Matter of State of New York v Jerome A.

[*1] Matter of State of New York v Jerome A. 2017 NY Slip Op 51762(U) Decided on December 21, 2017 Supreme Court, New York County Conviser, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 21, 2017
Supreme Court, New York County

In the Matter of the Application of The State of New York, Petitioner,

against

Jerome A., Respondent, For Commitment Under Article 10 of the Mental Hygiene Law. In the Matter of the Application of The State of New York Petitioner, Nicholas T. Respondent, For Commitment Under Article 10 of the Mental Hygiene Law. In the Matter of the Application of The State of New York Petitioner, Gary K. Respondent, For Commitment Under Article 10 of the Mental Hygiene Law.



In the Matter of the Application of The State of New York Petitioner,

against

Nicholas T. Respondent, For Commitment Under Article 10 of the Mental Hygiene Law.



In the Matter of the Application of The State of New York Petitioner,

against

Gary K. Respondent, For Commitment Under Article 10 of the Mental Hygiene Law.



30261/2014



New York State Attorney General Eric Schneiderman (Kent Sprotbery and Elaine Yacyshyn, of counsel) for the State.

Mental Hygiene Legal Services, First Department (Jessica Botticelli and Kalina Lovell, of counsel) for the Respondents.
Daniel P. Conviser, J.

The three respondents here are subject to petitions for sex offender civil management pursuant to Article 10 of the Mental Hygiene Law ("Article 10"), the Sex Offender Management and Treatment Act ("SOMTA"). They seek to preclude expert witnesses proffered by the State from testifying that each respondent has the diagnosis "Unspecified Paraphilic Disorder" ("USPD") at trial. The Court granted each respondent's motion for a Frye hearing with respect to that diagnosis. See Frye v. United States, 293 F3d 1013 (D.C. Cir 1923). Although these three cases will not be consolidated for trial, the general acceptance issue arising in each case is the same and the parties consented to conducting one Frye hearing for all of the cases. For the reasons outlined infra, the Court holds that the diagnosis of USPD is generally accepted in the relevant psychiatric community under the Frye standard.

That will not, however, be the final determination which will have to be made in these cases about whether the USPD diagnosis will be allowed to be admitted during the respondents' trials. As also briefly addressed here, the USPD diagnosis raises due-process and reliability issues. These will be addressed with respect to each case going forward separately.[FN1]

I. STATEMENT OF FACTS

State v. Jerome A.

Mr. A. has an extensive criminal history of both sexual and non-sexual offenses. At age 40, in 1997, he pled guilty to the crime of Sexual Abuse in the First Degree. In that incident, Mr. A. met a woman in a hallway, confined her, threatened her and raped her. In the instant qualifying offense, Mr. A. pled guilty in New York in 2006 at age 50 to Attempted First Degree Rape by forcible compulsion. In that crime Mr. A. beat and forcibly raped a woman he had engaged in consensual sexual intercourse with 40 minutes earlier.

State's expert Dr. Kostas Katsavdakis has diagnosed Mr. A. with USPD, a provisional diagnosis of Sexual Sadism Disorder, multiple alcohol and substance abuse disorders, and Antisocial Personality Disorder ("ASPD") with narcissistic features. Although Dr. Katsavdakis's report explains in detail why he believes Mr. A. meets the criteria for a Mental Abnormality under Article 10, he does not explain why the USPD designation should be applied to Mr. A. Among other assessments, Dr. Katsavdakis opines that Mr. A. has a "chronic arousal to coerced sexual acts targeting females".[FN2]

State v. Nicholas T.

Nicholas T. was convicted by guilty plea of Burglary in the First Degree, Attempted Rape in the First Degree and other charges in 1992 and received an indeterminate prison term of 12-24 years in prison. Mr. T. was previously convicted of Attempted Rape in the First Degree at the age of 16 and received an indeterminate 3-9 year sentence. He has a juvenile sex offense history and sexual misconduct disciplinary infractions while incarcerated.

[*2]State's expert Dr. Stuart Kirschner has diagnosed the Respondent with Exhibitionistic Disorder, ASPD with psychopathy, Narcissistic Personality Disorder, alcohol and substance abuse disorders and USPD. With respect to the USPD diagnosis, Dr. Kirschner, in his report, outlined the DSM criteria for USPD (detailed infra) but did not otherwise explain how the USPD designation applied to Mr. T. Dr. Kirschner's 29 page report, however, did provide extensive information about Mr. T.'s criminal and social history.[FN3]

State v. Gary K.

In 1983 Mr. K. was convicted of Rape in the Second Degree. In that assault, he forcibly sodomized a 13 year old stranger victim on a rooftop. After a conviction for Attempted Robbery in the Third Degree in 1987, he was convicted in 1999 of sexual assaults against four victims. In the first incident, Mr. K. approached a stranger victim in an elevator, pulled her by the neck, took her to an incinerator room and raped her.

In the second crime, he followed a 15-year-old girl to an elevator, cut her face with a razor and raped and sodomized her on a roof. In the third incident, he entered an elevator with a 13-year-old stranger, placed a box cutter to her neck, cut her and dragged her to an apartment landing. Finally, Mr. K. placed a knife to the throat of a 20-year-old victim in an elevator but was apprehended after a witness came upon the scene.

State's expert Dr. Stuart Kirschner has diagnosed with Mr. K. with ASPD with psychopathic traits, Narcissistic Personality Disorder, USPD and alcohol and substance abuse disorders. With respect to the USPD diagnosis, Dr. Kirschner, in his report, outlined the DSM-5 criteria for USPD but did not otherwise describe why the diagnosis applied to Mr. K. Dr. Kirschner's 28 page reported did provide extensive information about Mr. K.'s history and statements and explained in detail why Dr. Kirschner believed Mr. K. had a Mental Abnormality under Article 10.

II. THE DSM-5 AND ITS PRIOR EDITIONS [FN4]

All of the expert witnesses at the instant Frye hearing analyzed the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (the "DSM-5"). That manual's provisions and history are also the primary basis for this Court's decision. The provisions of the DSM-5 and its immediately preceding edition relevant to the instant question are therefore first outlined here.[FN5]

The DSM was first published in 1952 and has gone through multiple numerical iterations with the most recent 5th edition published in 2013. The immediately preceding edition, the DSM-4-TR (Text Revision) was published in 2000. The DSM-5 describes itself as "a massive undertaking that involved hundreds of people working toward a common goal over a 12-year [*3]process" (5).[FN6] This Court outlined expert testimony regarding the DSM in its decision in State v. Kareem, M., 51 Misc 3d 1205(A), 2016 NY SlipOp50427 (U) (New York County Supreme Court 2016), in which this Court held that the diagnosis of Paraphilia Not Otherwise Specified ("Paraphilia NOS") Non-Consent and related diagnoses were not generally accepted in the psychiatric community. In Kareem M., this Court noted that State expert witness Dr. David Thornton had described the DSM as an attempt by American psychiatry to harmonize diagnostic practices. It has been called the "Bible of mental disorders" and is "like the institutional embodiment for the consensus of main treatment and psychiatric opinion in the United States". 2016 NY SlipOp at 2 (quoting testimony of Dr. Thornton).

During the Kareem M. hearing, Respondent witness Dr. Raymond Knight described the manual as including "a consensus of experts in psychiatry about those particular disorders that should be treated". Id. "It is the result 'partly of tradition', partly of a consensus of leading psychiatrists, partly of 'politics' and to 'some extent influenced by research'. Id., (quoting testimony of Dr. Thornton). "The manual emerges 'through a complex, hierarchical process informed by expert working groups, consultation on possibilities, and multi-layered review'". Id. (quoting Dr. Thornton). In the instant hearing, State witness Dr. Richard Krueger described the DSM as "the consolidated opinion of the psychiatric community in terms of what constitutes psychiatric diagnosis".[FN7]

Respondents' instant hearing witness, Dr. Charles Patrick Ewing, said: "People can argue about the DSM-5 and whether it should be in there or not, but in our profession that's the consensus. That's what we decided to go by." He also testified, however, that there are a "few exceptions" to this general rule, one of which is USPD, which Dr. Ewing opined was not generally accepted.[FN8]

The DSM-5 classifies eight named paraphilic disorders (not including the disorder at issue here). It defines the word "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" (685). One may have a paraphilia, however, without having a paraphilic disorder. A paraphilia describes a sexual interest and is a "necessary but not . . . sufficient" predicate for a paraphilic disorder (686). A paraphilic disorder "is a paraphilia that is currently causing distress or impairment to the individual or a paraphilia whose satisfaction has entailed personal harm, or risk of harm, to others" (685-686). The eight listed paraphilic disorders are: Voyeuristic Disorder, Exhibitionistic Disorder, Frotteuristic Disorder, Sexual Masochism Disorder, Sexual Sadism Disorder, Pedophilic Disorder, Fetishistic Disorder and Transvestic Disorder.

The DSM-5 also includes the diagnoses of "Other Specified Paraphilic Disorder" ("OSPD") and USPD (the diagnosis at issue here). The OSPD provision reads in relevant part:

This category [Other Specified Paraphilic Disorder] applies to presentations in which [*4]symptoms characteristic of a paraphilic disorder that cause clinically significant distress or impairment in social, occupational or other important areas of functioning predominate but do not meet the full criteria for any of the disorders in the paraphilic disorders diagnostic class. The other specified paraphilic disorder category is used in situations in which the clinician chooses to communicate the specific reason that the presentation does not meet the criteria for any specific paraphilic disorder. This is done by recording "other specified paraphilic disorder" followed by the specific reason (e.g., "zoophilia").[FN9] (705)

This passage goes on to provide 6 non-exclusive examples of OSPD diagnoses: the sexual attraction to obscene phone calls, corpses, animals, feces, enemas and urine. The DSM-5 provision describing the USPD diagnosis at issue here reads as follows:

This category applies to presentations in which symptoms characteristic of a paraphilic disorder that cause clinically significant distress or impairment in social, occupational, or other important areas of functioning predominate but do not meet the full criteria for any of the disorders in the paraphilic disorders diagnostic class. The unspecified paraphilic disorder category is used in situations in which the clinician chooses not to specify the reason that the criteria are not met for a specific paraphilic disorder, and includes presentations in which there is insufficient information to make a more specific diagnosis. (705) (emphasis in original).

In his testimony, Dr. Krueger said he construed this language as providing two different reasons why a USPD diagnosis would be given. One would be where a clinician chooses not to assign a specific paraphilia diagnosis "for whatever reason". The second would be where there is insufficient information to make a more specific diagnosis.[FN10] The DSM-5 provides no direction that, where the USPD category is assigned, a specifier which further describes the diagnosis must be used. However, for OSPD, a specifier is required. According to the manual, the eight specifically described paraphilic disorders (other than OSPD and USPD) were chosen because "they are relatively common, in relation to other paraphilic disorders" and because some are classified as crimes. The manual notes that this list is not exhaustive and that "[m]any dozens" of paraphilias have been identified and named". The diagnoses of OSPD and USPD, according to the manual, "are therefore indispensable and will be required in many cases" (685). The DSM-5 also includes a section entitled "Conditions for Further Study" described as "conditions on which future research is encouraged" (783). None of those conditions directly relate to USPD.

The distinction between conditions for which detailed criteria are provided and the general OSPD and USPD categories is not limited to paraphilic disorders but applies similarly to all disorders in the DSM-5. Thus, disorders for which specific criteria are not provided by the DSM are covered by the formulations "other specified disorder" and "unspecified disorder". The DSM gives as an example of the former "other specified depressive disorder, depressive episode [*5]with insufficient symptoms" (15). The manual describes the distinction between other specified and unspecified disorders this way:

To enhance diagnostic specificity, DSM-5 replaces the previous NOS designation [described infra] with two options for clinical use: other specified disorder and unspecified disorder. . . If the clinician chooses not to specify the reason that the criteria are not met for a specific disorder, then "unspecified depressive disorder" [for example] would be diagnosed. Note that the differentiation between other specified and unspecified disorders is based on the clinicians's decision providing maximum flexibility for diagnosis. Clinicians do not have to differentiate between other specified and unspecified disorders based on some feature of the presentation itself. When the clinician determines that there is evidence to specify the nature of the clinical presentation, the other specified diagnosis can be given. When the clinician is not able to further specify and describe the clinical presentation, the unspecified diagnosis can be given. This is left entirely up to clinical judgment. (15-16).

As noted supra, the DSM edition immediately prior to the DSM-5 was the DSM-4-TR. The DSM-4-TR had a different nomenclature for categorizing paraphilias. Conditions were not broken into "paraphilias" and "paraphilic disorders". Nor did the DSM-4-TR have two categories: OSPD and USPD. Rather, a single category of disorder called "paraphilia" existed. The OSPD and USPD category equivalent in the DSM-4-TR was Paraphilia NOS. Dr. Krueger testified that the NOS designation was generally accepted in the psychiatric community. The 8 listed paraphilias in the DSM-5 are comparable to the paraphilias listed in the DSM-4-TR and its immediately preceding edition the DSM-4 (without the "TR" designation).

The "Cautionary Statement for Forensic Use of the DSM-5" (the "Cautionary Statement") The DSM-5's Cautionary Statement notes that the DSM-5 was developed to meet the needs of clinicians, rather than the technical needs of the legal system. The statement outlines how DSM-5 diagnoses can be useful in making legal decisions. The manual cautions, however, that: [T]he use of the DSM-5 should be informed by an awareness of the risks and limitations of its use in forensic settings. When DSM-5 categories, criteria, and textual descriptions are employed for forensic purposes, there is a risk that diagnostic information will be misused or misunderstood. These dangers arise because of the imperfect fit between the questions of ultimate concern to the law and the information contained in a clinical diagnosis. (25)

The statement notes that the assignment of a particular diagnosis does not imply that an individual meets a designated legal criteria, such as one concerning competence or criminal responsibility. The cautionary statement does not, however, provide that certain diagnoses (like USPD) should not be applied in forensic settings. The witnesses at the hearing who were asked about that issue were uniform in agreeing with that proposition.

Development of the USPD Category in the DSM-5 The bifurcation of the NOS category in the DSM-4-TR into the other specified and unspecified categories was not developed through the DSM hierarchical process. It was rather [*6]created by the editors of the DSM-5 after the committee process had been completed and was then approved by the board of the American Psychiatric Association (the "APA"), which was responsible for the approval of the entire DSM-5. Dr. Krueger said that, as a member of the DSM-5 committee which dealt with paraphilic disorders, he did not recall even reviewing a draft of the USPD designation before it was adopted. He opined that the bifurcation was intended to increase diagnostic reliability beyond the NOS designation which was considered a "garbage category or a category where people would just stick all sorts of things".[FN11] The creation of the USPD designation "came as a surprise" with "no chance to really in the course of the writing [of the] DSM-5 to oppose it".[FN12] Dr. Krueger also said, however, that USPD was a "solid" category and that there had been discussion about it prior to the publication of the DSM-5.[FN13] Dr. Krueger said that the USPD decision was made by the APA editors through their "normal secret process".[FN14] He participated in discussions about paraphilia diagnoses on the DSM-5's paraphilia committee but the USPD category was "imposed from above".[FN15]

Respondents' witness Dr. Karen Franklin described the DSM-5's development of the unspecified diagnostic categories, including USPD, this way:

So these were added at the very last minute, right before the book went to press. So there was all of these — there was years of revisions and controversy over diagnoses and votes and going back to committees, and it went on for years. And then finally the board of trustees of the [APA] approved all the diagnoses like in December of 2012. And then in the next six weeks following that, there was a little flurry of last minute text changes and revisions. . . They were in a hurry because they wanted to premier the book . . . in May of 2013. . . . The people who were involved in it had to sign secrecy oaths essentially about not discussing their process.[FN16]

Dr. Franklin said the general "unspecified" category was developed by a group which did not have involvement with individual DSM chapters, in order to make the manual consistent, and that there was little review of the text changes made by the group. The "unspecified" category was not something which was recommended by the DSM groups working on sexual disorders.

The APA has developed a process for the submission of suggestions to revise the DSM-5 to a group of experts who would then refer suggestions to a number of sub-groups, one of which Dr. Krueger serves on. He has not received any submissions from the initial expert group yet.

[*7]III. TESTIMONY OF WITNESSES AT THE HEARING

Testimony of State's Witness, Dr. Richard Krueger Dr. Krueger is a psychiatrist who currently spends most of his time employed by the New York State Office of Mental Health as the medical director of the New York State Psychiatric Institute, and also has a part-time private practice. He holds an M.D. from Harvard Medical School. Following his education, he initially worked in psychiatric hospitals and has also worked at psychiatric clinics. He has worked at a sexual behavior clinic at the New York State Psychiatric Institute for 18-20 years. This program conducts research on sexual disorders and also treats juvenile sex offenders. He is an associate clinical professor of psychiatry at Columbia University. Dr. Krueger served on the DSM-5 committee on paraphilic disorders. He has published a number of articles.

Describing the intent of the change from the NOS category in the DSM-4-TR to the OSPD and USPD category, he testified that USPD was intended to be a "residual category where if it was not enough substance to really describe fully why it didn't fit into the previous categories, you put it into unspecified paraphilic disorder".[FN17] Dr. Krueger said the USPD category could be used to describe "myriad new forms of sexual expression".[FN18] He gave as one example he had encountered, 18 or 19-year-olds who sexually fantasized about giant women, where it was difficult to know whether this reflected psychosis or a paraphilia. Another example concerned a person who inserted foreign objects into his bodily orifices. If a clinician encountered a paraphilia [outside the 8 named paraphilias] and had "enough information" and "enough time to figure it out", an OSPD diagnosis with a specifier would be provided. If not, a USPD designation would be appropriate.[FN19] Sometimes a lack of information about a diagnosis arises because a respondent elects not to speak to a clinician.

Dr. Krueger said that with respect to the USPD diagnosis, "I can't say that I use it or that other individuals use it" and said he continued to use the DSM-4-TR.[FN20] He said he used the prior DSM version because it had been validated and the DSM-5 has "just started" to be validated.[FN21] He was not aware of other clinicians who diagnosed USPD in their practices but then acknowledged that he knew a colleague, Dr. David Thornton, had used the diagnosis.

Dr. Krueger said he believed the USPD diagnosis was generally accepted in the psychiatric community. The main reason he gave is that the diagnosis is included in the DSM-5. He said the methodology used in various areas of psychiatric practice, for example, clinical vs. forensic practice were broadly similar. Psychiatric diagnoses are the same, regardless of whether they are used in clinical or forensic practice, although practitioners in different fields may end up [*8]using different diagnoses. Dr. Krueger said he had checked with several colleagues who had the same view.

Dr. Krueger served on both the DSM-5's sexual disorders group and the paraphilia sub-work group of the sexual disorders group. He said that while the USPD definition in the DSM-5 did not provide specific criteria for diagnosing the disorder, the definition of a paraphilia in the DSM-5 did provide such a definition. He also noted that the DSM-5 provided general guidance on how unspecified disorders should be diagnosed across diagnostic categories. The DSM-5 does not require that a clinician describe a USPD diagnosis, other than simply stating a subject has USPD. There would have to be a further description of the diagnosis, however, to understand what a clinician was trying to convey. Dr. Krueger is not aware that there has ever been any testing of inter-rater reliability for USPD.

He said he agreed with an email from Dr. David Thornton that one possible use of USPD is where a clinician thinks a specified paraphilia is present but the evidence is not quite sufficient to establish that. Dr. Thornton also opined, however, that he was not sure this would be a sound basis for a forensic conclusion. He opined that the manner in which the DSM-5 described OSPD and USPD was "very clumsy and misleading".[FN22] He also agreed with Dr. Thornton that the USPD category can be used when "a person show[s] sustained ever-changing abnormal sexual interest".[FN23]

The International Statistical Classification of Diseases and Related Health Problems, 10th Edition (the "ICD 10") [the psychiatric diagnostic manual generally used outside the United States] has a disorder of "sexual preference unspecified" but the committee which is proposing changes to the manual [which is scheduled to be published in a revised form in 2018] has proposed that this disorder be eliminated. Dr. Krueger acknowledged that in a presentation to the Forensic Mental Health Association of California in March of 2015, he presented a slide which said, regarding the USPD and OSPD categories, that "the lack of operationalized criteria make those categories inherently [un]reliable".[FN24] He also acknowledged the slide said: "the residual and idiosyncratic nature [of these diagnostic categories] renders them outside of what is generally accepted by the field as a reliable and valid psychiatric disorder".[FN25] He agreed that his slide said these diagnoses were subject to potential admissibility challenges and that he was unable to draw on empirical evidence about them. He explained the contradiction between his testimony and the slide by saying that although he had presented the slide, the assertions came from another clinician, Dr. Michael First. He agreed that the diagnoses had not been tested but could be. He reviewed about 20 or 30 articles on USPD. Dr. Krueger said that if a diagnosis, like paraphilic [*9]coercive disorder, had been ruled not generally accepted in the psychiatric profession by a court, but a subject was exhibiting paraphilic coercive behaviors, it would be appropriate for a clinician to assign a USPD diagnosis.

In a forensic context, it would not be appropriate to simply assign a USPD diagnosis without some supporting narrative. One circumstance under which USPD could be diagnosed is where something of serious import is occurring [regarding a paraphilia] but insufficient information exists to provide a more specific diagnosis.

Testimony of State's Witness, Dr. Danielle Tope Dr. Tope is the chief psychiatric examiner and director of institutional sex offender treatment for the New York State Office of Mental Health ("OMH"). She is a psychologist who completed her dissertation in 2004, a post-doctoral degree in 2005 and her licensure in 2006. She previously worked with juveniles, including adolescent girls with sexual behavior problems. She became an OMH psychiatric examiner in 2013. She assumed her current position in May of 2017. She supervises evaluations for annual review hearings for confined offenders under Article 10 and OMH treatment programs. A second OMH clinician, State witness Dr. Joel Lord, supervises OMH evaluations at earlier stages of Article 10 proceedings.

USPD can be used when there is "muddy diagnostic information, incomplete information . . information that is contradictory, people that are not willing to provide information that gives you a way to specify what is going on".[FN26] She outlined how a USPD diagnosis requires that the criteria for a paraphilic disorder be met. Dr. Tope provided this example of a case she had where she thought the USPD diagnosis was appropriate:

He [the subject] had charges for exhibitionistic behavior, public lewdness. What he was doing was inserting his penis into various metal objects. It would have been easy to assign him exhibitionistic disorder. He fit those criteria. However, in speaking to this young man, he was very clearly interested in the feel of the metal, the wood. There was something very sexual about that. Beyond that, he also described that there were elements of pain associated with that. There's a masochist element to that. It would have been easy to ascribe one of those diagnoses, but to really truly effectively convey what was going on for him, an unspecific paraphilic disorder was a much more effective way of conveying that. It is what fit because it was a murky diagnosis beyond the others . . . in the DSM.[FN27]

The assignment of a USPD diagnosis can facilitate treatment, since it captures the complexity and components of a presentation, rather than trying to fit a complex presentation into one category. She opined that it would not be appropriate to assign a USPD designation without a description of what that entailed. Dr. Tope also opined that it would not be proper to assign a USPD diagnosis for presentations for which there was insufficient information to determine that a paraphilia of any kind existed. That is, the lack of information would have to concern the nature of the paraphilia [or paraphilic disorder]; not whether there was a paraphilia or [*10]paraphilic disorder at all.

Dr. Tope said that of 80-90 sex offender evaluations she had conducted, she had assigned the USPD diagnosis a handful of times. She said the diagnosis came up rarely in evaluations for Article 10 annual review hearings she supervises. In contrast to Dr. Krueger, Dr. Tope said that if a court precluded a diagnosis, like paraphilic coercive disorder, it would not be proper or ethical to simply describe the same presentation as USPD. Regarding whether it would be proper in a forensic context to assign a USPD diagnosis without an explanation she testified: "To simply apply a label without explaining why you would do that . . . is not acceptable".[FN28] She said this was a consistent position at OMH.

Dr. Tope said the USPD category was generally accepted in the relevant psychological community. She also opined there was no bifurcation between diagnoses which are legitimate for clinical versus forensic use. Dr. Tope emailed a number of post-doctoral and psychiatric internship programs in the United States and Canada to ask their views about the validity of USPD diagnoses in forensic contexts. Dr. Tope's emailed inquires expressed her belief that USPD was a generally accepted diagnosis for forensic use and asked email recipients whether they agreed with her.

A summary of the results of Dr. Tope's email correspondence were as follows: Dr. Jeffrey Kline said he believed the diagnosis was misused in some cases. A Canadian clinician, Mark Oliver, said sometimes USPD was the most accurate and helpful diagnosis to assign. Kelly Flicker, the director of the Federal Medical Center at Devens, opined that the USPD diagnosis should not be used in forensic settings. Colon McNutt, the director of internship training at the Colorado Department of Corrections, reported that he did not advise his students not to use the USPD designation but that it is rare to assign the diagnosis since greater specificity helps with identifying risk factors and treatment.

Diana M. Concannon, from the Central California Consortium which trains interns, said the use of the diagnosis would be appropriate in some kinds of evaluations but would not be appropriate in "SVP" (sexually violent predator) programs [like Article 10]. Michelle Eddy, director of the sexual treatment and evaluation programs at the Colorado Mental Health Institute, apparently misunderstood the questioned diagnosis to be pedophilia, rather than USPD, but said she does not encourage excluding any particular types of diagnoses. Andrew Haag, from the Edmonton Consortium in Canada, said any diagnosis in the DSM (with a couple of exceptions not including USPD) was "fair game", that he had not assigned the diagnosis himself but that did not imply he might not do so. A colleague of Dr. Haag, Troy Rieck, said she would "echo" that response and a third colleague of Dr. Haag, Roy Frenzel, agreed. Dr. Cochran is the internship training director at the Federal Correctional Complex at Butner. He said that he did not teach that USPD was not generally accepted and that his program follows the DSM.

Dr. Tope testified that OMH has no written policies concerning USPD. She acknowledged that the training and internship programs she contacted were among hundreds of such programs and said the programs had been chosen because they had forensic training programs which had sexual treatment as a component.

Testimony of Respondent's Witness, Dr. Karen Franklin

[*11]Dr. Franklin is a psychologist with a post-doctoral fellowship in forensic psychology who now lives in California. She has worked in prisons, in a psychiatric hospital, in a private practice focusing on forensic work and has also taught and worked on various court and governmental forensic psychology panels. She has conducted sex offender evaluations throughout her career. She conducts social science research and has published research on sexual evaluation issues.

Dr. Franklin testified that USPD is not "generally accepted as scientifically reliable in any professional community".[FN29] She said that categories like the NOS designation under the DSM-4-TR could not be scientifically tested because there was no common definition and no tool to measure them. You cannot have consistency of measurement and hence reliability for such a designation. Dr. Franklin gave as an example of when an "unspecified" designation would be given under the DSM-5, a situation where a patient arrived at an emergency room with psychotic symptoms but a clinician did not yet know what disorder the patient might be suffering from.

Dr. Franklin did a comprehensive literature review of publications discussing USPD since such a review is one important way to measure general acceptance. She said she found 17 articles which mentioned the diagnosis although for almost all of them, USPD was not the topic of the article. She said this was "highly atypical" and that the diagnosis was "incredibly obscure".[FN30] Dr. Franklin acknowledged that the term USPD did not even exist until 2013 but said no one was looking at the diagnosis in more depth and "nobody cares".[FN31] She characterized ten of the articles as mentioning UPSD in connection to concerns about it being abused in forensic contexts. Four articles were from mainstream psychology and three were from other disciplines. 11 of the articles were published in the United States. An article by Francis and Halon described the USPD category as "inherently unreliable, invalid and useless" in forensic settings.[FN32] An article by Dr. Michael First opined that "residual" diagnositic categories like USPD have the potential for misuse and should be used in forensic settings only with great caution.

An article by Reed discusses a construct in the ICD-10 called "disorder of sexual preference unspecified" which is roughly equivalent to USPD. A group working on the revision of the ICD-10 to the ICD-11 is recommending this diagnosis be eliminated from the ICD-11 because of advances in science and the potential for misuse. Dr. Franklin characterized 13 of the articles as critical, in pointing out the misuse or potential misuse of USPD in forensic settings. Four articles were neutral or supportive.

Dr. Franklin said she trained psychologists and does not train on USPD. USPD is not an appropriate diagnosis to apply in forensic settings in part because it has no research base. In response to the Court's question about whether Dr. Tope's testimony that a subject who exhibited symptoms of multiple kinds of paraphilias but did not meet the full criteria for any particular paraphilia could be appropriately diagnosed with USPD, she said paraphilias are usually "pretty [*12]intense and focused" so this situation, if it existed, would be rare.[FN33]

Dr. Franklin said that "general acceptance" requires that a diagnosis be scientifically reliable. The first requirement for scientific reliability is to have a definition or at least two uniform definitions and then an accepted method for measuring the construct. Then inter-rater reliability, or consistency of measurement, would have to be assessed. Reliability means consistency of assessments among evaluators. Validity means whether the construct is accurately measuring a real-world phenomenon. Validity is too difficult a hurdle to insist on for a psychiatric diagnosis. But a valid diagnosis must have a sufficient degree of reliability. Reliability is measured through field trials where the degree to which evaluators agree on the diagnosis of a given subject is measured and this was done for some DSM-5 diagnoses. No such trials have occurred for unspecified disorders. The bifurcation of the NOS category into OSPD and USPD might increase the reliability of OSPD diagnoses because the less reliable USPD category has been removed.

Dr. Franklin testified that there is a special concern regarding "adversarial allegiance" with respect to USPD diagnoses. Adversarial allegiance refers to the largely unconscious tendency of an evaluator to bias views towards the side of a dispute the evaluator is supporting. A USPD diagnosis is a "black box" where there is a lack of information, or a decision has been made by a clinician not to provide information, and is particularly subject to adversarial allegiance abuse.[FN34] She opined that if a court found a particular paraphilic diagnosis to be inadmissible because it was not generally accepted, it would be unethical and dishonest to instead assign USPD.

Explaining further why she believed USPD was not generally accepted, Dr. Franklin testified that: "There's no test or method to measure it. There's no research on it at all and it's really not even a diagnosis in my opinion. It is more of a placeholder or a question mark saying that you're not sure of something".[FN35] She said she was not aware of any polling in the profession which had been done on USPD general acceptance and surmised that since the diagnosis was obscure, most clinicians likely hadn't considered the issue. Dr. Franklin opined that the fact that the USPD diagnosis was included in the DSM-5 did not necessarily indicate it was generally accepted in the profession: "It just means . . . that the American Psychiatric Association approved the whole book with all the text changes. Many of which were not significantly reviewed and will eventually be revised".[FN36]

Testimony of Respondent's Witness, Dr. Charles Patrick Ewing Dr. Ewing has a Ph.D. in psychology from Cornell University, did a post-doctoral fellowship at Yale University and has a law degree from Harvard Law School. He has taught at Buffalo Law School for 33 years where he is a "distinguished service professor" and also has a [*13]forensic psychology practice. He has evaluated sex offenders for almost 40 years and done work on Article 10 cases. He normally testifies for respondents in Article 10 cases but has also testified for the State a couple of times. He is the editor of a psychological journal and has published peer-reviewed studies and papers. He has published ten books including one concerning sex offenders called "Justice Perverted". He is on the board and a former president of the American Board of Forensic Psychology. He has served as a consultant to numerous government agencies including the Defense Department working on issues concerning the Guantanamo detainees.

Dr. Ewing testified that USPD is not generally accepted in the field of psychology or mental health forensic psychology. He defined the relevant community as psychologists, psychiatrists and social workers who diagnosed and treated sex offenders, rather the broader group of psychiatric professionals which worked with all mental health issues. He said he had never seen the diagnosis used except by psychologists hired to represent the State in Article 10 cases. He has not seen any research on the disorder establishing its reliability and does not believe it describes a valid group of symptoms that can be considered a syndrome or disorder. There is no criteria for the disorder and a clinician can choose not to reveal the reason why a named paraphilia was not diagnosed. He said he understood that clinicians were not using the diagnosis and that there was virtually nothing in the scientific literature about it.

There are no methods to test for USPD. It has no "clinical utility" because it does not convey diagnostic information which is useful to clinicians or others. He said the diagnosis violated the "guidelines for the practice of forensic psychology" promulgated by the APA. He referenced a number of specific guidelines requiring forensic psychologists to provide honest, unbiased, complete and accurate information. USPD would be valid in an emergency situation, where there was insufficient information to make a more precise diagnosis. It is not valid in a forensic setting:

Because we're dealing with people's lives, people's liberty, people's property, interest, people's legal and constitutional rights. So it is important that we get it correct, that we convey it to the courts and the attorneys involved and specifically as possible. So I understand why that's there, but it doesn't work in a forensic setting. Just as I don't believe it works in forensic setting to say I choose not to explain myself. Why in the world would a clinician working in a forensic setting choose not to explain his or her diagnosis? It's beyond my understanding . . . why anyone would use that diagnosis in a forensic setting.[FN37]

Commenting on the psychiatric reports written in the three instant cases, Dr. Ewing said that with respect to the USPD diagnoses, "all they [the three State experts] did was cut and paste this material directly from the DSM-5. No explanation, no understanding, no description."[FN38] He also opined that evaluators were using the diagnosis to substitute for diagnoses which courts had ruled invalid, which he said was an abuse. The fact that the revisers of the ICD-10 are proposing to [*14]eliminate the equivalent of USPD in the ICD-11 is another reason the USPD diagnosis has not achieved general acceptance.

Dr. Ewing opined that the general "unspecified" category in the DSM-5 was appropriate in emergency situations for some categories of disorder but that the treatment of paraphilias did not generally involve emergency psychiatric care and so wouldn't be applicable under that circumstance. He acknowledged that he is opposed to sex offender civil management statutes.

Testimony of Respondent's Witness Dr. Cynthia Calkins

Dr. Calkins has been a licensed psychologist since 2003, has a Masters of Legal Studies and is a professor of psychology at John Jay College of Criminal Justice who specializes in the study of sexual offenders. She conducts and supervises research on sexual offending, teaches, and supervises students doing clinical work.

Dr. Calkins said she was not aware of any study which had ever been done of the prevalence of USPD and that the diagnosis is primarily used in sexual violent predator programs like Article 10. There is no agreed upon definition and no treatment protocol for the disorder. She opined that USPD is not generally accepted as a reliable and valid diagnosis. She opined that the diagnosis was not generally accepted in the general forensic psychiatric community as reflected by the fact that the scant references in the literature to it are largely critical. She said USPD is mostly used as a way to admit diagnoses which would otherwise be characterized as OSPD Non-Consent or OSPD Hebephilia [both of which have been precluded by multiple Article 10 trial courts].

She also opined the diagnosis is not generally accepted among the "ATSA" community, that is, the members of the Association for the Treatment of Sexual Abusers, which consists of mental health professionals who evaluate, diagnose, treat or conduct research regarding sex offenders. She said she based that on informal discussions with colleagues and Dr. Franklin's literature review. Dr. Calkins testified that the diagnosis was used most often by state SVP evaluators but used infrequently by defense evaluators in SVP programs. She characterized evaluators working in SVP programs as a specific and narrow population. Dr. Calkins said that forensic psychology differs from clinical psychology since there is a higher standard of practice for forensic work. In considering whether USPD should be diagnosed, forensic ethical standards must be considered including the guideline that in assessment and diagnosis, validity and reliability must be established.

Dr. Calkins discussed a study she conducted of the reliability of the precursor to the USPD and OSPD diagnoses in the DSM-5, that being the DSM-4-TR category of NOS which found poor reliability for NOS diagnoses. She is now conducting a study on USPD. USPD's lack of definition is key in the analysis since a disorder cannot be reliable or valid without an agreed-upon definition. She said the inclusion of the USPD diagnosis in the DSM-5 was designed to allow clinicians to communicate sub-threshold diagnoses but that inclusion does not indicate the diagnosis is scientifically reliable. She opined the general unspecified category in the DSM-5 was not generally accepted in forensic or clinical settings. It is rather a helpful placeholder to allow colleagues to communicate with each other.

Dr. Calkins acknowledged that the APA was very concerned in publishing the DSM-5 that the diagnoses in the manual could be misused by courts in SVP proceedings. The APA, however, nevertheless did not prohibit the use of the USPD diagnosis in forensic proceedings. [*15]Dr. Calkins also opined that the OSPD diagnosis, when used with a specifier, is not generally accepted.

Testimony of State's Rebuttal Witness: Dr. Joel Lord Dr. Joel Lord is the chief psychiatric examiner at OMH and conducts and supervises Article 10 evaluations, other than "annual review" hearings for confined offenders which are supervised by State witness Dr. Danielle Tope. Dr. Lord testified solely with respect to the USPD literature survey which Respondent's witness Dr. Karen Franklin presented. He said that the summaries of the articles which mentioned USPD by Dr. Franklin were representative of the articles' content. Of the 16 articles in Dr. Franklin's review, Dr. Lord said 4 prohibited the use of USPD. Seven articles indicated that the diagnosis should be used with caution and expressed some or significant concern about its use. He said five indicated that USPD was in the same general category as other paraphilias and were as acceptable as other paraphilic diagnoses. Dr. Lord opined that USPD was a generally accepted diagnosis.

IV. CONCLUSIONS OF LAW

The Frye Standard

The Frye test 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); see also, Parker v. Mobil Oil Corporation, 7 NY3d 434 (2006). The scientific principle "must be recognized" and "sufficiently established to have gained general acceptance in the particular field in which it belongs". Id., at 422-424, quoting Frye, supra. "The Frye test emphasizes 'counting scientists' votes, rather than verifying the soundness of a scientific conclusion'". Id. at 439 (Kaye, Ch.J., concurring); see also, People v. LeGrand, 8 NY3d 449 (2007). Under the Frye test, the burden of proving general acceptance rests on the party presenting the disputed evidence. Zito v. Zabarsky, 28 AD3d 42, 44 (2d Dept 2006). General acceptance can be established through "texts and scholarly articles", expert testimony and judicial opinions. People. v. Wernick, 215 AD2d 50, 52 (2d Dept 1995), affirmed, 89 NY2d 111 (1996).

Much of the evidence presented at the hearing addressed the question of whether the diagnosis of USPD was based on consistent criteria and was valid and reliable. While this testimony was relevant to the inquiry here, it did not directly address the question the Court must decide. As Judge Abdus-Salaam, then writing for the First Department explained, the Frye test:

often involves considering whether a sufficient quantum of other experts in the same field accept the reliability of the theory or process. . . Since the implication of this approach is that it entails a process of weighing the views of each sides' experts, it is not surprising that a trial court would be tempted to weigh the relative merits of the experts introduced by each side to decide whether the proposed expert testimony is reliable. However, even where the court's task is weighing, or counting, the scientists' votes, nevertheless, it is not the court's job to decide . . . which expert's conclusions are correct." Marsh v. Smyth 12 AD3d 307, 311 (1st Dept 2004) (emphasis in original).

As Justice Gross stated the principle in his decision holding that USPD was generally accepted, State v. Harris, 48 Misc 3d 950 (Bronx County Supreme Court 2015) (discussed infra),"it is not this court's province to weigh in on the validity of the scientific conclusion, but only to determine whether it has gained general acceptance in its particular scientific field". 48 Misc 3d at 964.

In Zito v. Zabarsky, supra, the Court held that "general acceptance 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". 28 AD3d at 44, quoting Beck v. Warner-Lambert Co, 2002 NY SlipOp 4043 (U), 6-7. See also, Sadek v. Wesley, 117 AD3d 193 (1st Dept 2014) (same).

General acceptance under Frye is a different issue than the question of whether an adequate foundation has been laid for the receipt of particular evidence in an individual case, a test applied to all evidence. In that inquiry, the Court must assess "the specific reliability of the procedures followed to generate the evidence proffered and whether they establish a foundation for the reception of the evidence at trial." Parker v. Mobil Oil Corporation, supra, 7 NY3d at 447 (quotation omitted). That is an assessment this Court will have to make in each of these cases before the USPD diagnosis is admitted, as discussed further infra.

Prior Trial Court Rulings Holding USPD is Generally Accepted

Three Article 10 trial courts have previously held that USPD is a generally accepted diagnosis under the Frye standard. This Court is not aware that any court has reached a contrary conclusion. Two courts found USPD is generally accepted following a Frye hearing. State v. Harris, supra; State v. Hilton Cohen, (Unreported Decision) Index No. SP00005X-2014 (Nassau County Supreme Court, March 10, 2017 [Corrigan, J.]). In Harris, the Court focused its extended analysis on USPD's inclusion in the DSM-5: "It is uncontroverted that the manual is and has been the standard diagnostic handbook used in successive formats by mental health professionals in the United States for more than 60 years . . . It represents the consensus of the psychiatric community." 48 Misc 3d at 960. Justice Gross also found it significant that the APA had recently decided, in promulgating the DSM-5, to bifurcate the NOS category in the DSM-4-TR to create the USPD and OSPD categories. He outlined how the NOS category had been generally accepted in the psychiatric community and the careful, lengthy process through which the DSM-5 was created. In Cohen, the Court likewise focused on the DSM-5 holding that it "is an authoritative text and that which is included in it is generally accepted within the psychological and psychiatric community". SlipOp at 6.

In State v. Frederick M., 57 Misc 3d 1210 (A), 2017 NY SlipOp 51374 (U) (Kings County Supreme Court 2017 [Riviezzo, J.]), the Court did not hold a Frye hearing but rather conducted a detailed analysis of trial court rulings which had conducted such USPD Frye hearings and the Court's own prior Frye hearings on related diagnoses. The court noted that all of the experts who had testified at an earlier Frye hearing before the Court had opined that "diagnoses that are included in the DSM-V are, in general, considered valid and reliable diagnoses." 2017 NY SlipOp at 5.

As partially noted supra, this Court previously held that the diagnoses of OSPD Non-Consent (and related formulations) and OSPD Hebephilia were not generally accepted under the [*16]Frye standard. State v. Kareem M., supra; (OSPD Non-Consent); State v. Ralph P., 51 Misc 3d 1205(A) (New York County Supreme Court 2016) (OSPD Hebephilia). But those conclusions did not reject the entire OSPD diagnostic category. This Court rather held that the specifiers used with the OSPD designation in those cases, specifiers which were not included in the DSM-5, were not generally accepted. Here, in contrast, the USPD designation which has been proffered by the experts in these three cases has been presented exactly as it is outlined in the DSM-5.

Basis for Court's Holding that USPD is Generally Accepted As noted supra, the DSM has been described by experts as the "Bible of mental disorders", "like the institutional embodiment for the consensus of main treatment and psychiatric opinion in the United States", "a consensus of experts in psychiatry about those particular disorders that should be treated" and "the consolidated opinion of the psychiatric community in terms of what constitutes psychiatric diagnosis". According to the DSM-5, as outlined supra, the USPD diagnosis is "indispensable".

In the face of this simple, compelling fact, the hearing evidence supported a number of arguments for why USPD is not generally accepted. In this Court's view, however, none of those arguments were sufficient to refute the clear evidence of USPD's general acceptance as reflected in the DSM-5. There is first the argument that because USPD lacks any defined criteria (other than, arguably, that a subject must have a paraphilia of some kind) and has never been subject to any studies to demonstrate its validity and reliability, it is an invalid and unreliable diagnosis. That may well be true, but it does not directly address the Frye question. The Frye standard does not ask whether a scientific procedure or diagnosis is valid and reliable. It asks whether the relevant scientific community believes it is valid and reliable. To determine whether a diagnosis is valid and reliable there must be a person or entity who assesses that question. Under the Frye standard, that is not the Court. It is the relevant scientific community. The Court's job is to assess how the relevant scientific community evaluates the issue.

Second is the argument that the literature review received in evidence demonstrates that USPD is not generally accepted. The literature review was relevant to that question. But, in this Court's view, it did not come close to having the persuasive weight of the inclusion of USPD in the DSM. The literature survey demonstrated two things. First, it showed that USPD has not been the subject of significant discussion in the scientific literature. But it is first important to recognize that USPD was not even a diagnosis until the DSM-5 was published in 2013. It is thus understandable that it has not yet generated the same degree of academic interest as diagnoses which have existed for decades.

The lack of academic interest in a diagnosis also does not necessarily mean it is not generally accepted. It indicates that members of the psychiatric community are not writing about or studying it. But there are also a couple of additional reasons why that may be true for USPD. The first is that USPD is a diagnosis which is rarely assigned, when compared to many other diagnoses in the DSM-5. But the fact that a diagnosis may not be frequently assigned does not mean it is considered invalid in the cases where it is assigned. USPD also, obviously, lacks uniform criteria. It is difficult to see how the diagnosis could ever be assessed as having acceptable inter-rater reliability in a field trial. That is, obviously, an argument for why the diagnosis should not be considered reliable, but it also perhaps explains why it is not being [*17]studied.

The second point the literature survey revealed is that while only a minority of the cited articles came to the outright conclusion that USPD is an invalid diagnosis, a number of articles outlined how it must only be used with caution or great caution. But the fact that a diagnosis must be used cautiously does not mean it cannot be used at all.

There is next the argument that the process through which USPD was included in the DSM-5 was deeply flawed. It was apparently inserted by the editors of the manual as part of a new general "unspecified" category without input from the experts in paraphilias who developed the manual's paraphilia diagnoses. This Court wrote about the general flaws in the DSM-5 development process in its decision in State v. Ralph P. supra, 2016 NY SlipOp at 32. In addition to these general problems, the USPD diagnosis (and the unspecified category generally) suffered from a special flaw: its late insertion into the manual without input or discussion with the experts in the sexual disorder field. But that flawed process also does not make the diagnosis invalid. To draw an analogy, legislation passed by Congress or state legislatures is often criticized as being unduly rushed, crafted without sufficient input from legislators and affected constituencies or enacted through a non-transparent process. But that does not make the statutes enacted through such procedures any less binding.

There is finally the conflicting general opinions among hearing witnesses about whether USPD is generally accepted in the relevant psychiatric community. As this Court opined in its decision in State v. Ralph P., supra, the relevant psychiatric community which must be assessed here "are 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" rather than, for example, psychologists or psychiatrists generally. 2016 NY Slip Op at 38. Each of the experts who testified at the hearing provided an opinion on the general acceptance issue. Those views, however, were largely conclusory. They were not based, for example, on survey research, position statements of psychiatric organizations, polls of relevant experts or any similar data. They were rather informed by the experts' own views about the legitimacy of USPD. That is not a criticism of the expert testimony. It is reflection of the fact that definitive expressions of a psychiatric consensus on this issue do not exist, apart from the DSM-5.

There is also perhaps an argument to be made that while the general unspecified category is accepted by the broad psychiatric community, as reflected by its inclusion in the DSM-5, it is not generally accepted among the more narrow community of sex offender experts which this Court has defined as the relevant professional community here. The Court did not receive persuasive evidence at the hearing, however, which indicated this proposition was true. Similarly, while the Court found Dr. Tope's email correspondence with psychological training programs about their use and acceptance of USPD relevant, that correspondence did not include anything remotely approaching a significant portion of the relevant psychiatric community and in any event reflected conflicting views on the USPD general acceptance question.

In this Court's view, among all of these arguments and opinions, one simple point stands out. It is the same point all three of the other trial courts which have reviewed this issue have settled on. That is the inclusion of USPD in the DSM-5.

V. DUE-PROCESS AND FOUNDATIONAL ISSUES ARISING IN USPD DIAGNOSES

That will not, however, be the end of the inquiry about whether USPD diagnoses can be [*18]presented as evidence in these cases. USPD obviously raises due-process issues. Justice Kennedy, in his concurring opinion in the first of the two United States Supreme Court cases which established the due-process parameters for statutes like SOMTA, observed:

If . . . civil confinement were to become a mechanism for retribution or general deterrence, or if 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. Kansas v. Hendricks,521 US 346, 373 (1997) (Kennedy, J. [concurring]) (emphasis added).

Obviously, a diagnosis whose hallmarks are its lack of specificity, defined criteria and demonstrated reliability implicate such concerns. To be admitted at trial, moreover, the USPD diagnoses in these cases will have to be preceded by an adequate foundation, as outlined supra.

The Court will rule on those issues in these cases after additional proceedings. The hearing evidence indicated, however, that USPD has been applied in different ways by different clinicians. It also indicated that the bare bones requirements of the DSM-5 have been supplemented by other requirements by some clinicians when USPD is used in forensic settings. It is worth briefly surveying some of these issues with respect to the due-process and foundational concerns raised by the diagnosis.

There are certainly a range of glaring problems which can arise from applying a USPD diagnosis in a forensic setting. A USPD diagnosis under the DSM-5 can be assigned when there is simply insufficient information to make a more informed diagnosis. The lack of information might even arise because a clinician simply had not yet taken the time to do a more thorough investigation. But depriving a respondent of his liberty, potentially for life, based on a diagnosis which has been assigned simply because little is known about a respondent's condition obviously raises significant due-process and reliability concerns.

State's witness Dr. Richard Krueger said the manner in which the DSM-5 describes USPD is "very clumsy and misleading". Since the USPD diagnosis has no defined criteria of any kind (other than, arguably, that a respondent must have a paraphilic disorder of some kind) it would seem difficult for the diagnosis to be found to have a sufficient degree of inter-rater reliability. Dr. Krueger noted that he believed it would be perfectly appropriate to assign a USPD diagnosis as a substitute for a diagnosis which had been precluded by a court because the precluded diagnosis was not generally accepted in the psychiatric community. That is, USPD could be used as a work-around to largely negate a court's ruling on the admissibility of a more specific diagnosis.

The DSM-5 contains what in this Court's view is the puzzling statement that: "Clinicians do not have to differentiate between other specified and unspecified disorders based on some feature of the presentation itself". This appears to mean that two clinicians can see the identical presentation and then assign two different diagnoses to it: OSPD (with a specifier) or USPD (without one). The DSM-5 then appears to go on to say the distinction between the two kinds of diagnoses are based on whether there is sufficient evidence to "specify" and "describe" the presentation, connoting that the difference between the other specified and unspecified categories is based on a difference in the information available to a clinician. Summarizing these [*19]propositions, the manual asserts: "This is left entirely up to clinical judgement".[FN39]

Under the DSM-5, it would be perfectly appropriate to assign a USPD diagnosis and not say anything more about why the diagnosis applies to a respondent. Indeed, that is what the State experts have done in the reports they have written in these cases. As Dr. Franklin pointed out, since the USPD diagnosis lacks criteria and might be assigned for myriad kinds of presentations, it allows for greater clinical discretion than more defined diagnoses and is thus subject to a greater potential for unconscious allegiance bias. Dr. Ewing noted that under the DSM-5, a USPD diagnosis, rather than one more specific, might be assigned simply because a clinician chose "not to explain myself".

On the other hand, in this Court's view, Dr. Tope outlined how USPD diagnoses can be applied in ways which address many of these concerns. She made clear the diagnosis cannot be used when there is insufficient information to diagnose a paraphilia. It can only be used when there is sufficient information to diagnose a paraphilia but insufficient information to put a respondent's symptoms into a particular paraphilic box. In such cases, as she outlined, it would be misleading to attempt to pigeonhole a complex presentation into an arbitrary category. Rather, she testified, a USPD diagnosis would be appropriate.

In contrast to Dr. Krueger she said it would not be proper or even ethical to assign a USPD designation to negate a trial court ruling precluding a more specific diagnosis. She also opined it was not proper to assign a USPD diagnosis in a forensic setting without a supporting narrative, describing why the diagnosis was appropriate.

As Dr. Ewing noted, a USPD diagnosis might be appropriately assigned simply because a clinician chose not to explain himself (apparently connoting an arbitrary decision designed to avoid transparency). That is certainly not, however, the manner in which Dr. Tope said she assigned USPD. The DSM-5 Cautionary Statement was obviously designed to alert users to the potential dangers of applying DSM diagnoses in legal settings. Notably, however, the Cautionary Statement does not indicate that unspecified or other specified diagnoses (including USPD) are unique in that regard. Rather, it was undisputed by all of the experts who testified at the hearing that USPD is subject to the identical "cautions" under the DSM-5 as any other diagnosis.

All of this is to say that there may well be proposed expert testimony regarding USPD which might have to be precluded in some cases. But, in this Court's view, there may also be circumstances in which the diagnosis should be admitted. For all of those reasons, the Court holds that USPD is a generally accepted diagnosis in the relevant psychiatric community.

December 21, 2017

Daniel Conviser, A.J.S.C. Footnotes

Footnote 1:The Court informed the parties in these cases of its decision in a brief bench ruling on December 12, 2017, indicating that the instant Decision and Order would follow.

Footnote 2:December 27, 2016 report, p. 18.

Footnote 3:The copy of Dr. Kirschner's report in the Court file does not contain a report date.

Footnote 4:Portions of the analysis in this section and the Court's legal analysis infra are copied or derived from earlier published and unpublished decisions of this Court on the same issues, without citation.

Footnote 5:In summarizing witness testimony, the Court has attempted to recount testimony which is directly related to the DSM-5 in this section of the decision, rather than in the overall narrative portion of the description of individual witness testimony.

Footnote 6:Parenthetical numerical references in this section are to the pages of the DSM-5.

Footnote 7:Instant hearing transcript, p. 15

Footnote 8:Id., p. 384-385

Footnote 9:Zoophilia is a paraphilia involving a sexual attraction to animals.

Footnote 10:Hearing transcript, p. 52

Footnote 11:Instant hearing transcript, p. 19.

Footnote 12:Id., p. 32

Footnote 13:Id., p. 34

Footnote 14:Id.

Footnote 15:Id., p. 35

Footnote 16:Id., p. 178

Footnote 17:Id., p. 20

Footnote 18:Id., p. 23

Footnote 19:Id., p. 26

Footnote 20:Id., p. 29

Footnote 21:Id., p. 30

Footnote 22:Id., p. 66

Footnote 23:Id., p. 75

Footnote 24:Id., p. 77. The transcript provides the word "reliable" rather than "unreliable" but the exhibit, the Court's recollection of the testimony and the surrounding testimony make apparent that the actual word was "unreliable" rather than "reliable".

Footnote 25:Id., at pp. 77-78

Footnote 26:Id., pp. 108 - 109

Footnote 27:Id., p. 110 - 111

Footnote 28:Id., p. 125

Footnote 29:Id., p. 171

Footnote 30:Id., p. 190

Footnote 31:Id., p. 191

Footnote 32:Id., p. 195

Footnote 33:Id., p, 214

Footnote 34:Id., p. 122

Footnote 35:Id., p. 227

Footnote 36:Id., p. 246

Footnote 37:Id., p. 329 - 330

Footnote 38:Id.

Footnote 39:DSM-5 at pp. 15-16 (quoted more extensively supra).