People v C. M.

[*1] People v C. M. 2009 NY Slip Op 50935(U) [23 Misc 3d 1125(A)] Decided on March 31, 2009 Supreme Court, Kings County Tomei, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 31, 2009
Supreme Court, Kings County

People of the State of New York, Petitioner,

against

C. M., Respondent. For Civil Management under Article 10 of the Mental Hygiene Law.



22/2008



The Petitioner was represented by:

Assistant Attorney General Donald Leo

Office of the Attorney General

120 Broadway

New York, New York 10271

212-416-8493

The Respondent was represented by:

Bruce Harris, Esq.

Mental Hygiene Legal Services

120 Schermerhorn Street, Room 402

Brooklyn, New York 11201

347-414-9914

Albert Tomei, J.

On February 25-26, and March 3, 2009, a judge trial in the above-captioned matter was held before this court to determine whether the respondent was suffering from a mental abnormality as defined by Mental Health Law Article 10 (hereinafter Art. 10). At trial, the Attorney General (hereinafter petitioner) has the burden of establishing by clear and convincing evidence that the respondent is a detained sex offender who suffers from a mental abnormality, and must do so without relying solely upon the defendant's commission of a sex offense. M.H.L. 10.07(d). The petitioner called two witnesses at trial: Dr. Paul Etu, a psychologist licenced in New York, who examined the respondent on December 24, 2007; and Dr. Lawrence Siegel, M.D., a psychiatrist licenced in New York, who examined the respondent on December 3, 2008. The respondent called one witness: Dr. [*2]Leonard Bard, a psychologist licenced in New York, who examined the respondent on August, 7, 2008. All three witnesses were qualified as experts in the field of the diagnosis and risk assessment of sex offenders. The court found each witness credible.

A detained sex offender, as applied to this case, is a person who stands convicted of a sex offense and who is currently serving a sentence for or subject to supervision by the division of parole for such offense. M.H.L. 10.03(g). The respondent is clearly a detained sex offender as he was detained for this Art.10 proceeding at the conclusion of his latest incarceration for a sex offense and is now subject to post-release supervision for that offense.

Mental abnormality is 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." M.H.L. 10.03(i). Not all sexual conduct constitutes a "sex offense"for this finding. Article 10 limits the crimes which constitute a sex offense to an act or acts constituting any felony defined in Penal Law Art. 130 (comprising crimes involving rape, and non-consensual oral and anal sexual contact against children and adults), patronizing a prostitute in the first degree (P.L. 230.06), incest in the first and second degrees (P.L. 255.27; 255.26), a felony attempt or conspiracy to commit any of the foregoing offenses, or a sexually motivated designated felony committed prior to April 13, 2007. M.H.L. 10.03(p).[FN1] As each of the experts testified, mental abnormality is a legal definition, and does not correlate directly to any psychiatric diagnosis.

Criminal History and Expert Testimony

The respondent has been convicted of a rape in 1987 and an attempted rape in 2000. In the1987 incident, the respondent and an accomplice took turns having vaginal intercourse with a woman while the other held her at knife point. Afterwards, property was taken from the victim. The 2000 incident involved the rape of a 13 year old girl, whom the respondent first tried to talk into having sex with him. When the victim refused, the respondent took her by the arm upstairs to his apartment and had vaginal intercourse with her. No weapon or other force was used. The respondent pled guilty to both cases, but now claims that the first victim was a prostitute whom he paid for sex and that his accomplice robbed her. He asserts that he believed the second victim to be 17 years old and that she was known to trade sex for money. The respondent has a history of public masturbation under clothing and exposing his genitals, both inside and outside the prison setting, and once wrote a letter to a female Corrections Officer detailing sexual acts he wished to perform on her.[FN2] None of these latter offenses involved contact with another person and none meets the [*3]definition of a "sex offense" under Art. 10. See M.H.L 10.03(p). The respondent also has criminal convictions for petit larceny, attempted weapons possession, and disorderly conduct.

All of the experts agreed that the respondent either minimized or denied his conduct when asked about his sexual and other criminal offenses, which could be a sign of a cognitive distortion. A cognitive distortion is a problem with the thought processes which causes a difficulty in thinking things through correctly. Minimization and denial are very common responses from sexual offenders who have not undergone treatment.

Dr. Etu diagnosed the respondent with paraphilia NOS - non-consent,[FN3] meaning that respondent met the diagnostic criteria for a paraphilia, but did not meet all of the criteria for any of the paraphilias specifically enumerated in the DSM-IV-TR.[FN4] The non-consent qualifier signifies that the respondent's particular deviant arousal was to the victim's lack of consent. He also considered the diagnosis of exhibitionism, which is one of the enumerated paraphilias, but rejected it because he considered the respondent's attraction to exposing his genitals in public to be subsumed within a broader attraction to non-consensual sexual acts, whether or not the acts involved physical contact. Dr Etu considered that the respondent had some anti-social personality traits, but concluded that the respondent's major problem was with arousal to non-consensual sexual acts.

In Dr. Etu's opinion, the respondent's aberrant arousal pattern and his fixation on sexual acts causes him difficulties with his cognitive and emotional control and possibly with his volitional control. The respondent's impulsive nature and cognitive distortions impair his ability to make reasonably good decisions This predisposes the respondent to commit sexual offenses because he does not recognize the problem or denies it, and causes a difficulty in controlling the behavior, as evidenced by his inability to control his impulses in the past even under the threat of serious sanctions and while under supervision.

Dr. Siegel diagnosed the respondent with the paraphilia of exhibitionism, based on his history of exposing his genitalia and masturbating in public. He also diagnosed respondent with personality disorder NOS, with antisocial traits; noting that the respondent met all but one of the criteria for a diagnosis of antisocial personality disorder (one of the listed personality disorders). The missing critical diagnostic factor being the lack of any childhood or early adolescent history of a conduct disorder. He also diagnosed the respondent with alcohol abuse in institutional remission

Dr. Siegel did not diagnose the respondent with paraphilia NOS - non-consent because, in his view, the circumstances of the second rape, in which the respondent first tried to talk the victim into voluntarily having sex, indicated that he was not specifically seeking a non-consensual encounter. Moreover, in the first rape, the facts that the respondent was acting with another individual and may have been under the influence of alcohol, reduced the likelihood that the arousal was to the victim's non-consent.

In Dr Siegel's opinion, the respondents has a conglomeration of conditions that together cause [*4]him to have a predisposition to commit sexual offenses, and his personality traits and propensity to abuse alcohol cause him to have problems controlling his behavior. The respondent exhibits a lack of empathy, and has a history of breaking rules, acting out, exposing himself, and being more concerned with himself than others. If the respondent disinhibits himself with alcohol, these personality traits could lead to serious problems in controlling his sexually offending behavior. Dr. Siegel did not articulate in what manner the respondent's mental condition would predispose him to commit contact sexual offenses, as required to meet the Art. 10 definition of mental abnormality, as opposed to the exhibitionistic or masturbatory acts, which do not meet that definition.

Dr. Bard found that the respondent did not meet the diagnostic criteria for any of the paraphilias or personality disorders specifically enumerated in the DSM-IV-TR. He rejected the validity of any NOS diagnosis because there are no defined criteria, agreed upon by a panel of experts, to establish the parameters of such disorders. Rather, the criteria and their definitions are left to the discretion of the diagnostician. For this reason, he opined that the NOS designation, while a recognized diagnosis in the DSM- IV-TR, is invalid for forensic work, and should only be used in a clinical setting to suggest further avenues of treatment. Dr. Bard also firmly rejected any diagnosis based on behavior or on inferring from the behavior what causes the arousal. Instead, he required evidence of recurring sexual arousing fantasies or sexual urges, independent of behavior, in order to diagnose any paraphilia or personality disorder.

As all three experts testified, there is currently a difference of opinion within the mental health community regarding the method for diagnosing sexual offenders. Two of the editors of the DSM-IV-TR have published papers arguing that sexual offenders cannot be diagnosed as having a paraphilia or a personality disorder on the basis of their behaviors, because the behavior may be due to various motivations. Therefore, in the editors' opinion, the inclusion of behaviors in the definitions of paraphilias and personality disorders was an error. Dr. Bard placed a great deal of credence in these arguments; Drs. Etu and Siegel did not. The petitioner's experts both testified that the two editors were not experts in the specific field of sex offender diagnosis and treatment, but rather, were experts in classifying information. Moreover, both editors had objected to the inclusion of behaviors in the definitions during the drafting phase of the manual and been overruled by the committee of sex offender experts who had drafted these particular provisions.

Dr. Bard rejected the diagnosis of exhibitionism because it requires a repeated pattern of arousal to the idea of public exposure of the genitals to an unsuspecting audience. In this case, there were only two clearly established acts of exposure, as opposed to masturbation under clothing, and both occurred in a prison setting. In Dr. Bard's opinion, two acts are insufficient to establish a pattern of exhibitionism and inmates often expose themselves for a number of non-sexual reasons, including anger, a show of power, and to get moved to a different housing area.

All three experts agreed that there is no consensus in the mental health community regarding whether a paraphilia based on non-consent is a valid DSM diagnosis. Its inclusion as a specified paraphilia within the DSM was considered and rejected during the 1985 revision of the manual. However, one of the reasons for the rejection of an arousal to non-consensual sexual contact as a defined psychiatric disorder was the fear that it would be asserted as a defense to criminal prosecution. There is also a disagreement about how to define "non-consent." Dr. Bard interpreted it to require active struggle or refusal by the victim as the arousing factor. Therefore, any act which reduces the active display of a lack of consent, such as use of a knife to subdue the victim, would [*5]refute the inference that the lack of consent caused the arousal. In contrast, Dr. Etu interpreted it to be the mere fact that the victim was clearly not consenting. As a result, the experts reached different conclusions as to whether the defendant exhibited an arousal to non-consensual sexual activity.

Conclusion

This case presented a difficult determination because the three experts disagreed not only on their psychiatric diagnoses of the respondent, but on their methodology and interpretation of the criteria for utilizing the DSM-IV-TR to diagnose paraphilias and personality disorders. Moreover, the petitioner and respondent offered very different definitions of what type of proof is needed for the respondent to establish a mental abnormality by clear and convincing evidence. Clear and convincing evidence is "the most rigorous burden of proof in civil cases" and it "forbids relief whenever evidence is loose, equivocal or contradictory. Matter of O'Connor, 72 NY2d 517, 531 (1988), citing Matter of Storar, 52 NY2d 363, 379 (1981). It has been defined as evidence "which produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable [the fact finder] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue." Cruzan v. Harmon, 497 U.S. 261, 285 n. 11 (1990), citing In re Jobes, 108 N.J. 394, 407-408 (1987).

The respondent argued that proof of a mental abnormality could only be met by establishing that a respondent suffers from both a paraphilia which involves the commission of Art. 10 sex offenses and which predisposes the respondent to commit additional such offenses, and a personality disorder which causes the respondent to have difficulty in controlling such behavior. The respondent would also limit the diagnosis to the specified paraphilias and personality disorders for which the DSM-IV-TR provides diagnostic criteria. The petitioner, on the other hand, argues that the statute does not require proof of any specific DSM-IV-TR diagnosis, but only that the respondent has a definable condition disease or disorder that affects his or her emotional, cognitive or volitional capacity in such a manner as to predispose the respondent to commit Art. 10 sex offenses and to have difficulty in controlling such behavior. Under the petitioner's definition, it is sufficient to establish that the respondent's behavior is not normal and is motivated by some psychiatric condition, no matter how ill defined.

Neither argument is persuasive. The statute was not written to require any particular diagnosis or combination of diagnoses as defined by the DSM-IV-TR for a finding of mental abnormality. However, the statutory definition of a mental abnormality cannot be met by proof of the respondent's aberrant sexual behavior without clear and convincing evidence establishing that the behavior is caused by a condition, disease or disorder that affects the respondent's emotional, cognitive or volitional capacity. At the very least, to meet its evidentiary burden, the petitioner must be able to clearly define the parameters of the alleged condition or disorder. It may not be inferred from the fact that the respondent has engaged in sexually offending conduct. Simply put, without a definable disease, condition or disorder, there can be no determination that such condition disease or disorder predisposes the respondent to commit Art.10 sex offenses or that it causes serious difficulties in controlling that sexually offending conduct. It is, of course, not sufficient to establish that the respondent has a predisposition to commit or a difficulty in controlling his commission of non-contact sex offenses, such as exposing the genitalia or public masturbation, as those sexual acts do not meet the definition of a sex offense under Art. 10. [*6]

This trial was rife with testimony that was loose, equivocal or contradictory. Even considering just that of the petitioner's two experts, the court cannot discern precisely what mental condition, disease or disorder the respondent suffers from. Nor is it clear that there is a scientifically reliable basis for either of the principal diagnoses offered by the two experts: a paraphilia based on an attraction to the victim's lack of consent or an adult-onset anti-social personality disorder. Additionally, it is not clear whether the respondent's behavior actually fit within the criteria for either proffered diagnosis, particularly where each doctor defined the necessary diagnostic criteria differently.

Without an understanding of what mental condition or disorder motivates the respondent's behavior, it is impossible to conclude that there exists a condition or disorder which predisposes the respondent to commit Art. 10 sex offenses or that would cause him difficulty in controlling such behavior. While it is clear that the respondent has committed two Art. 10 sexual offenses in the past, the trial testimony leaves the court unable to conclude that the respondent did so as a result of a mental abnormality.

Therefore, and for the foregoing reasons, this court finds that the petitioner has not met the burden of establishing by clear and convincing evidence that the respondent suffers from a mental abnormality as defined by Art. 10. The Art.10 petition is dismissed.

Hon. Albert Tomei, J.S.C. Footnotes

Footnote 1:The designated felonies are set forth in M.H.L. 10.03(f).

Footnote 2:The respondent has three public lewdness convictions: one for public masturbation under clothing on a subway train and two for which no facts are known. The respondent denied committing the masturbation incident and stated that in the other two incidents, he was urinating in public. None of the experts gave any consideration to these latter two acts because no facts exist to contradict the respondent's statements. The respondent has two prison infractions for grabbing his crotch or masturbating under clothing in front of female corrections officers, and two infractions for exposing his genitals to a female corrections officer. He either denied the incidents or claimed that they were committed to obtain a housing transfer.

Footnote 3:NOS means "not otherwise specified." The experts defined paraphilia as a mental disorder involving sexual arousal to non-human or non-consenting sexual partners that occurs over a period of at least six months and causes the individual difficulty in his or her life.

Footnote 4:Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Association, 4th ed., text revision).