Opinion
30261-2014
05-20-2020
In the Matter of the Application of The STATE of New York, Petitioner, v. JEROME A., Respondent, For Commitment Under Article 10 of the Mental Hygiene Law.
New York State Attorney General Letitia James (Anthony Miller and Breda Huvane, of counsel) for the Petitioner. Mental Hygiene Legal Services, 1st Department (Jessica Botticelli and John Boselli, of counsel) for the Respondent.
New York State Attorney General Letitia James (Anthony Miller and Breda Huvane, of counsel) for the Petitioner.
Mental Hygiene Legal Services, 1st Department (Jessica Botticelli and John Boselli, of counsel) for the Respondent.
Daniel Conviser, J.
The Respondent is the subject of a petition for civil management under Article 10 of the Mental Hygiene Law ("Article 10"), the Sex Offender Management and Treatment Act ("SOMTA"). After a bench trial, this Court rendered a verdict finding the Respondent was a detained sex offender who suffered from a Mental Abnormality under Article 10. The instant Decision and Order provides findings of fact and conclusions of law with respect to that verdict.
STATEMENT OF FACTS
The evidence at the trial consisted of the testimony of three expert psychologists and supporting exhibits. That evidence is first summarized here.
Testimony of Dr. Kostas Katsavdakis
Dr. Katsavdakis, a psychologist, testified for the State and was qualified as an expert in forensic psychology and the diagnosis and evaluation of sex offenders. He evaluates Article 10 respondents for both the State and respondents and has conducted about 80 such evaluations. He wrote an initial evaluation report for Mr. A. in 2016 and an updated one in 2019. Mr. A. did not agree to speak with Dr. Katsavdakis. He testified that Mr. A.'s presentation is consistent with a Mental Abnormality. He diagnosed him with Unspecified Paraphilic Disorder ("USPD"); a variety of alcohol or substance abuse, or provisional alcohol or substance abuse disorders in sustained remission in a controlled environment; a provisional diagnosis of Sexual Sadism Disorder ("SSD") and Antisocial Personality Disorder ("ASPD") with narcissistic features.
He said USPD can be diagnosed when a subject has an "atypical presentation". SSD exists when a person is sexually aroused to pain, humiliation, torture or degradation and that arousal impacts the person's functioning. He explained that the diagnosis was "provisional" because he was unable to interview Mr. A. [Under the Diagnostic and Statistical Manual of Mental Disorders 5th Edition (the "DSM" or "DSM-5" a "provisional" diagnosis may be assigned when "there is a strong presumption that the full criteria will ultimately be met for a disorder but not enough information is available to make a firm diagnosis". ] He said Mr. A. has the condition of psychopathy.
Hearing transcript, p. 18.
DSM-5, p. 23.
Regarding ASPD, Mr. A. manifests multiple criteria including irresponsibility, violating behavioral norms or the law, aggressiveness and impulsiveness. He did not diagnose Mr. A. with Narcissistic Personality Disorder ("NPD") because he was unable to interview him, but did diagnose him with some of its traits including exploiting others, a lack of empathy and devaluing people. Mr. A.'s character pathology fused in his juvenile years. His ASPD is fused with an arousal to non-consensual sexual partners and the infliction of humiliation and degradation on his victims. His psychopathic features are evidenced by his sustained offending from age 15 to 50 and the callousness of his offenses. He has no relationships although he has fathered multiple children, views people as objects and takes little responsibility for his actions. ASPD offenders without psychopathy tend to stop offending after age 40 but that does not occur with psychopathic offenders like Mr. A. The Respondent was born on April 16, 1956, [which made him 63 years old at the time of the hearing and 64 now].
ASPD, narcissism and psychopathy are overlapping concepts. Mr. A. is a life course persistent offender who has committed both sexual and non-sexual crimes. He began using drugs as a juvenile and has not rehabilitated himself. In 1972, at the age of 15, he admitted robbing a prostitute. Later that year, he admitted to participating in what he described as a "hooky party" where he was arrested for rape and the case was transferred to Family Court and dismissed. He told Dr. Schlosser (the Respondent's expert) that he and other juveniles had "run a train" over a female. [Dr. Schlosser later said this meant they took turns having sex with her.]
In 1975 he was arrested for attempted murder and convicted of robbery for an incident in which he and a co-defendant got into an argument with a bouncer at a club and committed a robbery. Mr. A. had a BB gun and his partner had a real gun. After being released from prison for this offense, he was convicted in 1979 after 10 months in the community for attempted criminal possession of a weapon. Later that year, he was arrested for breaking a person's arm with a rolling pin but the charges were dismissed.
In 1984, Mr. A. was convicted in Virginia at age 26 of a sexual offense for an assault on a 14 year old female cousin he knew. The victim encountered him outside a convenience store which they both then entered. He forced her to leave the store by placing what she said felt like a gun at her side and threatening to shoot her. He took her to a vehicle and there were other people nearby who she asked for help, but Mr. A. convinced them she was "tripping". He drove her away, the car broke down, she left the car and tried to escape. She again tried to get the attention of passers-by. Mr. A. and the victim came to the area of a school, he asked to "finger her", she said she was a virgin and he said he would force her to have sex, "fuck her to death" and "make her enjoy it".
Hearing transcript, pp. 63; 66.
Mr. A. and the victim then arrived at a school area where the victim again tried to summon help from persons nearby. Mr. A. slapped, smothered and punched her three or four times and pulled her pants half down to have sex with her. He slapped her once when she tried to run away, once when she spilled wine on the floor and a third time when she tried to summon help. He punched her while she was biting and punching him. At one point he slammed her head into the side of a wall. The victim reported being in a blurry daze. He tried to get her to drink wine and kissed and touched her. She was then able to escape with the assistance of other people. The victim never reported seeing Mr. A. with an erection.
Mr. A.'s actions evidenced a callous disregard of the victim and some sadistic behavior. His attempts to convince bystanders that nothing was wrong reflected his cold and callous manner. He was convicted of abduction and sexual battery in Virginia for this crime and sentenced to 10-20 years incarceration with 10 years deferred. It was also relevant that the offense escalated as it continued. Mr. A. later reported to Dr. Schlosser that there had been no rape and that the victim had been a tease. It was significant that the assault occurred in public places where Mr. A. could have been easily detected and possibly indicated Mr. A.'s belief that he was above the law and spoke to his narcissistic traits.
Mr. A. was released from prison in 1992 and then convicted five or six months later in Virginia for unlawful maiming for an incident in which he stabbed a male victim 7 times. Mr. A. reported that the victim had come at him with a cane and Mr. A. was defending himself. The victim suffered a punctured lung, liver lacerations and stab wounds to the neck. Assuming Mr. A. was defending himself, his response was disproportionate and indicated his callousness, inability to control behavior, ASPD, psychopathy and inability to take responsibility. Half of Mr. A.'s crimes have been sexual and half non-sexual, but the fact that he commits non-sexual violent crimes does not negate his violent sexual crimes or arousal to non-consensual sex.
Mr. A. was convicted of Sexual Abuse in the First Degree for a crime which occurred in Queens in 1997 against a 29 year old victim. He met the victim, they smoked crack together and went to Mr. A.'s cousin's apartment. When the victim tried to leave, he dragged her back to the apartment, forcibly raped and sodomized her and threatened to kill her. He grabbed her by the neck at one point and threw her to the ground. He also threatened to punch her in the face if she kept talking. This offense was committed while there was a warrant for Mr. A. from Virginia.
At one point during the assault Mr. A. told the victim that she was going to take care of him, evidencing his sense of entitlement relevant to his ASPD and narcissistic traits. He later said he traded the victim sex for drugs and believed she may have been a prostitute, although he gave inconsistent accounts of what happened at different times to different people. This was indicative of his manipulativeness. Dr. Katsavdakis agreed that there was no gratuitous infliction of violence during the assault. In 2006, at about the age of 50, Mr. A. pled guilty to failing to register as a sex offender. In 1999 his New York parole was violated approximately 2-3 days after his release because he did not report to an assigned shelter.
The instant offense which resulted in this Article 10 proceeding occurred in July of 2006 when Mr. A. was 49 years old and concerned a 34 year-old homeless woman who had just been released from the hospital after being assaulted by a different perpetrator in an unrelated assault. She had a black eye when they met. Mr. A. met the victim in the evening and they spent time together eating food from a truck and drinking beer. Mr. A. told the victim he wanted to have sex with her and she refused. He first kissed her, then tried to put his hand down her pants, she resisted and he told her to shut up or he would kill her. After he put his hands down her pants, the victim reported, she told him that if he was going to do that, he better kill her first. It was at this point that he punched her in the face and knocked her out.
He also grabbed her by the neck at one point and caused facial injuries. He forced her to have intercourse and threatened to kill her if she resisted. When she awoke after losing consciousness, Mr. A. was on top of her and pulling his penis out of her vagina. He told the victim "you are mine". The assault took place on the steps of St. John the Divine Cathedral in New York City at about 2:00 a.m. Dr. Katsavdakis said Mr. A. met the Respondent about 7:00 p.m. the preceding evening, although he appeared unsure about the timeline. Dr. Katsavdakis believed Mr. A. had struck the victim after she regained consciousness either during or after the rape and may have hit her with a hard object. The victim was treated at a hospital and released. She suffered from a swollen lip, two loose teeth, bruising on her neck and around her right eye and a small tear in her vaginal area. During his pre-sentence interview, Mr. A. denied the sex was forcible. In 2014, he said he initially had consensual sex with the victim then something went wrong and he was forced to knock her out and everything was blown out of proportion.
Id. , p. 104.
Dr. Katsavdakis testified that Mr. A. at one point strangled the victim and that this and the statement "you are mine" reflected sadistic elements, humiliation and degradation. Describing the rape, Dr. Katsavdakis testified: "the violence is escalating, including while he is penetrating her. He is continuing to engage in violence and being able to be erect, which is sadistic sexual arousal". Dr. Katsavdakis said the statement "you are mine" was indicative of Mr. A. treating the victim as his property. The fact that the assault occurred on the steps of a church where Mr. A. might be apprehended indicated a lack of concern about being caught and reflected narcissistic and antisocial tendencies.
Id. , p. 113.
Regarding the question of how Dr. Katsavdakis knew Mr. A. was aroused to non-consent or suffering, the Court and the State's counsel engaged in the following questions and answers, among others. In response to the Court's questions about how Dr. Katsavdakis knew Mr. A. was aroused to non-consent or victim suffering, he testified:
WITNESS: Well, in one of the offense, I think he talks about being able to ejaculate, so he is indicating he becomes aroused when the woman is fighting.
THE COURT: How do you — I mean why would you conclude he is aroused by the nonconsent?
WITNESS: It's not just the fact that she's refusing. He's also being aroused to the fact that the violence is escalating, and that's in my opinion, with Mr. A. fueling or leading for him to become aroused... The victims all refuse, he becomes increasingly violent, then he becomes aroused, he inflicts the violence, it ends with him degrading the victim.
When asked again by the State and the Court why he had concluded Mr. A. was aroused to non-consent, Dr. Katsavdakis said:
WITNESS: Because the victims have indicated that despite their attempts to fight him off, run away, tell people, tell him to leave me alone, he continues until he gets his way, which is the sexual elements. He wants to have sex with these women ... Mostly because of the consistencies across the offenses, not the victims' age.
THE COURT: But the consistency is that he is basically raping the victim, how do you ascribe an arousal to nonconsent from that?
THE WITNESS: If you are engaging in the same behavior over and over again, the behavior indicates you are aroused to that kind of activity.
THE COURT: Right. But there are people who forcible rape, and are not aroused.
THE WITNESS: There may be. But in my opinion, with Mr. A. —
THE COURT: Why is that?
THE WITNESS: Because of the same thing that he does from offense to offense.
Q: Which is?
THE WITNESS: It's not just sexual arousal, it's also the fact he lacks the empathy. There is no remorse for what he is doing. He wants to take the women, and that is, in part, leading him to become aroused, including the infliction of pain.
Id. , pp. 116-119
Unlike other offenders, Mr. A. has not mitigated his behavior as he has aged and ascribes the reasons for his actions to other people. The commission of the instant offense at the cusp of age 50 speaks to the Respondent's difficulty in controlling his behavior. Mr. A. has described the instant offense victim as a "direct prostitute". Dr. Katsavdakis said he believed Mr. A. had used excessive force in his sexual assaults beyond that necessary to achieve compliance. Some rapists engage in a "blitz attack" where there is initial violence to gain compliance then a sexual assault. Mr. A., however, engages in violence before, during and after attacks and also verbally degrades his victims. This all indicates a sadistic element to the attacks.
Dr. Katsavdakis explained his USPD diagnosis arose because Mr. A. had an "atypical" presentation, which he described as follows:
The length of the offending history, from juvenile years all the way not offending.
The word "not" here is apparently a typographical error.
The level of arrest he had from age fifteen, all the way to age fifty. One, the diversity of the offenses, the violence of the offenses, the consistency across the patterns of sexual offenses, the inability for rehabilitation, the lack of empathy, the lack of remorse, the lack of responsibilities, the callousness, um, the entitlement, the exploitation. You don't get all those together very often.
Id. , pp. 124-125
Mr. A. participated in sex offender treatment at the Department of Corrections and Community Supervision ("DOCCS") in 2011 but did not complete the program. He was discharged from the program after 7 months because it closed. He then began another program but opted to discontinue it, saying he was "stressed out". The treatment occurred from January to August of 2011 and then from August, 2011 to January of 2012. He has been confined in DOCCS since then and has not received any further sex offender treatment. Mr. A. had 8 disciplinary infractions during his current prison term, the last being in 2014. None were for sexual issues. His lack of sexually offensive behavior in prison was not significant to Dr. Katsavdakis. He said there is no indication that Mr. A. sees anything wrong about his behavior. He has violated parole, been subject to bench warrants and committed a sexual offense while on parole.
Dr. Katsavdakis said Mr. A. was a psychopathic offender with sexual deviance. He scored the Respondent with a 29 on the Psychopathy Checklist Revised (the "PCLR") which put him in the high range for psychopathy. The test has an error rate of plus or minus 3 points and is subject to an "allegiance effect" by examiners. Mr. A. did not receive sexual disciplinary tickets while he was incarcerated in Virginia as a younger man. About half of Mr. A.'s crimes have been non-sexual violent offenses and about half have been violent sexual offenses. If using a "self-report" instrument to assess a sex offender, like Dr. Schlosser did, it is important to know the offender's response style because a subject may not be completely accurate in recounting information. Dr. Schlosser administered two such tests during his evaluation: the Bumby questionnaire and the Able-Becker Card Sort. Dr. Katsavdakis does not use the Bumby questionnaire in forensic work because it doesn't have checks and balances designed to determine a self-report's accuracy.
Regarding a 2017 article by Harris and Boccaccini, entitled "Field Measures of Psychopathy .." this study found that offenders with a high PCLR score and a paraphilia were not more likely to re-offend than offenders without those characteristics. However, Dr. Katsavdakis said this study dealt with offenders much younger than Mr. A. It also contained a range of offender types and studied offenders with lower average PCLR scores than Mr. A. However, the study found that offenders with a high PCLR score and sexual misconduct in prison were more likely to re-offend.
When asked again what the basis of his opinion ascribing the USPD diagnosis was, Dr. Katsavdakis said: "The arousal of the victims refusing his advances, the escalating violence, infliction of sadistic elements to ensure compliance, and the level of violence that went beyond what was needed to secure the victims' compliance to have sex with him". He agreed that USPD has no specified criteria and that there is limited if any research concerning it.
Id. , p. 156.
Dr. Katsavdakis agreed that people with ASPD "may be irresponsible and exploitive in their sexual relationships". A person with a high PCLR score has an increased potential to commit crimes of all kinds. Dr. Hare, the developer of the PCLR manual used to assess psychopathy, has written that psychopathic offenders "are generalized offenders whose sexual offenses are part of a general propensity to violate the rights of others, that is they commit a variety of offenses, some of which are sexual". Dr. Katsavdakis, however, said he did not believe this reflected emerging literature and did not agree with that contention regarding Mr. A.
Id. , p. 165.
Id. , p. 168.
ASPD and psychopathy have overlapping characteristics. Regarding Mr. A.'s sexual assaults, Dr. Katsavdakis testified, "as she [the victims] resisted he became increasingly aroused, that's my opinion". He acknowledged writing in his report that "the respondent ... remains aroused to this type of activity, [coerced sex] and slash or cannot sexually inhibit himself to coercive sexual behavior".
Id. , p. 206.
Id. , p. 207.
To distinguish an arousal to non-consent from a lack of inhibition to non-consent, an expert must look to what occurred at a crime scene, which Dr. Katsavdakis did. The fact that he could not interview Mr. A. made assessing sexual sadism difficult. SSD is a very rare diagnosis among sex offenders. Although a person is likely to choose pornography which corresponds to his sexual interests, there is no indication Mr. A. has possessed pornography or pornography showing violent or sadistic images. There is also no information about Mr. A.'s sexual fantasies, since he has not reported them. The best way to evaluate sexual sadism is through a sex offense victim's report.
Dr. Katsavdakis acknowledged that Mr. A. did not engage in a number of kinds of behaviors which sometimes characterize sexual sadists including forcing oral sex after anal sex, taking trophies, reenacting a scene later while alone, torturing a victim, the insertion of foreign objects, handcuffing, rope tying, mutilation or the brandishing of a knife. He has also not chosen victims who correspond to particular fantasies, as some sadistic offenders do.
Mr. A. completed a six month alcohol and substance abuse treatment program in prison and there is no evidence he abused alcohol or drugs while incarcerated. Prior to this Article 10 case, he had not been diagnosed with NPD or a paraphilia. Since July of 2018 he has participated in the Fishkill Correctional Residential Treatment Facility ("RTF") program. He has worked as a porter since 2018 and took basic education classes from 2007 to 2010.
Denial of offending is a significant actuarial risk factor for offenders who have started offending while for repeat offenders it is not significant. Dr. Katsavdakis scored Mr. R. with a "5" on the Static 99-R risk assessment instrument and scored him with one point for never having lived with an intimate partner for two or more years. Mr. A. had reported living with an intimate partner for two years, but Dr. Katsavdakis could not verify that information. The Static 99 coding rules indicate, however, that if no information is available, no score should be given for this factor. For offenders with a score of "4", the recidivism rate over five years using the routine sample would be from 10 to 12 percent. With a score of "5" the recidivism rate would range from 13.8 to 16.6 percent. However, these numbers include a range of offense types and every offender is unique.
There is no data which indicates an offender released over the age of 60 is more likely to re-offend if that offender previously offended in his 50's rather than earlier. The developer of the Static 99-R, Dr Thornton, has opined that evaluators are overestimating re-offense risk for older offenders. Dr. Katsavdakis does not believe actuarial risk assessment instruments are relevant to whether an offender has a Mental Abnormality and are relevant only for Article 10 dispositional questions. He opined that Mr. A. is "an impulsive, opportunistic offender with significant deficits in controlling his sexual behaviors" and is also such an opportunistic offender with respect to his non-sexual offenses. There can be an overlap, however, between planned and impulsive offending. Mr. A. threatened to kill three of his sexual assault victims.
Id. , p. 471.
Testimony of Dr. Hannah Geller
Dr. Geller is a psychologist who has been employed by the Office of Mental Health ("OMH") as a psychiatric examiner since 2013. She said that of the approximately 45 initial Article 10 evaluations she had conducted she had found that the respondent suffered from a Mental Abnormality about 55 % of the time. Mr. A. refused to be interviewed by Dr. Geller. She prepared an evaluation report regarding the Respondent dated October 22, 2019 and concluded that he suffered from a Mental Abnormality under Article 10.
She diagnosed him with ASPD, under both the standard and alternative model diagnoses under the DSM-5, the condition of psychopathy and stimulant and alcohol use disorders. She said he had demonstrated a lack of empathy, callousness, manipulativeness, deceitfulness, impulsivity, risk-taking and irresponsibility. Dr. Charder (another OMH examiner) scored Mr. A. with a 31 on the PCLR.
Regarding the 1972 incident which Mr. A. described as a "hooky party", Dr. Geller testified that the alleged victim who was 14 years old (Mr. A. was 15) was raped by multiple people including the Respondent on the roof of a building and that a gun was used. She testified that Mr. A. reported the incident involved 6 or 7 males, rather than the three persons the victim reported, which she said was an attempt by Mr. A. to put the victim in a worse light, and that Mr. A. also tried to turn the incident's description against the victim by saying she wanted to have sex. Mr. A.'s contemporary description of the incident as "pulling the train over her" reflected a degrading attitude towards the victim which had not changed since he was 15.
Regarding the 1984 offense against his 14 year old cousin, Dr. Geller testified that Mr. A. had provided different details of the incident to different people. It was striking that he took the victim throughout the neighborhood apparently not concerned about the consequences and had no empathy. She reported (unlike Dr. Katsavdakis) that Mr. A. had originally gone to the victim's house and that they then went to a store. He forced her to drink Thunderbird wine. At one point, the victim came upon her brother and asked for help, but the brother apparently complied with Mr. A.'s request that he not interfere.
It was notable that the victim displayed great fear during the assault but this did not dissuade Mr. A. The Respondent was bold in that he persuaded people in the vicinity that nothing bad was happening, even as he was abducting her. Mr. A.'s telling the victim he would "fuck her to death and make her enjoy it" after she refused his advances telling him she was a virgin "could be looked at as sadistic" and other aspects of the assault in which he instilled fear in the victim could also be looked at that way. Mr. A. "wanted what he wanted when he wanted it". It was also significant that his drive to assault the victim was so strong that the fact he would be easily identified did not deter him.
Id. , p. 273.
Id. , pp. 270-271.
In an interview with Dr. Schlosser in 2016, Mr. A. denied sexually assaulting the victim and said she had come on to him. He provided a somewhat different account close in time to the incident, describing consensual interactions and kissing but admitting he struck the victim a number of times when things didn't work out. Mr. A. has evidenced a pattern of striking victims when they refuse to have sex with him which Dr. Geller said indicated "some deviant interest". She opined that when Mr. A. knocked the victim's head into a wall towards the end of the assault this violence was gratuitous because he had already subdued her and she was terrified. Mr. A. has fused violence and sex.
Id. , p. 280.
Regarding the 1997 offense which occurred in his cousin's apartment, Dr. Geller said other people were present and the offense was impulsive and again committed under circumstances where he could easily be caught. After the offense he admitted his guilt and said he had been high on crack cocaine. He later told Dr. Charder, however, that he traded drugs for sex and the victim later came back to the apartment with others who stabbed Mr. A., falsely accusing him of a sexual assault. He told Dr. Schlosser he did not use force.
Regarding the 2006 offense, Mr. A. reported that he had consensual intercourse with the victim, then asked her for oral sex 40 minutes later, she refused, and he then forced her. He denied slapping or hitting her. Mr. A. admitted that he knew the victim had been previously injured and had just been released from the hospital when they met. Dr. Geller said that Mr. A. punched the victim into unconsciousness, then penetrated her, then she regained consciousness while he was pulling out of her vagina and then he punched her more. She said that although she did not credit Mr. A.'s story that he had consensual sex with the victim then forced her to have oral sex 40 minutes later, the fact that Mr. A. would create such a story spoke to his character pathology. Mr. A. had resided at times at a homeless shelter near where he committed the offense which was again significant because the crime occurred where he could be easily identified. Mr. A. has a lack of anxiety or fear about the consequences of his crimes. Dr. Geller said this assault was sadistic and evidenced excessive force. There is "possible sadism in his crimes".
Id. , p. 315.
Regarding the 1992 non-sexual stabbing, she testified, "he's violent across the spectrum, across the board violence". Dr. Geller said Mr. A.'s aggression increased during his sexual assaults and she said his use of violence during sexual assaults was sexually deviant. Mr. A. has a high level of psychopathy with a "coercive sadistic interest". Mr. A. also makes poor decisions and has poor cognitive problem solving. He had 15 disciplinary infractions while incarcerated in Virginia between 1986 and 1996, three of them for violent conduct and received a one year additional sentence for a disciplinary infraction. He sexually offended after not sexually offending in prison.
Id. , p. 319.
Id. , p. 322.
In one year of sex offender treatment he was reported to have been moderately compliant but offered little or no feedback. He cooperated minimally and demonstrated poor insight. He did get credit for associating with positive role models but fell asleep in groups. He accepted some degree of responsibility. He hasn't developed a relapse prevention plan. He continues to suffer from cognitive distortions and at age 63 is in the same frame of mind as when he committed his offenses. Mr. A. has a tendency to characterize himself as the victim of his attacks. ASPD sometimes wanes between the ages of 30-40 but this has not occurred for Mr. A. and his most recent offense at close to age 50 in some ways reflected an escalation of his offending. This speaks to his pervasive level of psychopathy. Alcohol and substance abuse have disinhibited his sexually offending behavior.
Dr. Geller agreed that: "there is limited evidence of preference for sadistic acts [for Mr. A.], or that he was sexually aroused to his victim's pain and/or suffering". He has been incarcerated since 2006. He has received 8 disciplinary infractions during that time, only one being a Tier 3 ticket (the most serious category) and none since June of 2014. His conduct in prison has improved over time.
Id. , p. 344.
A person with severe psychopathic features is likely to engage in crime generally, both non-sexual and sexual. Dr. Geller relied in part on an article by Haues which concluded that psychopathy and sexual deviance together are a sex offense risk factor. She opined that Mr. A. had a deviant arousal to non-consensual sex. However, this study was a meta-analysis which included many offender types. A 2017 study by Harris found that high psychopathy and sexual deviance were not strongly predictive of sex offense recidivism. There have thus been conflicting studies on this issue, but the studies have not included many offenders like Mr. A. Dr. Geller said that the denial of past sexual offenses is not correlated with increased recidivism.
Mr. A.'s alcohol and substance abuse does not predispose him to commit sex offenses. There is no evidence he has used drugs in prison. He is not currently hyper-sexual. The diagnostic criteria for the traditional ASPD diagnostic model and the alternative model (both of which Dr. Geller ascribed to Mr. A.) overlap in significant respects with the criteria for psychopathy. Dr. Geller opined that based on his offense patterns, Mr. A. was aroused to sexual contact that is forced or involves physical violence. She was less confident that Mr. A. was aroused to victim suffering but opined he was aroused to such suffering to some degree. Dr. Geller agreed that there was no evidence of the state of Mr. A.'s physical sexual arousal during the 1984 assault. During the 1997 assault, there was no evidence Mr. A. hit or punched the victim.
There is no evidence Mr. A. has used physical restraints like ropes or handcuffs during his assaults. During the 2006 offense, he punched the victim and she blacked out after she said Mr. A. should kill her if he was going to sexually assault her. During the 1984 offense, he slapped the victim after she ran away from the car, when she spilled wine on the ground instead of drinking it and after she screamed. During the 2006 assault, Mr. A. knocked the victim's head against the ground and strangled her after the rape was apparently completed, at a time the victim said he was pulling out of her and zipping up his pants.
Mr. A. reported to a social worker in 2002 that with respect to the 1984 assault, he and the 14 year old victim (who he said was 17) were having fun and the encounter got out of hand, which was an example of his minimizing his actions and ascribing responsibility to his victims. Dr. Geller opined that the 1984 assault indicated Mr. A. was aroused to the victim's suffering because rather than sexually assaulting her right away, he "paraded" her around while she was afraid and this evidenced emotional sadism. When asked why Mr. A.'s actions during the 1984 assault were indicative of an arousal to non-consent rather than an attempt to obtain victim compliance Dr. Geller testified: "I'm not sure whether it specifically indicates one or the other, except for that he's threatening her."
Id. , p. 439.
Testimony of Dr. Erik Schlosser
The Respondent's psychologist, Dr. Schlosser, was qualified as an expert in the field of forensic psychology and the evaluation and treatment of sex offenders. He is board certified in forensic psychology, worked evaluating Article 10 respondents for OMH for two years and now works in private practice where he conducts evaluations for Article 10 respondents. He has conducted 368 Article 10 evaluations. For other than annual review cases, he has determined respondents have a Mental Abnormality about 70% of the time. He opined Mr. A. does not have a Mental Abnormality under Article 10. He met with Mr. A. for 3½ hours in 2016 and then spoke to him for a couple of hours in October of 2019. An IQ test he conducted indicated Mr. A. was in the low average range which was consistent with the fact that he did not complete high school. Mr. A. said his childhood was not abusive, that his father had about 20 children and that Mr. A. became sexually active by around age 13 or 14 and fathered multiple children. He started abusing substances early and began using cocaine in his 20's.
Regarding the 1972 incident, Mr. A. said this involved allegations of rape over a period of three days. He described the sex as consensual, said to "pull a train" meant that multiple males would have sex with one female and said he and the other males were accused of rape and of having a gun because the complainant's mother was upset the complainant became pregnant. Regarding a 1979 offense where he was accused of repeatedly striking his girlfriend with a rolling pin, he acknowledged he had gotten into a scuffle. Regarding the 2006 offense, he reported that he initially had consensual sex with the victim, then asked the victim for oral sex, she refused and he slapped her, but denied any other violent conduct. Dr. Schlosser said he didn't particularly believe Mr. A.'s denials. The fact that the 2006 offense took place on the steps of a church and that other people were present in the apartment during the 1997 sex offense indicated poor impulse control and judgment. Dr. Schlosser diagnosed Mr. A. with ASPD but no other diagnosis. This predisposes Mr. A. to problematic behavior in general rather than sexual offending in particular. He has 27 lifetime arrests, most of which were not for sex offenses.
This was significant to Dr. Schlosser because "courts particularly in Donald DD. look at it in a dichotomous way". He said that today, in light of Donald DD. , he believes ASPD applies to the second prong of the Mental Abnormality determination: serious difficulty in controlling behavior, rather than the first predispositional prong of the definition and said legal decisions impacted his clinical thinking. He might consider ASPD as a predisposition condition without a paraphilia if there were multiple sexual offenses but no other criminal versatility. But the Court understood Dr. Schlosser to say that if an offender had ASPD, no paraphilia and committed both sexual and non-sexual offenses, the offender could not be predisposed to commit sex offenses under the law because of Donald DD .
Id. , p. 29. Citing State v. Donald DD. & Kenneth T ., 24 N.Y.3d 174 (2014) (discussed infra ).
He agreed with Dr. Katsavdakis that Mr. A. had a lack of empathy and callousness, but thought these characteristics were best described as traits of ASPD rather than overlapping narcissistic features, although he acknowledged his difference with Dr. Katsavdakis on that point was semantic. Regarding the difference between ASPD and psychopathy, Dr. Schlosser said: "Depends on who you talk to". They can be viewed as different in kind or only in degree.
Id. , p. 38.
He does not see psychopathy or ASPD as resulting in a predisposition to commit sex offenses under Article 10 but such conditions may be relevant to the serious difficulty prong of the Mental Abnormality definition. Personality disorders [like ASPD or psychopathy] don't cause sexually offending behaviors. Dr. Schlosser appeared to testify that while ASPD and psychopathy can cause serious difficulty in controlling behavior, including sexually offending behavior, they cannot generally predispose a person to commit sex offenses. Quoting from an American Psychiatric Association Task Force on Dangerous Sex Offenders, he said that personality or substance abuse disorders "have little explanatory connection to the offender's sexual behavior".
Id. , p. 43.
Psychopathy does not cause a person to be more predisposed to commit a sexual vs. a non-sexual crime. There is a modest relationship in research between sexual offending and persons with a combination of psychopathy and sexual deviance. ASPD "generally speaking has little correlation with sexual offending behavior, doesn't cause it then we have to say well that's not necessarily a predisposing factor". A higher PCLR score does not correlate with a lesser degree of volitional control. Regarding Mr. A., Dr. Schlosser testified that: "I don't think he meets the statute, as I understand it ... he is more general criminal recidivist who also engages in sexual offenses". He said this was a rationale based on Donald DD. but that, even in the absence of Donald DD. , he would still find ASPD was not predisposing, although it can cause serious difficulty in controlling sexually offending behavior. Dr. Schlosser drew no conclusion about that latter issue with respect to Mr. A.
Id. , p. 47.
Id. , p. 50.
He said he was familiar with the "Field Measures of Psychopathy" article which found that persons with a high level of psychopathy and sexual deviance were no more likely to re-offend than other offenders. Dr. Schlosser didn't diagnose Mr. A. with any substance abuse disorders because he said there was no clear evidence of a pattern of substance abuse, in part because Mr. A. has spent much of his adult life in prison. Mr. A. acknowledged using alcohol or drugs in connection with some of his crimes but denied they were a causative factor in his offending. Dr. Schlosser saw no clear pattern of arousal to sexually sadistic acts. Mr. A.'s violence against the 14 year old victim can be understood as being retaliatory for actions she took or acts to obtain compliance. This mirrors actions many rapists take. The fact that Mr. A. beat the 2006 victim after he ejaculated would not be evidence of a sadistic sexual arousal.
SSD is one of the most poorly understood paraphilias in part because there is little research on it and few offenders have the disorder. There are people, however, who engage in consensual sadistic-erotic behavior. A 1994 study by Snowden indicated that sexual sadists inflicted less violence on their victims than non-sadists who sexually assaulted. In discussing his sexual fantasies, Mr. A. denied any arousal to violence. It is very difficult to distinguish sexual sadism from an arousal to non-consent. He administered the Able-Becker Card Sort test to the Respondent which is a self-report measure which asks subjects to rate the degree to which they find described scenarios sexually arousing. He also administered the Bumby scale of cognitive distortions test to Mr. A. which measures the degree to which a person has cognitive distortions which occur among rapists.
Dr. Schlosser used these self-report measures because Mr. A. has for the most part denied his crimes and these self-reports could stimulate a conversation. Mr. A. said he sometimes used pornography showing male/female penetration but denied using sexually sadistic pornography. Dr. Schlosser said he has not made a USPD diagnosis in an Article 10 case because it is a difficult diagnosis to assign with clear and convincing evidence although he thought it could be assigned. He said that in reading Dr. Katsavdakis' report, he was unable to determine what the USPD diagnosis was based on, other than Dr. Katsavdakis' provisional SSD diagnosis.
Some rapists are so absorbed in their own gratification that they are not inhibited by a victim's expression of non-consent. It is not clear whether Mr. A. has an arousal to non-consent. Dr. Schlosser did not agree that the fact that the instant offense victim was unconscious during part of the assault was indicative of sexual sadism. Denial of offending is a risk factor for first or incest offenders but not for repeat or non-incest offenders. The RTF program Mr. A. currently participates in is one where inmates take classes with the goal of societal reintegration. He characterized Mr. A.'s prior participation in sex offender treatment as minimal.
Regarding the two self-report measures Dr. Schlosser administered, he acknowledged that he had testified in a case with a different respondent that the total time to take these tests, comprising 115 questions, was a little less than two hours of which the Respondent actually filled out the forms for about 30-40 minutes. He testified that the "hooky party" took place over 3 days, two days on a roof and one in the complainant's apartment. When asked whether he had confronted Mr. A. regarding the inconsistency between his denial of an assault with respect to this incident and other records, Dr. Schlosser said that when he initially spoke to Mr. A. he had read him records reflecting the incident. Mr. A. made more admissions regarding his abduction of the 14 year-old girl in Virginia after the incident and during his trial testimony in that case than he did to Drs. Schlosser or Charder during their much later interviews.
Mr. A. essentially described the 1984 incident as consensual. When asked whether he had confronted Mr. A. about the inconsistencies between his account and other records, Dr. Schlosser said he had read the other records to Mr. A. and Mr. A. had denied wrongdoing. Regarding the 2006 offense, Mr. A. said he hung out around the church where the assault occurred and there were homeless people nearby during it. He said the incident had been blown out of proportion and admitted to slapping the victim once on the back of the head after she freaked out. Dr. Schlosser read Mr. A. the victim's statement that Mr. A. had said upon raping her: "now you are mine" but did not "confront" Mr. A. with the statement or directly ask him about it. Mr. A. admitted the non-sexual stabbing, describing it as self-defense.
On the Able-Becker Card Sort inventory, Mr. A. reported being extremely repulsed by scenarios indicative of sexual sadism or rape/non-consent. Dr. Schlosser didn't confront Mr. A. with the inconsistency between such assertions and his prior crimes. Dr. Schlosser said the difference between these answers and Mr. A.'s behaviors might be due to impression management or because his sexual fantasies did not match his crimes. On the Bumpy test, Mr. A. endorsed 7 of the answers consistent with rapists: "women usually want sex no matter how they can get it"; "Victims of rape are usually a little bit to blame"; "Often a woman reports rape long after the fact, because she gets mad at the man"; "society and the courts are too tough on rapists", that before police investigate rapes, they should find out what the victim was wearing, whether she had been drinking and what kind of person she is; generally rapes are not planned, they just happen and if a person tells himself he will never rape again he probably won't. Mr. A. also related some of these principles to his own offenses. He said he could not commit additional sexual assaults because if he did he would never be released. He believes he has been a victim of the system and been falsely accused of sex crimes.
Id. , pp. 125-126.
Partial History of Prior Proceedings
On June 1, 2015, following the filing of the instant petition, this Court conducted a hearing pursuant to MHL § 10.06 (g) to determine if there was probable cause to believe Mr. A. was a sex offender requiring civil management. A probable cause determination following such a hearing is necessary for an Article 10 case to proceed. In State v. Jerome A. , 48 Misc. 3d 1229 (A) (New York County Supreme Court 2015) 2015 NY Slip Op. 51303 (U), this Court, in an extended opinion, dismissed the petition. This Court's determination was based both on the fact that the diagnosis by the State's sole expert witness, Dr. Charder, that Mr. A. had ASPD and psychopathy was the same diagnosis rejected as not meeting Article 10 requisites by the Court of Appeals in Donald DD. ( discussed infra ) and because this Court did not find Dr. Charder's testimony otherwise credible or sufficient to establish the requisites for a Mental Abnormality.
This Court faulted Dr. Charder (a psychologist) for relying on speculative "brain scan" evidence (not involving Mr. A.) to support her contention that he suffered from a Mental Abnormality. This Court also outlined how Dr. Charder had testified that Mr. A.'s psychopathy provided him with greater volitional control than offenders with ASPD and negated Article 10's "serious difficulty" requirement.
The decision noted that "Dr. Charder testified that ‘there was a difference in brain scans between ‘successful’ and ‘unsuccessful’ psychopaths and ‘therefore, their brains looked a little bit different than the ones who were successful or the ones who got caught, if that makes sense. The unsuccessful psychopaths have less frontal lobe matter and so on..’ But Dr. Charder did not cite any study to support that conclusion nor is it clear to this Court how any such analysis could even be conducted.... Indeed, Dr. Charder herself commented at a different point in her testimony regarding the same issue: ‘Now, those are just theories. There are lots of theories’ ". 2015 NY Slip Op. at 12. She also testified that the Respondent's psychopathy provided him with greater volitional control than if he had ASPD alone. See, e.g. , Id. , at 14: (when compared to ASPD, psychopathy "involves a more calculating callous choice"; when compared to an ASPD offender, a psychopath's "behavior is more controlled"; generally describing the Respondent's behavior as "planful", "calculating" and non—impulsive. Psychopaths, she testified, are "cold blooded" while ASPD offenders are "hot blooded"). (transcript citations omitted).
In State v. Jerome A. , 137 A.D.3d 557 (1st Dept. 2016), however, the First Department reversed this Court's dismissal. The Court held that "issues concerning the viability and reliability of the respondent's diagnosis are properly reserved for resolution by the jury unless the respondent's evidence is deficient" and "the expert's testimony at the hearing was not so deficient as to warrant dismissal of the petition at this early juncture" (citations omitted). The Court also held that because the State proffered the diagnosis of ASPD plus psychopathy, rather than ASPD alone, the evidence was legally sufficient under Donald DD .
The case was then returned to this Court where the Court, on the respondent's motion, then conducted an extended Frye hearing on whether the State's proffered diagnosis of Unspecified Paraphilic Disorder ("USPD") was generally accepted in the relevant scientific community. In State v. Jerome A., Nicholas T. & Gary K , 58 Misc. 3d 1202 (A) 2017 NY Slip Op. 51762 (U) (New York County Supreme Court 2017), this Court held that the USPD diagnosis was generally accepted. Although this Court explained its decision in an extended opinion, it summarized its reasoning as follows:
[T]he DSM has been described by experts as the ‘Bible of mental disorders’, ‘like the institutional embodiment for the consensus of main treatment and psychiatric opinion in the United States’, ‘a consensus of experts in psychiatry about those particular disorders that should be treated’ and ‘the consolidated opinion of the psychiatric community in terms of what constitutes psychiatric diagnosis’. According to the DSM-5 ... the USPD diagnosis is ‘indispensible’. 2017 NY Slip Op at 15 (citations omitted).
In State v. Hilton C. , 158 A.D.3d 707 (2nd Dept. 2018), however, the Second Department held that the USPD diagnosis was not generally accepted. This Court then reversed its determination that USPD was generally accepted, since Hilton C. was the only appellate ruling which had considered the issue and this Court was thus bound to follow it.
Further confusion then ensued, however, from the Second Department's decision in State v. Anthony B. , 2018 NY Slip Op. 68466 (U) (2nd Dept. 2018). There, the trial court, in reliance on the Second Department's decision in State v. Richard S. , 158 A.D.3d 710 (2d Dept. 2018) holding that USPD Non-Consent (a different diagnosis than USPD) was not a generally accepted diagnosis followed the Second Department's ruling. The Second Department reversed the trial court's determination, however, holding that the trial court was required to conduct a new Frye hearing, notwithstanding the fact that a different Second Department panel had already ruled on the identical Frye issue. The Anthony B. Court held that the trial court had to conduct "a Frye hearing on the question of whether, under the particular circumstances of this case , the diagnosis of ‘Other Specified Paraphilic Disorder (Non-Consent)’ has achieved general acceptance in the psychiatric and psychological communities so as to make expert testimony on that diagnosis admissible;". (emphasis added).
This Court was then required to consider a motion by the State to reargue this Court's prior ruling following the Second Department's decision on the USPD Frye issue based on the argument that the Second Department in Anthony B. had created a new Frye analytic construct: "the principle that an appellate ruling from an appellate court based on a particular Frye record does not preclude the State from seeking a new Frye ruling before a trial court based on a different record." State v. Nicholas T. & Gary K. , 60 Misc. 3d 522, 525 (New York County Supreme Court 2018). This Court held that was not the law, notwithstanding the Second Department's ruling, since "[t]he general acceptance of a particular diagnosis or scientific test obviously does not vary from case to case (hence the term ‘general acceptance’)". 60 Misc. 3d at 527.
Jerome A. then proceeded to a bench trial before a different judge of this Court, Judge Pickholz, who determined Mr. A did not have a Mental Abnormality. In State v. Jerome A. , 172 A.D.3d 446 (1st Dept. 2019), however, the First Department reversed Judge Pickholz's verdict. The Court found, consistent with this court's ruling in State v. Jerome A., Nicholas T., & Gary K. , that USPD was a generally accepted diagnosis. Since this Court had precluded that diagnosis prior to the trial, the First Department found, the verdict finding the respondent did not suffer from a Mental Abnormality had to be reversed since the State had been precluded from presenting the USPD diagnosis. The First Department did not explain in its decision why the preclusion of the USPD diagnosis warranted a reversal.
The First Department also reversed this Court's bench trial verdict rendered in August of 2018 finding the Respondent did not suffer from a Mental Abnormality in State v. Gary K. , 179 A.D.3d 623 (1st Dept. 2020) for the identical reason, saying "we decline to rule that the instant record establishes conclusively that the USPD diagnosis would have been found unreliable or that its admission at trial would have made no difference to the outcome of the case". Gary K. has been living in the community with no report of sexual offending since his release following this Court's verdict. He will now have to be retried, with presumably the same record of behaviors and traits which were presented at his first trial, except that a State expert will now be permitted to opine that such characteristics evidence an Unspecified Paraphilic Disorder.
This Court then conducted the instant bench trial, where it reached a verdict contrary to Judge Pickholz (and contrary to this Court's initial dismissal). Ironically, however, as will be outlined infra , this Court reached that verdict although it rejected the State's USPD diagnosis — the diagnosis whose absence was the sole basis for the First Department's latest reversal. Five years after this Court first dismissed this petition based on the testimony of a single witness this Court found patently incredible, the Respondent will now likely appeal this Court's most recent verdict to the First Department, setting up yet another round in these proceedings. Meanwhile, Mr. A. will continue to wait in custody for a resolution.
Certain passages of this Court's legal conclusions are copied or derived from earlier decisions of this Court without citation to this Court's prior decisions.
At the trial, the parties stipulated that the Respondent was a "detained sex offender" under Article 10. The question at the trial, therefore, was whether Mr. A. had a "Mental Abnormality". A Mental Abnormality is defined as "a congenital or acquired condition, disease or disorder that effects 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 Court credited the diagnosis of ASPD assigned by each of the experts and also credited the opinions that Mr. A. had the condition of psychopathy. The Court further agreed that Mr. A. has narcissistic traits and suffers from a variety of substance abuse and alcohol use disorders in remission in a controlled environment. The Court finds that this combination of conditions are sufficient Article 10 predicates and predispose Mr. A. to the commission of sex offenses and cause serious difficulty in controlling sexually offending behavior. The Court will first outline the conclusions of the State experts it did not credit, then explain why it believes clear and convincing evidence exists to conclude Mr. A. suffers from a Mental Abnormality and finally outline why it did not credit Dr. Schlosser's ultimate conclusions.
The USPD Diagnosis Did Not Meet Minimal Due-Process Standards & The Court Also Did Not Credit the Diagnosis
The Court did not credit the USPD diagnosis which the DSM defines as follows:
This category applies 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 disorders in the paraphilic disorder class. The unspecified paraphilic disorder category is used in situations in which the clinician chooses not to specify the reason that the criteria are not met for a specific paraphilic disorder, and includes presentations in which there is insufficient information to make a more specific diagnosis. State v. Jerome A., Nicholas T. & Gary K. , 2017 NY Slip Op. at 3, quoting the DSM-5 at 705 (emphasis in DSM-5).
Dr. Katsavdakis testified that Mr. A. could be diagnosed with USPD because he had an "atypical" presentation. He initially focused on personality factors and behaviors, highlighting things like Mr. A.'s lack of empathy and callousness. In this portion of his testimony, he did not mention any arousal to non-consent. Indeed, in initially describing why he had diagnosed Mr. A. with unspecified paraphilic disorder, he did not describe any paraphilia. When then asked later to again outline why the USPD diagnosis was appropriate, he focused only on what he said was Mr. A.'s arousal to non-consent or victim suffering, with little mention of the earlier personality factors. In this Court's view, Dr. Katsavdakis gave two different explanations for why he had diagnosed Mr. A. with USPD in the two answers he gave to that question.
Transcript, pp. 124-125, quoted supra .
Id. , p. 156.
In this Court's decision holding that USPD was a generally accepted diagnosis, State v. Jerome A., Nicholas T. & Gary K. , it noted that USPD may well be "an invalid and unreliable diagnosis" but found that it had nevertheless been generally accepted in the relevant scientific community. 2018 NY Slip Op. at 15. But this Court also opined that the diagnosis raised significant due-process issues because applied in an individual case it might be "to imprecise a category to offer a solid basis for concluding that civil detention is justified". Id. , at 17, quoting , Kansas v. Hendricks , 521 US 346, 373 (1997) [Kennedy, J., concurring]. The First Department also emphasized this point (citing this Court's rulings) in its decision reversing the latest jury verdict in this case, holding that the trial court here should determine "whether the evidence [of USPD] meets the threshold standard of reliability and admissibility". 172 A.D.3d at 447. This Court's answer to that query is no.
In its USPD decision this Court outlined how it believed a USPD diagnosis could be properly assigned where a respondent had a paraphilia which could not be confined to any specific diagnostic category. In this Court's view, however, that is not what occurred here. Here, in this Court's view, Dr. Katsavdakis outlined (in different ways at different times) all of the ways in which Mr. A. [like any other human being] is unique and then said his uniqueness warranted a USPD diagnosis. At one point, he ascribed the diagnosis to personality factors and offending behaviors which did not appear to describe any paraphilia. At another point, he described paraphilic tendencies he believed Mr. A. had. But, as will be explained next, this Court did not credit those paraphilic tendencies. Dr. Schlosser testified that in reading Dr. Katsavdakis' report, he was unable to determine what the USPD diagnosis was based on, other than sexual sadism, for which Dr. Katsavdakis assigned a provisional diagnosis.
The arousal to non-consent which formed the primary basis for the paraphilia portion of Dr. Katsavdakis' opinion, moreover, was for a diagnosis which has been precluded as not being generally accepted. In its USPD decision, this Court noted that the attempt to admit such otherwise precluded diagnoses was another reason to be skeptical of USPD diagnoses in some cases. Not being able to assign a Non-Consent diagnosis because of Frye preclusion in this case, Dr. Katsavdakis outlined what he believed was the Respondent's arousal to non-consent and victim suffering and assigned a USPD diagnosis instead. This Court does not believe he did that as a conscious attempt to "end-run" Frye preclusion. But as a practical matter, in this Court's view, to the extent Dr. Katsavdakis ascribed Mr. A.'s behaviors to a paraphilia at all, that is what he did.
In State v. Kareem M. , 51 Misc. 3d 1205 (a), 2016 NY Slip Op. 50427 (U) (New York County Supreme Court 2016) this Court held that Other Specified Paraphilic Disorder ("OSPD") Non-Consent and related formulations were not generally accepted diagnoses under the Frye standard. That determination, as partially noted supra , has also been made by other trial courts and the Second Department. See State v. Richard S. ; State v. Jason C. , 51 Misc. 3d 553 (Kings County Supreme Court 2016 [Riviezzo, J.] ); State v. Smalls , Unreported Decision SP # 180/2012 (Queens County Supreme Court, February 17, 2017 [Holder, J.] ).
The Court Did Not Credit Opinions That Mr. A Was Aroused to Non-Consensual Sex
A normal man may refrain from attempting to commit sexual assaults for a number of reasons. He may believe it is immoral to subject a victim to the extraordinary suffering caused by a sexual assault. He may be deterred by the threat of legal sanctions. opposition or retribution. But the arousal of a normal man to sex with an age appropriate sexual partner may also be inhibited by a victim's expression of non-consent. Dr. Schlosser discussed this issue during his testimony.
That latter inhibition does not occur, or does not occur to a sufficient degree to deter a sexual assault, for rapists. But such a lack of inhibition is not the same as an arousal to non-consent. This can be best understood by considering the reactions of normal men and rapists to penile plethysmograph ("PPG") studies, a test which measures male sexual arousal to aural or visual stimuli. Such tests are subject to significant practical problems. But assuming an error-free test, a normal man may be aroused to consensual sex more than forcible sex. For rapists, arousal may not be inhibited by portrayals of forcible compulsion. That is, a rapist may be equally aroused to consensual and forcible sex. It is only a subset of rapists, however, who are more aroused to forcible than consensual sex (hereinafter "paraphilic rapists"). Rapists in this category can be said to have a paraphilic arousal to forcible sex, while those in the former category have only a lack of inhibition to such forcible conduct.
The problem is that this distinction is often blurred in practice, even by experts. This Court recounted extensive expert testimony and written studies on this issue in its decision in State v. Kareem M. In Kareem M. , this Court found that it is very difficult to distinguish paraphilic from non-paraphilic rapists. As one expert testified: "you cannot reliably distinguish between someone who is aroused by the nonconsent of the victim versus somebody who is raping despite the nonconsent". 2016 NY Slip Op. at 29, citing the testimony of Dr. Robin Wilson. There is also no consensus about the percentage of rapists who may be paraphilic. Evidence at the hearing ranged between a "small subset" to up to one third or one half of rapists. Id.
As the Court noted in its decision: "Dr. Kunkle, the State's leading SOMTA clinician [at the time], made the extraordinary statement that he simply didn't now whether offenders diagnosed with Non-Consent in 2007 and 2008 had been misdiagnosed [since the OMH criteria for diagnosing the condition had become more exacting] and didn't now how the criteria used at that time compared with those used today". Id. , at 31. In this Court's view, moreover, State experts testifying in Article 10 cases often ascribe "non-consent" paraphilias to rapists without clear and convincing evidence. See, eg. , State v. Donald DD. & Kenneth T. , 24 N.Y.3d at 200 (the Kenneth T. portion of the decision) [Graffeo, J. concurring] (holding that the trial verdict should be reversed because "the state failed to present legally sufficient evidence of Paraphilia NOS, nonconsenting partners"). In this Court's view, moreover, State experts have strong incentives to diagnose paraphilias since without them, as discussed infra , other diagnoses may be found legally insufficient under Donald DD.
Experts, as in this case, are also often left without the most important information they need to make such determinations: an interview where the respondent honestly describes his sexual preferences. Dr. Katsavdakis noted this problem repeatedly during his testimony. Faced with such incentives and lacking sufficient information, in this Court's experience, State experts often cross the line from reasonable inference to speculation in assigning non-consent paraphilias. Experts rely primarily upon the fact of forcible rapes to infer such paraphilias — even though most rapists are likely not paraphilic.
In this Court's view that is what occurred here. Dr. Katsavdakis essentially based his conclusion that Mr. A. was aroused to non-consent on two factors, other than the fact that Mr. A. has committed multiple sexual assaults and rapes. The first was that he said Mr. A. had "consistencies across the offenses". But the fact that a rapist rapes repeatedly and exhibits similar behaviors in each rape does not demonstrate a paraphilic preference. It demonstrates that the offender is a serial rapist.
Secondly, in this Court's view, Dr. Katsavdakis recounted a conclusion that was not supported by the record. That was the assertion that Mr. A.'s arousal during his sexual assaults increased as he became more violent or the victim offered more resistance. Thus, he testified: "It's not just the fact that she's [the victim's] refusing. He's also being aroused to the fact that the violence is escalating, and that's in my opinion, with Mr. A. fueling or leading for him to become aroused ... The victims all refuse, he becomes increasingly violent, then he becomes aroused , he inflicts the violence, it ends with him degrading the victim." (emphasis added).
Here, Dr. Katsavdakis posited a sequence: that Mr. A is at one level of arousal, but upon a victim's refusal, he then exerts violence and becomes increasingly aroused by the non-consent and his own violence. After this violence, non-consent and further violence, his arousal level increases. There was no direct evidence at the trial, however, and no basis to draw an inference, in this Court's view, that this sequence has ever occurred. There was not clear and convincing evidence that Mr. A. had one level of sexual arousal at the beginning of any assault, but then that arousal increased as the assault progressed and he applied more violence. Of course, there was limited information with which to make any such assessment. But such difficulties don't modify the Article 10 burden of proof.
Article 10 provides that where a respondent, as here, refuses to be interviewed by a psychiatric examiner, upon request, the court "shall so instruct the jury". MHL § 10.07 (c). On the other hand, the statute does not provide for an adverse inference instruction to fact-finders where respondents refuse to participate in psychiatric interviews.
Dr. Geller appeared to conclude that Mr. A. was aroused to non-consent primarily because he used violence during his assaults. But even she expressed doubt about that conclusion. When asked why Mr. A.'s actions during the 1984 assault were indicative of an arousal to non-consent rather than an attempt to obtain compliance she testified: "I'm not sure whether it specifically indicates one or the other, except for that he's threatening her." Dr. Schlosser testified that it was not clear whether Mr. A. was aroused to non-consent.
Id. , p. 439.
There is also little reason to believe, in this Court's view, that additional significant evidence would have been forthcoming had Drs. Katsavdakis or Geller interviewed Mr. A. Mr. A. has been anything but a reliable, forthright reporter. During its cross-examination of Dr. Schlosser, the State attempted to demonstrate that had he only asked more probing questions, Mr. A. would have been more forthcoming; that, with a more assertive examiner, Mr. A., a 63 year-old man who has spent his entire life denying his sexual assaults and blaming his victims, would reveal his true feelings. In this Court's view, there is no reason to believe that would occur.
Indeed, here there was significant evidence Mr. A.'s rapes were not the result of paraphilic arousal. Much of Mr. A.'s actions during his assaults can be ascribed to efforts to subdue his victims. As Dr. Geller testified, for example, during the 2006 offense, Mr. A. punched the victim and she blacked out after she said Mr. A. should kill her if he was going to sexually assault her. During the 1984 offense, Mr. A. slapped the victim after she ran away from the car, when she spilled wine on the ground instead of drinking it and after she screamed. During the 1997 assault in which he forcibly raped and sodomized his victim there is no evidence he hit or punched her. During the 2006 assault, Mr. A. knocked the victim's head against the ground and strangled her after the rape was apparently completed and he had ejaculated. As Dr. Schlosser noted, Mr. A.'s assault after he ejaculated would not seem to be consistent with a sexual arousal to the suffering he caused.
The violence Mr. A. exhibited during his sex crimes, moreover, was the same kind he exhibited during his non-sexual assaults. Upon being confronted with a man who threatened him with a cane, he stabbed the man seven times, puncturing his lung and lacerating his liver. Upon being resisted by the victim during the 2006 offense, he punched her and she lost consciousness.
Mr. A.'s actions, in this Court's view, during his sexual and non-sexual assaults were caused by his antisociality, extraordinary callousness, narcissistic tendencies, lack of empathy, inability to control his offending behavior, poor cognitive abilities, lack of concern about being caught and impulsivity. There was not clear and convincing evidence these assaults were caused by a paraphilic arousal, however. There was also a lack of any evidence, apart from Mr. A.'s crime scenes, that he had any such arousal. Such evidence is often present in other Article 10 cases. There was no evidence Mr. A. had sexual fantasies involving non-consent. There was no evidence he has ever viewed any rape pornography. He has made no statements supporting any such conclusion. There was also no PPG data showing any such arousal, although such data is rare at Article 10 trials. Even Dr. Katsavdakis, in his written report, appeared equivocal about his conclusion. During the trial, it was recounted that he had written: "the respondent ... remains aroused to this type of activity, [coerced sex] and slash or cannot sexually inhibit himself to coercive sexual behavior" [emphasis added].
The Court Did Not Credit Dr. Katsavdakis' Provisional Sexual Sadism Diagnosis
Three experts testified at the trial. Only Dr. Katsavdakis assigned an SSD diagnosis, and even he did so only provisionally. Under the DSM-5, inter alia, to be diagnosed with SSD, a person must have "recurrent and intense sexual arousal from the physical or psychological suffering of another person as manifested by fantasies, urges or behaviors". As Dr. Katsavdakis testified, SSD is a very rare diagnosis even among sex offenders. Dr. Schlosser testified that SSD is one of the most poorly understood paraphilias, in part, because there is little research on it and few offenders have been diagnosed with the disorder. Here again, there was not clear and convincing evidence that the violence Mr. A. perpetrated was indicative of a paraphilic arousal to suffering. As this Court outlined in Kareem M. , moreover, an arousal to non-consent rather than victim suffering is very difficult to distinguish and exists on a continuum. 2016 NY Slip Op. at 30.
DSM-5, p. 695.
When asked during the instant trial what the difference between an arousal to non-consent and SSD was, Dr. Schlosser quipped: "If I had the answer to that, I would be a wealthy guy". Transcript, p. 60.
The provisional SSD diagnosis in this case, like the conclusion that Mr. A. was aroused to non-consent, was not based on any information other than the circumstances of Mr. A.'s crimes. There was no evidence that Mr. A. had "fantasies or urges" indicative of sexual sadism; no evidence of sexually sadistic pornography and no evidence of many of the other behaviors which often characterize sexual sadists, like the brandishing of weapons, torture, the taking of trophies or other potential traits.
As noted supra, Mr. A.'s sexual violence has mirrored his non-sexual violence. As Dr. Geller testified: "he's violent across the spectrum, across the board violence". Like the conclusion that Mr. A. was aroused to non-consent, the conclusion that he was aroused by victim suffering was based on factors not indicative of sadism (like the consistency of behaviors across offenses) or speculation that Mr. A.'s arousal may have been increased by violence, although such speculation, in this Court's view, was not supported by the record.
There is no question that Mr. A. has treated his victims with brutality and cruelty. But that, in itself, does not demonstrate by clear and convincing evidence that he has been sexually aroused to the suffering he has caused. The more obvious explanation is that he assaulted his victims to gain compliance and that his extraordinary callousness and lack of empathy made him oblivious to the suffering he caused and perhaps also emotionally satisfied by it.
Without an interview in which Mr. A. was forthcoming about his motivations and without direct evidence of even the precise sequence of his crimes, some of which took place decades ago, it was obviously difficult to discern the extent to which his crimes were motivated by an arousal to non-consent or suffering. But the default conclusion at an Article 10 trial in the face of such uncertainty is not the assignment of paraphilias. It is the opposite. Dr. Geller had it right, in this Court's view, when she said there was "possible sadism in his [Mr. A.'s] crimes". As she agreed: "there is limited evidence of preference for sadistic acts, or that he was sexually aroused to his victim's pain and/or suffering". Dr. Schlosser also testified that there was insufficient evidence to diagnose Mr. A. with SSD.
The First Department took a much more expansive view of the requisites for an SSD diagnosis than this Court, however, in their decision upholding this Court's bench trial verdict finding the respondent suffered from a Mental Abnormality in State v. Jesus H. , 176 A.D.3d 646, 648 (1st Dept. 2019). There, one state expert diagnosed the respondent with SSD, one state expert found the diagnosis could only be assigned provisionally and the respondent's expert did not assign the diagnosis. The First Department held, without further explanation, that this court erred in not crediting "the expert diagnoses of sexual sadism disorder, as this diagnosis was clearly supported by the record".
That is not to say that Mr. A. has not evidenced a degree of sadism in his offenses. The Court agreed with Dr. Geller, for example, when she testified that Mr. A. "paraded" his 14 year old victim around prior to her sexual assault, evidencing what she described as "emotional sadism". His statement to his cousin that he would "fuck her to death and make her enjoy it" perhaps provided the strongest evidence during the trial that Mr. A. might be sexually aroused to suffering. But in this Court's view (and the view of two of the three trial experts), the overall trial evidence was insufficient to conclude that Mr. A. could be diagnosed with SSD, even provisionally. With respect to non-consent and SSD, it is also notable that Mr. A. was apparently never diagnosed with any paraphilia prior to this case, nor did Dr. Charder, the State's sole witness at the probable cause hearing, assert he had any such diagnosis.
CONDITIONS CREDITED
All three expert witnesses opined that Mr. A. had ASPD, conclusions that were fully supported by the record and require little further discussion. As Drs. Katsavdakis and Geller testified, Mr. A. has demonstrated a lack of empathy, callousness, manipulativeness, deceitfulness, impulsivity, risk-taking, irresponsibility, violating behavioral norms or the law and aggressiveness. He has no relationships although he has fathered multiple children, views people as objects and takes little responsibility for his actions. The Court agreed with Dr. Katsavdakis that Mr. A. had narcissistic traits as manifested by exploiting others, a lack of empathy and devaluing people. Dr. Schlosser did not assign that condition but acknowledged that his difference with Dr. Katsavdakis on that point was semantic, since narcissistic traits are a feature of ASPD. Such narcissistic traits were also obviously attributes of the ASPD diagnosis Dr. Geller assigned.
Drs. Katsavdakis and Geller opined that Mr. A. had psychopathy. Defining how psychopathy and ASPD differ has been the subject of conflicting views. As this Court outlined in discussing the issue in its decision finding probable cause to believe the Respondent was a sex offender requiring civil management in State v. Gary K. , 53 Misc. 3d 1207 (A), 2016 NY Slip Op. 51465 (U) at 15-16 (New York County Supreme Court 2016):
Psychopathy has been described and defined in a myriad of obviously inconsistent ways by various authorities. Under the DSM-5, it [psychopathy] is a synonym of ASPD. The Court of Appeals has repeatedly described it is an extreme form of ASPD. During argument on the instant motion, the State's attorney said that psychopathy was distinguished from ASPD because psychopathy was measured by the PCLR and PCLR scores were correlated with "brain waves or brain patterns" (referencing Dr. Charder's testimony in State v. Jerome A., supra ).
Dr. Geller [who also testified in the instant case] in her report described psychopathy as an apparently full-fledged "personality disorder". In her testimony, however, she said it was not a diagnosis but a "condition".... A person with ASPD plus psychopathy (rather than ASPD alone), she said, evidences a lack of anxiety or fear, a "bold interpersonal style" withdrawal and attention seeking behavior. She described this combination of conditions ... "as a more extreme, pervasive and multifaceted version of ASPD".
In explaining her view that Mr. K. had a Mental Abnormality, on the other hand, Dr. Geller repeatedly referred to the characteristics of a person who has "ASPD and/or Psychopathy" as if the two terms were synonymous. The Court of Appeals, of course, has repeatedly characterized ASPD as "little more than a deep-seated tendency to commit crimes". The Dennis K. , Court
State v. Dennis K. , 27 N.Y.3d 718 (2016). cert denied , Dennis K. v. New York 137 S.Ct. 579 (discussed infra ).
described persons who have psychopathy as "engaging in antisocial behavior, leading to multiple arrests and repeated revocations of community release". 2016 NY Slip Op. at 14.... This Court is not aware of any uniformly applied diagnostic criteria for psychopathy...
The most thorough discussion in reported case law on the difference between ASPD and psychopathy came in State v. Kevin F. , 51 Misc. 3d 911 (Kings County Supreme Court 2016 [Riviezzo, J.] ). There, the Court heard testimony from three experts (including Dr. Charder) and concluded (as this Court did in Jerome A. ) that the diagnosis of ASPD plus psychopathy in that case was not materially different from the diagnosis of ASPD alone under Article 10 and therefore required the dismissal of the petition. The Respondent's expert, Dr. Rosenfeld, testified that "conceptually" the terms ASPD and psychopathy were synonymous but that the criteria used to measure the concepts differed. 51 Misc. 3d at 916. Psychopathy, he opined was "roughly analogous to saying really, really antisocial". Id. , at 917 (citations omitted).
Dr. Schlosser testified in this case that the difference between ASPD and psychopathy "[d]epends on who you talk to". They can be viewed as different in kind or only in degree.
Despite the difficulty of distinguishing ASPD from psychopathy, this Court believes the assignment of psychopathy as a distinct condition from ASPD was justified here. Appellate cases following Donald DD. (discussed infra ) have repeatedly held that ASPD and psychopathy are different. The assignment of psychopathy here was supported by Mr. A.'s scores on the PCLR administered by both Drs. Charder and Katsavdakis. As Dr. Katsavdakis testified, it was supported by Mr. A.'s pattern of offending over 35 years, when an offender with only ASPD may see antisocial tendencies wane after 40. Psychopathy was also evidenced by Mr. A.'s extraordinary callousness and willingness to offend even under circumstances where he was likely to be caught. Dr. Geller testified that sex offenders with a high level of psychopathy may commit both extensive sexual and non-sexual crimes, like Mr. A.
This Court also credited Dr. Katsavdakis' and Dr. Geller's conclusion that Mr. A. suffered from alcohol and substance use disorders in remission in a controlled environment. These diagnoses do not predispose him to the commission of sex offenses. The use of alcohol and substances, however, is a disinhibitor and Mr. A. has consumed alcohol or narcotics during some of his crimes. This has contributed to his serious difficulty in controlling his sexually offending behavior. In this Court's view, the combination of Mr. A.'s diagnoses and conditions predispose him to the commission of sex offenses and result in serious difficulty in controlling sexually offending behavior.
The Issue of Whether the Diagnoses and Conditions Credited Here Were Legally Sufficient
The most significant legal issue in this case, in this Court's view, was whether the diagnoses and conditions this Court credited were in combination sufficient "conditions, diseases or disorders" under Article 10. That issue primarily arose in this case, as in others, because of the Court of Appeals decision in Donald DD . As will be outlined next, Donald DD. held that ASPD alone could not serve as a sufficient Article 10 predicate in the absence of other conditions. More fundamentally, however, the case sought to draw a distinction between sexual offending based on paraphilias or conditions which could likened to them and offenders whose crimes were driven by antisociality.
This Court has long believed, respectfully, that Donald DD. was wrongly decided both because it is inconsistent with the Article 10 statute and because the rule that ASPD alone is an insufficient Article 10 predicate is not required to satisfy constitutional due-process. Almost from the moment Donald DD. was decided, however, courts began to significantly limit its scope because some sex offenders who are driven primarily by antisociality are also be among the most dangerous. They are also, in this Court's view, among the offenders the Legislature intended to be covered under Article 10.
The legislative findings which accompanied the enactment of Article 10 nowhere allude to the kind of limitation announced in Donald DD. The Legislature, in their statement of purpose, instead focused on the need to protect the public from dangerous repeat offenders. See MHL § 10.01 ("recidivistic sex offenders pose a danger to society that should be addressed through comprehensive programs of treatment and management ... some sex offenders have mental abnormalities that predispose them to engage in repeat sex offenses .... In extreme cases, confinement of the most dangerous offenders will need to be extended by civil process in order to provide them such treatment and to protect the public from their recidivistic conduct.")
Those limitations, however, in this Court's view have created a result-driven jurisprudence. Case law purports to distinguish purely antisocial offenders from those with conditions which are sexual or have a "strong" or "singular" sexual component. For offenders like Mr. A. with no paraphilia, however, the enterprise ends up determining that the worst antisocial offenders may slip under the Donald DD. bar because the egregiousness of their crimes means their non-sexual disorders simply must have a powerful sexual element. In this Court's view, while such formulations have served the salutary purpose of limiting Donald DD. , they have created years of needless complexity, confusion and litigation.
Donald DD.
In Donald DD. , the Court's four judge majority held "evidence that a respondent suffers from antisocial personality disorder cannot be used to support a finding that he has a mental abnormality ... when it is not accompanied by any other diagnosis of mental abnormality." 24 N.Y.3d at 177. The Court noted that the United States Supreme Court in the second of its two seminal decisions on sex offender civil management, Kansas v. Crane , 534 US 407, 413 (2002) held that as a matter of substantive due-process, sex offender civil management statutes "must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case. " 24 N.Y.3d at 189 (emphasis added in Donald DD. ). The Donald DD. majority said the evidence during the trial indicated that up to 80% of persons who have been imprisoned could be diagnosed with ASPD. These statistics, the Court opined, indicated a diagnosis of ASPD alone was insufficient as a matter of constitutional due-process to distinguish sex offenders subject to civil management from ordinary recidivists.
A "Mental Abnormality" is not a diagnosis. It is the legal standard which defines which offenders may be subject to Article 10.
Prior to Donald DD. , the Second and Third Departments had held that an ASPD diagnosis alone was a sufficient Mental Abnormality predicate. Matter of State v. Andrew J.W. , 85 A.D.3d 805 (2d Dept. 2011) ; State v. Donald DD. , 107 A.D.3d 1062 (3d Dept. 2013), reversed, Donald DD . The Fourth Department had held that "personality disorders" could be a sufficient Article 10 predicate and rejected the argument that a condition under Article 10 had to include a sexual component. State v. Nervina , 120 A.D.3d 941 (4th Dept. 2014) (subsequent history omitted). Courts in numerous other states have also found ASPD alone a valid predicate for sex offender civil management. Donald DD , 24 N.Y.3d at 198-199 [Graffeo, J., dissenting].
Simply because most prison inmates can be diagnosed with ASPD, however, does not mean most prison inmates could be subject to Article 10 because of such a diagnosis. As this Court outlined in more detail in its decision in State v. Michael R. , 42 Misc. 3d 1222 (A) (New York County Supreme Court 2014), in a decision which preceded Donald DD. , the vast majority of convicted offenders who have been diagnosed with ASPD are not even statutorily eligible for civil management. Of those who are eligible a much smaller fraction prior to Donald DD. had become subject to Article 10 and a still smaller percentage had been found to have a Mental Abnormality. Allowing ASPD alone to serve as a Mental Abnormality predicate would thus not expose 80% of the prison population to SOMTA. This Court estimated in Michael R. that such a permissible sole diagnosis had served to subject less than 1/10 of 1% of the prison population to Article 10. 2014 NY Slip Op. at 17.
The Donald DD. majority clearly understood that only a small percentage of offenders with ASPD were subject to Article 10 but did not find this fact dispositive. See Donald DD. , 24 N.Y.3d at 182-184 (discussing expert testimony on the subject).
Judge Graffeo's three judge dissenting opinion in Donald DD. asserted that "[t]he fundamental flaw [in the majority's reasoning] is that it equates a ‘congenital or acquired condition, disease or disorder’ with a ‘mental abnormality,’ thereby requiring that the predicate disorder itself inherently include the additional predisposition and impulse control elements of [Article 10]. (citation to majority opinion omitted). This interpretation directly conflicts with the language of the statute ..." Donald DD. , 24 N.Y.3d at 194 [Graffeo, J. dissenting]. It is also clear, in this Court's view, that as a factual matter ASPD alone can predispose a small minority of offenders with that diagnosis to commit sex offenses and result in serious difficulty in controlling such behavior. Few Article 10 experts, in this Court's experience, have expressed contrary views.
The Donald DD. majority's ruling also strongly implied that a valid Mental Abnormality predicate had to be a sexual disorder. The majority held:
Its use [that is, the use of ASPD as a predicate disorder under Article 10] in civil confinement proceedings, as the single diagnosis underlying a finding of mental abnormality as defined by Mental Hygiene Law article 10, proves no sexual abnormality. It therefore cannot be the sole diagnosis that grounds such a finding. 24 NY at 190.
The majority also favorably cited arguments by the Respondent that ASPD was not a valid Article 10 predicate because it was not a sexual disorder:
We believe that an ASPD diagnosis has so little relevance to the controlling legal criteria of [Article 10] that it cannot be relied upon to show mental abnormality ... As Donald DD.'s counsel expressed the objection, ASPD is "not a sexual disorder". Id.
Dr. Plaud, testifying for Donald DD., opined that while ASPD can act "in combination with ... a diagnosable sexual disorder" to produce a potent abnormal condition, it cannot "in and of itself... predict sexual impulse control". Id. (emphasis added).
Psychopathy as a Insufficient Independent Predicate Under Donald DD.
Donald DD. also addressed the issue of psychopathy in a footnote which the majority inserted following their recitation that both of the State's expert witnesses had diagnosed the Respondent with ASPD:
In addition, both experts opined that Donald DD. suffered from an extreme form of ASPD known as psychopathy. However, they did not testify that this finding materially affected their conclusions regarding Donald DD.'s mental abnormality under article 10. n. 3.
Thus, the Court found both that the psychopathy diagnosis in Donald DD. , when combined with ASPD, did not result in a valid Mental Abnormality finding and that psychopathy was just "an extreme form of ASPD". That latter conclusion is consistent with the way psychopathy is defined in the DSM-5. In the period following Donald DD. , as this Court outlined in its decision in State v. Jerome A. , "[t]he clear weight of [trial court] authority ... held that where a Respondent is diagnosed with ASPD and psychopathy but no sexual disorder, Donald DD. requires the petition's dismissal". 2015 NY Slip Op. 51303 (U) at 9.
The DSM-5 notes that ASPD "has also been referred to as psychopathy ...." (emphasis in DSM-5).
Limiting the Scope of Donald DD : Disavowing the "Sexual Disorder" Requirement
The initial series of judicial limitations on Donald DD. culminated in the Court of Appeals decision in State v. Dennis K. where the Court said its holding in Donald DD. had not required a sexual disorder predicate:
To be sure, we stated in Donald DD. that ASPD by itself "proves no sexual abnormality" but that was in the context of our observation that an ASPD diagnosis means nothing more than a person has a tendency to commit crimes. (citation omitted). As such, Donald DD. did not engraft upon the "condition, disease or disorder" prong a requirement that the "condition, disease or disorder" must constitute a "sexual disorder". 27 N.Y.3d at 743.
ASPD Legally Sufficient if the Respondent Has Another Condition
Post-Donald DD. cases also held that where a respondent had ASPD along with some other condition, that was sufficient to satisfy Donald DD . The analytic problem here is that every respondent with ASPD can be assigned some additional descriptor relevant to sexual offending. Offenders can have other diagnoses, but can also be described as suffering from psychopathy, being "sexually preoccupied", having a deviant sexual arousal to non-consent, sadism or other abnormal preferences or suffering from alcohol or substance use disorders which promote sexual offending. Distinguishing which descriptors are sufficient from those which are insufficient under Donald DD. has never been completely clear.
Appellate division cases following Donald DD. have often upheld Mental Abnormality judgments where a respondent had ASPD plus some "condition" which did not rise to the level of a diagnosis. Donald DD. found the respondent's diagnosis of ASPD invalid even though he had also been assigned the condition of psychopathy. As noted supra , however, in State v. Jerome A. (Anonymous) , the First Department found the diagnosis of ASPD with psychopathy sufficient to withstand a dismissal motion.
An even more expansive treatment of the legitimacy of ASPD came in the Fourth Department's decision in Suggs v. New York State Office of Mental Health , 142 A.D.3d 1283 (4th Dept. 2016). In Suggs , the Court reversed a directed verdict finding the Respondent did not suffer from a Mental Abnormality at a confinement annual review hearing. Suggs was diagnosed with ASPD plus "psychopathic traits". The trial court directed a verdict for the Respondent since, pursuant to Donald DD ., Suggs had never been diagnosed with a sexual disorder. The Court of Appeals in Dennis K. then said that Donald DD. had not required a sexual disorder diagnosis. The Fourth Department reversed the trial court's ruling for that reason. What the Fourth Department did not explicitly address, however, was the sufficiency of the Respondent's remaining conditions. But the Respondent's only diagnosis in the case was ASPD.
This Court presided over the Suggs trial. The verdict in the case was affirmed by the First Department and the Court of Appeals (in a 4-3 decision). State v. Suggs , 104 A.D.3d 511 (2013) ; aff'd , 23 N.Y.3d 326 (2014).
In Christopher PP. v. State , 151 A.D.3d 1334 (3d Dept. 2017), lv. denied 30 N.Y.3d 903, the Court ruled that the State's experts' diagnoses of ASPD and "sexual preoccupation" were legally sufficient. Summarizing the testimony of the two state experts, the Court said:
Prince characterized sexual preoccupation as a "condition" noting that it was not included in the [DSM] because it was "very difficult" to operationally define what would constitute such behavior. Hadden referred to sexual preoccupation as a "behavioral condition," a "behavioral pattern," as well as a "long-term vulnerability"..." 151 A.D.3d at 1337, quoting testimony of Dr. Alison Prince.
The State's experts outlined how sexual preoccupation impacted ASPD. The Respondent's expert, Dr. Schlosser [who testified here], said sexual preoccupation was a "cognitive or thought process" but not a "condition, disease or disorder" because there was "no diagnosis or criteria" for it. The Court outlined the Respondent's history of sexual offending and noted the State's experts' conclusion that sexual preoccupation was a "condition".
The First Department reached a contrary conclusion, however, in State v. Gen C. , 128 A.D.3d 467 (1st Dept. 2015). In Gen C. , the Court found ASPD plus "hypersexuality/sexual preoccupation" were legally insufficient Mental Abnormality predicates. The Court found that "hypersexuality /sexual preoccupation" was not an "independent mental abnormality diagnosis" or "an independent mental abnormality". The Court held that, at most, "hypersexuality /sexual preoccupation" was a "recognized mental condition" but did not satisfy Article 10's predisposition and serious difficulty elements.
See also State v. Ezikiel R. , 147 A.D.3d 959 (2nd Dept. 2017) (reversing trial court's dismissal order where respondent diagnosed with ASPD, psychopathy, conduct disorder, a provisional SSD diagnosis and actions "suggestive of his potential for deviant sexual behavior and/or sexual preoccupation"); State v. Anthony L. , 57 Misc. 3d 1210 (A), 2017 NY Slip Op. 51375 (U) (Kings County Supreme Court [Riviezzo, J.] ) (ASPD, psychopathic traits, substance abuse disorders in remission, a "considered but not assigned" pedophilic disorder diagnosis and various dynamic risk factors including sexual preoccupation sufficient to defeat respondent's summary judgment motion); Glenn T. v. State , 59 Misc. 3d 1219 (A), 2016 NY Slip Op. 51911 (U) (Oneida County Supreme Court [Gigliotti, J.] ) (ASPD plus psychopathy sufficient at annual review hearing).
The "Strong" or "Particular Tendency" Sexual Component Rule
In State v. Dennis K. , the Court held that the combined diagnoses of ASPD and Borderline Personality Disorder ("BPD") with respect to respondent Anthony N. were sufficient Mental Abnormality predicates because the BPD diagnosis had a "strong sexual component" and resulted in a predisposition to commit sex crimes. 27 N.Y.3d at 743-744. See also State v. Anthony B. , 2020 NY Slip Op. 00867 at 2 (2nd Dept, February 5, 2020) (ASPD plus Narcissistic Personality Disorder ("NPD") sufficient to constitute Mental Abnormality where NPD had a "strong sexual component" and was "linked" to the predisposition to commit sex offenses.)
In State v. Timothy R. , 168 A.D.3d 146, 151 (2nd Dept. 2018) the Second Department held that in order for an Article 10 diagnosis for an offender with ASPD to be sufficient, the State must prove "another diagnosis that suggests a particular tendency to commit a sex offense as defined by the statute". Citing Donald DD. (emphasis added; additional citation omitted). Unlike the "ASPD plus something else" rulings, these formulations attempted to articulate a principle which defined the conditions which might satisfy the predicate requirement.
The "strong sexual component" rule presumes that what must be sexual in order to constitute a Mental Abnormality is not only a respondent's predisposition or serious difficulty, but his underlying diagnosis. It is not clear, however, how a non-sexual disorder diagnosis' sexual component "strength" should be measured, apart from an offender's behaviors. Such gradations are not part of any psychiatric lexicon. The related formulation, that in order to be legally sufficient, a non-paraphilic diagnosis must "suggest a particular tendency to commit a sex offense" is also, in this Court's view, subject to the same practical behavioral evidence requirement. The first question regarding the "particular tendency" test is what the phrase means. It apparently means that the diagnosis must have some measure of a unique (hence "particular") tendency to cause sexual offending when compared to other diagnoses. This, at least, answers the question of what a diagnosis' sexual strength must be compared to.
The root problem with these formulations is the same one Judge Graffeo identified in her Donald DD. dissenting opinion: the flawed enterprise of taking the statute's "predisposition" and "serious difficulty" prongs and attempting to import them, contrary to the statute's language, into the definition of a "condition, disease or disorder". Thus, in each case, the "strength" or "particularity" of a diagnosis' sexual component is determined not primarily by the definition of the disorder. BPD, the diagnosis which was found sufficiently strong in Dennis K. , and NPD, the diagnosis found sufficiently strong in Anthony B. , were found to have that strength not primarily because of the diagnoses themselves. A person with BPD or NPD, like a person with ASPD, may have that disorder manifest by sexual offending or may have never committed a sex crime. Indeed, while the DSM-5 outlines how ASPD may be manifested by dysfunctional sexual conduct, such sexual problems are not even mentioned by the DSM as manifestations of NPD.
According to the DSM-5, persons with ASPD "may also be irresponsible and exploitive in their sexual relationships. They may have a history of many sexual partners and may never have sustained a monogamous relationship". DSM-5, p. 660; compare DSM-5 at 669-672 (defining the features of NPD without any mention of sexual dysfunction). Judge Rivera, dissenting in Dennis K. , noted that some studies had suggested that the prevalence of BPD in the prison population was 25-50%, raising the same issues the Court found dispositive in rejecting ASPD in Donald DD. 28 N.Y.3d at 755.
These conditions became "strong" sexual disorder diagnoses only because of the respondent's behaviors, the degree to which the respondent was predisposed and had serious difficulty controlling sexual offending. Once imported into a non-sexual offense diagnosis, an offender's behaviors, if egregious enough, then justify whatever diagnostic predicate the State presents (other than ASPD). These formulations have served to effectively neutralize Donald DD. without formally overruling it. Every offender can be described as having some diagnosis or condition in addition to ASPD. As long as that something exists in a sexual offender who poses a significant enough threat to the community, it can be validly described as having a "strong" or "particular" sexual component.
The final technical problem is the literal requirement that there be "another diagnosis that suggests a particular tendency to commit a sex offense as defined by the statute". (emphasis added). This rule appears to require that the "particular tendency" must not emanate from ASPD. It must arise elsewhere. The problem is that sexual offending behaviors in reality are often not confined inside discrete diagnostic categories. A person like Mr. A. obviously does not commit rapes because of his psychopathy and narcissism, but not his ASPD, particularly when each of these conditions indisputably has such significant overlap that there is not even an expert consensus they are distinguishable. Here, in this Court's view, Mr. A.'s sexual offending arises from his combination of ASPD, psychopathy and narcissistic tendencies, disinhibited by substance and alcohol abuse. It cannot be said that the sexual component of his behaviors have arisen from conditions other than ASPD.
In this Court's view, however, Mr. A. meets the "ASPD plus something else" test as well as the "strong" or "particular tendency" test as the appellate courts have articulated them. The combination of ASPD, psychopathy, narcissistic traits and alcohol and substance abuse disorders mirror the kinds of diagnoses which appellate cases have affirmed as legally sufficient Article 10 predicates in other cases. The combination of these disorders, in this Court's view, also have a strong or particular sexual component. Mr. A. has committed horrific sexual assaults throughout his life from age 15 to 50. His antisociality and related personality characteristics make him clearly different from the average antisocial offender, even those who have committed multiple sexual assaults.
Mr. A.'s character pathology is distinguished by his extraordinary callousness, willingness to commit sexual assaults even when it is apparent he stands a good chance of being caught, the impulsivity of his crimes, narcissism, cognitive distortions and poor problem solving abilities and the intractability of his offending, even at an age when most antisocial behaviors wane.
The Respondent Has Serious Difficulty Controlling Sexually Offending Behavior.
Mr. A., in this Court's view, also clearly has serious difficulty controlling his sexually offending behaviors for the same reasons. There was no dispute about that at the trial. Drs. Katsavdakis and Geller opined that Mr. A. met the "serious difficulty" test and Dr. Schlosser did not reach the issue. The Court agreed with Dr. Katsavdakis that Mr. A. is "an impulsive, opportunistic offender with significant deficits in controlling his sexual behaviors".
There is no evidence he has gained insight into his offenses which would reduce his propensity to re-offend. There is no evidence he has achieved any significant benefit from sex offender treatment. He has no relapse prevention program. He continues, even today, to deny his offenses and blame his victims. Indeed, as Dr. Schlosser testified, he has recently denied aspects of his sexual offending which he admitted earlier. As Dr. Geller testified, Mr. A. "wanted what he wanted when he wanted it". As she pointed out, he has displayed an extraordinary lack of anxiety or fear about the consequences of his wrongdoing. His offending behaviors arise from impulsivity rather than considered thought. Even Dr. Schlosser agreed that Mr. A. has poor impulse control and testified that ASPD could cause serious difficulty in controlling behavior.
It is true that the Court of Appeals in Kenneth T. disputed the idea that a sex offender's serious difficulty in controlling sexually offending behavior could be inferred from the lack of efforts to avoid detection. See 24 N.Y.3d at 188 (legally sufficient serious difficulty evidence "cannot consist of such meager material as that a sex offender did not make efforts to avoid arrest and re-incarceration"). This Court respectfully disagrees with that view (as do most Article 10 experts this Court has encountered including Drs. Katsavdakis and Geller) since offending where apprehension is likely may often reflect behavioral control problems. In this case, however, Mr. A.'s serious difficulty was supported by a range of behavioral evidence in addition to this disfavored criterion.
The "Irresistible Impulse/Impulse Not Resisted" Question
In Kenneth T. , the Court of Appeals held that the evidence of serious difficulty was legally insufficient because it was as consistent with a rapist who was able to conform his behavior to legal norms but decided not to as it was with a rapist who had serious difficulty controlling behavior. This Court cited the Kenneth T. Court's analysis in its decision vacating the jury trial verdict in State v. Floyd Y. , 2015 NY Slip Op. 50302 (U) (New York County Supreme Court 2015), reversed , 135 A.D.3d 70 (1st Dept. 2015) ; aff'd , 30 N.Y.3d 963 (2017) :
A rapist who killed his victims so that they could not identify him may have serious difficulty controlling his sexual urges. Conversely, one who raped an acquaintance and permitted her to escape may not have serious difficulty controlling his sexual urges... A person who committed a rape soon after serving a very short sentence for sexual abuse may have serious difficulty in controlling his sexual misconduct. Conversely, one who committed a rape soon after serving a very lengthy sentence may not have serious difficulty controlling his sexual urges. 24 N.Y.3d at 187-188.
[I]t is rarely if ever possible to say, from the facts of a sex offense alone, whether the offender had great difficulty in controlling his urges or simply decided to gratify them, though he knew he was running a significant risk of arrest and imprisonment. 22 N.Y.3d at 188.
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Dr. Kirshner's testimony that Kenneth T. lacked "internal controls such as a conscience that might curb his impulses" is not a basis from which serious difficulty in controlling sexual conduct may be rationally inferred. It is as consistent with a rapist who could control himself but, having strong urges and an impaired conscience, decides to force sex upon someone, as it is with a rapist who cannot control his urges. Id. 2015 NY Slip Op. at 13, quoting Kenneth T.
Judge Graffeo's concurring opinion asserted that the majority's view that the trial evidence had been legally insufficient for that reason had created an "impossible standard". 22 N.Y.3d at 200 [Graffeo, J., concurring]. This Court outlined its view of the issue in a similar way:
In practical terms ... as the United States Supreme Court noted in Kansas v. Crane, supra ," [t]he line between an irresistible impulse and an impulse not resisted is probably no sharper than that between twilight and dusk". 534 US at 412, quoting American Psychiatric Association, Statement on the Insanity Defense 11 (1982), (quotation in subsequent publication omitted). Prior to Kenneth T. , this court is not aware of any case in which evidence was held legally insufficient because the "irresistible impulse\impulse not resisted" distinction was not adequately proven. 2015 NY Slip Op. at 19.
This Court's vacatur of the trial verdict, however, as noted supra, was reversed by the First Department in a decision affirmed by the Court of Appeals. The Court of Appeals outlined trial evidence it believed supported the "serious difficulty" requirement but did not explicitly discuss the "irresistible impulse/impulse not resisted" distinction.
This Court continues to believe it is not possible to draw legal lines between the equivalent of twilight and dusk in the vast majority of Article 10 cases, including this one. The question of whether a sexual offense arose from an irresistible impulse or an impulse not resisted is generally not knowable or even subject to any discernible measurement standard. If Article 10 cases are subject to such requirements then all but the rarest cases should be dismissed. After the Court of Appeals latest decision in Floyd Y. , however, this Court does not believe that is the law.
As in Kenneth T. , the serious difficulty evidence in this case arose primarily from inferences drawn from the Respondent's offending behaviors and accompanying statements. That is how experts in Article 10 cases usually determine that issue, since respondents rarely admit that they have serious difficulty controlling their offending. Such inferences are also a staple of the criminal law. Juries in criminal cases are instructed that to determine a defendant's mental state, they may draw inferences from what the defendant did or said. The experts in this case did the same thing.
The Court Did Not Credit Dr Schlosser's Ultimate Conclusions
Dr. Schlosser opined that Mr. A. did not have a condition which predisposed him to the commission of sex offenses. He also said he believed, however, that an offender could have serious difficulty controlling sex offending but not be predisposed to engage in it. This Court does not agree and cannot recall any other expert witness who subscribed to that view. A person may be predisposed to commit sex offenses but not have serious difficulty in controlling such behavior. But this Court does not understand how the converse may be generally true: that a person may have serious difficulty controlling sexual offending but not be predisposed to commit it. None of these terms are defined under Article 10. But a "predisposition" has been defined as "the state of being likely to behave in a particular way or to suffer from a particular disease." Except in perhaps a rare circumstance, the Court does see how a person can have serious difficulty controlling sexually offending behavior, but not have a state of being which makes him likely to engage in it.
Cambridge English Online Dictionary, definition of "predisposition".
Dr. Schlosser also testified that he believed an offender's criminal versatility can negate a Mental Abnormality. That is, offenders who commit only sex crimes may have a Mental Abnormality, while offenders with similar sexual offending patterns who also commit numerous non-sexual violent crimes cannot have a Mental Abnormality because of such non-sexual offense criminality. This Court, again, does not agree.
Dr. Schlosser testified that his views on such issues largely came from his understanding of Donald DD. Indeed, to a degree this Court has not seen with other experts, Dr. Schlosser not only analyzed psychological issues during his testimony but asserted legal conclusions. Regarding the Respondent, he testified that: "I don't think he meets the statute, as I understand it ... he is more general criminal recidivist who also engages in sexual offenses ... courts particularly in Donald DD. look at it in a dichotomous way". He also said, however, that while this was a rationale based on Donald DD. , he would have the same view even in the absence of that decision. Put another way, Jerome A. may be an out-of-control rapist, but the fact that he commits other violent crimes means he cannot be subject to Article 10.
In this Court's view, that reading might be correct, if the analysis here considered only Donald DD. But it is not consistent with subsequent case law. Dr. Schlosser's analysis also, in this Court's view, did not distinguish between the general ability of a condition like ASPD to cause sexual offending and the question of whether such a personality structure can cause sexual offending in a particular case like this one. It is certainly true that the vast majority of ASPD offenders are not serial rapists, just as the vast majority of persons with BPD or NPD do not commit sex crimes. But the "detailed psychological portrait" which resulted in Mr. A.'s sexual offenses here arose from ASPD and related conditions, not a paraphilia.
The term "detailed psychological portrait" was used in Kenneth T. to describe the constellation of conditions which must be assessed to determine whether a Mental Abnormality has been proven. 24 N.Y.3d at 188.
For all of those reasons, the Court holds that the Respondent is a detained sex offender who suffers from a Mental Abnormality under Article 10.