Matter of State of New York v Donald G.
Annotate this CaseDecided on June 28, 2017
Supreme Court, Cayuga County
In the Matter of the Application of The State of New York, Petitioner
against
Donald G., an inmate in the custody of the New York State Department of Corrections and Community Supervision, Respondent
2014-1177
ERIC T. SCHNEIDERMAN, ESQ.
Attorney General of the State of New York
(Kent B. Sprotbery, Esq., Asst. Attorney General, Of Counsel)
The Capitol
Albany, New York 12224-0341
and
(Jimmie C. McCurdy, Esq., Asst. Attorney General, Of Counsel)
615 Erie Boulevard West
Syracuse, New York 13204
Attorney's for Petitioner
ADAM H. VAN BUSKIRK, ESQ.
Attorney for Respondent
144 Genesee Street, Suite 102-300
Auburn, New York 13021
Mark H. Fandrich, J.
The respondent Donald G. is the subject of a petition for sex offender civil management pursuant to Article 10 of the Mental Hygiene Law (the "Sex Offender Management and Treatment Act" [SOMTA]) filed by the State of New York (hereinafter referred to as "Petitioner" or "the State"). Respondent initially moved by motion, dated and filed November 10, 2015, for, inter alia, an order precluding the introduction or use at trial of any evidence or testimony concerning the diagnosis "Other Specified Paraphilic Disorder (OSPD), Arousal to Coerced Sex With Sexual Sadistic Features" or, alternatively, requesting a Frye[FN1] hearing to determine whether that diagnosis is one that is generally accepted in the relevant scientific community such that expert testimony concerning the diagnosis should be admitted at trial. Subsequent thereto, and in response to petitioner's revised/amended position[FN2] that it may elect to proceed on the basis of the diagnosis "Other Specified Paraphilic Disorder" without the use of a "modifier", respondent moved by motion, dated May 26, 2016, for essentially the same relief as noted above with respect to the diagnosis "Other Specified Paraphilic Disorder" without a modifier/specifier, to wit; preclusion of all evidence or testimony at trial regarding that diagnosis as a matter of law or requesting a Frye hearing. Petitioner opposed both motions. This court granted respondent's request for a Frye hearing.[FN3]
The Frye hearing was conducted on October 24, 2016 and January 11, 2017. At the outset of said hearing, petitioner clearly indicated that in the context of the hearing it did not intend to defend the position that a diagnosis of OSPD without a specifier is generally accepted in the relevant scientific community. Rather, it is petitioner's stated position that a diagnosis of OSPD, non-consent is generally accepted in the relevant scientific community. Dr. Robin Wilson testified on behalf of petitioner. Dr. Frederick Winsmann testified on behalf of respondent. Numerous scholarly articles, documents and publications on the subject of paraphilic disorders were received into evidence[FN4] and referred to or relied upon by the experts. The court has carefully considered the testimony of both expert witnesses and reviewed and consulted the various exhibits. In addition, the court has considered the post-hearing written submissions of the parties. While the court finds that both parties' experts are credible witnesses and acknowledges their extensive knowledge, dedication and experience[FN5] , it does not concur with all of their respective opinions as hereinafter explained.
Respondent's Diagnosis
According to the Petition, the psychiatric examiner who initially evaluated the respondent in late 2014 and diagnosed him with a 'mental abnormality'[FN6] was Dr. Susan L. Cox, a licensed psychologist employed by the New York State Office of Mental Health (OMH). Dr. Cox reviewed numerous documents in the possession of OMH and the New York State Department of Corrections and Community Supervision and respondent's criminal history but did not personally interview the respondent.[FN7] Dr. Cox concluded that respondent met the criteria for the following mental health symptoms: Sexual Sadism Disorder and Antisocial Personality Disorder. Dr. Cox also concluded that respondent fulfills criteria for a diagnostic condition of Psychopathy. Finally, she considered, but did not assign a diagnosis of Other Specified Paraphilic Disorder, Arousal to Nonconsent.
Subsequently, and in 2015, the State retained Dr. Kostas A. Katsavdakis, a licensed psychologist, to evaluate the respondent in relation to this proceeding. Dr. Katsavdakis reviewed respondent's criminal history, a multitude of documents and records provided by the State, including but not limited to, those related to respondent's criminal history, his incarceration, court transcripts, and OMH history. Dr. Katsavdakis also conducted a 4.5 hour interview with respondent spanning a period of two consecutive days. Based upon all of the documents and materials provided and his interview of respondent, Dr. Katsavdakis concluded that respondent suffers from the following disorders: Other Specified Paraphilic Disorder, Arousal to Coerced Sex with Sexual Sadistic Features and Antisocial Personality Disorder with Narcissistic Features.
Evidence Presented At The Hearing
As noted above, two expert psychologists testified at the hearing, one for each party. Dr. Wilson testified for the State. Dr. Winsmann testified for the respondent. The Court also received 15 scholarly articles, opinion pieces and book chapters or excerpts into evidence. Both witnesses and a number of the articles discussed the Diagnostic and Statistical Manual of Mental Disorders[FN8] (DSM) and the proposal which was made but ultimately rejected for a new diagnosis of "paraphilic coercive disorder" in the most recent edition of that manual.[FN9]
Dr. Wilson discussed and analyzed the history of the Diagnostic and Statistical Manual of Mental Disorders (DSM), its provisions with respect to paraphilic disorders and its evolution to the current Fifth edition published in 2013 (DSM-5). He explained that the DSM provides "generally accepted diagnostic frameworks for all or most of the known mental sorts of disorders, . . ." and helps psychologists "label or at least pull together similar sorts of symptoms so that we can guide what sorts of treatment intervention we might apply." (Hr'g. tr. 10/24/16 at 32, lines 13-23). The DSM-5 classifies eight named paraphilic disorders (not including the condition at issue here) which have "some established diagnostic criteria." (Hr'g. tr. 10/24/16 at [*2]39, lines 13-14). One of the eight listed paraphilic disorders is Sexual Sadism Disorder. The DSM-5 also includes what Dr. Wilson describes as "two residual diagnostic categories" of paraphilic disorders, to wit; "Other Specified Paraphilic Disorder" with specifier and "Unspecified Paraphilic Disorder" without specifier.[FN10] Dr. Wilson testified that the manual's list of paraphilic disorders is not exhaustive and that "many dozens, if not, . . . well over 100 different possible paraphilias" have been identified. (Hr'g. tr. 10/24/16 at 39, lines 18-19); see also (Petitioner's Exhibit 1)).
Dr. Wilson acknowledges that one of the difficulties in illustrating the presented condition of OSPD, non-consent is that the condition has been known or referred to by numerous different names,[FN11] influenced at least in part by the convention the person making the diagnosis has been trained in.[FN12] Regardless of the nomenclature used to describe the condition, Dr. Wilson testified they all identify the same type of conduct.
Dr. Wilson generally defines a paraphilia as being an intense and persistent sexual interest other than what would be considered normal sexuality or normal sexual interactions with a physically mature and consenting partner.[FN13] Dr. Wilson then describes the relevant paraphilic interest or condition at issue in this case to be "a strong and persistent sexual interest in having sexual relations with people against their will to the extent that the fact they are not consenting and may actually be fighting back against you is what intensifies your sexual arousal, . . ." (Hr'g. tr. 10/24/16 at 44, lines 9-13). Dr. Wilson explains the persistent component of the sexual interest would be "quite prominent" and "a pattern of interest and behavior that would last at least six months or at least be sort of prominent enough it is not just by chance. . ."(Hr'g. tr. 10/24/16 at 38, lines 3-4, 11-13). Finally, Dr. Wilson explains that a paraphilia rises to the level of being a paraphilic disorder when the paraphilic interest causes any impairment or problem in the person's life, puts other people at risk for harm or causes harm to others in an offensive context. (Hr'g. tr. 10/24/16 at 36, lines 4-5, 10-12; at 37, lines 22-23; at 44, lines 2-7).
Dr. Wilson testified that coercive sexual behaviors are actually dimensional in nature and exist on a continuum with non-consent on one end and sexual sadism on the other end. As such, he acknowledges the difficulties in properly diagnosing those cases presenting circumstances which are closer to the middle of the continuum.[FN14] Further, he acknowledges that questions remain about the ability to accurately diagnose non-consent in the field. (Hr'g. tr. 10/24/16 at 60, lines 3-6). As to when or at what point on the continuum simple non-consent becomes full blown sadism, Dr. Wilson declared "Nobody has that answer. And I am frankly not sure we ever will . . ." (Hr'g. tr. 10/24/16 at 61, lines 19-20). As Dr. Wilson explains, the effort is to put [*3]a label on to a pattern of behavior that is driven by a pattern of thought.[FN15] The thought being sexual urges or sexual interests. And because there is such a broad range of behavior that someone could engage in sexually, not all experts focus on exactly the same features and exactly the same way. As such, Dr. Wilson admits that when diagnosed cases have been submitted to inter rater reliability[FN16] studies "(w)hat we find is that generally they (the experts) don't agree very well." (Hr'g. tr. at 84, lines 16-17). While sexual sadism has its own distinct diagnostic criteria, non-consent does not have a precise tested set of diagnostic criteria. That is attributable, at least in part, in Dr. Wilson's opinion because the APA rejected the proposal to include the diagnosis of paraphilic coercive disorder and its diagnostic criteria/framework for inclusion in the DSM-5.[FN17] Dr. Wilson also acknowledges that difficulty exists in distinguishing between simple acts of antisocial rape as opposed to paraphilic rapes that are driven by intense and persistent sexual interest or arousal. Dr. Wilson opined that OSPD non-consent is a generally accepted diagnosis in the psychiatric community. Based upon his experience, Dr. Wilson estimates that between 30 and 40 percent of those persons convicted of rape suffer from OSPD non-consent.[FN18] (Hr'g. tr. 10/24/16 at 106,lines 22-23). Dr. Wilson believes the issue is not whether the paraphilic condition non-consent exists, but rather whether there is a sufficiently precise diagnostic criteria set to the extent that everyone would be accepting of that criteria set so as to be able to reliably distinguish between the various types of rape (i.e., rape for sexual purposes [paraphilic version] vs. rape for other purposes [non-paraphilic version] and rape that is essentially sadism [sexual coercion with sadism] vs. rape that is essentially non-consent [sexual coercion without sadism]). (Hr'g. tr. 10/24/16 at 164-166, lines 24-3; at 172, lines 12-16). In his opinion, the means by which the diagnosis is made is "a more complicated question." (Hr'g. tr. 10/24/16 at 172, lines 20-21). When asked whether the criteria he would use to diagnose OSPD non-consent[FN19] is the same that other practitioners would use, Dr. Wilson stated "I think it would be misleading to suggest that everybody uses the same process." (Hr'g. tr. 10/24/16 at 174, lines 16-18). Dr. Wilson states there is currently no one precise tested set of diagnostic criteria to distinguish between those people who are engaging in coercive sexuality for non-paraphilic reasons versus those who are engaging in coercive sexuality for primarily paraphilic reasons. (Hr'g. tr. 10/24/16 at 178, lines 8-13). Dr. Wilson testified though that he conducted a field trial research study as a member of the DSM-5 paraphilia sub-work group to test the proposed diagnotic criteria for paraphilic coercive disorder. He stated the research showed that they could reliably distinguish [*4]between those persons who engaged in coercive sex for non-sexual reasons versus those who were doing it for sexual reasons. Dr. Wilson admits that the results of the field trials he and Dr. David Thornton conducted for the DSM paraphilia sub-work which were presented in 2011 have not yet been submitted for peer review. (Hr'g. tr. 10/24/16 at 73, lines 17-18; at 178, lines 18-21). Dr. Wilson points out, however, that for many of the paraphilias listed in the DSM-5 there is disagreement as to their diagnostic criteria.
Dr. Wilson indicated his familiarity with the concept referred to as the medicalization of criminality. He describes it as the theory that certain aspects of the psychiatric diagnostic process are being co-opted to further a certain kind of political agenda or one outside of the strictly clinical realm whereby diagnoses are created or allowed to be used inappropriately to further non-clinical goals. Dr. Wilson testified this has been one of the arguments that has been "fairly leveled" against diagnostics within civil commitment. (Hr'g. tr. 10/24/16 at 102-103, lines 16-14). Dr. Wilson acknowledged that the diagnosis of OSPD, non-consent is used most often in the field of civil confinement. (Hr'g. tr. 10/24/16 at 181, lines 2-6).
Dr. Wilson offers that the relevant scientific community for purposes of the Court's Frye analysis is a relatively small and limited subset of people within the psychological and psychiatric community who are working in sexual violence prevention and dealing with sexual psycho diagnostics and who are specialists in the diagnosis, assessment, treatment and risk management of people who have engaged in rape or other sexually offensive behaviors. (Hr'g. tr. 10/24/16 at 90-91, lines 1-16; at 157, lines 10-11; at 172, lines 17-18; at 175-176, lines 17-11).
Defendant's expert witness Dr. Winsmann testified he is familiar with the process by which the sub-groups look at topics and that the diagnosis of paraphilic coercive disorder has been looked at and rejected on at least four separate occasions for inclusion in the DSM (Hr'g. tr. 01/11/17 at 228, lines 13-14; at 238-239, lines 16-6). It was considered and rejected in the 1999 American Psychiatric Association task force report and Dr. Winsmann is not aware of any report or equivalent task force report of the American Psychological Association that has accepted the paraphilic rape construct. (Hr'g. tr. 01/11/17 at 239-240, lines 17-3; at 262, line 24). Further, Dr. Winsmann testified that the paraphilias are perhaps the most currently controversial among diagnoses "particularly in the behavioral sciences because of this inability to peer into the brain." (Hr'g. tr. 01/11/17 at 230-231, lines 21-3). He explains the controversy among scientists specifically with respect to paraphilic coercive disorder is with the absence of a 'construct validity' of the diagnosis as a real mental disorder. (Hr'g. tr. 01/11/17 at 229, lines 4-15; at 231, lines 5-6). Dr. Winsmann defines 'construct validity' as finding sufficient evidence through field testing and cross validation vis-a-vis reliability to justify the diagnosis. (Hr'g. tr. 01/11/17 at 232, lines 10-22). Dr. Winsmann also acknowledged the long and heated controversial history of paraphilic coercive disorder and explains the controversy refers, in large part, to "making rape a mental disorder"; what in the field is called the medicalization of criminality. (Hr'g. tr. 01/11/17 at 228, lines 18-25). It is Dr. Winsmann's opinion, formed in part by his reliance upon the expressed opinion of other psychologists, that reliability and validity have not been established for paraphilic coercive disorder and, therefore, the diagnosis is not recognized and accepted. He opines that the overwhelming consensus against paraphilic rapsim still exists. Dr. Winsmann did acknowledge a small sub-set of psychologists in Canada who have conducted research, particularly at the Freund Institute, that have pressed for and promote the disorder but testified that "other than this small group, no, I believe it is a novelty at best." (Hr'g. tr. 01/11/17 [*5]at 242-243, lines 23-2; see also, Hr'g. tr. 01/11/17 at 264, lines 10-14; at 305, line 9).
Dr. Winsmann stated he has been educated in part by various writings on the topic and those writings have made it abundantly clear to him that coercive paraphilic rapism or its variant wordings "is not a real disorder, this is a crime." (Hr'g. tr. 01/11/17 at 242, lines 16-19). He believes there is forensic misuse of the Other Specified Paraphilic Disorders and, particularly, with the (in his opinion) 'non-existent' diagnosis called paraphilic coercive disorder. Specifically, Dr. Winsmann opines that Other Specified Paraphilic Disorder, Arousal to Coerced Sex with Sexual Sadism Features is an "ad hoc" diagnosis which cannot be studied inasmuch as it is individualized by the clinician making it up. Dr. Winsmann testified there is no generally accepted checklist, scoring instrument or framework that would be used by the different professionals to diagnose Other Specified Paraphilic Disorder, Arousal to Coercion and at this point it is purely a matter of individual professional opinion (Hr'g. tr. 01/11/17 at 264, lines 15-25). Dr. Winsmann testified that a diagnosis of OSPD, Non-consent cannot be relied upon in a forensic setting in light of the construct validity and reliability issues it suffers from and the difficulty that exists to discriminate it from other causes. Dr. Winsmann testified it is tedious and difficult to conduct the quantitative studies necessary to access the validity of any unspecified paraphilia. For purposes of providing a diagnosis, Dr. Winsmann would not use a dimension or continuum such as Dr. Wilson described.
Lastly, Dr. Winsmann opines that the diagnosis Other Specified Paraphilic Disorder, Non-Consent has an even a higher level of rejection and unacceptance than other unspecified paraphilias because it has been focused on, variously studied and tested over time resulting in insufficient evidence to support it and been rejected five times by the body that creates the most research nosology in the world. (Hr'g. tr. 01/11/17 at 312, lines 5-14).
The Law
In general, the test pursuant to Frye considers the "question of whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally." (People v Wesley 83 NY2d 417, 422 [1994].) The scientific principle in issue "must be recognized" and "sufficiently established to have gained general acceptance in the particular field in which it belongs." (Id., at 422-423, quoting Frye, supra at 1014.) General acceptance may be established through texts and scholarly articles on the subject, expert testimony and court opinions finding the evidence generally accepted in the relevant scientific community. (People v Wernick 215 AD2d 50, 52 [2nd Dept. 1995].) "The Frye test emphasizes 'counting scientists' votes, rather than on verifying the soundness of a scientific conclusion.'" (Wesley at 439 [Kaye, Ch. J., concurring].) The particular scientific principle need not be unanimously endorsed. Further, it does not necessarily mean that a majority of the scientists involved subscribe to the conclusion. "Rather it means that those espousing the theory or opinion have followed generally accepted scientific principles and methodology in evaluating clinical data to reach their conclusions." (Sadek v Wesley 117 AD3d 193, 201 [1st Dept. 2014], quoting Zito v. Zabarsky 28 AD3d 42, 44 [2nd Dept. 2006].)
"In defining the relevant scientific field, the court must seek to comply with the Frye objective of containing a consensus of the scientific community. If the field is too narrowly defined, the judgment of the scientific community will devolve into the opinion of a few experts. The field must still include scientists who would be expected to be familiar with the particular use of the evidence at issue, however, whether through actual or theoretical research." (Wesley [*6]at 438 [Kaye, Ch. J., concurring].)
The burden of proving general acceptance rests on the party presenting the disputed evidence. (Zito v. Zabarsky 28 AD3d 42, 44 [2nd Dept. 2006].)
Discussion
Both experts agree that the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), published in 2013, represents the institutional consensus of American psychiatry. Among other mental disorders, the DSM-5 classifies and describes paraphilic disorders. The DSM-5 defines a paraphilia as "any intense and persistent sexual interest other than sexual interest in genital stimulation or preparatory fondling with phenotypically normal, physically mature, consenting human partners" (See, Petitioner's Exhibit 1).
The Court recognizes that while only eight specific paraphilic disorders are listed with criteria in the DSM-5 many dozens of lesser or rarely seen distinct paraphilias have been identified and named which could, by virtue of their negative consequences for an individual or for others, rise to the level of a paraphilic disorder. As such, the catch-all diagnosis of "Other Specified Paraphilic Disorder" is clearly legitimate, useful and necessary in clinical practice. The Court holds (and there is no dispute) that the DSM-5 general diagnosis "Other Specified Paraphilic Disorder" (formerly 'paraphilia, not otherwise specified' in the DSM-4) itself is a generally accepted diagnosis in the relevant psychological community. (cf., State of New York v Jason C. 51 Misc 3d 553 [Sp. Ct., Kings Co. 2016] citing State v Mercado 50 Misc 3d 512 [Sp. Ct., Kings Co 2015]).
It is the specifier "Non-Consent" that is attached to the general diagnosis that is in issue here and which must be carefully scrutinized for its general acceptance. There is no clear definition or agreed upon criteria for the proposed disorder diagnosis. Each evaluator proffers his/her own understanding of how it would be diagnosed. Further, it is clear from the literature that there is no agreed upon criteria for this condition even among those practitioners working within the SVP (sexually violent predator) community, which is where the diagnosis is being used, if not exclusively, then clearly predominantly. There is no explanation given how one would distinguish the paraphilic rapists from those who rape simply out of anger or cognitive distortion or for psychopathic or antisocial reasons since all of the suggested criteria are equally applicable to non-paraphilic rapists. Some of the proposed criteria are in and of themselves controversial. Dr. Wilson admits that the disagreement among the experts concerning what the precise criteria would be for paraphilia NOS is common and highly contentious. The court cannot find a diagnosis "generally accepted" when there is not, at the very least, a generally accepted criteria that defines the condition. Furthermore, it has been demonstrated that at least one criteria (i.e., PPG testing) cannot consistently distinguish between OSPD Non-Consent and sexual sadism because there are times when sexual sadists will respond to the coercive stimuli the same way essentially non-consent people do. It is not clear to this Court how and at what point non-consent is differentiated from sexual sadism or other motivations for rape. The fact that this proposed diagnosis is still evolving and has yet to have a cognizable and generally accepted set of criteria is apparent. What is also apparent to the Court is that research concerning this diagnosis is ongoing not based so much upon a clinical imperative but rather seems to be driven by SVP statutes which require a diagnosis to subject rapists to civil confinement.
The Court accepts that the editing and drafting of updated versions of the DSM is an extensively deliberative process, albeit sometimes a less than transparent, conservative and/or [*7]political one. In that regard, the Court understands the various reasons for determining whether a certain diagnosis should be included or rejected as a disorder in the DSM are complex and may not always occur for legitimate diagnostic reasons or based on strictly scientific assessments alone. Consequently, the Court does not find the APA's rejection of the proposed diagnosis in the DSM-5, standing alone, to be determinative of this issue. The reason or reasons for rejection of OSPD Non-Consent do not matter with respect to the Frye standard. Nevertheless, the fact that the proposed diagnosis in its varied nomenclature has been researched, hypothesized and debated for almost four decades and been repeatedly rejected is a very strong indicator that it lacks general acceptance in the relevant scientific community.
Dr. Wilson believes the issue is not whether the paraphilic condition non-consent exists. It is his opinion that the various literature, studies and research are an indication that the concept of OSPD Non-Consent exists. However, the existence of the concept of non-consent does not establish its general acceptance.
This Court is not the first to consider whether OSPD non-consent has been generally accepted as reliable.[FN20] I find the relevant scientific community to be psychiatrists and psychologists who have as a meaningful part of their practice the evaluation, diagnosis or treatment of sex offenders or perform research in the field. These are the mental health professionals who would have direct familiarity with the diagnosis, its scientific underpinnings and its reliability. The evidence clearly illustrates a that heated controversy continues to exist on whether OSPD Non-Consent is a generally accepted diagnosis. "Where controversy rages, a court may conclude that no consensus has been reached." (Wesley at 439 [Kaye, Ch. J., concurring].) The burden to demonstrate general acceptance in on the State. That burden has not been met.
Conclusion
As to the OSPD specifier at issue herein, "Non-Consent" (or the varied nomenclature) the Court holds that the State has not met its burden to prove that the respondent's specific diagnosis of OSPD Arousal to Coerced Sex with Sexual Sadistic Features is generally accepted as reliable in the relevant scientific community. It cannot be applied in this case. Respondent's motion to preclude the use of the diagnosis is granted.
Dated: June 28, 2017
Auburn, New York
Hon. Mark H. Fandrich
Acting Supreme Court Justice Footnotes
Footnote 1: See Frye v. United States 293 F. 1013 [D.C. Cir. 1923]
Footnote 2: As declared in a telephone conference with the Court held on 04/11/16 and as memorialized in the Amended Omnibus Order dated and filed 05/02/16.
Footnote 3: Order Regarding Respondent's Motion to Preclude, dated and filed 09/27/16.
Footnote 4: See Petitioner's Exhibits 3-5, 7, 8, 10-12; Respondent's Exhibits C-J.
Footnote 5: See Petitioner's Exhibit 2 (Curriculum Vitae - Robin Jephrey Wilson, PhD, ABPP)/Hr'g. tr. 10/24/16 at 10-30; Respondent's Exhibit A (Curriculum Vitae - Frederick Winsmann, PH.D)/Hr'g. tr. 01/11/17 at 197-200.
Footnote 6: See Mental Hygiene Law §10.03(i)
Footnote 7: According to Dr. Cox, respondent refused all attempts to interview him.
Footnote 8: A publication of the American Psychiatric Association (APA).
Footnote 9: To briefly elaborate that which is clear from several of the exhibits received in evidence, paraphilic coercive disorder and its predecessor condition "sexual assault disorder" have been proposed for inclusion in the several revisions of the DSM since as early as 1976 and been rejected on each occasion because of concerns as to its scientific validity and/or for political reasons.
Footnote 10: Formerly a single category of disorder referred to as "paraphilia, not otherwise specified" in the DSM-4. The diagnosis "Unspecified Paraphilic Disorder" is not at issue here.
Footnote 11: i.e., paraphilic coercive disorder, coercive sexuality, preferential rape pattern, paraphilic rape, biastophilia
Footnote 12: Based on his training, Dr. Wilson is inclined to refer to the condition as preferential rape pattern (Hr'g. tr/ 10/24/16 at 43, line 8).
Footnote 13: See also, Petitioner's Exhibit 1.
Footnote 14: "That would be one of the greater difficulties in our field." (Hr'g. tr. 10/24/16 at 58, lines 16-17).
Footnote 15: What Dr. Wilson describes as a "functional behavorial analysis" (Hr'g. tr. 10/24/16 at 86, line 16; at 89, line 10-11)
Footnote 16: The degree to which two or more evaluators reviewing the same subject would reach the same diagnosis.
Footnote 17: Dr. Wilson offered no precise reason for the Board of Governors' rejection of the recommendation simply stating the decision making process is not necessarily a fully transparent one and that "(t)here is great controversy as to how we are going to typify rape." (Hr'g. tr. 10/24/16 at 74, lines 12-17).
Footnote 18: Conversely, Dr. Wilson estimates that between 60 and 70 percent of rapes are neither sadistic nor paraphilic,non-consensual (Hr'g. tr. 10/24/16 at 166, lines 7-9).
Footnote 19: e.g., penile plethysmograph (PPG) data, victim information, self report of client, the abnormality of the behavior (indicative of sexual arousal), frequency of occurrence (number of times the behavior is engaged in over a period longer than six months), circumstances of occurrence (i.e., was alcohol a factor) (Hr'g. tr. 10/24/16 at 65-66; at 173-174)
Footnote 20: e.g. State of New York v Kareem M. 51 Misc 3d 1205[A](Sp. Ct., NY Co. 2016); State of New York v Jason C. 51 Misc 3d 553 (Sp. Ct., Kings Co. 2016);
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