State v. Harris
| Decision Date | 27 April 2015 |
| Docket Number | 251370/13 |
| Citation | 12 N.Y.S.3d 762,48 Misc.3d 950,2015 N.Y. Slip Op. 25196 |
| Parties | In the Matter of the Application of The STATE of New York, Petitioner, v. Howard HARRIS, Respondent, for commitment pursuant Article 10 of the Mental Hygiene Law. |
| Court | New York Supreme Court |
48 Misc.3d 950
12 N.Y.S.3d 762
2015 N.Y. Slip Op. 25196
In the Matter of the Application of The STATE of New York, Petitioner
v.
Howard HARRIS, Respondent, for commitment pursuant Article 10 of the Mental Hygiene Law.
251370/13
Supreme Court, Bronx County, New York.
April 27, 2015.
Kent Sprotbery and Don Leo of the New York State Attorney General's Office, for Petitioner.
Naomi Weinstein, Jessica Botticelli and Diane Temkin of Mental Hygiene Legal Service, for Respondent.
Opinion
MICHAEL A. GROSS, J.
The State of New York (“petitioner”) has filed a Petition for Civil Management of respondent pursuant to Article Ten of the Mental Hygiene Law (“MHL”), claiming respondent suffers from a mental abnormality. Specifically, petitioner's expert, Dr. Frances Charder, diagnosed respondent with unspecified paraphilic disorder. In response, respondent has moved for an order, precluding all testimony regarding unspecified paraphilic disorder, or, alternatively, for a hearing pursuant to Frye v. United States, 293 F. 1013 (D.C.Cir.1923), on the admissibility of such testimony asserting that such a diagnosis has not received general acceptance in the psychiatric community. In a decision, dated December 23, 2014, this Court granted a Frye hearing to determine whether unspecified paraphilic disorder is generally accepted as a reliable diagnosis within the relevant psychiatric community.
On March 2, 2015, a Frye hearing commenced before this Court and was concluded on March 6, 2015. At the hearing, Drs. David Thornton and Christopher Kunkle testified on behalf of petitioner. Drs. Allen Frances, Karen Franklin and Brian Abbott testified on behalf of respondent. The Court finds that all of the witnesses testified candidly and credibly about the matters at issue. Indeed, neither party appears to challenge the veracity of any witness. Consequently, this Court makes the following Findings of Fact based on the unchallenged information provided by each expert witness.
FINDINGS OF FACT
Petitioner's Case
David Thornton, Ph.D. in forensic psychology, testified as an expert in the field of psychology. Dr. Thornton is the research
director at the Sand Ridge Treatment Center in Madison, Wisconsin. He also served as an expert advisor on the
Fifth Edition of the Diagnostic and Statistical Manual (“DSM–5”), participating in field trials on various mental disorders.
The Diagnostic and Statistical Manual (the “Manual”) is a treatise created by the American Psychiatric Association in 1952, which, by classifying mental disorders, serves as the “standard diagnostic handbook used by psychiatrists and psychologists throughout the United States.” It is used in both clinical and forensic settings. In the last 61 years, the Manual has been revised and refined in a number of editions; DSM–5, published in 2013, is the sixth and most current edition of the Manual. Dr. Thornton testified that the Manual is the “foundation for [psychiatric] work during its era,” and stands as a “distillation of the consensus of professional psychiatry with regard to what is a proper diagnosis.”
The third edition of the Manual introduced a subsection on paraphilias. Dr. Thornton defined paraphilia as an abnormal sexual interest which is persistent and either intense or preferential. In addition to a small list of specific types of paraphilia, both the third and fourth editions included a category of “paraphilia not otherwise specified” (“paraphilia NOS”), which was intended to apply to those sexual disorders involving one or more unlisted paraphilias. Dr. Thornton explained that the need for a paraphilia NOS category arose because some patients present with traits or characteristics which do not fit neatly within the listed categories. Although he acknowledged that paraphilia NOS has been subject to criticism and misuse in its application, he stated that it is widely used for diagnostic purposes throughout the United States. Moreover, in his opinion to a reasonable degree of professional certainty, paraphilia NOS as defined in the fourth edition of the Manual is a generally accepted diagnosis within the psychological community.
Dr. Thornton was approached by the editors of DSM–5 to serve as an expert advisor on paraphilia subwork groups. Consequently, he was involved in setting up field trials on various paraphilic disorders, the results of which were given to the drafters of DSM–5. Field trials were done to determine the inter-rater reliability of diagnoses, as well as to examine newly proposed diagnoses. No field trials were conducted with respect to paraphilia NOS.
When addressing paraphilic disorders, DSM–5 replaced paraphilia NOS with two new diagnostic options: (1) “other specified paraphilia ” and (2) “ unspecified paraphilia.” The “other specified” category deals with instances where an examiner determines that a patient has a paraphilic disorder which is not specifically listed in the Manual. Dr. Thornton explained that DSM–5 sets forth only eight specific paraphilias, a fraction of the many varieties of paraphilias which the psychiatric community has identified.1 Accordingly, an examiner who determines that a patient suffers from a paraphilia not specifically listed in DSM–5 would classify the condition as “other specified.” Dr. Thornton testified that most of the diagnoses previously characterized under the fourth edition of the Manual as “paraphilia NOS” would now be deemed unspecified paraphilia, and that this diagnosis is commonly used in both clinical and forensic settings.
According to Dr. Thornton, the “unspecified” paraphilia category is applied in instances where a person is determined to
satisfy the general criteria for a paraphilic disorder but insufficient information exists for a specific diagnosis. In clinical practice, this diagnosis is helpful to signal to the treatment team that further exploration is needed. It may also be used in situations where the patient has symptoms characteristic of a paraphilic disorder but does not meet the full criteria of a specific paraphilia. Dr. Thornton stated an example of an unspecified paraphilia would be one who has an abnormal sexual interest the focus of which shifts over time.
It is Dr. Thornton's professional opinion to a reasonable degree of psychological certainty that unspecified paraphilic disorder is a generally accepted diagnosis in the psychological community. Dr. Thornton noted that unspecified paraphilia was debated before inclusion as an appropriate diagnosis in DSM–5, which is the most current and clearest statement of professional consensus within the psychiatric community. Moreover, it is a continuation of the paraphilia NOS diagnosis, which was widely used and legally accepted when the fourth edition of the Manual was in effect.
Dr. Thornton disagreed with the characterization of paraphilia NOS or unspecified paraphilia as “junk science,” as discussed in the dissent in Matter of State v.
Shannon S., 20 N.Y.3d 99, 110, 956 N.Y.S.2d 462, 980 N.E.2d 510 (2012). He believed that those who are not scientifically trained themselves are not in a position to make such a determination. Furthermore, Dr. Thornton explained that the very fact that it was retained in DSM–5, which is the consensus of the psychiatric community, suggests that those involved in drafting DSM–5 did not regard it as “junk science.” However, Dr. Thornton indicated that there has been “credible criticism of the use of the NOS diagnosis” because some evaluators have applied the diagnosis with insufficient evidence of any paraphilia. Although he acknowledged that unspecified paraphilia may be subject to misuse or overuse in application, Dr. Thornton believed that the diagnosis itself was reliable and acceptable within the scientific community.
Christopher Kunkle, Psy.D. in clinical psychology, testified as an expert in the field of clinical psychology on behalf of petitioner. Dr. Kunkle is the chief psychiatric examiner for the New York State's Office of Mental Health (“OMH”), as well as the director of the Bureau of Institutional Sex Offender Treatment. His duties include the supervision of OMH's psychiatric examiners.
As a forensic examiner, it is Dr. Kunkle's expert opinion to a reasonable degree of certainty that the fourth edition of the Manual was an accepted treatise in the field of psychology, and the diagnoses contained within it are generally accepted. According to Dr. Kunkle, paraphilia NOS was generally accepted by the relevant psychiatric community.
Dr. Kunkle testified that in 2013, the fourth edition of the Manual was revised and replaced by DSM–5. Within months of its publication, psychiatric examiners at OMH received training on the new edition, and quickly adopted it. In his opinion to a reasonable degree of professional certainty, DSM–5 is generally...
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