Monday, November 23, 2009

Asperger's ruling: Judge should have allowed experts

In the latest of several recent forensic cases involving Asperger's, an appellate court has ruled that a judge committed a reversible error in excluding expert evidence on the condition.

The 9th U.S. Circuit Court of Appeals overturned seven counts of arson against a California physicist who with his buddies had vandalized and torched more than 130 vehicles back in 2003.

William "Billy" Cottrell is described in news accounts as a talented young physicist who was diagnosed with Asperger's, a high-functioning form of autism, during his 2004 trial for arson and conspiracy.

In its ruling, the appellate court let stand a conviction for conspiracy. But the court held that aiding and abetting of arson requires a specific intent in that Cottrell must have knowingly participated in the crimes and tried through his actions to make them succeed. Thus, it was reversible error not to allow expert evidence of a mental condition that might have impacted the defendant's subjective judgments.

The defense had proposed a theory in which Asperger's prevented Cottrell from understanding what his friends were up to until it was too late; once he figured it out, he supposedly tried to stop them.

Local mental health professionals quoted in the Pasadena Star-News differed as to whether an Asperger's defense might have succeeded in mitigating Cottrell's culpability.

On the one hand, psychologist Bruce Hirsch said Asperger's could have reduced Cottrell's ability to understand the situation, as people with the condition often cannot tell when they are being lied to.

"What you're really talking about is a social naivete and, yes, people with Asperger's can be very socially naive," Hirsch is quoted as saying. "They are so bound to the truth that the concept of lying doesn't even exist in their mind. Somehow the social reasoning of people with Asperger's is very concrete, very black and white, and they don't get that people tell lies."

On the other hand, marriage and family therapist Amy Keller said the defense theory of Asperger's does not take into account the rigid morality of most Asperger's patients.

"I find that, after working with a lot of Asperger's patients, that they are so stubborn," Keller told the newspaper. "They're not that easily influenced. If anything, they're very clear about right and wrong."

Either way, the appellate reversal will not have a practical import on Cottrell. Prosecutors decided not to retry him, because it would not have impacted his 100-month federal prison term.

Cottrell will soon be taking the bus back to the Arizona federal prison where he teaches physics and cosmology classes to fellow prisoners.

The unpublished opinion in U.S. v. William Cottrell is HERE; the most recent Pasadena Star-News story is HERE.

Hat tip: Ken Pope
Further resources:

Saturday, November 21, 2009

Wales: Another prime-time automatist

In my last post, I blogged about the Toronto sexual assault case in which a man was acquitted on the grounds that he was asleep. Now, I bring you a second high-profile case of sleep disorder, that of a Welch man acquitted in the killing of his wife because he was dreaming at the time.

Sleep experts for the prosecution and defense agreed that Brian Thomas's behavior was consistent with automatism, meaning at the time he killed his wife, his mind had no control over what his body was doing.

During last week's trial, the jury was instructed that there are two types of automatism: insane automatism and non-insane automatism. Based on which type they chose, Thomas could have either been acquitted or found not guilty by reason of insanity and hospitalized.

But suddenly, in mid-trial, the prosecutor had second thoughts and dropped his effort to obtain an NGI verdict, allowing Thomas to walk free. A prosecution psychiatrist, Dr. Caroline Jacob, had testified that Thomas was not a risk to the public.

Thomas was described as a gentle family man who had been married to his childhood sweetheart for 40 years. He called police to say he had killed his wife because he thought she was an intruder.


Click on above image to see a brief video of Thomas after the acquittal

In an odd coincidence, the Journal of Forensic Sciences had just published an article describing clinical cases with eerie similarity to Thomas's. Carlos Schenck and colleagues at the Minnesota Regional Sleep Disorders Center found about 40 cases in the literature in which people, mainly men, had engaged in complex and violent behaviors while enacting dreams. The authors found a pattern with clear forensic implications, because dream behaviors could be misinterpreted as suicidal or homicidal. That's what happened in Thomas's case: To his family's dismay, he spent 10 months in jail awaiting trial. The actual cause of such behaviors, according to the article, is not malice but Rapid Eye Movement sleep behavior disorder (RBD), in which the normal muscle atonia present during REM sleep is absent, allowing sleepers to physically enact their dreams.

In a strong similarity to Thomas's case, the majority of cases involved choking and headlocks. Thomas had gotten his wife in a headlock and then strangled her.

In another similarity, in about half the cases the patient either had a neurologic disorder or was taking medication for psychiatric disorders. Thomas had just stopped taking antidepressant medication, and the withdrawal was causing nightmares.

What were the other most common behaviors found in the study?

In second place was jumping off the bed. And in third place, with seven cases, came defenestration. That one might have been difficult here, as Thomas and his wife were vacationing in an RV at the time of the killing.

The BBC has further coverage of the case. The abstract of the Journal of Forensic Sciences article, Potentially Lethal Behaviors Associated With Rapid Eye Movement Sleep Behavior Disorder: Review of the Literature and Forensic Implications, is HERE.

Friday, November 13, 2009

Unconditional discharge in Canadian "sexsomnia" case

In a fascinating criminal responsibility case, a Toronto man who was reportedly asleep when he sexually assaulted a woman six years ago has been unconditionally discharged as no threat to the public.

A trial judge had acquitted Jan Luedecke on the basis that he could not have formed the criminal intent to commit a sexual assault. The Ontario Court of Appeal quashed that ruling, saying Luedecke should have been found not criminally responsible due to a mental disorder. The case was then sent to the Ontario Review Board for a determination of Luedecke's dangerousness.

At trial, evidence was presented that a sleep clinic had confirmed Luedecke's sleep disorder, along with a family component (both his mother and brother have sleep disorders). Under the defense theory, his sleep disorder manifested in "sexsomnia," or sexual behavior while asleep. According to trial testimony, he had "sleep sex" with four former girlfriends prior to the assault. The assault took place at a house party after he ingested magic mushrooms and consumed 16 alcoholic drinks; he was also working long hours without sleep.

"The combination of those intoxicants and his sleep disorder brought on the illness," his lawyer, Frank Addario, president of the Criminal Lawyers' Association, was quoted in the Toronto Star as saying. As the assault was described in the press:
The woman woke up to find a strange man lying on top of her, engaged in sexual intercourse.

"Who the hell are you and what are you doing?" the woman demanded

"Jan," the bewildered-looking man replied.
Under Canadian law, the options available to the review board included commitment to a hospital, release to the community under specified conditions, or absolute discharge.

The board relied heavily on risk assessments conducted by forensic psychiatrist Lisa Ramshaw and forensic psychologist Percy Wright. Dr. Ramshaw noted that Luedecke was ashamed and remorseful, making him "less likely to repeat the behaviour." (Although that is popularly believed, I'm not sure it's an empirically supported contention.) Dr. Wright reported that Luedecke had taken steps to control his sexsomnia, including reducing his stress, limiting his alcohol consumption to two drinks a week or less, and sleeping "safely" with no access to women who aren't his partner.

In granting Luedecke a full discharge, the board noted that he had been living free in the community for six years without incident.

I have no problem with the sleep disorder or the role of intoxication. But, oddly enough, Luedecke was reportedly wearing a condom during the assault. How does that little factoid fit in to the somnambulism theory?

I guess anything is possible.

The Globe and Mail, Toronto Star and CBC News have more case coverage.

Salon on "silly" Fort Hood media coverage

Award-winning journalist Mark Benjamin over at Salon has penned a keen analysis of the biased and woefully off-base tenor of media coverage of last week's Ford Hood shooting spree, focusing on incendiary terms like "terrorism" and "political correctness" rather than the real issues:

The media's silly Fort Hood coverage*

By Mark Benjamin

Everyone wants to debate terrorism and political correctness, but the real story is the failure of Army medicine

The conventional narrative of the Fort Hood shootings, one week later, has been distinguished by the reporting of unconfirmed -- and sometimes incorrect -- details and the drawing of dubious conclusions. The only thing that suggests the current story will withstand the test of time better than the initial Pat Tillman myth (that he died in combat, rather than by friendly fire), or the overheated tale of heroism by Jessica Lynch in 2003 (which Lynch herself protested), is that two basic facts seem clear: The shootings certainly happened, and given the number of eyewitnesses, it's almost certain that Maj. Nidal Malik Hasan did it....

First, the ongoing factual unraveling of the narrative. As the New York Times reported this Thursday, initial information seized on by talk shows that Sgt. Kimberly Munley, a petite police officer, bravely brought down Hasan in a hail of gunfire in which she was also wounded was, well, also not true. Munley, it seems, just got shot. Senior Sgt. Mark Todd actually shot Hasan to the ground and cuffed him after Munley had already been wounded.

Also on Thursday, the Washington Post raised solid questions about previous reports that Hasan had tried to get out of his military service because of what he saw as a growing schism between his religious and military duties....

Despite some print publications attempting to keep track of these kinds of facts, a lot of media folks continue to ask the wrong questions and/or provide some of their own unlikely, or unsubstantiated, answers.

The Monday after the shootings, I got my first taste of how the story was embarking on a life of its own as I settled into a chair at one of MSNBC's Washington studios to do Dylan Ratigan's "Morning Meeting."

"One question being asked, among many, is whether political correctness stalled the response to possible warning signs from Maj. Hasan," Ratigan said in his introduction....

Too much political correctness in the military? You know, the place where they fire you if you admit you're gay? The Army has its share of challenges, but in a decade of covering the military, I certainly haven’t come across any evidence that the institution is somehow paralyzed by the burden of gratuitous political correctness. And while that might provide a convenient way for Army officials to explain, anonymously, why nobody prevented Hasan from killing 13 people -- "We are just too afraid of criticizing Muslims" -- I haven’t seen a shred of evidence to suggest this might be true.

The cover of Time magazine depicts another befuddling sideshow to the Fort Hood story. The cover is a picture of Hasan with the word "Terrorist?" over his eyes. "It is a story about why Maj. Hasan is a terrorist," Time managing editor Richard Stengel explained on MSNBC's "Morning Joe" one week after the killings.

I'd heard this one before -- the debate about whether we should label Hasan a terrorist, or the shooting as an act of terrorism. Right-wing media host Laura Ingraham railed at me on this subject on her radio show this week after I had referred to Hasan as being partly motivated by a "religious thing," but I had failed to use the word "terrorism." "I say that you won’t call it what it is," she shouted, "which is terrorism!" (I had called it "Muslim extremism" but that wasn't good enough for Ingraham.)

The obsession with that label "terrorist" seems beside the point. The real question is why the shootings were allowed to occur, and who, exactly, dropped the ball -- not what we call it all afterward….

The passionate determination to hang the "terrorist" label on Hasan, or rail against "political correctness" in the military, are just more symptoms of media stars more excited about hot-headed debate than covering the real story. And the real story may be sadly familiar: It looks like Army medicine blew it, once again.
Benjamin's full analysis, well worth reading in its entirety, is HERE.

Mark Benjamin is an award-winning investigative reporter with Salon.com's Washington bureau. Since 2001, Benjamin has focused on national security issues with an emphasis on the plight of returning veterans and detainee abuse. He was hailed for exposing problems caring for veterans at Walter Reed starting in early 2005 and also obtained for Salon the Army's entire Abu Ghraib investigative files.

*Excerpts posted with the written permission of Mark Benjamin

Hat tip: Bruce Miller

Monday, November 9, 2009

Paraphilic coercive disorder: Contagious virus?

I posted last week about a proposal to create a new mental disorder in the DSM-V for preferential rapists. A shocking news story out of Australia makes me think that if Coercive Paraphilic Disorder exists, it must be contagious. Not just contagious, but virulently contagious in certain all-male environments.

Of the 198 students at St Paul's College at the University of Sydney, a large proportion were apparently infected with a highly contagious form of the virus. If Paraphilic Coercive Disorder makes it into the next Diagnostic and Statistical Manual of Mental Disorders, St. Paul's will be Ground Zero for the epidemic.

According to an article in today's Sydney Morning Herald, men at the elite, all-male college proudly set up a pro-rape Facebook group called "Define Statutory" that promoted sexual aggression against women. But the elite students did not stop with words. They fostered an alcohol-fueled climate in which rapes were common, most sexual assaults went unreported, and women students felt so unsafe that they quit school, the story reports.

Reporter Ruth Pollard documented a series of rapes and sexual assaults, including one incident in which about 30 drunk, naked men broke into a college and surrounded a young woman, touching and taunting her.

The good news is that, if it's a contagious illness, there could be an immunization like the one for the H1N1 virus. So, while the DSM developers are frenetically creating new diagnoses, let's not forget to work on finding some cures, too.

The Sydney Morning Herald article is HERE.

Friday, November 6, 2009

Scientist razes proposed "Paraphilic Coercive Disorder"

Pedohebephilia. Hypersexuality. Coercive Paraphilic Disorder. How many new sexual disorders can fit into the DSM-V, the American Psychiatric Association diagnostic manual scheduled for publication in 2012?

Government evaluators in Sexually Violent Predator cases must be thrilled with the possibilities being generated by the prolific paraphilias subworkgroup of the DSM-V Sexual Disorders Workgroup. If these proposed diagnoses make it into the psychiatric bible, the task of establishing that sex offenders have bona fide mental disorders meriting hospitalization will suddenly get a whole lot easier.

But this will only happen if good science is not allowed to interfere with pragmatism and pretextuality. After all, the empirical support for some of these pseudoscientific categories is weak at best.

Now issuing a strong call of alarm is perhaps the premiere scientific researcher into the etiology of rape, Raymond Knight, the Mortimer Gryzmish Professor of Human Relations at Brandeis University.

In a forthcoming article in the Archives of Sexual Behavior, the respected scholar cautions against adoption of Coercive Paraphilic Disorder, which he says is not supported by empirical data and has a vast potential for misuse by the civil commitment industry.

Currently, the propensity to rape is not considered a mental illness. Proponents of adding a rapist diagnosis to the Diagnostic and Statistical Manual of Mental Disorders (DSM) claim it was only excluded the last time around due to pesky feminists' objections that it would excuse rapists from criminal consequences. However, that turns out to be something of a myth. The main reason it was excluded, says psychologist and lawyer Thomas Zander, who conducted primary research into the history, was because it was not scientifically supportable. And, according to Knight's article, it is even less supportable now than it was back then.

The fact that rape propensity is not a bona fide mental illness has proved a hurdle for the civil commitment industry. To be hospitalized on the basis of possible future dangerousness, sex offenders must be found to suffer from a mental disorder that reduces their volitional control. To get around this legal barrier against unconstitutional preventive detention, government evaluators have taken to assigning a de facto label of "Paraphilia Not Otherwise Specified - Nonconsent."

As Knight points out, if Coercive Paraphilic Disorder is introduced into the DSM-V, it will provide tacit support for the legitimacy of the bogus "NOS" diagnosis. This, he says, would be a travesty:

"The inclusion of PCD [Paraphilic Coercive Disorder] would inappropriately legitimize this 'disorder' and grant it the imprimatur of the DSM, which is almost universally cited by expert witnesses in civil commitment proceedings…. The diagnosis has little empirical support, and it would be a travesty to grant it a status that would perpetuate its misuse."
In his article, Knight discusses the evidence from a long line of research that suggests there is not a separate category of men with a propensity to rape. Rather than being a distinct "taxon," rape propensity exists along a continuum.

He also challenges the contention of a Canadian research group that rapists are sexually aroused by the coercive aspects of sexual assault. A more likely scientific explanation for why some men rape is that the coercive elements of the situation fail to inhibit their sexual arousal, he writes.

This dimensional model coincides with a large body of sociological and anthropological research, which suggests that men in certain environments -- most notably wars -- are much more likely to commit rape. Indeed, research has found that even on the same college campus, some fraternity environments promote a "rape culture" among men, whereas others do not. (I discuss this environmental aspect of rape in an article I wrote a few years back on the theatrical elements of group rape.)

Knight's scientifically grounded critique is a refreshing change from the pseudoscientific tenor of many of the DSM diagnostic proposals. More scientific rebuttals to some of the shaky studies in the sex offender field are currently in press, and I will try to stay attuned and alert you readers as soon as they become publicly available.

Further resources:

Knight, Raymond. (2009). Is a diagnostic category for Paraphilic Coercive Disorder defensible? Archives of Sexual Behavior. This article is online, but requires a subscription. The abstract is visible HERE, along with the email address of the author (from whom copies may be requested).

Zander, T. K.
(2008). Commentary: Inventing Diagnosis for Civil Commitment of Rapists. Journal of the American Academy of Psychiatry & the Law , 36, 459-469.

Zander, T.K. (2005). Civil Commitment Without Psychosis: The Law’s Reliance on the Weakest Links in Psychodiagnosis. Journal of Sexual Offender Civil Commitment: Science and the Law, 1, pp.17-82.


Franklin, Karen. (2004). Enacting Masculinity: Antigay Violence and Group Rape as Participatory Theater. Sexuality Research and Social Policy, 1 (2), pp. 25–40.

Tuesday, November 3, 2009

Asperger’s: Here today, gone tomorrow?

Would erasure from DSM impact forensic use?

It was just a few years ago that Asperger's Disorder exploded into the public consciousness. But just as suddenly, if the DSM-V authors have their way, it may disappear, absorbed back into the spectrum of autism disorders from whence it came.

An intriguing story in today's New York Times describes the controversy that is heating up as the DSM-V work groups prepare to issue their final diagnostic proposals in January.

As Times reporter Claudia Wallis notes, Asperger's is "one of the most intriguing labels" in the diagnostic book:
"Children with Asperger's syndrome, a mild form of autism, are socially awkward and often physically clumsy, but many are verbal prodigies, speaking in complex sentences at early ages, reading newspapers fluently by age 5 or 6 and acquiring expertise in some preferred topic -- stegosaurs, clipper ships, Interstate highways -- that will astonish adults and bore their playmates to tears."
The sudden rise of this "once obscure diagnosis," diagnosed four times more often in boys than girls, accounts for much of the apparent rise in autism, which now has a prevalence rate of about 1 percent among U.S. children.

Although self-described "Aspies" and their families distinguish Asperger's from the more stigmatized label of autism, experts quoted by the Times say the distinctions are confusing and not scientifically based.

Asperger's in the forensic context

At the same time that it faces formal extinction, Asperger's is seeing ever-escalating use in the criminal courts, in cases ranging from violent crime to computer hacking and child pornography possession.

Typically, the diagnosis is proposed by defense attorneys seeking to mitigate the mental state required for a crime. A hallmark of the disorder is severe problems understanding social rules and nuances, and therefore navigating social situations. Sometimes, the profound deficit in social reasoning explains crimes that otherwise are simply bizarre, and lacking in rational motivation. Consider this scenario, adopted from a case I worked on:
You’re on an excursion with a recreational group, walking through a downtown area. The group encounters a red light. Seeing no traffic, everyone jaywalks. All except the young man with Asperger’s, whose can’t break a rule. No one notices as he gets left behind. When he finally finds the group again, he is furious, and punches the group leader in the face.
In this case, the defendant had a particularly severe and clearcut case that had been diagnosed and treated at a specialty clinic from the time he was a toddler. Thus, it could not be argued that the diagnosis was being manufactured with a pretextual goal in the legal context.

In other cases, especially when an alternate and rational motivation is at least equally plausible, the defense has met with less success. For example, as I blogged about last year, it was unsuccessfully advanced in the case of Hans Reiser, the oddball computer programmer who killed his wife and buried her body in the hills of Oakland, California.

In an article on "the geek defense" in Slate magazine, science writer Erica Westly gives other examples of Asperger's recent deployment in court, some successful and some not.
  • Astonishingly, a jury in Galveston, Texas acquitted billionaire real estate heir Robert Durst in the murder and dismemberment of his neighbor under the theory that Asperger's made him incapable of premeditating the crime.
  • Lisa Brown of the United Kingdom was not so lucky. The 22-year-old woman was sentenced to life in prison in the murder of her mother after a judge ruled that her lack of empathy did not mitigate the gravity of the crime.
Explanation for collecting child porn

The compulsive behaviors and zealous collecting of many individuals with Asperger's is being invoked to explain certain types of criminal conduct, such as computer misconduct or child pornography collecting.

Computer hacker Gary McKinnon

The Slate article features the high-profile case of Gary McKinnon, the British computer geek who hacked into U.S. military and NASA computers looking for proof that the U.S. government had covered up evidence of UFO landings. He claims Asperger's made him compulsively driven to search for evidence of alien spacecraft.

This type of defense is ready-made for compulsive collecting of child pornography images. In an Iowa case this year, a judge reduced a pornography possession sentence after concluding that Asperger's "might very well explain the number of images" the man had acquired. Similarly, across the Atlantic a 21-year-old student in the United Kingdom was sentenced to just four months in jail for possession of 922 pornographic images of children. Other courts have been less sympathetic to this version of a diminished capacity defense.

Anecdotally, I have heard of Asperger's arguments backfiring. Introduced as mitigation in cases of violent and/or sexual offending, Asperger's may become aggravating by increasing jurors' fear of a defendant because he is perceived as strange and therefore more unpredictable.

At risk in prison

In a final forensic angle, the extreme social awkwardness of Asperger's sufferers puts them at risk in prison, where social interactions are highly scripted and regulated. In one case I was involved in, a prisoner incurred new criminal charges stemming from a bizarre fight triggered by his misperception of social cues.

Indeed, computer hacker McKinnon is raising this issue in an attempt to avoid extradition to the United States. Given his condition, incarceration in a U.S. prison would amount to torture, he contends. As evidence, he cites a 2007 study by psychiatrist David Allen finding that imprisonment is extremely stressful and confusing for men with Asperger's, who find it hard to successfully interact with guards and other prisoners and thus spend much of their time hiding out in fear.

No one knows whether or how exclusion from the upcoming DSM-V, due to be published in 2012, might affect deployment of the diagnosis in court. After all, even if it is not a separate diagnosis, Asperger's will still presumably exist as a condition on the autism spectrum. And, as regular readers of this blog know, plenty of less valid diagnoses are invoked in court despite their absence from the DSM.

Although I understand the logic of the DSM-V work group, I cannot help but wonder -- given the massive influence of the pharmaceutical industry in shaping and perpetuating psychiatric diagnoses -- whether they would be proposing Asperger's for elimination if a money-making drug was available to treat it.

Somehow, I think not.

Further resource:

Barry-Walsh, J.B., & Mullen, P.E. (2004). Forensic aspects of Asperger's Syndrome. Journal of Forensic Psychiatry and Psychology, 15, 96-107.

 
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