In The Matter Of A.M.Cynthia M. Feland v. Respondent

• Decision Date: 23 August 2010
• Docket Number: No. 20100014.,20100014.
• Citation: 2010 ND 163,787 N.W.2d 752
• Parties: In the Matter of A.M.Cynthia M. Feland, Assistant Burleigh County State's Attorney, Petitioner and Appelleev.A.M., Respondent and Appellant.
• Court: North Dakota Supreme Court

787 N.W.2d 752

2010 ND 163

In the Matter of A.M.Cynthia M. Feland, Assistant Burleigh County State's Attorney, Petitioner and Appelleev.A.M., Respondent and Appellant.

No. 20100014.

Supreme Court of North Dakota.

Aug. 23, 2010.

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Cynthia M. Feland (argued), Assistant State's Attorney, Courthouse, Bismarck, ND, for petitioner and appellee.

Susan Schmidt (argued), Bismarck, ND, for respondent and appellant.

KAPSNER, Justice.

[¶ 1] A.M. appeals a district court order extending his commitment to the North Dakota State Hospital as a sexually dangerous individual. We hold the district court's finding that A.M. is a sexually dangerous individual is not clearly erroneous and affirm the order for commitment.

I.

[¶ 2] A.M. is a twenty-eight-year-old male. A.M. was adjudicated to be a juvenile delinquent in 1997 for committing multiple counts of gross sexual imposition from the ages of thirteen to fifteen. In 1999, months prior to his scheduled release from a youth correctional center, the State petitioned to have A.M. found a sexually dangerous individual and committed to the state hospital. The district court granted the petition, and A.M. has remained involuntarily committed since that time.

[¶ 3] In December 2009, the district court held an annual review hearing for A.M. Lynn Sullivan, a forensic psychologist at the state hospital, testified she performed an annual review of A.M. in late 2008. Sullivan testified A.M. was diagnosed with pedophilia, sexually attracted to both sexes, non-exclusive type; fetishism; and antisocial personality disorder in 1999, as well as paraphilia not otherwise specified (nonconsent) in 2007. Sullivan testified the diagnoses of pedophilia and antisocial personality disorder no longer apply, but A.M. continues to suffer from fetishism and paraphilia not otherwise specified (nonconsent). Sullivan stated A.M. has not demonstrated symptoms of fetishism over the last several years, but added A.M. has not had access to female underwear over this time period, which was the original object of his fetish.

[¶ 4] Sullivan acknowledged the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) does not include the diagnosis of “paraphilia not otherwise specified (nonconsent),” only “paraphilia not otherwise specified.” However, Sullivan stated “[t]he DSM can't possibly list all of the different potential diagnosis, paraphilic diagnosis that are present out there, there's a multitude.” She also said there is a proposal to include paraphilia not otherwise specified (nonconsent) in the next edition of the DSM, though it would be called “Paraphilic Coercive Disorder.”

[¶ 5] Sullivan testified “[t]here are no established criteria for a diagnosis of nonconsent,” but stated “the general construct is forcing unwanted sexual contact on persons that don't want it.” Sullivan testified she added the “nonconsent” to A.M.'s diagnosis of paraphilia not otherwise specified because “the behavior I was observing in [A.M.] was an interest in sexual contact with people that did not want it or people that were nonconsenting....” Sullivan cited several examples of such behavior:

[I]n 2005, [A.M.] actually made sexual contact with the social worker [at the state hospital], he groped her and kissed her against her will. In 2006, he verbally assaulted the same social worker and stated that if the [2005] attack had occurred in a dark alley, it would have resulted in rape and murder or would have been close to rape and murder. In 2007, he was reporting continuing fantasies of rape and violence.

Sullivan testified the social worker had to be moved to a different unit as a result of A.M.'s behavior. More recently, Sullivan stated A.M. has continued to act inappropriately towards the social worker: “[H]e's also continued to go out of his way to observe the female social worker, who is no longer on his unit but he has climbed on chairs to look outside the windows. Windows are frosted most of the way up but at the top they're clear. So he's gone out of his way to look at the social worker as she walks around the campus.” Sullivan stated members of A.M.'s treatment group reported this behavior to state hospital workers. Sullivan testified A.M. became agitated when the social worker was most recently in his building. While Sullivan did not know the exact reason for A.M.'s agitation, she said “[t]he inference might be that he was interested in trying to see her or excited about the fact that she was, you know, close to him.”

[¶ 6] Sullivan testified she believes A.M. is likely to engage in further acts of sexual predatory conduct, explaining:

I found that he has continued to, in treatment, really not do very much. Although he has progressed to-he's currently at Stage 2 of a six-stage treatment program. He is really not participating very much in treatment. He's not saying very much. When he has been asked to present his treatment plan ... he hasn't adequately fulfilled those expectations....

Also he has been found to, as I said, be watching this female staff member that he's been obsessed with for several years now and going out of his way to be able to see her. This sort of indicates to me that he continues to have problems with controlling his sexual behavior with regard to stalking behaviors.

Something else that I found was that he is engaging in stalking-type behaviors and focusing on the sexual body parts of other female staff in his unit. And he has stated that he doesn't see this sort of behavior as the same stalking that he did of the female social worker because, quote, he was not trying to pursue a relationship with these latter women.

Sullivan stated “the fact that [A.M.] doesn't want a relationship with these women but is sexually attracted to them and masturbates to them, tells me that it's ... paraphilia, a sexual disorder, because he just doesn't care about having a relationship with them.”

[¶ 7] Sullivan also testified she believes A.M. has serious difficulty controlling his behavior:

I believe that on the basis of [A.M.'s] continued stalking of the social worker and inappropriate sexual fantasies and masturbation to other female staff, that demonstrates serious difficulty and unwillingness or inability to control his sexual behavior.

If he's unwilling or unable to control his sexual behavior in the most restrictive environment we have, then there's nothing to tell me that he would be able to control that behavior if released to a less restrictive alternative environment....

Despite believing A.M. has serious difficulty controlling his behavior, Sullivan acknowledged A.M. has not committed any criminal sexual offenses as an adult.

[¶ 8] Since completing her annual review in December 2008, Sullivan stated she had an opportunity to review A.M.'s 2009 treatment notes. She testified A.M. is “continuing to engage in the similar behaviors to what he had in the past, particularly in treatment.... He has continued to admit that he spends a great deal of his time in fantasy as opposed to reality.” Sullivan testified the 2009 treatment notes indicate “[A.M.] has been seen several times on chairs watching ... the social worker walking around. [A.M.'s therapist] is concerned that if [A.M.] was out in the community, he would be stalking this female staff member.”

[¶ 9] Stacy Benson, a licensed psychologist, testified she performed an independent evaluation of A.M. Benson stated she reviewed “all of [A.M.'s] independent evaluations and his last year of treatment [notes],” interviewed A.M. twice, and determined he does not presently suffer from a sexual or mental disorder. Specifically, Benson testified she disagrees with Sullivan over the diagnosis of paraphilia not otherwise specified (nonconsent). Benson explained why she does not think the diagnosis is applicable:

First of all, the diagnosis is fairly controversial. It is not specifically listed in the DSM as a diagnosis. There's been several journal articles written by a number of different individuals arguing whether or not it is a diagnosis or should be a diagnosis....

Another reason why I disagree with that is because the paraphilia NOS [not otherwise specified] categories are reserved for disorders that are so rare that they occur less than the other paraphilic disorders that are included in the DSM. The DSM includes the most common one and then the others are included under the NOS category. For example, sexual sadism, which is probably the closest diagnosis to paraphilia NOS (nonconsent), is included in the DSM and said to occur in approximately 2 to 4 percent of rapists. That would mean that paraphilia NOS would likely need to occur in less than 2 to 4 percent of rapists in order to actually be a disorder, which would mean that it could not be reserved for just anybody who has fantasies about nonconsent or who has been involved in nonconsent. If it were, every person charged with a sexual crime could be diagnosed with paraphilia NOS (nonconsent) because every sexual crime, by definition, has a nonconsenting victim.

Benson testified A.M.'s rape fantasies are not sufficient for a diagnosis of paraphilia not otherwise specified (nonconsent) for several reasons. Benson noted studies of male sexual fantasies showed “31 percent of general population males reported having some form of fantasy relating to rape or sexual dominance,” A.M. reported being more aroused by thoughts of consensual sex than forced sex, and A.M.'s records indicate he only fantasized about rape once or twice per year.

[¶ 10] Benson also discussed A.M.'s history of forceful sexual behavior. Benson stated A.M. generally relied on “grooming rather than force” when he committed sexual assaults as a juvenile: “There was no indication anywhere in [A.M.'s charts], where I read, where he had used physical force.” Benson testified no evidence demonstrates A.M. is aroused by a victim's lack of consent, which is part of the diagnosis of paraphilia not otherwise...