Sexually Violent Predator Research Articles

Dangerously misunderstood: Representative jurors' reactions to expert testimony on future dangerousness in a sexually violent predator trial.

Past research examining the effects of psychological expert testimony concerning future dangerousness in sexual violent predator commitment trials has produced equivocal results on whether mock jurors are more influenced by intuitive clinical expert testimony than empirically based actuarial testimony. This study advances this line of research by examining these effects using a more ecologically valid sample of 156 venire jurors who watched a simulated, videotaped SVP trial based on a case transcript. As predicted, jurors were more influenced by the less scientific, clinical expert testimony. The data provided only limited support for a theoretical explanation based on Cognitive-Experiential Self-Theory (CEST). The policy im- plications of these results are discussed. In the United States legal system, predictions of an individual's future likelihood of reoffense or violence have a long history. These predictions are employed in many legal determinations that have significant liberty implications for the individuals involved, from bail decisions to capital sentencing. In the last 20 years, a significant minority of states have adopted Sexually Violent Predator or Person laws (hereinafter SVP laws). These modified civil commitment laws allow for postincarceration civil confinement of sexual offenders who are found likely to commit future acts of sexual violence. In these legal adjudications, mental health experts proffer expert testimony on whether or not a specific individual poses a future danger. Yet, almost since the inception of dangerous- ness-based legal standards, the expertise of mental health professionals on these matters has been questioned (e.g., Krauss & Sales, 2001; LaFond, 2005; see Slobogin, 2006 for a detailed discussion of these issues). Historically, courts have been largely deaf to the cries of critics in these important legal decisions. Beginning with the landmark U.S. Supreme Court decision inBare-

Controlling Sexually Violent Predators: Continued Incarceration At What Cost?

Sexually violent predator (SVP) laws are inherently suspicious because they continue to incarcerate people not because of what they have done, but because of what they might do. I focus on three major criticisms of the laws. First, I use recent recidivism data to challenge the core motivation for the SVP laws—that sex offenders are monsters who cannot control themselves. Second, I situate the laws theoretically as examples of what Feeley and Simon call the “new penology. ” I argue that the SVP laws show the limited promise of the new penology— that we can use science to predict risk accurately—because the actuarial instruments used in SVP determinations make many mistakes. In making this argument, I focus particularly on the most commonly used such instrument, the Static-99. Finally, I argue that the Static-99 fails to meet the constitutional criteria laid out by the U.S. Supreme Court in Kansas v. Hendricks because it does not link an individual's mental illness to his dangerousness.

Reality check: A comparison of college students and a community sample of mock jurors in a simulated sexual violent predator civil commitment

Despite concerns about generalizability, past mock trial research has concluded that effects of sample (i.e., students versus representative mock jurors) are negligible. The current study was conducted to explore this conclusion within the conceptual framework of cognitive-experiential self-theory (CEST). Through a mock civil commitment hearing of a sexually violent predator, responses of student (n = 138) and representative (n = 240) mock jurors were compared. Results revealed several important differences between samples: (a) the student sample scored higher on the rational processing measure (i.e., need for cognition); (b) students' verdicts were also significantly correlated to a measure of their cognitive processing style, an enduring personal characteristic related to the extent to which an individual engages in either effortful/effortless cognition; and (c) the representative sample was more punitive, was more persuaded by clinical expert testimony, and evidenced a greater gender effect in its decisions. Implications for jury decision-making research are discussed.

Competence to proceed in SVP commitment hearings: Irrelevant or fundamental due process right?

Sexually Violent Predator (SVP) civil commitment, intended to incapacitate offenders and protect the public, has been implemented in 21 jurisdictions. While respondents in traditional civil commitment proceedings need not be competent to proceed, SVP commitment may present a greater deprivation of liberty and therefore greater procedural protections may be merited. Statutes and case law regarding competence in this context address two issues: competence to challenge unproven sexual offense allegations and competence to participate in the SVP commitment process. Of the 14 states that have addressed the issue, one concluded that respondents must be competent to challenge unproven allegations and one concluded that all SVP respondents must be competent to participate in the commitment process. Differences between SVP and traditional civil commitment, the rationale underlying the competence requirement, and decisions regarding competence in SVP commitment are reviewed to inform debate regarding whether SVP respondents must be competent to proceed with the commitment process.

Risk communication in sexually violent predator hearings

Sexually violent predator (SVP) laws use the civil commitment process to confine mentally disordered and dangerous offenders who are at high risk to reoffend. Few studies have examined how jurors decide SVP cases. As a result, a pilot study and three experimental studies were conducted, in which victim type, risk communication, and juror education were manipulated to assess juror response. Results continually illustrated that victim type was the most salient manipulation across studies and that the manner of risk communication and juror education had little impact on jurors.

Sex Offenders Part II: Policies that Address Sex Offenders

ABSTRACT The second in a two-article series, this work addresses what social workers need to know about sex offenders and public policy. Past and current models for public policy and their application to sex offenders are discussed. Measures such as incarceration, Sexually Violent Predator (SVP) laws, outpatient commitment, registration, and notification laws are examined. Implications for social work practice are discussed and recommendations are given for future research.

Because They Do Horrible Things: Fear, Science, and the Erosion of Civil Liberties in Sexually Violent Predator Proceedings

The United States Supreme Court has upheld the constitutionality of statutes that permit the indefinite confinement of individuals adjudicated sexually violent predators (SVP). Judicial decisions rejecting a number of challenges to such statutes have occurred against the backdrop of a broader abandonment by the courts of a rights-based approach to mental health law. The fundamental issue that determines whether an individual will be confined under SVP statutes, and if so, for how long, is whether the individual presents a future risk of violence to others. Although the courts have the authority to reject such testimony from mental health professionals, they rarely do so. As a result, SVP hearings are sometimes marked by testimony that overstates the scientific utility of the risk instruments on which it is based; confuses probabilistic with individual likelihood of future risk; and characterizes certain individuals as untreatable as a matter of scientific fact rather than opinion. The result is the erosion of individual liberties and ultimately the credibility of testimony on future risk.

Avoiding Garbage 3: Fairness and Accuracy in Reporting Criminal Histories in Sexually Violent Predator Evaluations

At probable cause hearings in cases involving the civil commitment of a person as a sexually violent predator (SVP), judges consider evidence, likely including one or more reports from an evaluating psychologist or psychiatrist. At least in Florida, judges rely on the evaluators' reports as accurate sources for the person's criminal history, including his history of sex-offense convictions. But the evaluators' reports are not consistently accurate regarding criminal history, and no one in the process is demanding accuracy or questioning the “facts” included in the reports. Recommendations are made for evaluators, state programs, attorneys for respondents, state attorneys, and judges.

A Mathematical Proof and Example That Bayes's Theorem Is Fundamental to Actuarial Estimates of Sexual Recidivism Risk

Expert witnesses in sexually violent predator (SVP) cases often rely on actuarial instruments to make risk determinations. Many questions surround their use, however. Bayes's Theorem holds much promise for addressing these questions. Some experts nonetheless claim that Bayesian analyses are inadmissible in SVP cases because they are not accepted by the relevant scientific community. This position is illogical because Bayes's Theorem is simply a probabilistic restatement of the way that frequency data are combined to arrive at whatever recidivism rates are paired with each test score in an actuarial table. This article presents a mathematical proof and example validating this assertion. The advantages and implications of a logic model that combines Bayes's Theorem and the null hypothesis are also discussed.

Poor diagnostic reliability, the Null-Bayes Logic Model, and their implications for sexually violent predator evaluations.

Forensic psychologists have approached sexually violent predator (SVP) civil commitment evaluations from the position that respondents must be positive for a condition from the Diagnostic and Statistical Manual of Mental Disorders (DSM) of the American Psychiatric Association to be classified as SVPs. The only research on DSM diagnostic reliability in SVP cases has been undertaken by J. S. Levenson (2004a) and R. L. Packard and J. Levenson (2006). Although Packard and Levenson claimed that diagnostic evaluations in SVP cases were highly reliable, a reanalysis of their data indicated otherwise. Further, high levels of diagnostic uncertainty were found for a proposed paraphilia referred to as paraphilia not otherwise specified‐ nonconsent. Diagnostic criteria used to identify paraphilias among SVP respondents are therefore characterized by poor reliability. Logic models that were previously used to determine diagnostic confidence are also obsolete. Recommendations for improving diagnostic reliability are discussed, and the Null-Bayes Logic Model (NBLM) is proposed as a method for reaching certainty opinions that is superior to past models based on unrestrained clinical judgment. The implications of the present results and the NBLM for future practice, research, and policy directions are discussed.

Controlling the Offender: Sex, Mental Illness and the Static 99

Sexually violent predator (SVP) laws are inherently suspicious because they incarcerate people not because of what they have done, but because of what they might do. The implicit assumption that sex offenders cannot control themselves is contradicted by recidivism data published by the U.S. Department of Justice in 2003. In practice the SVP laws violate due process by relying on an instrument - the Static 99 - that is so inaccurate that it condemns seven individuals for every one that would re-offend. Furthermore, the Static 99 fails to meet the constitutional criteria laid out by the U.S. Supreme Court in Kansas vs. Hendricks, because it does not link an individual's mental illness to his dangerousness. (THIS PAPER WAS PUBLISHED UNDER A DIFFERENT TITLE. CONTROLLING SEXUALLY VIOLENT PREDATORS: CONTINUED INCARCERATION AT WHAT COST? IT IS AVAILABLE ON SSRN.)

Risk and the preventive detention of sex offenders in Australia and the United States

The development of recent statutory schemes, in both the United States and Australia, aim to keep the most dangerous sex offenders detained beyond the expiration of their prison sentence. In Kansas v. Hendricks (1997), the United States Supreme Court found constitutional Sexually Violent Predator (SVP) legislation that allows for the post-sentence, indefinite civil commitment of a subclass of dangerous offenders. More recently, the Australian High Court in Attorney-General ( Qld) v. Fardon (2004) similarly upheld the constitutionality of Queensland's Dangerous Prisoners ( Sexual Offenders) Act (2003), which allows for the post-sentence preventive detention of sex offenders deemed to be at high risk of serious sexual recidivism. Because an evaluation of a sex offender's likelihood of re-offending is fundamental to these schemes, this article provides an overview of recent advances in the risk assessment literature, discussing base rates of sexual recidivism, the identification of empirically validated risk factors, and the utility of structured risk assessment tools. Although it is recommended that risk assessment measures be utilized to assist the courts in making sound decisions about commitment, the limits of current research knowledge and areas of future research need are discussed.

Paraphilia NOS (Nonconsenting) and Antisocial Personality Disorder

Analysis of the diagnostic criteria and text in the current Diagnostic and Statistical Manual for Mental Disorders, Fourth edition, Text Revision (DSM-IV-TR) leads the author to conclude that (1) personality disorders and paraphilias are separate, independent diagnoses, (2) deviant sexuality need not be either obligatory or exclusive for a person to meet criteria for a diagnosis of paraphilia not otherwise specified (NOS) (nonconsenting), (3) either antisocial personality disorder or paraphilia NOS could serve as the qualifying disorder for civil commitment of a sexually violent predator (SVP), and (4) whether a person meets criteria for civil commitment as an SVP must be determined on a case-by-case basis rather than by cursorily considering the person's psychiatric diagnosis.

The role and relevance of the Psychopathy Checklist-Revised in court: A case law survey of U.S. courts (1991-2004).

The Psychopathy Checklist–Revised (PCL–R; R. D. Hare, 1991, 2003) is the most empirically validated instrument for measuring psychopathy in correctional and forensic psychiatric populations. The PCL–R’s predictive utility with criminal justice populations has led to its frequent use by clinicians conducting forensic assessments in criminal and sexually violent predator (SVP) cases. Despite its apparent wide acceptance in U.S. courts, little is known about how often the PCL–R is being introduced, the types of cases in which it is being used, and whether claims made in court regarding psychopathy are empirically defensible and/or relevant to the question at hand. This project documents some uses of the PCL–R in U.S. courts from 1991 through 2004 by year, jurisdiction, type of evaluation, and party. The results suggest that the PCL–R is being used by expert witnesses with increasing regularity across U.S. jurisdictions, primarily to assess risk of future violence. A review of 3 recent cases is also provided that illustrates concerns about the validity of the PCL–R for certain types of legal questions that may arise in criminal and SVP trials.

Sexually violent predators in the courtroom: Science on trial.

In most realms of the law, science is supportive and elucidative but does not comprise the key elements of the case. In sexually violent predator (SVP) commitment laws, however, science is integral because the targets of these laws are people with some mental disorder or abnormality that gives rise to future risk of harmful behavior, justifying the deprivation of physical liberty and the imposition of treatment. The integral role of science in SVP statutes leads to unique dangers to both law and science. Our concern in this article is to address the most critical problems that occur at the intersection of law and science in the SVP context. We have twin concerns:

Violent Sex Offenses: How are they Best Measured from Official Records?

In the United States, sexually violent predator (SVP) commitment statutes generally require assessment of an offender's risk of subsequent sexual violence. Current actuarial methods for predicting sexual reoffending were actually designed to predict something else-charges or convictions for offenses deemed sexual based on information obtained from police "rapsheets" alone. This study examined the referral and past offenses of 177 sex offenders. Results showed that police rapsheets (and data based on them) underestimated the number and severity of sexually motivated violent offenses for which sex offenders were actually apprehended. Rapsheet violent offenses seemed a more accurate index of the conduct addressed by SVP legislation than were rapsheet sex offenses. We suggest that, when evaluating sex offenders for SVP status, actuarial instruments designed to predict violent recidivism (as measured by rapsheet violent reoffenses) might be preferable to those designed to predict sexual recidivism (as measured by rapsheet sexual reoffenses).

Clinical and demographic differences between sexually violent predators and other commitment types in a state forensic hospital

Sexual offenders who are involuntarily civilly committed to a secure state hospital as Sexually Violent Predators (SVPs) appear to differ significantly from other current patient populations. Demographically, SVPs are older and more predominantly Caucasian than other patients. They are less frequently psychotic than patients committed under other state statutes such as those found incompetent to stand trial, not guilty by reason of insanity and mentally ill prison transfers. Another salient dimension which distinguishes SVPs is the degree of psychopathy observed in these patients. As a group, SVPs display only slightly higher levels of psychopathy than other patient groups as measured by the revised Psychopathy Checklist. Yet when considered by offender type, rapists are found to have significantly higher average psychopathy scores than other patients, while child molesters are assessed as having lower average psychopathy scores than most other patient commitment categories.

Sexually violent predator laws: psychiatry in service to a morally dubious enterprise

Instead of being released at the end of their prison sentences, sex offenders in the USA who are judged mentally disordered and dangerous are being confined in secure “treatment facilities” for indeterminate terms. This novel and aggressive legislative tactic—embodied in US sexually violent predator (SVP) laws—commandeers the traditional power of state mental health systems and puts it in service to a core function of the criminal justice system: the control of sexual violence. This transposition of “civil commitment” has forced psychiatry to legitimate and arbitrate the boundaries of an aggressive and highly contested form of state coercion.

Sexually Violent Predators and Civil Commitment Laws

ABSTRACT This article analyzes the civil commitment models for treating sexually violent predators (SVPs) and analyzes recent civil commitment laws. SVPs are commonly defined as sex offenders who are particularly predatory and repetitive in their sexually violent behavior. Data from policy literature, a survey to all states, and a review of law review Websites identify 16 states that have civil commitment statutes to address the problem and treatment of SVPs, four states that are in the process of passing such laws, six states that failed to enact proposed statutes, six states that lack SVP legislation, and 18 states that do not have relevant data available. The majority of such laws have created a false sense of safety because they address only convicted sex offenders. New approaches to the civil commitment of sexually violent predators have created multifaceted demands, controversy, ethical dilemmas, and learning opportunities. It is advised that research should be focused on the parameters of sexually violent behaviors, program flexibility, and treatment effectiveness.

Out of Sight, Out of Mind: An Analysis of Kansas V. Crane and the Fine Line between Civil and Criminal Sanctions

The social intolerance surrounding repeat sexual offenders has spawned numerous legal remedies through the years including sexual psychopath laws, Megan’s Law, chemical castration, and sexually violent predator (SVP) legislation. In the past 12 years, several states have implemented what many consider to be the resurrection of the old sexual psychopath laws of the 1930s and 1940s. This newest legal remedy is most often referred to as SVP legislation and allows for the indefinite civil commitment of those offenders who have served their prison sentences but have been determined to be SVPs still. Based on this legislation, this article analyzes the impact of the U.S. Supreme Court case of Kansas v. Crane, the latest in a series of cases that address an issue that many feel runs dangerously close to crossing the fine line between civil commitment and criminal sanctions.