Will American Psychiatric Association heed professional consensus?
The venue for last week's trial of Vladimir Nabokov's fictional protagonist was the annual convention of the American Association of Psychiatry and Law (AAPL) in Montreal. The central question, decided by audience vote, was whether the controversial diagnosis "hebephilia" qualified as a legitimate mental disorder justifying Mr. Humbert's indefinite civil detention.
The rousing theatrical performance featured an all-star cast of attorneys and psychologists, presided over by Toronto Judge Maureen D. Forestell. New Jersey Assistant Attorney General Mark Singer served as prosecutor. His expert witness was prominent psychiatrist Richard Krueger, a member of the paraphilias subworkgroup that has proposed adding "hebephilia" to the next edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-5). A hebephilic qualifier would extend pedophilia to men with sexual preferences for children who have entered puberty, such as the fictional Lolita.
Defending Mr. Humbert was preeminent Wisconsin attorney Robert LeBell. His expert was Washington psychologist Richard Wollert, who has published peer-reviewed articles on SVP-related topics and testifies for the defense in civil commitment proceedings. Appearing as the court's expert was prominent Canadian psychiatrist John Bradford, an advisor on paraphilia (or sexual deviance) to the DSM-IV, past president of the AAPL and clinical director of the Sexual Behaviors Clinic in Ottawa.
After a spirited and sometimes heated trial, the 131-member audience was given electronic clickers and voted overwhelmingly -- 82 percent -- against including hebephilia as a diagnosis in the DSM-5, due out in mid-2013. A majority also voted against even including the controversial diagnosis in a DSM-5 appendix as a condition meriting further study.
Third time's the charm?
Earlier this year, more than 100 professionals, including prominent forensic psychologists and psychiatrists in the U.S. and internationally, sent an open letter to the DSM-5 revisers, urging them to nix hebephilia. Since then, at least two peer-reviewed articles have been published deconstructing its legitimacy, one in the respected Journal of Nervous and Mental Diseases ("Hebephilia and the Construction of a Fictitious Diagnosis" by forensic psychologists Paul Good and the late Jules Burstein) and the other a broad review ("Hebephilia as mental disorder?") by scholars Bruce Rind and Richard Yuill in the Archives of Sexual Behavior.
Rind and Yuill said they undertook their extensive review of the historical and cross-cultural evidence after hebephilia proponent Raymond Blanchard (a member of the DSM-5 paraphilias subworkgroup) and his colleagues at Toronto's Centre for Addiction and Mental Health brushed aside numerous published criticisms of the proposed disorder (see Table 1). Building on their earlier research, Rind and Yuill argue that hebephilia -- generally defined as sexual attraction to young pubescents in the age range of 11 to 14 -- is a biologically normal trait found to varying degrees in both human males and our closest mammalian relatives, such as higher apes. They blast hebephilia as a bold example of naked moral values masquerading as science:
"Blanchard et al. … did not invoke comparative evidence…. They did not invoke any evidence…. They declared it a disorder by fiat, bypassing scientific analysis in favor of a pre-given conclusion supportable only because it is, for the current time and place, culturally resonant. Had their pronouncement been the opposite (i.e., hebephilia is functional), their article would never have been accepted in a peer-reviewed journal without massive evidential backing. Strongly resonant opinion can facilely pass through without the kind of scrutiny demanded of non-resonant views."
Why hebephilia still clings to life, despite so much opposition and so little scientific support, is beyond me. It's like an unwanted house guest who just refuses to take the hint and pack his suitcase.
The evidence at trial
In attacking the government's diagnosis of his client, defense attorney LeBell focused on the dearth of empirical studies on the condition, other than by researchers at a single Toronto clinic, and the likelihood of "false positive" diagnoses in legal cases.
The wording of the proposed new diagnosis has been changed again and again over the past couple of years. In its current iteration, pedophiles are defined as those who have "an equal or greater sexual arousal from prepubescent or early pubescent children than from physically mature persons, as manifested by fantasies, urges, or behaviors." (The requirements that the fantasies or urges be "recurrent" or "intense" have been removed, broadening the potential pool of sufferers.) Hebephiles are now defined as those with sexual attractions to "pubescent children" in Stages 2 to 3 of Tanner's pubertal stages (e.g., early development of pubic hair and breasts).
Defense expert Wollert testified that the problem of "false positives" -- people incorrectly identified as having a condition -- was extraordinarily high even in the controlled setting of the research laboratory. This problem would be much more acute in the forensic trenches where the hebephilia diagnosis is being deployed, he testified.
One insurmountable problem would be reliably identifying a sexual abuse victim's Tanner stage of pubertal development. Complicating this issue, testified the court's expert, John Bradford, Tanner Stages are highly variable. Because they reflect hormonal developments rather than specific ages, one could not assume a specific Tanner stage based on the age of a victim. About two years ago, alarming research indicated that girls are entering puberty far earlier than in previous generations; this month, a large study by the American Academy of Pediatrics identified a similar trend in boys.
Wisconsin psychiatrist Lynn Maskel, who organized and moderated the mock trial, labeled hebephilia a "weed diagnosis in the botanical garden of DSM."
"The question is not if sex with pubescent year old girls illegal, or if it is immoral," she told the audience of forensic psychiatrists. "The question to the psychiatric field is: Is it a disorder? And if it is, does this translate, for the expert witness, into a requisite mental disorder found in the specific SVP statute?"
Meanwhile, back in the real courtroom trenches …
In my seminal review, published in 2010 in Behavioral Sciences and the Law, I traced hebephilia's sudden emergence and rapid spread in legal discourse to the advent of Sexually Violent Predator laws, which require that the individual being considered for civil detention have a mental disorder that makes him qualitatively different from the garden-variety offender.
Since that article's publication, the introduction of hebephilia in U.S. courts has continued unabated, despite the lack of an official imprimatur by the American Psychiatric Association. In a string of SVP cases brought under the Adam Walsh Act, federal judges in North Carolina have ruled that the faux diagnosis is not a legitimate basis for civil detention.
However, other courts have been less circumspect. For example, just yesterday, in a narrow, 4-3 opinion, New York's high court upheld the civil commitment of a repeat sex offender named "Shannon S." based on the purported conditions of "paraphilia NOS" and "hebephilia." Mr. S. had engaged in a series of forcible rapes of adolescent girls, ages 13 through 16.
As the dissenters conceded, Shannon S. was a "very bad actor" and "the community may well be safer if he is kept behind bars."
"But, they added, "to put him there on the fiction that he has some sort of mental condition other than a tendency to commit the crimes for which he was convicted (and has served his time) is and should be constitutionally unacceptable."
Judge Robert Smith, writing for the minority, labeled as "absurd" the premise that attraction to adolescent girls is abnormal, as the government's two experts testified: "What is abnormal about appellant, and others who commit statutory rape by having sex with girls below the age of consent, is not that they find the girls attractive, but that they are willing to exploit them for their sexual pleasure -- in other words, they commit statutory rape."
Smith labeled hebephilia and the similarly disputed diagnosis of "paraphilia not otherwise specified" (rape) as "junk science devised for the purpose of locking up dangerous criminals." While such a practice might seem appealing from a public safety viewpoint, it creates "dangers of abuse," he eloquently warned:
"Many sex offenders are, or could reasonably be found to be, dangerous, and in common parlance they all have mental abnormalities: Mentally normal people do not commit sex crimes. Thus, unless 'mental abnormality' is defined with scientific rigor, such statutes could become a license to lock up indefinitely, without invoking the cumbersome procedures of the criminal law, every sex offender a judge or jury thinks likely to offend again.
"Some will intuitively respond: Not a bad idea. But it is a very bad idea, because not even a concern for public safety should be allowed to trump certain fundamental rules. Among them are that criminals can be confined only for crimes they have committed, after their guilt is proved beyond a reasonable doubt in a procedure in which they receive the many protections that our Constitution gives to those accused of crime, and that even when convicted they can be incarcerated for no more than the term of the maximum sentence provided by law. If the present sentences for sex offenders are too short, the Legislature should make them longer, but it should not, and constitutionally cannot, simply substitute civil for criminal proceedings as a means of keeping dangerous criminals off the streets."
As Judge Smith seems to recognize, it's a slippery slope. Bogus psychiatric diagnoses for sex offenders now, political dissidents (or others) tomorrow. That's the way they rolled in the former Soviet Union, after all.
Pretextual court rulings aside, the paraphilias subworkgroup has had more than two years to produce evidence for the reliability and validity of hebephilia, and it has not done so.
It is clear to most observers that hebephilia is not accepted by the relevant professional community. What remains unclear is whether the Board of Trustees of the American Psychiatric Association will get the message in time to prevent yet another in a veritable maelstrom of public-relations disasters and historical mistakes.
Of related interest: DSM-5 field trials discredit the American Psychiatric Association, by Allen Frances, Huffington Post, 10/31/2012