriers and obstacles exist? How culturally sensitive is the examiner? How culturally in tune with a Latino examinee is the interpreter? How competent is the interpreter in translating professional terms used in the particular forensic area?

The consequences stemming from the inadequacies of a culturally incompetent forensic examination are far-reaching.

Roy

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