Special ethics exemption sought for SVP work
Concern is mounting among many in the fields of forensic psychology, forensic psychiatry, and law about ethical violations by some practitioners in the Sexually Violent Predator (SVP) arena. But instead of calling for greater adherence to ethical practice, some are floating a radically different idea: Abandon professional ethics altogether.
[A] good-faith, case-by-case, consequential ethics approach should be used that balances the greatest good for the greatest number without trampling unduly on individual rights and each citizen’s constitutionally protected liberty interests.
This "
consequential" approach will eliminate bias and give the civil commitment process "ethical authenticity,"
contend Shoba Sreenivasan, Allen Frances, and Linda Weinberger in the
current issue of the Journal of the American Academy of Psychiatry and the Law.Sexually Violent Predator evaluations lend themselves to ethical slippage because of the laws' requirement that in order to be eligible for civil commitment, a convicted sex offender must suffer from a "mental abnormality" that makes him "likely" (interpreted in most states other than California to mean a risk of 51 percent or more) to commit another sexually violent offense.
These legal requirements create a slippery slope when an offender does not have a bona fide mental disorder and/or does not score high on risk assessment instruments, but the evaluator still believes the offender needs to be civilly committed to protect the public.
But this is no "puzzling ethics quandary." It's no different from such pulls in other forensic arenas. For example, a forensic practitioner might opine that:
- a young man who experienced a brief, drug-induced psychotic break meets the M'Naghten standard of insanity, because the prosecutor and the defense attorney have worked out a deal in which he won't have to go to prison
- a victim of an industrial accident meets the criteria for posttraumatic stress disorder because she needs counseling and the corporation has deep pockets
Each of these evaluators is overstepping, and usurping the role of the trier of fact (the judge or jury). It is not the expert's job to decide whether Sexually Violent Predator laws are morally just. It is not our job to balance the goals of public protection with individual civil liberties. Those duties fall to courts, legislatures, and voters.
As I teach my students in Forensic Psychology 101, when we enter the courtroom our job is a simple one: To assist the trier of fact in understanding the psychological science of relevance to the case at hand. Nothing more, nothing less.
The authors complain that the courts have given us insufficient guidance in this task. But, welcome to the forensic world. Statutory and case law is often intentionally vague, to allow for unique situations or changing circumstances. The law's inherent vagueness about mental abnormality and risk does not create an ethics quandary, much less one that merits abandonment of our ethics codes.
It is ludicrous to think that the solution to problems in SVP practice is an anything-goes approach that essentially rests upon the good intentions of individual evaluators. Most of us probably do have good intentions. But
self-serving blinders make it hard to be objective. That is precisely why professionals have established
deontological, or rule-based, ethics standards (which the authors refer to as "normative ethics").
Indeed, these authors reveal their implicit bias through their choice of examples. Instead of focusing on the widespread exaggeration of risk or manufacturing of bogus psychiatric diagnoses, they condemn "long and confusing discussions of Bayes' theorem" and label as biased the evaluator who emphasizes limitations in our ability to accurately predict risk.
Actually, that is precisely our job. We are ethically obligated to present the limitations of our models, which are significant. To fail to do so is to succumb to what an Australian judge described as
gross product enthusiasm:
Amongst the many factors which may lead an expert witness into error is a malady which, if encountered in a new car salesperson, might be described as gross product enthusiasm. Some witnesses seem to become so fervid about the potential of their chosen discipline that they lose sight of its limitations and are borne by their enthusiasm into making claims that could not be supported by more sober and objective assessment of the available evidence.*
As this judge implies, the testimony of expert witnesses should be given little weight when it amounts to confirmatory bias in disguise, resting on a paper-thin layer of exploratory or contradictory research that has not been peer reviewed, published, or replicated, and is of unknown reliability or validity.
I will say it once again: Our only role in court is to assist the trier of fact to accurately apply reliable and valid science to the case at hand. And that includes acknowledging the science's limitations.
Science in principle is distinguished from the law, religion, and politics by its allegiance to scientific inquiry, or the search for replicable cause-effect relationships. The ethics of our discipline therefore rely upon the principles of objectivity and transparency. In contrast, Sreenivasan et al’s ethics of "consequentialism" elevate expedience. This might be fine in the fields of law or religion. But, as a learned colleague said, "expedience is the bane of Science."
SVP trials pit David against Goliath. The dice are loaded against sex offenders facing civil commitment, due to the onerous nature of their past crimes, inequalities in legal resources, and even the very label of predator, which conjures a beastly monster. Condemning as "biased" efforts by the defense to point out the scientific weaknesses of the state's evidence would only increase this monumental power imbalance.
But that's no "
puzzling ethics quandary." Any more than psychologists are faced with a puzzling ethics quandary when they decide to participate in government torture for the greater good.
Because we have professional rules, or ethics codes, the psychologists who allegedly tortured detainees at Guantanamo now
await licensing board actions in their respective states of Ohio and New York.
That's the way it is, and the way it should remain.
Acknowledgment: In crafting this essay, I consulted with more than a dozen learned colleagues, who helped me to ponder these critical issues of ethics. Thanks to all of you, and a special thanks to Robert Halon, who gave the matter a great deal of thought. It’s a privilege to count such wise individuals among my professional colleagues.
Photo credit (Creative Commons license): Klearchos Kapoutsis, Baba Vida fortress, Bulgaria, the place of the hangings.
*R. v. Hiller, ACTSC 50, 25 (Australia, 2003), as cited in Psychological Science in the Courtroom, Consensus and Controversy, page 255.
BLOGGER RESPONSES:
Steve Erickson @ Crime & Consequences
Mark Bennett @ Defending People
Emma B. @ Psychology & Crime News (UK)
The defense team for Army psychiatrist Nidal Malik Hasan has retained prominent forensic psychologist Xavier Amador. The New York-based expert has been involved in several high-profile cases involving the military, including those of PFC Lynndie England (of Abu Ghraib infamy) and U.S. Army sergeant Hasan Akbar, who killed two fellow officers and wounded 14 soldiers in Kuwait in 2003. He was also a defense expert in the trial of would-be 9/11 hijacker Zacarias Moussaoui.
