Sex Offender Civil Commitment Hearing Gets Bogged Down in Legal Mumbo-Jumbo and Psycho-Babble
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
What about “paraphilia”?
The Adam Walsh Child Protection and Safety Act of 2006 has three problematic features. First, it created the Sex Offender Registration and Notification Act (“SORNA”) which expanded the National Sex Offender Registry and established sanctions up to a maximum of 20 years for sex offenders who do not comply with the law’s registration requirements. Second, it placed severe restrictions on the constitutional right to bail and prohibitions against disparate sentencing. Finally, it allows for the civil commitment of federal sex offenders upon completion of their criminal sentence if it shown that they are “sexually dangerous” and pose a threat to the free community.
It is the third feature of the Walsh Act, civil commitment, which has taken us beyond the widely-recognized term “pedophilia” into the labyrinth of “hebephilia” and “paraphilia.” Before we delve into these terms, let us examine a case in which they were used to determine whether convicted sex offender Patrick Caporale is a “sexually dangerous” person who merited civil commitment under the Walsh Act. To say that Caporale has “sexual issues” would be putting it mildly. In a December 6, 2012 decision, the Fourth Circuit Court of Appeals detailed the 59-year-old’s extensive sex offender history:
- In 1980 he pleaded guilty in New York to “criminal facilitation for recruiting about twenty boys, aged thirteen to sixteen, to have sex with an adult female acquaintance;”
- In 1984, he pleaded to “state charges” of sexual abuse “for subjecting a thirteen-year-old boy to sexual contact and for masturbating another boy, twelve years old;”
- In 1986, he pleaded guilty in “state court” to “acting in a manner injurious to a child, after having persuaded three boys (age fifteen to sixteen) and a girl (age sixteen) to have sex in his apartment while he watched;”
- In 1992, he was indicted on federal charges of child molestation and possession of child pornography “involving a seventeen-year-old boy and the boy’s underage female acquaintance;”
- In 1998, after serving most of the 84 months he received on the federal sentence he received for the foregoing molestation/pornography charges, he was released in August of that year under “supervised release;”
- In 1999, he was arrested and charged with “endangering the welfare of a minor following the discovery by local authorities that he had discussed masturbation with a fourteen-year-old male neighbor” which earned him a trip back to a federal prison;
- In 2001, he was again released “to supervision” and two years later he was once again “found to have violated the conditions of release by associating with a felon,” a man he described as a “pedophile;” and
- In 2003, federal probation officers arrived unannounced at his residence and “arrested him upon finding numerous videotapes and photographic depictions of underage boys engaged in sexual activity” which led to him pleading guilty a single count of “possessing photographs of an obscene performance of a child” in a New York state court and returned to a federal prison for “myriad violations” of his federal “supervised release.”
Caporale fully completed his federal prison system in March 2008. This time he was not released from prison because on the day of his scheduled release the U.S. Attorney’s office filed a petition to have him certified as a “sexually dangerous” person and civilly committed under the Walsh Act. The federal district court in which the petition was filed was mandated by law to conduct a hearing on whether Caporale should be civilly committed. The government carried the burden of proving by “clear and convincing evidence” that Caporale is “sexually dangerous” person because he had engaged “in sexually violent conduct or child molestation” and was dangerous to others because he “suffer[ed] from a serious mental illness, abnormality, or disorder” that made it seriously difficult for him to refrain from engaging in “sexually violent conduct or child molestation” if released.
Unfortunately, Congress did not define in the Walsh Act what “serious mental illness, abnormality, or disorder” is. The courts have been left with the unenviable task of deciding what these terms mean. The government has assumed that all it has to do is present the sex offender’s criminal history and experts who opine that the offender is “sexually dangerous” because he suffers from some sort of “serious mental illness, abnormality, or disorder” and, therefore, should be civilly committed. The sex offender’s attorney has the slight edge in these proceedings because a showing of criminal history, standing alone, is not clear and convincing evidence of sexual dangerousness. Thus, defense counsel secures the services of his own experts who testify the sex offender does not suffer from any “serious mental illness, abnormality, or disorder” and, therefore, is not sexually dangerous to others. In effect, it is a contest of experts from whose opinions the court is forced to make a “factual determination” of whether the offender should be civilly committed.
In Caporale’s case, the district court in 2008 stayed the civil commitment proceedings while the issue of whether the Walsh Act was constitutional made a laborious journey from the lower courts to the Supreme Court. The high court in 2010 decided the Act is constitutional and remanded the issue back to the Fourth Circuit for “further proceedings.” Two years later, on March 5, 2012, the district court conducted the required hearing in Caporale’s case. The sex offender had remained in “civil commitment” during that four-year period in which his case was held in abeyance. The hearing featured three expert witnesses: Dr. Gary Zinik and Dr. Lela Demby for the government and Dr. Joseph Plaud for Caporale. All three experts are “licensed psychologists.” The government’s experts reviewed the “available records” while Dr. Plaud “personally interviewed Caporale on November 28, 2011.”
All three experts relied upon standards set forth in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (“DSM”) to form their “opinions” about Caporale. And it was from the murky and mysterious confines of the DSM that psychological terms were tennis balled from courtside to courtside during the Caporale hearing. Dr. Plaud said that Caporale is sexually interested in pubescent to post-pubescent males, “12, 13 up to 16, 17 years old.” Dr. Plaud added that “inasmuch as the rate of physical maturity may differ depending on the person, stages of development defy rigid definition by age, and that it was more accurate to say that Caporale’s sexual interests correspond approximately to Stages III-V on the five-stage Tanner scale of physical development.”
Dr. Zinik “essentially concurred” with Dr. Plaud’s assessment, stating that Caporale is attracted to “[p]ubsecent boys, ages approximately 11 to 14” years of age. Dr. Demby, however, was having none of this, opining that Caporale prefers “pre-pubescent boys, who ha[ve] not yet developed the majority of their secondary sexual characteristics … as young as 11 and 12” years of age. When asked to elaborate on her opinion, Dr. Demby cited the DSM which states that “age thirteen is the presumed ceiling for a diagnosis of pedophilia, a condition in which the afflicted individual is attracted to pre-pubescent children.”
Although a witness for the government, Dr. Zinik concurred with Dr. Plaud’s flat out rejection of Dr. Demby’s diagnosis. Dr. Plaud informed the court: “[Caporale’s] not a pedophile. [T]he DSM in the diagnostic criteria for pedophilia does in parenthesis say in terms of an age range, generally age 13 and younger. That’s worthless information. That doesn’t inform a professional about anything. We have to look at what the data are because the critical feature is whether or not the person has attained evidence of secondary sexual characteristics.” When specifically questioned about pedophilia, Dr. Zinik concurred that Caporale is not a “pedophile” because his sexual interests lie in the “target group [of] pubescent group.”
While Dr. Demby diagnosed Caporale with “pedophilia, sexually attracted to males exclusive types, and personality not otherwise specified of dependent traits,” Dr. Zinik diagnosed him as a “paraphilia” which is characterized by “recurrent, intense sexual fantasies, urges or behavior that last at least six months and cause a significant impairment or disability in the individual’s life.” The doctor interchangeably referred to Caporale’s affliction as “hebephilia”—a colloquial term not recognized in the DMS but is understood by mental health professionals to describe the “paraphilia” proclivity of “men whose erotic interests centers on pubescents.” The following “eight specific manifestations” of paraphilia are “documented in the Fourth Edition of the DSM:
- Transvestic fetishism
- Fetishism with respect to inanimate objects
- Sexual masochism
- Sexual sadism, and
- Frotteurism (sexual rubbing against non-consenting persons, often in crowded areas.
Dr. Zinik said paraphilia is a catchall term that should be only considered when “it impairs normal functioning.” In relation to Caporale’s diagnosis, the doctor said the offender’s paraphilia “has caused serious impairment and dysfunction in his life, because he keeps getting arrested and he’s never really done much with his life, because of this obsession.” Dr. Demby concurred with Dr. Zinik that Caporale’s impairment is the “hallmark of a mental infirmity,” explaining that “[t]he mere presence of sexual attraction to pubescent children in and of itself does not qualify as a mental disorder. The disorder comes when it causes one to have significant impairment in major spheres of functioning in one’s life.”
Dr. Plaud countered this dual assessment that Caporale’s “impairment” did not qualify as a serious mental illness, abnormality or disorder under the Walsh Act. He put his opinion in narrow legal terms: Caporale’s sexual activity with pubescent males “is illegal to a certain extent, upwards, depending on the jurisdiction. But it is not disordered.” He argued that the “lack of a discrete DSM listing for Caporale’s affliction” means that it is not truly a disorder because the mental health community does not have a “diagnosis for it.” More to the point, Dr. Plaud took issue with Dr. Zinik’s conclusion that, for purposes of the Walsh Act, “hebephilia can be shoehorned into the DSM-listed diagnosis of paraphilia.” Dr. Plaud added that “it’s only more recently that this has become something, I think, as a consequence of what’s going on in the larger civil commitment world. And I do not believe a paraphilia NOS is for that purpose. It’s there for low frequency sexual aberration.”
The government was not satisfied with Dr. Plaud’s assessment, specifically asking him whether sexual acts with a thirteen-year-old boy are deviant to which the doctor responded: “They’re sexually deviant in the legal sense of the term, and in the moral sense … but diagnostically … does he have an underlying sexual disorder? That’s the issue. The issue with sexual deviance is, is an individual attracted underneath, sexually motivated by a range of experiences that lie outside of what most human beings experience. That’s what makes it not sexually deviant. It may be socially deviant. It may be morally deviant. Put any word you want on it, but I’m here to talk about sexual deviance in that diagnostic sense.”
Even beyond the inability to adequately explain what constitutes “serious mental illness, abnormality, or disorder” under the Walsh Act, the experts could not agree on whether Caporale is a “sexually dangerous” person whose poses a threat to others if released into the free community. Dr. Zinik said of the “three actuarial scales” used to “compute the risk of recidivism for offenders having similar characteristics” as Caporale, he would rank Caporale’s profile as “high risk” and “moderate high risk.” Dr. Demby essentially concurred with this assessment while Dr. Plaud said the “use of actuarial tools serve to exclude subjects as candidates to engage in molestation, rather than to pinpoint them as likely offenders.” Dr. Plaud added that the actuarial risks decrease to “less than ten percent for men sixty or over, an age that Caporale has nearly attained.”
The court had heard enough. Five weeks later the hearing judge issued “Findings of Fact and Conclusions of Law” that the government had not established by clear and convincing evidence that Caporale should be civilly committed under the Walsh Act. The court concluded, as agreed to by the Fourth Circuit, that “hebephilia—whether elevated to a titular condition or deemed a shorthand way to describe the behavioral predicate underlying a more formal diagnosis of paraphilia/NOS—‘is not an appropriate basis for civil commitment under the [Walsh] Act.’” The court premised its conclusion on the fact that hebephilia “is a contested issue” as to whether it constitutes a serious mental illness, abnormality, or disorder and, therefore, Dr. Plaud’s opinion was the “more credible” that Caporale does not suffer from a “sexual disorder.”
The district court also found that that Caporale possessed sufficient volitional control to prevent him from having serious difficulty refraining from sexually violent conduct or child molestation in the future
And there it is, folks. “Pedophilia” is one of eight manifestations of “paraphilia,” which is often referred to in the mental health community as “hebephilia.”
This official legal madness, which itself should be listed in the DSM, must end. This one of those situations where it looks like a duck, crows like a rooster, and flies like a goose. And it is these kinds of hybrids that Congress so routinely legislatively creates in its infinite stupidity. If you really want to know what a “serious mental illness, abnormality, or disorder” is, attend one daily session of our U.S. Congress.
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair