State v. David D.
| Decision Date | 08 September 2016 |
| Citation | 37 N.Y.S.3d 685,53 Misc.3d 1041 |
| Parties | In the Matter of the Application of the STATE of New York, Petitioner, v. DAVID D., Respondent, for Civil Management Pursuant to Mental Hygiene Law Article 10. |
| Court | New York Supreme Court |
53 Misc.3d 1041
37 N.Y.S.3d 685
In the Matter of the Application of the STATE of New York, Petitioner,
v.
DAVID D., Respondent, for Civil Management Pursuant to Mental Hygiene Law Article 10.
Supreme Court, Albany County, New York.
Sept. 8, 2016.
Eric T. Schneiderman, Attorney General of the State of New York, Kent Sprotberry, of counsel, The Capitol, Albany, Attorney for Petitioner.
Mental Hygiene Legal Service, Jeremy Best, of counsel, Thomas A. Callaghan, of counsel, Albany, Attorney for Respondent.
DENISE A. HARTMAN, J.
In this Mental Hygiene Law Article 10 civil management proceeding, respondent David D. moves to preclude evidence of a diagnosis of Other Specified Paraphilic Disorder (OSPD) Hebephilia. The Court granted respondent's request for a Frye hearing on the admissibility at trial of evidence of the specifying diagnosis of hebephilia (see Frye v. United States, 293 F. 1013 [D.C.Cir.1923] ). After considering the testimony and evidence received during the three-day Frye hearing, the Court concludes that OSPD Hebephilia is not generally accepted as a reliable diagnosis in the relevant psychiatric community.
Background
Petitioner, the State of New York, commenced this proceeding by petition filed July 31, 2015. The petition alleges, among other things, that respondent is a sex offender requiring civil management. Supporting the petition is the psychological report of Dr. Jennine Martinez, an Office of Mental Health employee who evaluated respondent pursuant to Mental Hygiene Law § 10.05(e), (g). In Dr. Martinez's opinion, respondent has a mental abnormality within the meaning of Mental Hygiene Law § 10.03(i). She diagnosed respondent as having Other Specified Paraphilic Disorder, Hebephilia, as well as antisocial personality disorder, psychopathy, and multiple substance-abuse-related disorders. She based her diagnosis of hebephilia on respondent's "described ...
sexual preference for pubescent females between the ages of 11–14 years old," and
his acting on that preference "multiple times over a 10–year period, despite arrests and criminal sanctions."1
Respondent maintains that "an attraction to pubescent females is considered normative behavior and pathologizing this attraction is not generally accepted in the relevant psychological community." The Court heard three expert witnesses over three days of hearings: Dr. David Thornton and Dr. Christopher Kunkle for the State, and Dr. Barry Rosenfeld for respondent. The Court also received into evidence numerous professional articles and texts.
Evidence at the Frye Hearing
Central to all three experts' testimony was the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM–5), published in 2013, which the experts agree represents the institutional consensus of American psychiatry. Among other mental disorders, the DSM–5 classifies and describes paraphilic disorders. The DSM–5 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" (DSM–5 at 685). While generally the intensity and persistence of the sexual interests are the focus of the inquiry, some paraphilias are better described as "preferential sexual interests" (DSM–5 at 685).
A paraphilia describes a sexual interest and is a "necessary but not a sufficient" predicate for a paraphilic disorder diagnosis (id. at 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" (id. at 685–686). The DSM–5 lists and assigns diagnostic criteria to eight paraphilic disorders: Voyeuristic Disorder, Exhibitionistic Disorder, Frotteuristic Disorder, Sexual Masochism Disorder, Sexual Sadism Disorder, Pedophilic Disorder, Fetishistic Disorder and Transvestic Disorder (id. at 685). The DSM–5 explains that "[t]hese disorders have traditionally been selected for specific listing" because "they are relatively common, in relation to other paraphilias
" or are criminal offenses when acted upon "because of their noxiousness or potential harm to others" (id. ). The list is not exhaustive and "[m]any dozens of distinct paraphilias have been identified and named, and almost any of them could, by virtue of its negative consequences for the individual or for others, rise to the level of a paraphilic disorder" (id. ).
The DSM–5 states that the diagnoses of Other Specified Paraphilic Disorder (OSPD) and Unspecified Paraphilic Disorder (UPDs) "are therefore indispensable and will be required in many cases" (id. ). The OSPD and UPD categories "apply 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" listed paraphilic disorders (id. at 705). The DSM–5 gives six non-exclusive examples of OSPD specifiers: sexual attraction to obscene phone calls, corpses, animals, feces, enemas and urine (id. ). The other specified and unspecified diagnostic categories
are used throughout the DSM, not only in the paraphilic disorder section.2
The DSM–5 lists as one of the eight defined disorders "pedophilic disorder" (id. at 697). Pedophilia is defined as "recurrent, intense sexually arousing fantasies, sexual urges, or behaviors involving sexual activity with a prepubescent child or children (generally age 13 years or younger)," where the subject is at least 16 years old and "at least five years older than the child or children" (id. ). The DSM–5 does not include hebephilia among the eight defined disorders, nor among the six illustrative OSPD specifiers.
The Proposal for "Pedohebephilia" in the DSM–5
Dr. Thornton, who has a Ph. D. in psychology, is currently the Director of Research at the Sand Ridge Secure Treatment Center in Wisconsin. Formerly, from 2001 to 2013, he was the Director of Treatment at the Sand Ridge facility. He had received his training and early professional experience in England's prison system. In his view, the specifier hebephilia is generally accepted as reliable by many professionals in the field.
A proposal to revise the diagnosis of pedophilia and to include hebephilia as a subset of "pedohebephilia" was rejected when the DSM–5 was adopted in 2013. Dr. Thornton testified that he was involved in providing research regarding the proposed new diagnosis of "pedohebephilia," which would encompass both pedophilia and hebephilia, when it was proposed for inclusion in the DSM–5. Inclusion of a new paraphilic disorder in the DSM–5 required three levels of review. The first was by a "subwork group" on paraphilic disorders chaired by Dr. Raymond Blanchard. Second, the disorder had to be approved by the "work group" on Sexual and Gender Identity Disorders, chaired by Dr. Kenneth Zucker. Finally, it had to be approved by the Board of Trustees of the American Psychiatric Association (the "APA"). The subwork group and work group recommended inclusion of the newly defined diagnosis in the DSM–5, but the APA ultimately rejected it.
Dr. Thornton testified that it is his view that hebephilia fits within the DSM–5's definition of paraphilia as an intense and persistent sexual interest "other than sexual interest ... in phenotypically normal, physically mature, consenting human partners."3 Pedophilia, for example, involves an intense and persistent sexual interest in prepubescent children, as opposed to physically mature, consenting partners, with the age descriptor of "generally age 13 or younger" being merely a guideline. Likewise, in his view, a diagnosis of hebephilia should be based on an intense and persistent preferential sexual interest in physically immature pubescent children, again with the age descriptor of "generally between the ages of 11 and 14" being a mere guideline. He testified that for pedophilia, prepubescence corresponds to Tanner Stage I of the common system that medical
doctors use to classify sexual maturity, while for hebephilia, pubescence corresponds to Tanner Stages II and III. (Tanner Stage IV is associated with nearly mature teens, and Tanner Stage V is associated with mature adults.) Under the proposed diagnosis, an individual having a sexual preference for both prepubescent and pubescent children would be diagnosed with pedohebephilia.
Dr. Thornton testified that the...
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