Opinion
No. 250470.
07-18-2016
In the Matter of the Application of the STATE of New York, Petitioner, v. JAMIE S., Respondent.
Eric T. Schneiderman, Attorney General, Christopher P. Rutnik, Esq., of counsel, the Capitol, Albany, Attorneys for Petitioner. Mental Hygiene Legal Services, Thomas A. Callaghan, Esq., of counsel, Albany, Attorneys For Respondent.
Eric T. Schneiderman, Attorney General, Christopher P. Rutnik, Esq., of counsel, the Capitol, Albany, Attorneys for Petitioner.
Mental Hygiene Legal Services, Thomas A. Callaghan, Esq., of counsel, Albany, Attorneys For Respondent.
HENRY F. ZWACK, J.
In this Mental Hygiene Article 10 proceeding, petitioner seeks an order finding respondent to suffer from a mental abnormality, that he is a dangerous sex offender, and to confine him in a secure treatment facility. Respondent opposes.
Pursuant to Mental Hygiene Article 10, a Sex Offender Civil Management Petition dated June 18, 2015 was filed with the Court (Clinton County), in relevant part alleging that respondent is a detained sex offender, that Susan L. Cox, Ph.D., after evaluating respondent's risk for dangerousness and sexual recidivism, issued a report dated June 11, 2015, wherein she concluded that respondent suffered from a mental abnormality, as the term is defined in MHL 10 .03[i], in a manner that predisposes him to the commission of conduct constituting a sex offense and that results in him having serious difficulty controlling such conduct. The Court (Ellis, J.) conducted a probable cause hearing and concluded on June 24, 2015 that there is probable cause to believe that respondent, pursuant to MHL 10.03[q], is a detained sexual offender (as so stipulated by the parties) requiring civil management under Article 10 of the Mental Hygiene Law, and sufficiently dangerous to be ordered held confined pending a trial in this matter (on consent) and should remain in the custody of the Department of Corrections and Community Supervision (“DOCCS”) until the conclusion of the trial in the matter.
Respondent waived his right to a jury trial on the issue of mental abnormality, did not consent to such a finding, and did consent to the issues being decided by the Court. On the issue of whether the respondent suffers from a mental abnormality, the Court conducted a non-jury trial commencing on March 14, 2016 and concluding on March 17, 2016. At trial, the petitioner offered documentary evidence, the testimony of “Joseph N.”, and the expert testimony and opinions of Susan L. Cox, Ph.D. (“Dr.Cox”), and of John A. Thomassen, Ph.D. (“Dr.Thomassen”). The respondent offered documentary evidence and the expert testimony and opinions of Frederick Winsmann, Ph.D. (“Dr.Winsmann”). The Court had the opportunity to hear and observe the witnesses firsthand, to assess their credibility, and to weigh their respective testimony in light of the other testimony, the documentary evidence, and the legal arguments each party raised.
The respondent was born on November 14, 1974, is presently 41 years old, was convicted, by plea, in 1998 of rape in the first degree and reckless endangerment in the first degree, and is a detained sex offender as defined in MHL 10.03[g]. According to the 1998 subject indictment, respondent's plea allocution, and his statements contained in the Presentence Report (Rensselaer County Court) dated February 26, 1998: during 1997, then age 22, respondent engaged in sexual intercourse with a 7 year old girl, engaged in sexual contact (sexual abuse in the first degree) with the same 7 year old girl, engaged in sexual contact with different girl 6 years old, sodomized (sodomy in the second degree) a 11 year old boy, and endangered (reckless endangerment in the first degree) both the 11 year old boy and the 6 year old girl, by holding and dangling each child over a bridge railing over the Hudson River. Respondent was sentenced on March 4, 1998, pursuant to a negotiated plea agreement, to eight to sixteen years on the rape in the first degree and one to three years on the reckless endangerment in the first degree, to run consecutive, for a total sentence of nine to nineteen years; together with five final orders of protection (expiring three years following his release from state prison). Respondent waived the right to appeal the sentence. He is currently serving the sentence for these offenses and remains in the custody of DOCCS.
Respondent was also a child victim of sexual abuse, including being forced, at age 5, to perform oral sex on his father and grandfather. After his father's release from prison, his mother returned respondent, then age 9, to the father's home—in violation of the father's terms of probation—which ultimately resulted in respondent being placed in foster care. In 1985, while in foster care, respondent, then age 10, raped a 5 year old boy residing in the same foster home. As a result of this incident, the respondent was placed in the custody of the Division of Youth (“DFY”)—which continued until he was released at age 21. While in DFY custody, at age 18, respondent was arrested for sodomy involving a 16 year old boy (Joseph N.)—with the charges ultimately dismissed at the request of the prosecutor. At the instant trial, Joseph N appeared and testified that respondent forcibly performed oral sex upon him.
A review of respondent's disciplinary record during his incarceration since 1998 shows that he received 23 Tier II tickets and 5 Tier III tickets—involving various infractions, ranging from being out place, disobeying a direct order, movement violation, exchanging pins, property loss or damage, flooding, smuggling, smoking, lying and harassment. Particularly relevant to this proceeding, respondent received: a 1999 ticket for sexual acts; a 2009 ticket for stalking, violation of a direct order, and harassment involving looking down the blouse of a female correctional officer; a 2009 ticket for threats, involving, after telling another inmate “let's go in the bathroom so I can play with your balls”, and then threatening the same inmate; a 2011 ticket for physical contact involving an attempt to touch another inmate's groin; and a 2013 ticket for threats and sex offense.
Respondent made four appearances before the parole board for release consideration. The summary and evaluations by the parole board noted his completion, while in DOCCS custody, of various academic, vocational, alcohol and substance abuse, and sex offender counseling programs. The parole board also noted two instances of sexual offenses, instances of threats and harassment, and aggressively attempting to approach other inmates in a sexual manner (Confidential Report: Reappearance May 2014). The latest parole determination, May 19, 2014, denied respondent's parole, with a 24 month hold, and noted respondent's “institutional adjustment, including discipline and program participation ... (and) since your last parole board appearance, you have incurred a tier III ticket for threats and sex offense ... (and) this panel remains concerned about your history of unlawful and violent conduct, targeting child victims, and your continued poor compliance with DOCCS rules.” The parole board denied each of respondent's application for parole, noting: lack of appropriate therapeutic programming (July 11, 2006); yet to complete comprehensive sex offender therapy and multiple disciplinary violations since last appearance before the board (June 18, 2008); loss of all good time and numerous disciplinary infractions (May 26, 2010); and poor institutional behavior (May 15, 2012).
In this stage of an Article 10 proceeding, petitioner is required to establish, by clear and convincing evidence, the three requisite elements of whether respondent suffers from a mental abnormality, as the term is defined in MHL 10.03[i], namely: [1] whether he has a disease or disorder that affects his emotional, cognitive or volitional capacity; [2] in a manner that predisposes him to the commission of conduct constituting a sex offense; [3] that results in him having serious difficulty in controlling such conduct.
MHL10.03[i] defines a mental abnormality as a “congenital or acquired condition, disease or disorder that affects 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.”
Petitioner offered the opinion testimony of two experts, Dr. Cox and Dr. Thomassen, that respondent suffers from pedophilic disorder and antisocial personality disorder—a diagnosis which is not shared by respondent's expert, Dr. Winsmann, who instead offered the opinion that respondent has a borderline personality disorder. Dr. Cox also offered the opinion that respondent suffers from alcohol use disorder. Both Dr. Cox and Dr. Thomassen offered the opinion that diagnoses of pedophilic disorder and antisocial personality disorder predisposed him to commit a sexual offense and also that he had difficulty controlling sexual offending conduct. Respondent's expert disagreed on diagnosis and also whether respondent had difficulty controlling offending sexual conduct.
A finding of mental abnormality must be based on a diagnosis of a condition, disease or disorder that differentiates “the sex offender whose mental abnormality subjects him to civil commitment from the typical recidivist convicted in an ordinary criminal case” (Donald DD. & Kenneth T., 24 NY3d 174, 190 [2014] )—which may be a diagnosis with a sexual component (pedophilic disorder) or other personality disorder (antisocial personality disorder or borderline personality disorder ) provided it supported with “proof of a strong sexual component to respondent's diagnosis”, and which links the diagnosis to his predisposition to commit sexual offenses (Matter of State of New York v. Dennis K., ––– NY3d ––––, [Case No. 106, 107, 108 2016] ).
Here, the Court notes that each expert cited to the Diagnostic and Statistical Manual of Mental Disorders–V (“DSM–V”) for the criteria each considered in making their respective diagnosis—which is the main purpose of the DSM–V, thereby assisting a trained clinician in the diagnosis of a person's mental disorder in a uniform and reliable manner (Matter of State of New York v. Mercardo, 50 Misc.3d 512, 519 [Sup Ct, Kings County 2015] ). As acknowledged by each expert witness, “because impairments, abilities and disabilities vary widely within each diagnostic category that assignment of a particular diagnosis does not imply a specific level of impairment or disability” (DSM–V cautionary statement).
Mindful that petitioner primarily points to respondent having a pedophilic and antisocial personality disorder to support a finding that he has a mental abnormality—and respondent counters that he suffers only from a borderline personality disorder and thereby insufficient to support a finding—the Court turns first to the diagnostic criteria for these disorders.
According to DSM–V 302.2, there are three diagnostic criteria for pedophilic disorder, namely that: [1] the individual has had arousing fantasies about, urges for, or behaviors with a prepubescent child or children (generally 13 years old or younger); [2] the individual has acted out these desires, or is experiencing significant stress or difficulty as a result of these desires; and [3] the individual is at least 16 years old and at least 5 years older than the child or children noted in number 1.
DSM–V 301.7 sets out four diagnostic criteria for antisocial personality disorder, namely: [1] that the individual has a pattern of disregard for and violation of others rights since age 15, as indicated by three or more of seven sub features (failure to obey laws and norms by engaging in behavior which results in criminal arrest or would warrant criminal arrest; lying, deception, and manipulation, for profit or self amusement; impulsive behavior; irritability and aggression, as indicated by frequent assaults or engaging in fighting; blatantly disregards the safety of self and others; a pattern of irresponsibility; lack of remorse for actions); [2] the individual is over the age of 18; [3] the individual has a history of conduct disorder before age 15; and [4] the individuals' antisocial behavior does not occur in the context of schizophrenia or bipolar disorder.
DSM–V 301.7 notes nine diagnostic criteria for borderline antisocial personality disorder, namely that the individual “must show a pervasive pattern of instability of interpersonal relationships, self-image, and affects, and marked impulsivity, beginning in early childhood and present in a variety of contexts, as indicated by five or more of the following: [1] frantic efforts to avoid real or imagined abandonment; [2] a pattern of unstable and intense interpersonal relationships characterized by alternating between extremes of idealization and devaluation; [3] identity disturbance: markedly and persistently unstable self-image or sense of self; [4] impulsivity in at least two areas that are potentially self-damaging (e.g. substance abuse, binge eating, and reckless driving); [5] recurrent suicidal behavior, gesture, or threats, or self-mutilating behavior ; [6] affective instability due to a marked reactivity of mood (e.g. intense episodic dysphoria, irritability, or anxiety usually lasting a few hours and only rarely more than a few days); [7] chronic feelings of emptiness; [8] inappropriate, intense anger or difficulty controlling anger (e.g. frequent displays of temper, constant anger, recurrent physical fights); [9] transient, stress-related paranoid ideation or severe dissociative symptoms.
Dr. Cox, petitioner's first expert, tells the Court that respondent, in her opinion, meets the criteria for a diagnosis of pedophilic disorder (nonexclusive type, sexually attracted to both males and females), antisocial personality disorder, and alcohol use disorder-severe (in remission in a controlled environment). In her opinion, these diagnoses predispose respondent to commit sexual offenses and result in his having a serious difficulty in controlling his predisposition to sexually offend. In support of the opinions offered, Dr. Cox testified that she reviewed respondents's Office of Mental Health records, his DOCCS records (including his inmate, parole board, 1998 presentencing investigation report, 1992 State Police investigation and arrest report, 1998 sentencing minutes, institutional programming and GED. Dr. Cox noted the lack of respondent's records from either the Division of Youth or Office of Children and Family Services. Dr. Cox, by a video teleconference, interviewed and evaluated respondent, and also interviewed by telephone respondent's mother. Dr. Cox testified concerning her education, training, prior employment (including 25 years in private practice as a clinical psychologist “seeing survivors of sexual assault and doing sex offender evaluations), and her present employment as a psychiatric examiner for the Office of Mental Health Forensic Services. She also testified that her present work experience includes Strict and Intensive Supervision and Treatment (“SIST”) violation and bi-annual evaluations, and Article 10 mental abnormality evaluations—conducting 44 Article 10 evaluations and in 60% of the evaluations finding that the respondent suffered from a mental abnormality.
Dr. Cox also testified, in formulating her opinion, she reviewed and considered the respondent's 1998 conviction, his plea, and statements concerning his rape and sodomy of of the 6 and 7 year old girls and 11 year old boy, and reckless endangerment of the 6 year old girl and 11 year old boy—by dangling them off a bridge over the Hudson River. Dr. Cox further testified that she reviewed the medical examiner's reports concerning the two girls, noting that there was evidence of both digital and penile penetration and dilation of the vaginal areas, and that “it takes several episodes for there to be evidence (of dilation).” Dr. Cox also testified that in her interview of the respondent he stated a different number of times that he sexually abused the girls than what he stated when initially arrested for these crimes. Dr. Cox testified that she reviewed records concerning a 1992 incident—while respondent was in the custody of the Division for Youth—involving Joseph N, and where it appears that respondent sexually assaulted Joseph N. Dr. Cox was present in the courtroom during Joseph N.'s testimony in this proceeding. She testified that respondent told her several versions of the incident—first denying any kind of sexual contact with Joseph N., and then stating that it was consensual—and that his statements concerning the incident conflicted with Joseph N.'s testimony.
Dr. Cox further testified that she reviewed respondent's disciplinary tickets during his incarceration in DOCCS, including five tickets for sexual offense or sexually related tickets. In her opinion, an inmate having five sex offense tickets was highly unusual, and that in the context of Article 10 evaluations only 20% of the inmates evaluated actually get a sex ticket, and that respondent having five sex offense tickets made him an outlier. Dr. Cox testified that respondent's 2009 ticket—which accused him of stalking a female corrections officer, looking down her dress, and trying to have contact with her—was significant, in her opinion, because it occurred while he was enrolled in sex offender treatment programming, pointing to his having signed a contract to enroll in SOP which required him to not engage in any sexual activity and to be committed to changing his pattern of sexually offending behavior. Dr. Cox, in support of her opinion, also pointed to another 2009 ticket, which, according to the corrections officer making the report, stated that respondent screamed at another inmate to go the bathroom and to engage in sex with him—with the charge being adjudicated to making of a threat. Dr. Cox also noted a 2011 ticket, wherein an inmate reported that respondent repeatedly touched his leg and tried to slide his hand up to his groin—charged with physical and sexual contact—with the charge being adjudicated as a physical contact and that the victim had refused to testify. Dr. Cox also testified that she considered in formulating her opinion a 2013 ticket, when respondent was 39 years old, which involved an inmate reporting being sexually harassed and prostituted by a third inmate, and on investigation and examination of handwriting and comparison with respondents's handwriting it was determined that respondent wrote the complaining letter to get an inmate transferred (who testified that respondent had repeatedly stated that he would rape him)—respondent was adjudicated of a sex offense.
In support of her opinion that respondent suffers from pedophilic disorder, Dr. Cox pointed to his 1996–1997 sexual abuse of his niece and sister's boyfriend's's son for more than six months—that he was five years older than the children sexually abused and each victim was under the age of 13. Dr. Cox testified that this sexual abuse fits the profile of fantasies and conduct of a pedophile (DSM–V) and was, in her opinion, further supported by a test conducted by the Office of Mental Health in 2015—Screening Scale for Pedophilic Interests (“SSPI”)—which scored respondent a five, which is the highest score for this test. Dr. Cox further testified that a diagnosis of pedophilic disorder is a life long condition, it doesn't change, and doesn't go away—that it cannot be cured, but can be managed. Pointing to respondent's 2010 parole board statements, his 2015 Article 10 interview and his DOCCS sex offender programming notes, she noted his talk about pedophilic interests, arousal to children, that he had decided not to have children because it would be too easy to abuse his own children, and that in her opinion respondent still has ongoing and chronic pedophilic interests, is attracted to children sexually, that he continues to have sexual arousal to children, and that his sexual interest in children is high.
Dr. Cox also diagnosed respondent with antisocial personality disorder and alcohol abuse (severe in sustained remission in a controlled environment). Turning first to the antisocial personality disorder diagnosis, in support she again pointed to respondent's sexual offenses from age 10, 18 and 22, and also the DOCCS sex offense tickets, which involved conduct constituting behavior for arrest, respondent's deceitfulness (presenting varying and different stories and facts about his sexual offending—including a version conflicting with the trial testimony of Joseph N.); his manipulativeness (claimed or faked suicide attempt); his disregard for others (dangling two children over a bridge); lack of remorse (lack of any indication of remorse during his participation in sex offender treatment programming, lack of remorse or appreciation of the sexual abuse of his niece); impulsivity (supported by 2014 sex offender programming discharge summary, which characterized his behavior as incestuously impulsive) and that he is able to take momentary access to opportunities to abuse as they arise; and that there evidence to conduct disorder before age 15 (respondent at age 10 sexually abusing a 5 year old boy). Dr. Cox acknowledged that as a person diagnosed with antisocial personality disorder ages, beginning at age 40 and more so at age 60, there is a decrease in antisocial behavior. Dr. Cox also acknowledged that as low as 30 percent and as high as 80 percent of prison inmates are diagnosed with antisocial personality disorder.
On her diagnosis of alcohol abuse, Dr. Cox noted that respondent has stopped drinking on account of his imprisonment. She testified that respondent had stated he had sexually abused children often when he had been drinking and was intoxicated, that he had abused the 12 old boy while intoxicated, and that he intended to no longer drink alcohol. Dr. Cox testified that alcohol use disorder can be mild, moderate or severe, depending on how many elements of the disorder are found. In her opinion, respondent's combination of strong deviant sexual arousal to children, sexual preoccupation, his implusiveness, that he is antisocial, and has history of heavy drinking, makes it unsafe for him to remain in the community.
Dr. Cox further opined that respondent has serious difficulty in controlling his sexual behavior and remains at high risk to act out sexually. Particularly, Dr. Cox noted that respondent's deviancy remains high, despite criminal sanctions and successful completion of sex offender programming. In her opinion, respondent still remains unable to develop a viable re-lapse plan, and instead of understanding and self managing his sexual conduct, he continues to have a sexual attraction to children, the condition is chronic and needs to be managed, he still does not understand his risk of re-offending, and he remains dependent other structures and people to help him not to re-offend.
Turning to petitioner's second expert, Dr. Thomassen, he also offers the opinion that respondent meets the criteria for a diagnosis of pedophilic disorder (attracted to males and females, non exclusive type) and antisocial personality disorder. In his opinion, these two diagnoses predispose respondent to commit sexual offenses and result in respondent having serious difficulty in controlling his predisposition to sexually offend. Particularly, Dr. Thomassen opines that respondent has a propensity to seek sex with young males and females, that his disorders make it more likely for him to re-offend to gratify his deviant urges, that his pedophilic interests are enduring, and in combination with the antisocial personality disorder diagnosis, he presents an increased risk for future sexual offenses. Dr. Thomassen did not meet with, test, or personally evaluate respondent, and offered his opinions based only on review of the respondent's records provided by DOCCS, OMH, Division of Parole, and in particular respondent's 1992, 1993, 1998, 2014 and 2015 criminal justice records; 1998 pre-sentence report; 2006, 2008, 20110 2012 and 2014 minutes of parole board hearings; OMH treatment plans, screenings, evaluations, and Article 10 records; DOCCS programming records between 205 and 2014, inmate disciplinary records between 1999 and 2014; disciplinary hearing dispositions for March 23, 1999, November 13, 2000, June 1, 2009, August 13, 2009, June 30, 2011 and June 14, 2013; SOCTP notes, evaluations, scorings and summaries between 2009 and 2014. Dr. Thomassen testified concerning his education, training, prior employment (professor at Hobart and William Smith College, private clinical practice, evaluation of applicants for disability benefits based on mental health diagnosis). Dr. Thomassen testified that he has conducted approximately 100 Article 10 evaluations, including testifying for a respondent in approximately 15 to 20 cases.
Dr. Thomassen testified, in formulating his opinion, he reviewed the records of respondent's 1998 conviction, including the statements by respondent that between 1996 and 1997 he had sexually molested both a five year and six year old niece—including digital and penile penetration—with supporting medical reports; and also that respondent sodomized a twelve year boy and that he had held both the six year old and twelve year old child over a bridge. Dr. Thomassen also testified that he reviewed the statements made by respondent to the police about these offense, and then later recanting the statements. Dr. Thomassen testified that he reviewed the trial testimony of Joseph N., the records and Dr. Cox's evaluation concerning the 1992 incident and sexual assault of Joseph N.
Dr. Thomassen testified that he also reviewed respondent's record of disciplinary tickets while incarcerated in DOCCS—looking for violence or sexual acting out—noting a number of Tier 2 and Tier 3 violations, including 4 incidents having a clear sexual component and for which he was sanctioned. Dr. Thomassen testified concerning the requisite elements to support a diagnosis of pedophilic disorder, including that over a period of at least 6 months respondent had re-occurrent intense sexual fantasies, urges or behaviors towards children under the age of 13—pointing to the 1996 to 1997 ten month period of his sexual offending against the 5 year old and 6 year old nieces, and also the 1997 sexual offending of the 12 year old boy. Dr. Thomassen also noted respondent's self report of urges and fantasies while in sex offender treatment programming in 2013 and 2014. Dr. Thomassen further noted respondent's statement that he had groomed—prepared the victim to be sexually abused—the 5 and 6 year old children, and offered the opinion that this displayed planning and that respondent thought this out as a way to satisfy his urges. Dr. Thomassen testified that respondent's behavior in acting out on his urges—particularly while in the custody of DFY between ages 11 to 21 (Joseph N. incident) and then within 1–1/2 years of release sexually offending again (1997–1998)—and despite multiple sanctions, establishes the second element of pedophilic disorder and that it leads to some sort of disorder, maladjustment or acting out. Dr. Thomassen also noted the third element, that there was a 5 year age difference between respondent and the victim or that he was over 21, as clearly shown in the record. In Dr. Thomassen's opinion, there is no clear conclusion that a person can ever be cured of pedophilia and it is something that always needs to be managed.
On the issue of whether respondent, now age 41, is less likely to sexually re-offend because of his age, Dr. Thomassen testified that while there is a decline generally with the degree of sexually offending as a person become older, for persons diagnosed with pedophilic disorder the degree of sexually re-offending declines slightly during the 40s and that there is no significant degree in decline of re-offending until after age 50.
Also, on the issue of the diagnosis of pedophilic disorder and whether respondent is likely to re-offend, Dr. Thomassen testified that he reviewed a 2015 test administered of respondent (Screening Scale for Pedophilic Interests [SSPI] ), that he also did his own test, and applying the specific factors in his analysis—that respondent offended against a male child, that he offended against two or more victims, that he offended against a unrelated victim, that he offended against a victim under the age of 11—respondent scored at the highest level.
Turning next to Dr. Thomassen's diagnosis of antisocial personality disorder, he testified that he considered the seven characteristics or criteria, of which the respondent must meet at least three, including that respondent has difficulty respecting norms, laws and rules—pointing to respondent's repeated sexual offenses, need to placed in DFY, multiple tickets (particularly the 4 sexual offending tickets) in prison; deceitfulness—pointing to respondent initially confessing to the 1996–1997 incident and then later denying that it happened, varying statements concerning the 1992 (Joseph N.) incident, history of feigning mental health symptoms; impulsivity—pointing to sex offender treatment programming notes describing respondent as impulsive, blurting things out, described as a class clown, and talking in a sexually provocative manner, history of substance abuse; lack of remorse—pointing to when respondent described his sexual offense the lack of remorse, other than getting caught; disregard of safety and security of others—pointing the sex offenses and particularly holding the 6 year old and 12 year old over the bridge. Dr. Thomassen also noted that respondent met the criteria of being over 21 and that the there was evidence of conduct disorder before the age of 15—pointing to the sex offense when he was 10, use of alcohol use at an early age, and at age 14 feigning suicidal symptoms.
On the question of whether respondent, diagnosed with pedophilic disorder and antisocial personality disorder, is currently predisposed to engage in conduct constituting a sex offense, Dr. Thomassen testified that a person being adjudicated and having pedophilia is more likely to have another sexual offense—it is predisposing. In his opinion, given respondent's high score on the SSPI test, respondent has a propensity to offend as he is likely to have underlying urges, and directed towards people not his biological family, including male, female, young child or a full range of children. On whether, with the diagnosis of antisocial personality disorder, respondent is likely to re-offend, Dr. Thomassen acknowledged the lack of research showing that this diagnosis alone makes an individual more or less likely to sexually offend—but it does show that a person, having sexually offended and having a antisocial personality disorder diagnosis is more like to sexually re-offend than a person not diagnosed with antisocial personality disorder. Pointing to respondent's 2013 ticket for sexual offense and that his interviews are inconsistent and show deceitfulness concerning past sexual offenses, Dr. Thomassen that respondent is pre-disposed to sexually offending.
Dr. Thomassen further opined, that in combination, the diagnosis of pedophilic disorder and antisocial personality disorder results in an additive effect—more than either one separately—and that there is a current predisposing pattern for respondent. On the issue of respondent controlling his conduct, while noting that respondent has not had access to children since 1997 on account of incarceration, Dr. Thomassen opines that respondent, while in the early stage of changing offending behavior, continues to have serious difficulty controlling impulses and offending sexual conduct—pointing to respondent's multiple sexual tickets (some while in sex offender treatment programming). In Dr. Thomassen's opinion, respondent remains persistent in his offending conduct, despite being caught, sanctioned, recommitted; and has sexually offended in every setting he has been in—foster care at age 10, DFY until 21 (Joseph N. incident), 2 years in the community (1998 rape/reckless endangerment), and DOCCS custody since (multiple sex tickets).
Turning to respondent's expert, Dr. Winsmann, in his opinion the respondent meets the criteria for a diagnosis of borderline personality disorder —but does not suffer from a mental abnormality. In his opinion, while respondent has remaining psychiatric difficulties, there is insufficient evidence that respondent has a behavioral control problem. Dr. Winsmann attributes the respondent's sexual offending to bad decision making, that respondent was an adolescent sexual offender, that his behavioral dis-control is in the past, and that he chose to offend. In support of the opinions offered, in addition to utilizing the 35 sources cited in his written evaluation, Dr. Winsmann testified that he personally interviewed the respondent and conducted six assessments, including the Wechsler Adult Intelligence Scale—which examines cognitive functioning and overall intelligence; the International Personality Disorder Examination—to look for personality disorders that are outlined in the DSM–V (which was only probable for borderline personality disorder ); the Personality Assessment Inventory—a self report (which was not valid and was not relied upon); the Psychopathic Personality Inventory Revised—a self report measure that looks at the question of psychopathy; Wisconsin Card Sorting Test —a nueropathological screening measure that looks at frontal lobe functioning (which showed that respondent had no difficulty with frontal lobe functioning, executive functioning, and decision making); and the Barrett Impulsive Scale—which looks at impulsivity (which scored respondent at 50, with any score between 51 to 71 as not indicative of impulsivity). Dr. Winsmann testified that he also conducted an hour and half telephone interview of respondent, including a life history questionnaire.
Dr. Winsmann testified concerning his education, training, prior employment in the military, that he is currently a clinical and forensic psychologist (90% forensic; 10% clinical treatment), with a clinical treatment practice including treating sexual offenders, and that he is also a faculty member at Harvard Medical School—teaching risk evaluations, assessments and forensics—and lectures in psychiatry. In the past two years, Dr. Winsmann submitted 35 Article 10 evaluations on behalf of a respondent, and in 33% of the evaluations finding that the respondent suffered from a mental abnormality.
Dr. Winsmann testified, in his opinion, respondent is an adolescent sexual offender, with a history or background of abuse, neglect, and sexual abuse. He attributes the respondent's pre–25 offending behavior to lack of appropriate supports and models; and also to respondent's less developed behavior controls, higher impulsivity, and the inability to deal with his own neglect and sexual abuse—pointing to respondent being sexually abused by his father, grandfather and also by a police officer—all having a serious and lasting effect on respondent, and supporting a diagnosis of borderline personality disorder. Particularly, in Dr. Winsmann's opinion, respondent is an adolescent sexual offender who was himself sexually abused and that there was somewhat of a traumatic reaction to his own offending, and as a result of the sexual abuse and entire upbringing all leading to a diagnosis of borderline personality disorder —taking hold in the respondent's 20s and will start to abate in the fifth and sixth decade of life. Trauma, in Dr. Winsmann's opinion can lead to and, in fact, is the hallmark of borderline personality disorder, and which occurred to respondent and he then offended—but the traumatic effects no longer lingering now that respondent is in his 40s.
Dr. Winsmann offered the opinion that respondent's low IQ—scored at 81—characterizes his borderline intellectual functioning, memory difficulty, and inconsistencies in self reporting. On the issue of statements made by respondent in sex offender treatment programming—in sum depending on the time-frame involved, that he had a serious problem with offenses against children—Dr. Winsmann noted that these statements were 20 years old, that respondent had a behavioral dis-control problem back then, and may have had other diagnoses then but he doesn't have now. In his opinion, the statements are a recognition by respondent at the time seeking that he needed help and also shows some degree of insight about the trauma or what was happening at the time. In Dr. Winsmann's opinion, it is the current status of respondent that determines whether he has a mental abnormality.
On the issue of respondent admitting that in the past to being sexually aroused to children, Dr. Winsmann testified that respondent during his interview stated that he had become a man, and that the attraction to children had abated or went away—which respondent attributed to sex offender treatment. In Dr. Winsmann's opinion, respondent still has remaining difficulties—but not an extreme level where he has a mental abnormality—and still shows a degree of impulsivity, but does not have an impairment in the ability to decide.
Dr. Winsmann testified—while aware of other diagnostic considerations to account for the totality of respondent's offending behavior, including pedophilic disorder and antisocial personality disorder—in his opinion the diagnosis of borderline personality disorder best captures the difficulties respondent currently faces. Dr. Winsmann further testified he considered the alternate diagnoses, but thought the diagnosis of borderline personality disorder was the proper diagnosis. In his written evaluation, Dr. Winsmann states that he finds no evidence of respondent has a current serious difficulty in controlling behavior, including consideration of testing given to respondent, that does not indicate that he has a problem with control—but which does indicate a degree of active psychopathology, specifically borderline personality disorder, and that he exhibits some degree of impulsivity. Dr. Winsmann testified that respondent has an acceptable level of decision-making ability. Concerning the various disciplinary tickets respondent was issued in DOCCS custody, Dr. Winsmann testified that each was a bad decision on respondent's part, including a ticket two years ago for threatening to rape another inmate the first chance he got.
On the issue of respondent scoring a 5 on the Scoring Scale for Pedophilic Interests—conducted by OMH on May 6, 2015—Dr. Winsmann testified, while it is a high score it is not necessarily indicative of pedophilia, the correlation between the test and actual diagnosis is very much circumspect—it is a short screening to consider a possible diagnosis—and thus he does not use the test. Dr. Winsmann further testified that the heart of a pedophilic diagnosis is sexual arousal to children and the test most confirmatory is a psychophysiological penile plethysmograph—which the Court notes he did not conduct.
The clear and convincing evidence before the Court establishes that the respondent now suffers from a mental abnormality under Article 10 of the Mental Hygiene Law. In coming to this decision, the Court considered the trial evidence, including the documentary evidence and the testimony of three expert witnesses—Dr. Cox, Dr. Thomassen, and Dr. Winsmann. Each expert is a psychologist, extensively trained, educated, and experienced in the evaluation and treatment of sex offenders. Dr. Cox and Dr. Thomassen testified for the State—Dr. Cox has exclusively testified for the State in other Article 10 proceedings and acknowledged finding a mental abnormality in 60% of the cases; Dr. Thomassen has testified for both the State and respondents, and in nearly 80% of the cases for the State. Dr. Winsmann testified for respondent—and has testified for respondents exclusively, with nearly two thirds of his evaluations finding no mental abnormality. That Dr. Cox and Dr. Thomassen share the same opinions and Dr. Winsmann does not, is hardly surprising—it's nothing more than the “how and why” a party may select their expert. What was determinative, however, was the Court's assessment of witness credibility, evaluation of the testimony, and the weight given the opinions offered by each expert.
Overall, the Court finds the testimony and opinions of Dr. Cox and Dr. Thomassen the more credible and persuasive, including each setting out the requisite facts and basis for their respective opinion that respondent suffers from a mental abnormality. Both experts appropriately considered the totality of respondent's history, including the 1998 convictions, his prior placement with DFY and reasons, the sexual assault of Joseph. N., and the respondent's disciplinary record while in DOCCS custody. The Court credits and gives great weight to the conclusions of Dr. Cox and Dr. Thomassen that respondent suffers from a mental abnormality. Although perhaps limited by a lack of a personal interview and testing of respondent, in the Court's view Dr. Thomassen provided the more balanced opinion that respondent—while having made great progress in sex offender treatment—has current serious difficulties in sexual impulse control, has serious difficulty controlling his conduct, and is predisposed to sexually offending.
Turning to Dr. Winsmann, the Court declines to give weight to his opinion that respondent suffers exclusively from borderline personality disorder and that there is insufficient evidence to indicate that the respondent meets the criteria for mental abnormality. Although the Court recognizes Dr. Winsmann as an expert, it finds some of his testimony troubling and simply not credible. For example, his lack of concern on whether the respondent sexually offending against the 5 and 6 old nieces and 12 year old boy met the criteria for a pedophilic disorder—in sum dismissing the incidents as “historical” and thus not meeting the DSM–V criteria for a current diagnosis. When viewed in the context of Dr. Winsmann's similar use of long ago sexual offending against the respondent to support his diagnosis of borderline personality disorder, this testimony displays a remarkable lack of even handedness in his assessment. Here, Dr. Winsmann is badly mistaken, and his testimony is nothing more than a magician's slight of hand to obscure an otherwise reasonable understanding of the respondent's offending conduct. That the respondent sexually offended 3 children under the age of 13, and at the time was at least 5 years older than the victims, is fact, and the crimes are relevant to a DSM–V diagnosis of pedophilic disorder. Similarly, the Court does not credit Dr. Winsmann's assessment that respondent's statement in 2014 “that he was sexually aroused to both male and female prepubescent children” reflected respondent “struggling with his sexual identity ....and that's why it pushes a good diagnostician away from solely a pedophilic diagnosis.” As well, Dr. Winsmann's conclusions concerning respondent's disciplinary history in DOCCS custody are contrary to how the Court views the respondent's reported behavior, the tickets issued, and the reasonable conclusions to be drawn.
The current state of law, albeit not yet absolutely determined at the time of trial, permits under requisite circumstances a diagnosis of borderline personality disorder to find a mental abnormality (Matter of State v. Dennis K. ). Even crediting Dr. Winsmann's opinion that respondent suffers from a borderline personality disorder —which the Court does not—the entirety of the respondent's offending history, particularly beginning in 1997 and continuing through his DOCCS custody, speaks volumes that respondent is a sexual offender and whose illness, abnormality or disorder pre-disposes him to sexually offend when the opportunity presents, and that he continues to have a serious difficulty in controlling the sexual offending conduct.
Given the twenty years since respondent's underlying criminal conviction, in the context of whether he continues to have serious difficulty controlling his offending sexual conduct, his DOCCS disciplinary history is relevant and compelling. As noted by Dr. Thomassen, in every environment—whether in the community, in DFY custody, or DOCCS custody, the respondent has sexually offended. Throughout, he offended sexually—against a fellow resident of a foster home, his next room neighbor in DFY (to be clear, the Court credits and believes the testimony of Joseph N., that respondent forcibly sexually assaulted him), the rape and sodomy of three children within months of his release by DFY, and also the events described in the DOCCS sex offense tickets. Throughout, the only variable was the degree of respondent's offending, which hardly supports a conclusion that he presents a minimal risk to re-offend.
The psychological portrait presented of respondent by Dr. Cox and Dr. Thomassen amply supports their diagnosis of pedophilic disorder and antisocial personalty disorder, and proves his continuing serious difficulty controlling sexual urges, including his likelihood to re-offend after the imposition of criminal sanctions. That respondent completed sex offender treatment programming is not un-noticed by the Court, but it is certainly tempered by his minimal degree of participation in the programs and also his offending sexual behavior while in the program. A pedophilic disorder, as noted by the State's experts, is a chronic disorder, without a cure, and requiring management. The respondent's many admissions—whether in sex offender treatment programming, parole hearings, Article 10 evaluations—concerning his sexual urges and plans to control the same, clearly show he is sexually aroused to children, and also shows the inadequacy of his ability to manage the urges. However viewed, the respondent's plan to simply not have children (because it would be too easy to offend) rings hollow, particularly as he sexually offended against both family and non family children. The only reasonable conclusion drawn on this record is that respondent suffers from a mental abnormality as defined in MHL 10.03 [i].
Accordingly, it is hereby
Determined and Adjudged, that the respondent, Jamie S., now suffers from a congenital or acquired conditions, disease or disorder that now affects his emotional, cognitive or volitional capacity in a manner that predisposes him to the commission of conduct constituting a sex offense, and that the congenital or acquired condition, disease or disorder results in respondent, Jamie S., having a serious difficulty in controlling such conduct; and is further
Ordered, that this matter is adjourned for a dispositional hearing to determine whether the respondent is a dangerous sex offender requiring confinement or a sex offender subject to strict and intensive supervision and treatment (MHL 10.07[f] ).
This constitutes the Decision, Order and Judgment of the Court. The original is returned to the attorneys for the petitioner. All other papers are retained by the Court and until the conclusion of the dipositional hearing. The signing of this Decision, Order and Judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.
Papers Considered:
Transcript of non-jury trial held on March 14 through March 17, 2016 (volumes 1 through 4);
Petitioner's Exhibits “1”, “1B”, “2”, “3” through “15”. Exhibits “18” through “31”, admitted in evidence were substituted by a stipulation of the parties;
Respondent's Exhibits “A” through “E”.