State v. Ralph P.

• Decision Date: 09 August 2016
• Citation: 2016 N.Y. Slip Op. 26252,39 N.Y.S.3d 643,53 Misc.3d 496
• Parties: The STATE of New York, Petitioner, v. RALPH P., Respondent, For Commitment Under Article 10 of the Mental Hygiene Law.
• Court: New York Supreme Court

53 Misc.3d 496

39 N.Y.S.3d 643

2016 N.Y. Slip Op. 26252

The STATE of New York, Petitioner,

v.RALPH P., Respondent, For Commitment Under Article 10 of the Mental Hygiene Law.

Supreme Court, New York County, New York.

Aug. 9, 2016.

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

Mental Hygiene Legal Services (Jessica Botticelli and Maura Klugman, of counsel) for the Respondent.

DANIEL P. CONVISER, J.

The Respondent is the subject of a petition for sex offender civil management pursuant to Article 10 of the Mental Hygiene Law ("Article 10", the "Sex Offender Management and Treatment Act" or "SOMTA"). The instant decision concerns this Court's conclusion following a Frye hearing (see Frye v. United States, 293 F. 1013 [D.C.Cir.1923]) about whether the diagnosis proffered by the State here, "Other Specified Paraphilic Disorder (OSPD) hebephilia" has gained general acceptance in the relevant scientific community. As outlined infra, hebephilia has been defined in varied inconsistent ways. The most informed researchers who have analyzed the disorder, however, have generally described it as being a preferential or equal (and or intense and persistent) sexual interest in pubescent children, rather than prepubescent or postpubescent children or adults. They have further defined the disorder by reference to the "Tanner stages" of pubertal development (described infra ) as being present in persons with a sexual preference for children in Tanner stages 2 and 3 of the 5 Tanner stages, (with stage one being prepubertal and 5 being adult). Finally, they have assigned a rough age proxy for such pubertal children as being between the ages of 11–14. A person with a hebephilic sexual orientation would thus be one who is preferentially (or compared to other age preferences equally) and or intensely and persistently sexually aroused to pubertal children between roughly the ages of 11–14, rather than primarily aroused to prepubertal children or postpubertal teenagers or adults. For the reasons outlined infra, the Court holds this diagnosis is not generally accepted in the relevant scientific community under the Frye standard.¹

Glossary of Common Terms

There are a number of terms used repeatedly in this Decision which are useful to outline at the outset.

The "New York State Office of Mental Health" ("OMH") is the agency responsible for evaluating sex offenders for possible SOMTA proceedings and operating secure mental health facilities at which offenders under the law are housed and treated.

In order to be subject to SOMTA, offenders must be found to have a "Mental Abnormality" . That is defined as "a congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct." MHL § 10.03(i)

The term "SVP" or "SVP Programs" (SVP being an abbreviation for "sexually violent predator") is used here as a shorthand to denote sex offender civil management programs like SOMTA. Twenty states and the federal government have sex offender civil management laws. All except New York and Texas require confinement for offenders. New York provides for either confinement or Strict and Intensive Supervision and Treatment in the Community ("SIST"). Texas requires only community supervision.

The "Penile Plethysmograph" or "PPG" is a test which measures physical male sexual arousal in response to visual or aural stimuli through a device which measures blood flow to the penis.

The "Tanner Development Stages" is a scale which describes verbally and through drawings, five stages of physical sexual development ranging from prepubescence to adulthood. It provides separate descriptions and drawings of each stage of sexual development with respect to pubic hair, breast development and penis development. It includes 15 descriptions (5 each for pubic hair, breast and penis development) and 20 corresponding drawings (5 for male pubic hair, 5 for female pubic hair, 5 for breast development and 5 for penis development).

Tanner stage one is prepubertal and has also been described as "pre adolescent". Tanner stages 2 and 3 are pubertal. Tanner stages 4 and 5 are postpubertal. Tanner stage five has also been described as "mature" or "adult". A child in Tanner stage one has no secondary sexual characteristic development (Wilson, 492)²

I. THE RESPONDENT'S CRIMINAL HISTORY AND DIAGNOSES³

Dr. Lord, the State's evaluator whose diagnosis is directly at issue here, originally diagnosed the Respondent with the condition, "Other Specified Paraphilic Disorder, sexually inexperienced young teenage males" and opined Mr. P. had a Mental Abnormality under Article 10. His current diagnosis, as noted supra, is OSPD hebephilia. In his report outlining his original diagnosis, Dr. Lord described Mr. P.'s erotic focus as being to "young, sexually inexperienced males", "very young teen-aged boys", "underage males", "underage boys" and "young boys". He noted confirmed or possible sexual offending against boys aged 14 and 15 and said Mr. P. had worked as a schoolteacher with 12 and 13 year olds.⁴

Mr. P. is currently 72 years old. He says he has both a law and psychology degree. In 2001, at the age of 57, he was charged in a 209 count indictment with forcible sodomy, disseminating indecent materials to minors and the possession of child pornography, the latter charge constituting the vast majority of the counts. He pled guilty to one count of Sodomy in the First Degree by forcible compulsion and two counts of Disseminating Indecent Materials to Minors in full satisfaction of the charges. The pre-sentence investigation and report for this crime (the "PSI") recounts that the Defendant forced a 14 year-old boy to perform oral sex upon him, shared pornography with the boy and tried to maintain contact with him after the assault. The Respondent was also alleged to have had sexually explicit conversations and shared pornography with two additional underage male victims who according to the PSI were either 14 or 15 at the time of the crimes.

The PSI indicates that Mr. P. had previously reported becoming sexually involved with a 14 year old boy when he was working as a teacher and that he had engaged in sexual activity with a boy scout when he was working as a boy scout troop leader. Mr. P. has no criminal history relevant to these two additional alleged incidents. In his sex offender treatment homework while attending the sex offender treatment program at Gowanda Correctional Facility in 2003 and 2004, Mr. P. described the victim of the instant offense as "slightly built, somewhat short for his age, shy and diffident".⁵ Dr. Lord opined that these features further distinguished this victim from age-appropriate sexual partners. Mr. P. was released from prison to parole on May 27, 2005. He then absconded to Colombia where he was convicted of a child pornography crime and incarcerated. He was subsequently returned to the United States after serving his Colombian prison sentence.

In its decision finding probable cause to believe Mr. P. was a sex offender requiring civil management, this Court reported that Dr. Lord "said that Mr. P. had a deviant sexual interest in males who were approximately 14 years old. Dr. Lord acknowledged that boys of this age were often post-pubescent."⁶ The Court also said that: "Dr. Lord acknowledged that hebephilia is a controversial diagnosis in the psychiatric community, that he had not previously assigned the sexually inexperienced young teen aged male' paraphiliadiagnosis and that he was not aware of any research which supported it. He felt that this diagnosis, because it was a more carefully defined subset of hebephilia, was a less problematic diagnosis than hebephilia alone. He also opined the diagnosis was accepted in the psychiatric community because he had arrived at it pursuant to the procedures in the DSM [the Diagnostic and Statistical Manual of Mental Disorders, discussed infra ]."⁷

The State also retained a second expert examiner in this case, Dr. John Thomassen. He opined that Mr. P. had OSPD hebephelia and a Mental Abnormality under Article 10. Dr. Thomassen said: "[h]ebephilia is a condition of sexual arousal to underage children with secondary sexual characteristics, from age 13 or 14 to 16 years old. This examiner only applies this diagnosis if the same criteria are met for Pedophilic Disorder, except for the victim age range of 14 to 16 years old, instead of 13 or younger".⁸ The Respondent's expert, Dr. Leonard Bard, opined that Mr. P. did not have a paraphiliaor a Mental Abnormality. Regarding Dr. Lord's diagnosis of OSPD, sexually inexperienced young teenaged males," Dr. Bard opined that: "[t]his diagnosis' was created by Dr. Lord specifically for Mr. P. as there is no such diagnosis in the DSM–5 nor have I see this specific diagnosis in my thirty years of conducting sex offender evaluations".⁹

II. EVIDENCE PRESENTED AT THE HEARING

Six expert psychiatrists or psychologists testified at the hearing, three for each party. Drs. Christopher Kunkle, David Thornton and Robin Wilson testified for the State. Drs. Karen Franklin, Charles Ewing and Cynthia Calkins testified for the Respondent. The Court also received 138 scholarly articles, opinion pieces and book chapters or excerpts into evidence. The testimony and what the Court found were the most relevant articles are outlined below. All of the witnesses and a number of the articles discussed the DSM and the proposal which was made but ultimately rejected for a new diagnosis of "pedohebephilia" in the most recent edition of the manual, the DSM–5, which was published in 2013. The DSM's provisions and history are also integral to this Court's conclusions. The DSM and the pedohebephilia proposal are thus first outlined here.

The DSM–5 and its...