Opinion
10228/14
02-06-2017
In the Matter of the Application of the State of New York, Petitioner, v. Kaysheem P., Respondent, For Civil Management Pursuant to Article 10 of the Mental Hygiene Law.
For the petitioner: Jeffrey Jackson, Esq. Office of the Attorney General 120 Broadway New York, New York 12224 For the respondent: Bruce Harris Alison Kuhlman Mental Hygiene Legal Services Appellate Division One Metrotech Center North, 3rd Floor Brooklyn, New York 11201
For the petitioner: Jeffrey Jackson, Esq. Office of the Attorney General 120 Broadway New York, New York 12224 For the respondent: Bruce Harris Alison Kuhlman Mental Hygiene Legal Services Appellate Division One Metrotech Center North, 3rd Floor Brooklyn, New York 11201 Dineen A. Riviezzo, J.
Respondent Kaysheem P. is the subject of a petition for sex offender civil management pursuant to article 10 of the Mental Hygiene Law ("MHL"). A bench trial was commenced before this Court in October and November of 2016. Upon consideration of the entirety of the trial testimony, including the parties' summations, for the reasons set forth below the Court finds that the State has met its burden of proving, by clear and convincing evidence, that respondent currently suffers from a mental abnormality as defined by article 10 of the MHL.
Procedural Background
As stated in the article 10 petition for civil confinement filed on July 14, 2014, respondent's qualifying offense is a conviction for criminal sexual act in the first degree for an incident that occurred on November 19, 2009, when respondent anally sodomized a 15-year-old girl. Respondent was sentenced to five years incarceration with five years post release supervision on January 19, 2010. Prior to his release from incarceration, the Department of Corrections and Community Supervision ("DOCCS") gave notice to the Office of Mental Health ("OMH") and the Office of the Attorney General that respondent may be a detained sex offender and was nearing anticipated release. DOCCS notified the respondent that he had been identified as a possible detained sex offender and he was referred to a case review team to evaluate whether he required civil management upon his release from prison.
A psychiatric examination of the respondent was conducted by Dr. Frances Charder, a licensed psychologist employed by OMH. Dr. Charder interviewed respondent, reviewed numerous records from DOCCS, OHM and various law enforcement agencies. Using the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition ("DSM-V"), Dr. Charder diagnosed respondent with the following disorders or conditions: antisocial personality disorder ("ASPD") with psychopathy, paraphilic disorder, sexual sadism disorder (in a controlled environment), and cannabis use and stimulant use disorder (in a controlled environment). The case review team concluded that respondent has a mental abnormality as defined by MHL §10.30(i) and recommended civil management.
The State filed the instant article 10 petition which was supported by the evaluation report of Dr. Charder. A probable cause hearing was conducted on October 8, 2014, at which time the Honorable Wayne Ozzi found that the State had shown that there was probable cause to believe that the respondent is currently a detained sex offender in need of supervision.
Over four days in October and November 2016, a bench trial was conducted before this Court. At trial, the State offered the testimony of the same expert, Dr. Frances Charder, whose opinion formed the basis of the State's petition. The State also offered the expert testimony of Dr. Stuart Kirschner, a licensed forensic clinical psychologist who recently retired as a tenured professor at John Jay College in the Psychology Department. Dr. Kirschner now consults on article 10 civil confinement cases and has performed approximately one hundred-thirty article 10 evaluations (Kirschner tr at 113-144). At trial, Dr. Kirschner testified that he reviewed substantial records of the respondent, including but not limited to records from police departments, probation agencies, correctional facilities and psychiatric facilities (Kirschner tr at 115-116). Dr. Kirschner also reviewed treatment reports from OMH employees and case review teams (Kirschner tr at 115-116). Dr. Kirschner requested to interview respondent, however, respondent refused (Kirschner tr at 116). By report dated January 21, 2015, Dr. Kirschner concluded that respondent met the criteria set out in the DSM-V for ASPD with psychopathy, sexual sadism disorder (in a controlled environment), narcissistic personality disorder, alcohol use disorder, severe, (in a controlled environment), cannabis use disorder (in a controlled environment), and stimulant use disorder amphetamine-type (in a controlled environment) (Kirschner tr at 119, 124, 128-129, 131-147). Dr. Kirschner concluded that respondent has a mental abnormality under article 10.
Respondent offered the expert testimony of Dr. Longin Thomas Kucharski, a licensed psychologist with a private practice and a full professor and former Chief of the Psychology Department at John Jay College of Criminal Justice (Kucharski tr at 178). Dr. Kucharski spent twelve years in service with the Department of Justice as Chief of Psychology Services in various detention facilities in the United States and had a similar position for the Commonwealth of Massachusetts (Kucharski tr at 179-180). Dr. Kucharski began consulting on article 10 matters approximately two years ago and has been involved with approximately ten such evaluations, half of which he found that the respondent has a mental abnormality (Kucharski tr at 184-185).
Dr. Kucharski similarly reviewed records from police departments, probation agencies, correctional facilities and psychiatric facilities relating to respondent (Kucharski tr at 187). Dr. Kucharski conducted a three and one-half hour interview of respondent on January 8 and January 13, 2015 (Kucharski tr at 187-188). By report dated January 20, 2015, Dr. Kucharski concluded that respondent did not have a mental abnormality (Kucharski tr at 188, 192). However, he agreed with the State's experts that respondent has ASPD and some type of substance abuse disorder with respondent's drug of choice being ecstasy (Kucharski tr at 193). As will be discussed in further detail below, Dr. Kucharski disagreed that respondent has sexual sadism disorder because, while respondent's qualifying offense contains elements of sexual sadism, Dr. Kucharski opined that the record is devoid of any evidence that respondent's sadistic urges existed or any sadistic acts were recurrent or repeated and committed over a six month period of time — which are elements of the diagnostic criteria for this disorder in the DSM-V (Kucharski tr at 206, 2109-210).
Respondent maintains, therefore, that because there is insufficient evidence for a diagnosis of sexual sadism disorder the State has not met its burden, by clear and convincing evidence, that he has a mental abnormality as the remaining diagnoses do not predispose him to conduct that constitutes a sex offense or that result in him having serious difficulty in controlling such behavior. The State maintains that there is sufficient evidence to support a diagnosis of sexual sadism disorder and even if there is not, recent Court of Appeals' case law has held that a "sexual diagnosis" is not required to support a finding of mental abnormality as long as the constellation of diagnoses, conditions or disorders prove all of the elements in the definition of mental abnormality under MHL article 10 (see Matter of the State of New York v Dennis K. & Anthony N. & Richard TT., 27 NY3d 718, 727 [2016]).
While this Court agrees with many of Dr. Kucharski's observations and notes his extensive background and experience, ultimately, this Court was convinced by clear and convincing evidence that respondent currently suffers from a mental abnormality. The portions of each of the experts' testimony that are relevant to the Court's conclusions will be summarized within the discussion section below. Discussion
I. Relevant Evidence at Trial
A. Respondent's qualifying sex offense
In November 2009, respondent, who was 20-years-old at the time, was in a relationship with a 15-year-old girl (Charder tr at 14, 16; Petition at ¶ 14). On November 19, 2009, they were together in a room that respondent rented, drinking alcohol and smoking marijuana, when respondent accused her of having an affair with another man (Charder tr at 14; Petition at ¶ 14; Kucharski tr at 203). Despite her continued denials, respondent told Dr. Charder that he called the male with whom she was alleged to be having relations (Kirschner tr at 153). When the male confirmed the affair, respondent told Dr. Charder that he became irate and began to choke her (Charder tr at 14; Kirschner tr at 153). Respondent put a knife to her throat, threatened her repeatedly with it, ordered her to take her clothes off and forced her to give him oral sex (Charder tr at 15). He assaulted her, beat her about the face, put a dog chain on her neck, and pulled her around the room while ordering her to clean up and repeatedly urinating on her (Charder tr at 15; Kirschner tr at 118; Kucharski tr at 268). Respondent raped her, anally sodomized her and inserted objects into her anus such as a deodorant bottle and a brush handle causing bleeding and injury (Charder tr at 15; Kirschner tr at 118; Kucharski tr at 268). Respondent told her to put a tampon in her anus to stop the bleeding (Charder tr at 15; Kirschner tr at 118; Kucharski tr at 269). Respondent also swung two combinations locks at her that he had tied together (Charder tr at 16, Kirschner tr at 118). Respondent also ejaculated on her (Kucharski tr at 269). He finally let her go when neighbors came to the door in response to the screaming (Charder tr at 15-16). The victim notified her parents and respondent was arrested (Charder tr at 16). Respondent told Dr. Kucharski that he committed this offense because he was angry at the victim for cheating on him (Kucharski tr at 204).
B. Respondent's prior non-sex offenses
In July of 2007, respondent was in a sexual relationship and living with a 41-year-old woman (Charder tr at 11-12). According to the State, during the course of an argument in which there were allegations of infidelity, respondent cut the victim with an object (Charder tr at 12). Dr. Kucharski testified that respondent flirted with a woman in the presence of his girlfriend at which time the girlfriend attacked the respondent. Respondent "ultimately threw her down or dragged her down the stairway of their apartment. In some part of this process there was an injury, a cut that she required treatment for" (Kucharski tr at 200). Respondent pleaded guilty to felony assault and was sentenced to five years probation on March 14, 2008 and was afforded youthful offender treatment (Petition at ¶ 15).
Several months later, respondent again got into an argument with his 41-year-old girlfriend when he wanted to have sex with her and she refused. He became angry, threw a chair at her and when her 11-year-old son came to her aid, respondent pushed him down and kicked him in the head. Respondent also took out a knife and made motions indicating that he was sharpening it to get ready to use it. After 911 was called, respondent was arrested. He pleaded guilty to disorderly conduct and received a 15-day jail sentence (Charder tr at 12-13). At the time of this offense, there was a "restraining order" and respondent "was not supposed to see this woman anymore but apparently they continued their relationship" (Kucharski tr at 200).
C. The nature of respondent's sexual relationships
There was significant testimony by all three experts concerning the nature of respondent's sexual relationships. To some degree, how this evidence is interpreted is determinative of whether or not respondent has a mental abnormality.
There appears to be no dispute that respondent began a sexual relationship with the victim of his qualifying offense sometime in 2007 when she was 13-years-old and he was 18-years-old and that the relationship lasted for two years until the qualifying offense (Charder tr at 16-17; Kurchaski tr at 199, 265). Respondent reported that he met her at a party where he fondled her breasts, buttocks and vaginal area (Charder tr at 16). The respondent knew the victim's parents because he had sold drugs to them (Charder tr at 18). About eight months prior to the instant offense the victim moved, with her parents' consent, into a "little room" respondent had rented (Charder tr at 19). The respondent told Dr. Kucharski that the victim invited him to her house and that he went, reluctantly, because he felt that going would signal that the relationship was "stronger or more important than he had felt" (Kucharski tr at 203). Once there, respondent found the house filthy with no food. Respondent stated that the victim's mother was a heavy drinker (Kucharski tr at 203). Dr. Kucharski testified that respondent explained to him that, in essence, respondent gave money to her parents — $3,000.00 — to allow the teenager to move in with him due to the "filthy" deplorable conditions in her parents' house (Kucharski tr at 203; Charder tr at 77).
This relationship with the then 13-year-old victim was occurring, however, at least for some time period simultaneously with respondent's relationship with his 41-year-old girlfriend, the victim of respondent's other two non-sexual offenses (Charder tr at 17). Respondent met her when he was 17 and they were together for a number of years (Kucharski tr at 198). Respondent was actually living with the 41-year-old girlfriend when he rented the room where the then 15-year-old victim would come to live (Charder tr at 17). Respondent explained that the 41-year-old girlfriend had introduced him to sadomasochistic sex and that he liked it (Charder tr at 24-25; Kucharski tr at 198). Moreover, his purpose in renting the room was to develop "a collection of sexually stimulating toys" in order to bring girls there (Charder tr at 17). Respondent "bought his own kit or toys or handcuffs, chains, whips" (Charder tr at 25). Over a two-year period of time, respondent admitted that he brought younger girls there because he "really preferred younger girls like his victim" (Charder tr at 25, 28). Dr. Kucharski testified that an interest in this type of sadomasochistic behavior is "chronic" (Kucharski tr at 272).
Respondent, in turn, introduced the young teenage victim to "sadistic sex, early on in their relationship" (Charder tr at 19). Respondent told Dr. Charder that "they had engaged in sex on a regular basis. And she was most of the time consenting to whatever the sadistic elements of the act would be" (Charder tr at 19). Respondent claimed that he had engaged "in the same sorts of actions that he committed during that day of the instant offense with her. On other occasions using bottles, using handcuffs, using different elements which put him in a dominant role, which is what he liked. And that was the essence of their relationship" (Charder tr at 19-20).
Dr. Charder summarized respondent's explanation to her of the non-consenting nature of his relationship with the 15-year-old victim as follows:
Their sexual relationship was primarily of a sadistic nature with [respondent] in a dominant position. And he felt that she was his possession and that he had, prior to the instant offense on at least one occasion, forced her into some form of sex that she did not agree to. It may have been oral sex. I'm not quite recalling. But that normally - - oh, well not normally, but almost always she would agree. So there were times that the
sadistic elements were not agreed to. That went on for over a period of months. And then on the day of the instant offense he had, they had been having sexual relations and he became enraged and the things that they normally did got out of hand. And he, despite her crying and begging, would not stop. And he did have more than one, I believe two or three ejaculations during that period of sadistic abuse that he was imposing upon her. (Charder tr at 20).After Dr. Charder clarified that her last few statements concerned the instant offense, she continued as follows:
The other sadistic sadomasochistic, I suppose, relationship he said was mostly accepted by her. I don't know. I can only infer that that means it wasn't always accepted by her, but they did engage in those kinds of sexual acts for many months. And that this was an incident that got out of hand. (Charder tr at 20-21).
On cross examination, Dr. Charder more clearly stated as follows:
Q: You testified in your direct testimony that his girlfriend at the time of the instant offense had previously objected to certain forms of sexually — sexual sadism behavior. What is the source of the information that she had objected to certain forms of behavior in the past?
A: She objected to deviant sexual behavior on one occasion and [respondent] informed me of that.
Q: And what was that dev - - so was this sexual sadistic behavior?
A: In forcing her to perform it. I don't — I wasn't there. I don't know exactly what occurred. But he did state that it was about (sic) her consent, whatever it was that did occur.
Q: So that's the extent of things that you were citing to as examples of her previously having indicated that she was not voluntarily participating in sexually deviant behavior?
A: The fact that he said almost all the time she agreed. (Charder tr at 69).
Further, Dr. Charder testified that respondent described what he would do with the many other young girls in the age range of the victim that he took to his rented room:
he would take them to this room and he would introduce them to these activities. Some would say yes, some would say no. Some he would persuade to do certain things. Some he would just give up on and let them go about their own way. He said there were always other girls. And the activities that he engaged in involved things like bondage and use of handcuffs, and some of those milder things the girls would agree to. He admitted that there were more, there were lots of girls. (Charder tr at 28-29).
On cross examination Dr. Charder was asked more specifically about whether or not respondent ever forced these other young girls into sadistic sex:
Q: He also told you that in instances with other individuals where he saw (sic) to engage in behavior that included aspects of sexual sadism, he told you that he never forced anyone to engage in that behavior. That if he brought it up and they declined, then they would engage in more traditional social behavior, correct?
A: He couldn't make that definitive statement. He said there was so much drug use that had been going on, things could have happened, but that under usual circumstances they would have straight sex or he would have them leave. But he couldn't recall whether he had forced anyone into sadistic sexual behavior when they did not want to engage because he was so high and using so many drugs at the time. (Charder tr at 88).
Dr. Charder contrasted these statements made to her by respondent, concerning his desire to engage in sadomasochistic sex, with his earlier statements to an OHM psychiatric evaluator in March of 2010 upon his admission to Downstate Correctional Facility after his conviction on the instant offense. In 2010, respondent denied any interest in "freaky deaky sex" and instead professed that he "did not enjoy any sadistic or masochistic behaviors or anything other than normal missionary intercourse" (Charder tr at 22).
Dr. Charder acknowledged on cross-examination that respondent reported that he no longer thinks about sexual sadism. Respondent told Dr. Charder that "he knows it's not good for him. That was his preference in the past. And but (sic) it was because it became a part of his instant offense that he knows that he cannot engage" (Charder tr at 73). Respondent also stated that he knew he needed to "stay away from junior high school" girls because that "was a risk factor for him" (Charder tr at 74-75).
D. Antisocial personality disorder and psychopathy, stimulant use disorder
All three experts agreed that respondent suffers from ASPD and expressed that he fit the same basic criteria: disregard for the rights of others, deception, lying, manipulation, breaking the law repeatedly, violation of other's rights, anger, irritability, impulsivity, and dangerous and reckless lifestyle (Charder tr at 31-31; Kirschner tr at 124-127; Kucharski tr at 192-193). Dr. Kirchner testified that respondent has "expressed in no uncertain terms disdain for other people. He really doesn't care about other people's feelings and he's kind of prided himself on the fact that he doesn't. He stated that he's fearless. Because fear would be a sign of weakness" (Kirschner tr at 127).
As to the evidence of conduct disorder at an early age, respondent "became a master shoplifter by the time he was eight" and would rob people, including his parents, and steal bicycles (Charder tr at 31; Kirschner tr at 125). He had violent episodes at school, such as stabbing a boy in the arm with a pencil so severely that the boy required medical treatment and making a shiv out of a metal fan and stabbing a female student requiring hospitalization (Charder tr at 31-32). As Dr. Kucharski stated, "[respondent] has a very long history of criminal and violent behavior beginning, I believe, probably at age seven" (Kucharski tr at 192). Respondent claimed that his adoptive mother, a corrections officer, sent him away for a month after that incident and he escaped prosecution (Charder tr at 32). He would light cockroaches on fire and watch them explode (Kirschner tr at 125). He boasted that he possessed guns by the time he was 14 years old and was abusing various controlled substances prior to the age of 15 (Kirschner tr at 125).
Respondent was sexually assaulted by his uncle from age 7 to age 12 (Charder tr at 32; Kucharski tr at 195). The abuse stopped when he told his mother resulting in his uncle moving out (Charder tr at 32). A few years later, at age 15, he confronted his uncle at a family picnic. When his uncle initially denied the allegations, respondent took a knife and stabbed him, resulting in his uncle's confession (Charder tr at 32).
At the age of 11, respondent started to work with a drug dealer and eventually moved out of his home at 15 to establish his "own turf" and run his own drug dealing business (Charder tr at 33). As Dr. Charder described:
By his descriptions to me, he had a lot of money and he was able to do what he wanted to do. Selling drugs, stealing from drug dealers. Stealing, robbing from people. And did not get caught for any of those things. (Charder tr at 34).
Dr. Charder and Dr. Kirschner further expressed that respondent meets the definition of the condition of psychopathy. Dr. Charder scored respondent a 37 out of 40 on the Psychopathy Checklist Revised or PCL-R demonstrating that respondent is "clinically psychopathic" (Charder tr at 40). Psychopathy "involves a truly callous nature, lack of especially empathy. Pathological lying" (Charder tr at 37). Other traits include: manipulation, glibness and a sense of grandiosity, a lack of empathy towards other human beings and self-centeredness (Charder tr at 38). Dr. Kirschner testified that there is research that indicates that "people who work for prosecution generally score individuals high, and people who work for defense, low ball individuals on the PCL-R (Kirschner tr at 133). Dr. Kirschner concluded that the mean of Dr. Charder's score of 37 and Dr. Kucharski's score of 26 — which is 31.5 — would still place respondent in the psychopathic range (Kirschner tr at 133). Dr. Kirschner sees in respondent numerous psychopathic traits such as "fearlessness, callousness, deriving great pleasure out of causing people harm" (Kirschner tr at 133).
Dr. Kucharski scored respondent a 26 on the PCLR, which is below the 30 cut-off for a finding of psychopathy. However, he acknowledged that a diagnosis of psychopathy is "fairly strongly correlated with general recidivism" but stated that in relation to the commission of sexual offenses, psychopathy results in "a relatively low predisposition" (Kucharski tr at 248, 251).
All three experts also diagnosed respondent with some form of either stimulant use, and/or cannabis use or alcohol use disorder in a controlled environment as respondent was said to have abused alcohol, cocaine, amphetamines, ecstacy and marijuana at various points during his life (Charder tr 102-103; Kirschner tr at 127-129; Kucharski tr at 194). As Dr. Kirschner testified, stimulants "heighten sexual appetite" while other substances serve as "disinhibitors" (Kirschner tr at 140).
Only Dr. Kirschner diagnosed respondent with narcissistic personality disorder (Kirschner tr at 129-132). Dr. Kirschner described that a person with this disorder has a "grandiose sense of self-worth" and "exploits others for his own needs" as well as a "lack of empathy" and "a lack of regard for other people's feelings" (Kirschner tr at 129). To qualify for the diagnosis, a person must exhibit five out of nine criteria such as "grandiose sense of self-worth, sense of entitlement, interpersonally exploitive, lacks empathy, arrogant and haute behaviors" (Kirschner tr at 129-130).
As an example of some of these criteria, Dr. Kirschner pointed to an answer respondent gave to the question, if he was ever denied sex from a person in the way that he liked it, what would he do? Respondent answered, "if she says no, call up the next shit" (Kirschner tr at 131).
Dr. Kucharski criticized the diagnosis of narcissistic personality disorder on two grounds. First, he testified that it is extremely difficult to diagnose such a condition without a face-to-face evaluation to observe a patient's demeanor — such as an inflated self-esteem or a "sort of glee in presenting one's self in an exaggerated fashion" (Kucharski tr at 253). Second, the treatment and prison records do not contain any evidence of the many qualities of a narcissist that cannot be hidden such as superiority, an inability to take criticism, and an inflated feeling of righteousness (Kucharski tr at 254). However, Dr. Kucharski conceded that there were some elements of the diagnosis present in respondent such as "exploitiveness," a "lack of empathy," "a long history of taking advantage of people and exploiting people for his own needs," and "some grandiosity" (Kucharski tr at 262-264).
E. Respondent's conduct while confined
In 2010, respondent was caught masturbating over his clothing in the day room in front of the television with others around. He stopped when approached by a male staff member and asked to cease the behavior (Charder tr at 42, 45, 95-95; Kucharski tr at 241). On November 21, 2010, respondent was found to have pornography under his mattress while in the sex offender treatment program which was a violation of the rules and resulted in his termination from the program (Charder tr at 45; Kucharski tr at 242). Dr. Kirschner testified that these incidents demonstrated "poor impulse control. Having a sexual urge and then acting on that" (Kirschner tr at 145).
F. Respondent's failure to complete sex offender treatment
Records reflect that respondent was enrolled in anywhere from six to nine courses of sex offender treatment from 2011 to October of 2015 while he was confined and he failed to complete them all (Charder tr at 47, 65, 101; Kirschner tr at 143). Reasons for his termination varied from possession of the pornography, aggressive fighting, disinterest, minimizing his conduct and poor participation (Charder tr at 47-48; Kirschner tr at 143). Dr. Kirschner acknowledged that at times the treatment notes indicate that respondent received some positive evaluations for "kind of taking responsibility" or "offering valid comments." However, respondent never completed the treatment as "there was something that always caused him to be terminated" (Kirschner tr at 144). As Dr. Kirschner explained, the successful completion of sex offender treatment is a risk reducer, and respondent's failure to complete the programs gives Dr. Kirschner "no reason to believe that he's any different now . . . there's little change that I could see in him" (Kirschner tr at 146).
Dr. Kucharski opined that respondent's own sexual abuse at the hands of his uncle contributed to respondent's difficulties in completing sex offender treatment in that listening to other men discuss abusing young children would be "a kind of re-traumatization" (Kucharski tr at 197; 244-245). However, ultimately, Dr. Kucharski does not see the "relationship between that [respondent's struggles to complete sex offender treatment] and sexual violence" in that Dr. Kucharski believes that respondent is "engaging in the program, he's trying to do the best he can" (Kucharski tr at 245). Dr. Kucharski added that respondent did successfully complete anger management in prison while coping with the deaths of his mother and sister (Kucharski tr at 246-247). Dr. Kuscharski noted that respondent was terminated most recently from sex offender treatment in May 2015 for aggressive and assaultive behavior while at the same time earning high ratings on certain reports (Kucharski tr at 276-277). II. Legal Analysis and Verdict
A. Mental Abnormality
Respondent argues that the State has not met its burden, by clear and convincing evidence, that respondent currently suffers from a mental abnormality as defined by article 10 of Mental Hygiene Law. A mental abnormality is defined 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" (Mental Hygiene Law § 10.03 (i)). (i) A Condition, Disease or Disorder that Predisposes One to the Commission of Conduct Constituting a Sex Offense
(a) Court of Appeals' decisions
The Court of Appeals in Matter of State of New York v Donald DD. & Kenneth T., 24 NY3d 174, 996 N.Y.S.2d 610, 21 N.E.3d 239 (2014) ("Donald DD. & Kenneth T.") ruled that evidence that a respondent suffers from ASPD cannot be used to support a finding that he has a "mental abnormality," as defined by the Mental Hygiene Law, when that diagnosis is not accompanied by "any other diagnosis of mental abnormality" (Donald DD., 24 NY3d 174, 996 N.Y.S.2d 610, 2014 NY LEXIS 3161 [2014]). Specifically, the Court held that a diagnosis of ASPD cannot be the sole diagnosis that grounds a finding of a mental abnormality because ASPD alone is not "a condition disease or disorder that affects that 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 . . ." (Id. at 190-191) (emphasis in the original). The Court, thus, concluded that the "Supreme Court erred in using an ASPD diagnosis, together with testimony concerning Donald DD.'s sex crimes, but without evidence of some independent mental abnormality diagnosis, to ground a finding of mental abnormality within the meaning of Mental Hygiene Law article 10" (Id. at 191).
In a series of three companion cases that followed Donald DD, the Court of Appeals sought to clarify what constitutes legal sufficiency of a mental abnormality for purposes of article 10 where the three respondents were diagnosed with "conditions, diseases and/or disorders in addition to ASPD" (Matter of the State of New York v. Dennis K. & Anthony N. & Richard TT., 27 NY3d 718, 727 (2016)). In each case, the Court found that the additional diagnoses were legally sufficient for a finding of a mental abnormality (Id. at 730, 738, 746)(Dennis K. — paraphilia NOS (non-consent) and ASPD; Anthony N. — ASPD, borderline personality disorder, alcohol abuse and polysubstance disorder; Richard TT. — ASPD, borderline personality disorder, psychopathy).
Further, the Court reiterated its holding in a previous case, Matter of State of New York v. Shannon S., 20 NY3d 99 (2012), that a finding of a mental abnormality need not be based on a diagnosis of a mental disease or disorder that is listed in the DSM, "recognizing that section 10.03(i) 'does not reference or require that a diagnosis be limited to mental disorders enumerated within the DSM'" (Id. at 727 citing Shannon S. 20 NY3d at 105-106).
Various holdings in these three cases are relevant to these proceeding. First, in Anthony N., respondent was diagnosed with ASPD and borderline personality disorder. The Court, when discussing the sufficiency of the evidence, specifically held that "Section 10.03(i)'s language of 'congenital or acquired condition, disease or disorder' is not limited to solely sexual disorders" (Id. at *37). The Court also specifically rejected respondent's contention that the Donald DD. rationale — that ASPD, along with evidence of sexual crimes, cannot by itself be used to support a finding of mental abnormality — should likewise apply to a diagnosis of borderline personality disorder (Id. at *37-38). The Court rejected this rationale because the State had "presented legally sufficient evidence to link respondent's diagnosis of borderline personality disorder to a predisposition to commit sex offenses" and did not prove only a "general tendency to commit crimes" which was the basis of the Court's rejection of ASPD in Donald DD. (Id. at *38-40).
In Richard TT., the State's expert acknowledged that respondent's diagnoses, ASPD with psychopathy and borderline personality disorder, "do not by themselves, indicate that a person is predisposed to committing sexual offenses" (Id. at 746). However, the expert testified that the "ASPD, borderline personality disorder and psychopathy conditions, in combination, established that respondent has a 'congenital or acquired disease, condition or disorder'" that "affect respondent's cognitive or volitional capacity and 'predispose' him to commit sex offenses" (Id. at 747) (emphasis in the original). In upholding the sufficiency of the evidence, the Court "decline[d] respondent's invitation to consider the ASPD and borderline personality disorder diagnoses in isolation" finding instead that the State expert "did not simply rely on one diagnosis in establishing sexual abnormality. She considered a number of particular disorders and testified how those disorders, in combination, predisposed respondent to the commission of conduct constituting sex offense, resulting in his having 'serious difficulty in controlling such conduct'" (Id. at 751-752). The Court accepted, as legally sufficient, the expert's testimony that the combination of these three disorders created a "'personality structure' that disregards the wants and needs of other people" and "affect respondent's impulse control, emotions, cognitions and interpersonal relationships and they manifest themselves in his commission of sex offenses" (Id. at 750)
Applying the rationale of Anthony N. and Richard TT. to the present facts, it is clear that the State has linked respondent's constellation of diagnoses and conditions to his predisposition to commit sex offenses and not only to a general tendency to commit crimes.
(b) Diagnosis of sexual sadism disorder
Both of the State's experts testified that respondent meets the definition of sexual sadism disorder, one of the eight enumerated paraphilic disorders listed in the DSM-V, although they gave different rationales. The respondent has not argued that sexual sadism disorder does not predispose one to the commission of conduct constituting a sex offense. In fact, the DSM-V indicates that "sexual sadism per se is probably a lifelong characteristic" (DSM-V at 697). The disagreement is whether or not respondent meets the diagnosis, and if not, can he still be found to have a mental abnormality.
The DSM-V defines a paraphilia as "any intense and persistent sexual interest other than sexual interest in genital stimulation or preparatory fondling with phenotypically normal, physically mature, consenting human partners" (DSM-V at 685). A paraphilia becomes a disorder if the paraphilic interest "is currently causing distress or impairment to the individual or a paraphilia whose satisfaction has entailed personal harm, or risk of harm, to others" (DSM-V at 685-686). The DSM-V explains that criteria A "specifies the qualitative nature of the paraphilia" while criteria B "specifies the negative consequences of the paraphilia" (DSM-V at 686). A finding of only criteria A means the individual has only a paraphilic interest, however if both criteria A and B are met, then a diagnosis of the disorder can be made.
The DSM-V criteria of sexual sadism disorder states as follows:
A. Over a period of a least 6 months, recurrent and intense sexual arousal from the physical or psychological suffering of another person, as manifested by fantasies, urges or behaviors.
B. The individual has acted on these sexual urges with a nonconsenting person, or the sexual urges or fantasies cause clinically significant distress or impairment in social, occupational or other important areas of functioning. (DSM-V p. 695). Respondent contends that the record is devoid of evidence in support of criteria necessary to make a diagnosis: first, that the urges or sadistic acts have a duration for at least six months; second, that the conduct is "recurrent," which respondent argues means multiple victims on separate occasions or multiple instances of the infliction of pain and suffering to the same victim; and third, that respondent has acted on these sexual urges with a nonconsenting person (Kucharski tr at 206-207, 290-291; Kirschner tr at 157-160).
Dr. Charder opined that respondent met the definition of sexual sadism disorder because she interprets "non-consenting persons" to include the victim of the instant offense, as well as the many other teenagers respondent claimed to have had sadomasochistic sex with and who, legally, are unable to consent to any sexual conduct by virtue of their age (See Charder tr at 25-30; 80-82; Penal Law §130.05(3)(a)). When asked on cross-examination whether the DSM-V has an "age component" to the definition of non-consent, other than pedophilia, Dr. Charder acknowledged that she was not sure but then continued as follows:
The DSM is a guideline. The evaluation I did, in which most individuals do, involves examination and analysis of what occurred, how long it occurred, how long it had been going on, who the victim is, how the behavior escalated and what, where it came from. And the DSM is an important tool for us to categorize psychiatric disorders. However, there are components of this man's behaviors which he described to me which indicate that sadism is exciting to him and that he enacted it with this underaged girl. And continued to. And that this is a part of his preference and will be. (Charder tr at 82-83). Ultimately, Dr. Charder opined that the 15-year-old victim was not legally capable of consenting and lacked "mentally, emotional or physical capacity. She was victimized" (Charder tr at 84).
Dr. Kirschner also concluded that respondent met the criteria of sexual sadism disorder based upon his qualifying offense, and the "pleasure" he derives "from inflicting pain and suffering on individuals, not only sexual" (Dr. Kirschner tr at 122). Dr. Kirschner noted that the six-month time frame is "merely a guideline. And that it's not to be - - it's not a hard and fast rule" (Kirschner tr at 120). Dr. Kirschner further explained the purpose of the guideline was to ensure that the attraction is "not just a transient, one-time occurrence" . . . that it is "something that's been enduring and it's not just an aberration" (Kirschner tr at 121).
Dr. Kirschner found "noteworthy" the comment respondent made to Dr. Charder in which when asked if he ever engaged in sadistic behavior with non-consenting partners, he answered, "not really, I don't recall" (Kirschner tr at 122). To Dr. Kirschner, that answer was not "an unequivocal no, I never did that." This answer, Dr. Kirschner concluded, "opens the door" for the diagnosis and is "sufficient evidence that he meets the criteria for sexual sadism disorder. Not only based on that statement, but based upon the whole psychological profile that he presents over the course of his life" (Kirschner tr at 123).
Dr. Kucharski disputes these conclusions and opined that "there is no evidence that there are multiple victims in this case. And there's no recurrence of non-consenting sadistic sexual assault" (Kucharski tr at 206). Dr. Kucharski does not interpret the term "non-consent" in the DSM-5's definition of sexual sadism to mean "non-consent" by reason of age. Rather, Dr. Kucharski testified that the focus of the diagnosis of sexual sadism is on the "physical and psychological suffering of another person" (Kucharski tr at 207). What is arousing to a sexual sadist is placing the victim "in extreme fear" and the "infliction of pain and suffering or humiliation, both physical and psychological" (Kucharski tr at 207). Irrespective of the victim's age, Dr. Kucharski opined that other than the one-time qualifying offense, there was no evidence that there was "a verbal non-consent" by the victim to the "sadomasochistic fantasies and rituals" (Kucharski tr at 202-203). In other words, Dr. Kucharski testified, "she cooperated" (Kucharski tr at 203).
In essence, Dr. Kucharski believes that both the teenage victim and the respondent's older girlfriend were willing participants with the respondent in "sadomasochistic behaviors" where "both partners are receiving sexual gratification and arousal over the role playing and the play acting" (Kucharski tr at 211). This sadomasochistic behavior is in contrast to the sexual sadist who would only be aroused if his partner was not receiving any pleasure from the sexual behavior (Kucharski tr at 211). Dr. Kucharski credits respondent's self-report that his relationship with the victim was a consensual sadomasochistic relationship because, "absent interviewing her" he has "no evidence to say that it's not" (Kucharski tr at 296). Dr. Kucharski concluded that
what we do know about her is that some point in time when this became too difficult for her, she went to the parents and ultimately to the hospital, to the police. So she had the capacity to end this situation whenever she wanted to. Certainly everybody in every relationship weighs the risks and benefits of staying in a relationship. You know, ultimately at some point in time she demonstrated the capacity to say this is no longer something I will no longer tolerate. I think it's analogous to domestic violence in a lot of ways. There's, you know, forces at work that keep people in relationships. There are bargains and trading off the good and the bad. And, you know, sometimes that leads to a person leaving the relationship or filing criminal charges or whatever else. So we have none of that that goes on in this relationship up until this, the qualifying offense. So that's
kind of, my thinking is, absent that evidence I am not going to surmise or presume that there was something that I can't validate. (Kucharski tr at 296-297)
The types of behavior that respondent claimed his teenage girlfriend voluntarily engage in ranged from bondage and handcuffs to the insertion of objects in her vaginal and rectal areas. (Kucharski tr at 211-212). Dr. Kucharski further opined that respondent's admission that he was, in fact, at times the
submissive partner - meaning, for example, he permitted objects to be placed in his anus - is inconsistent with a diagnosis of sexual sadism because the "sexual sadist would not want to put themselves in harm's way. They're typically holding somebody against their will for non-consensual, sexual violence and the infliction of pain" (Kucharski tr at 212).
As further evidence that respondent does not meet the criteria for a sexual sadism diagnosis, Dr. Kucharski testified about a series of psychological tests or assessments that were performed on the respondent, none of which demonstrated that respondent had sexual interests consistent with sadism. For example, in 2010 an OHM evaluator who was assessing respondent upon his admission to the custody of DOCCs had respondent take the Abel and Becker Sexual Interest Card Sort Questionnaire, a self-report questionnaire which examines both normal and abnormal sexual behaviors (Kucharski tr at 219-221). Respondent "did not endorse" interests consist with sexual sadism (Kucharski tr at 218-219). The same OMH evaluator also administered the Psychological Assessment Inventory ("PAI") which Dr. Kucharski explained is "a pretty good measure of, widely accepted measure of psychopathology, personality characteristics, disorders" (Kucharski tr at 224). This self-report test has 334 questions and has four measures of validity to guard against inconsistent answers or impression management (Kucharski tr at 221-223). Respondent's scores indicate that he suffers from antisocial personality disorder, has serious difficulties with both aggression and being responsive to treatment (Kucharski tr at 228-229). Notably, the PAI does not test for the presence of paraphilias, such as sexual sadism disorder (Kucharski tr at 229-230). Interestingly, with respect to problems with drugs and alcohol, respondent's test scores were "above the mean, not in the clinical range" which Dr. Kucharksi conceded might seem inconsistent with the argument that respondent was being honest on these tests "except lots of people deny having problems with drugs" (Kucharski tr 231). While some portions of the test undercut Dr. Kirschner's assessment that respondent suffers from narcissistic personality disorder, other parts of the test reinforced that respondent knows that he "is "very physically aggressive and he's been very violent in his life and he's endorsing. He is essentially saying, yeah, that's me" (Kucharski tr at 238).
Nonetheless, when asked on cross-examination "well do you have an opinion as to whether or not this 15-year-old victim was mature enough to consent to this type of role play" — meaning the sadomasochistic behavior described above, Dr. Kucharski conceded that "I have no information at all to make that opinion" (Kucharski tr 265). Although he believes generally that the typical 15-year- old is mature enough to consent to this type of sadomasochistic behavior as "around the world people get married at 15 years of age and have families," his opinion does not change with regards to the typical American teenager, and here he noted that the victim was mature enough to go to the police with the assault (Kucharski tr at 266-267).
In this Court's estimation, respondent meets the plain language interpretation of the definition of sexual sadism disorder. Respondent clearly meets criteria A in that he has admitted to having paraphilic urges involving sadomasochistic sex (i.e., bondage, whipping, insertion of objects in the anus) with other persons and in fact has engaged in that behavior with numerous teenage girls and his 41 year old girlfriend for over two years. With regards to just identifying a paraphilic interest, Criteria A says nothing about non-consenting persons. Criteria B is met if "the individual has acted on these sexual urges with a nonconsenting person" (DSM-V at 695). Respondent meets this criteria as demonstrated by the qualifying offense. The diagnostic features section of the DSM-V discusses multiple victims on multiple dates as an example of what might qualify as evidence of the "recurrent" nature of the disorder IF an individual denies any interest in the "physical or psychological suffering of another individual" (DSM-V at 696). However the DSM-V concludes that "multiple victims . . . are a sufficient but not a necessary condition for diagnosis, as the criteria may be met if the individual acknowledges intense sadistic sexual interest" which respondent here has done (DSM-V p 696).
Ultimately, even if this interpretation of the DSM-V is incorrect, the Court need not be convinced by clear and convincing evidence that respondent meets the full definition of sexual sadism for the Court to find that respondent has a mental abnormality. First, as discussed above, the Court of Appeals has reiterated that a DSM diagnosis is not necessary for a finding of mental abnormality. Second, there have been numerous article 10 cases in which a mental abnormality has been found based partially on the strength of a provisional or 'rule out' diagnosis. According to the DSM-V, "the specifier 'provisional' can be used when there is a strong presumption that the full criteria will ultimately be met for a disorder but not enough information is available to make a firm diagnosis" (DSM-V at 23). In fact, the DSM-V gives as an example of a provisional diagnosis those situations where the diagnosis "depends exclusively upon the duration of the illness," which the respondent argues, in part, is the case here. To be sure, the "diagnostic features" section of the DSM-V expresses that the six month time frame is just a "general guideline, not a strict threshold" (DSM-V p 696).
The Second Department has held that a provisional diagnosis can form the basis of a conclusion that a respondent has a mental abnormality (Matter of State of New York v Derrick B., 68 AD3d 1124 [2009]). In Derrick B., the expert examiners for both petitioner and respondent diagnosed respondent with "cognitive disorder, not otherwise specified," a provisional diagnosis due to the fact that the examiners could not verify a reported childhood head injury. This provisional diagnosis formed the basis of State examiner's opinion that respondent suffered from a mental abnormality as defined by MHL §10.03(i). The court held that the jury's verdict that respondent suffered from a mental abnormality was supported by a fair interpretation of the evidence (See also Matter of State of New York v Ruben M., 137 AD3d 1047 [2016](trial court properly permitted evidence of a 'rule out' diagnosis of pedophilia)); Matter of State of New York v Jason C., Index No: 19136/2013 (Riviezzo, J) (May 9, 2016).
Third, the Court of Appeals' decisions in Anthony N. and Richard TT. demonstrate that the trier of fact need not look at the diagnoses or conditions in isolation but rather at the combination of diagnoses and conditions and the "personality structure" that is created in order to support a finding of mental abnormality. Although both of the State's experts did find that respondent meets the full criteria for sexual sadism disorder, they offered different reasons. Nonetheless, it is clear that the behaviors and the conduct of respondent considered by the experts in reaching that diagnosis, whether or not the diagnosis is fully met, clearly establish that respondent suffers from a mental abnormality. Consistent with the Court of Appeals' decisions in Anthony N. and Richard TT., the State has proven that the respondent's ASPD and psychopathy, his very strong interest in sadomasochistic sex, which Dr. Kucharski testified was "chronic" (Kucharski tr at 272), his polysubstance abuse disorders, and the many characteristics of narcissistic personality disorder and sexual sadism disorder that respondent does possess, in combination, predispose him to the commission of conduct that constitutes a sex offense.
What has been proven by clear and convincing evidence is that respondent has a chronic recurrent sexual urge to engage in sadomasochistic sex with specifically "junior high school" aged teenagers which he has already acknowledged is a "risk factor" for him. Respondent's urge to have sadomasochistic sex with "junior high school" aged girls was so strong that he clandestinely rented a room to engage in this behavior for over two years while in a committed relationship with an adult female who was consenting to the sadomasochistic sex. Thus, even if respondent's expert is correct that every junior high school aged teenager — including the victim here — that respondent had sadomasochistic sex with in fact "cooperated," then respondent's sadomasochistic urges still predisposed him to the commission of conduct constituting a sex offense since every act of sex - sadomasochistic or not - with a teenage girl under 17 years of age IS a sex offense.
While the Court agrees that there is a stark difference, as respondent asserts, between sadomasochistic sex between consenting adults and sexual sadism, where the bondage and other acts are inflicted against an unwilling victim, here respondent appears to straddle both definitions. Contrary to respondent's assertions, there is ample evidence of sexual sadism disorder to support a finding of mental abnormality. In addition to the facts of the qualifying offense, there are respondent's many comments to Dr. Charder that he cannot say that he did not force other young teenage girls to perform sadomasochistic acts because he was high on drugs on many occasions, as well as his equivocal response, "not really, I don't recall" to that direct question cited by Dr. Kirschner. Respondent also admitted to Dr. Charder that at least on one occasion, in addition to the qualifying offense, the victim did not consent to some form of sexual encounter (Charder tr at 69). Further, there are the circumstances that brought the then 13-year-old victim to the respondent in the first instance that demonstrate that the victim's engagement in this sadomasochistic relationship was truly not consensual: she was in essence 'purchased' by the defendant from her alcoholic mother and drug using father and thereby 'liberated' from a household of squaller and neglect. Dr. Kucharski's inadvertent reference to a domestic violence victim was rather apropos and highlighted how dependent on respondent the 13 to15-year-old victim must have had been.
As further support for the "personality structure" that predisposes respondent to the commission of conduct constituting a sex offense, there are respondent's scores on the personality tests that he admitted into evidence that demonstrate that he is an angry, antisocial, violent person who has serious difficulties with both aggression and being responsive to treatment (Kucharski tr at 228-229). Respondent further conceded elements of narcissistic personality disorder, namely "exploitiveness," a "lack of empathy," "a long history of taking advantage of people and exploiting people for his own needs," as well as "some grandiosity" (Kucharski tr at 262-264). Lastly there is respondent's polysubstance abuse which Dr. Kirschner testified heightens sexual appetite and acts as a disinhibitor (Kirschner tr at 140).
In conclusion, the Court finds that respondent's constellation of diagnoses and conditions predispose him to the commission of conduct constituting a sex offense. (ii) Serious Difficulty in Controlling One's Conduct
In Kenneth T., the Court of Appeals dismissed the petition based on insufficient evidence at trial that respondent had serious difficulty controlling his sexual misconduct, a necessary finding under Mental Hygiene Law §10.03(i). In doing so, the Court criticized the quality of the State's evidence which appeared to be limited to inferences extrapolated from the facts of the respondent's prior sexual offenses concerning efforts made to avoid arrest and imprisonment (See Matter of State of New York v Angel A., 50 Misc 3d 446; 19 N.Y.S.3d 702; 2015 NY Misc. LEXIS 4017; 2015 NY Slip Op 25366 [Sup. Ct. Kings Ct., November 9, 2015] (Riviezzo, J.)).
What the Court of Appeals found lacking in Kenneth T. was a "detailed psychological portrait" that demonstrated respondent's serious difficulty in controlling his sexual impulses (Donald DD. & Kenneth T., 24 NY3d at 188). While the Court did not define what a detailed psychological portrait would consist of, this court addressed what constitutes a "detailed psychological portrait" in Matter of State of New York v Angel A., 50 Misc 3d 446; 19 N.Y.S.3d 702; 2015 NY Misc. LEXIS 4017; 2015 NY Slip Op 25366 [Sup. Ct. Kings Ct., November 9, 2015]). In Angel A, respondent had a DSM diagnosis of pedophilia which the experts agreed predisposes one to the commission of conduct constituting a sex offense. This Court held that the State's experts conducted a "detailed psychological profile" based upon testimony concerning respondent's many admissions concerning his sexual urges; his failure to successfully complete sex offender treatment; the nature of his two sexual crimes; his general criminal history; his ASPD diagnosis; his reoffending after the imposition of criminal sanctions; and his conduct while confined.
Like in Angel A., the State here has shown through a detailed psychological profile that respondent currently has serious difficulty controlling his sex offending behavior. Most notably respondent has already admitted his strong urges to engage in sadomasochistic sex with underaged girls. The record demonstrates the great efforts respondent went through to clandestinely engage in that behavior with underaged teenage girls while he was in a committed relationship with a consenting adult willing to engage in that same conduct. The court also notes the escalating nature of respondent's offenses - the first involved an assault over a claim of infidelity, the second escalated to the use of a knife over his adult girlfriend's rejection of respondent's request for sex, and his qualifying offense involved a sadistic sexual attack against a 15 year old for cheating on him while he was obviously cheating on his adult girlfriend with that victim.
Respondent failed to complete sex offender treatment despite numerous attempts to do so. Each attempt failed due to respondent's continued aggression and hostility. Further, respondent has yet to resolve and work- through his own sexual victimization that according to Dr. Kucharski is a barrier to treatment. Respondent's public masturbation in the day room and his possession of pornography while in the sex offender treatment program in violation of the rules also show a lack of volitional control over his sexual urges.
Lastly, respondent's personality disorder and psychopathy are chronic resulting in respondent having little empathy for others and a proclivity to take advantage of people for his own needs (Charder tr at 64-65; Kucharski tr at 262-264).Therefore, the Court holds that the State has developed a detailed psychological profile demonstrating that respondent currently has serious difficulty controlling his sex offending behavior.
Conclusion
The Court finds that the State has met its burden by clear and convincing evidence that respondent currently has a "mental abnormality" defined by Article 10 of the Mental Hygiene Law 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 to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct."
This constitutes the Decision and Order of the Court.
SO ORDERED: February 6, 2017