Monstrous Crimes and the Failure of Forensic Psychiatry

Monstrous Crimes and the Failure of Forensic Psychiatry

INTERNATIONAL LIBRARY OF ETHICS, LAW, AND THE NEW MEDICINE Founding Editors DAVID C. THOMASMA DAVID N. WEISSTUB, Université de Montréal, Canada THOMASINE KIMBROUGH KUSHNER, University of California, Berkeley, U.S.A. Editor DAVID N. WEISSTUB, Université de Montréal, Canada Editorial Board TERRY CARNEY, University of Sydney, Australia MARCUS DÜWELL, Utrecht University, Utrecht, the Netherlands SØREN HOLM, University of Manchester, United Kingdom GERRIT K. KIMSMA, Vrije Universiteit, Amsterdam, the Netherlands DAVID NOVAK, University of Toronto, Canada EDMUND D. PELLEGRINO, Georgetown University, Washington D.C., U.S.A. DOM RENZO PEGORARO, Fondazione Lanza and University of Padua, Italy DANIEL P. SULMASY, The University of Chicago, U.S.A. VOLUME 53 For further volumes: http://www.springer.com/series/6224

John Douard Pamela D. Schultz Monstrous Crimes and the Failure of Forensic Psychiatry

John Douard Rutgers University New Brunswick, NJ, USA Pamela D. Schultz Alfred University NY, USA ISSN 1567-8008 ISBN 978-94-007-5278-8 ISBN 978-94-007-5279-5 (ebook) DOI 10.1007/978-94-007-5279-5 Springer Dordrecht Heidelberg New York London Library of Congress Control Number: 2012948993 Springer Science+Business Media Dordrecht 2013 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, speci fi cally the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on micro fi lms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. Exempted from this legal reservation are brief excerpts in connection with reviews or scholarly analysis or material supplied speci fi cally for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. Duplication of this publication or parts thereof is permitted only under the provisions of the Copyright Law of the Publisher s location, in its current version, and permission for use must always be obtained from Springer. Permissions for use may be obtained through RightsLink at the Copyright Clearance Center. Violations are liable to prosecution under the respective Copyright Law. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a speci fi c statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. While the advice and information in this book are believed to be true and accurate at the date of publication, neither the authors nor the editors nor the publisher can accept any legal responsibility for any errors or omissions that may be made. The publisher makes no warranty, express or implied, with respect to the material contained herein. Printed on acid-free paper Springer is part of Springer Science+Business Media (www.springer.com)

John dedicates this book to his late parents, Zora and Lemuel Douard, who taught him fairness and love; and his sister and nieces: Marianne, Brittany, and Tammy. Pamela dedicates this book to her husband, Brien, and her children, Eileah and Brysen: You are my love, my hope, my light.

Acknowledgments The usual apologies are due to those whom we haven t the space to name, which includes most of our friends, teachers, and the scholars whose work we shamelessly use, with, we hope, proper citation in the book. Because we have different intellectual and personal backgrounds, we will separately acknowledge the people who have most directly in fl uenced us. John Douard I have had many important mentors and friends over the years who have shaped my intellectual and moral development, not all of them academics. First among them are: George Thomas, my extraordinarily generous criminal law professor and friend, without whom I would not now be a criminal defense attorney; and Arthur Fine, the philosopher whose mentorship and support over the past 40 years permitted me to think outside the academic box. George and Arthur will doubtless be gently critical of this book, because they are remarkable teachers, and teachers must be critical of their students work. I must also thank Sherry Colb, who taught me criminal procedure and mental health law. In 1985, I completed a Ph.D. in philosophy at the University of Illinois in Chicago (then called University of Illinois Chicago Circle). My advisers made it possible for me to complete that work on Freud as a proto-cognitive scientist, and I thank them here: Michael Friedman, Neal Grossman, Tom Jobe, and Mark Wilson. I single out for special thanks, primarily because of their thankless work on my little project, Mike Friedman and Tom Jobe, with both of whom I spent endless hours in conversations over a period of about 3 years. Tom and I talked about psychoanalysis and new frontiers in cognitive science nearly every week, and Mike told me when I could stop writing and rewriting. Arthur Fine was unfailingly available, although he had moved to Northwestern University by then, and participated crucially in my oral exam. Kathy Pyne Addelson is the philosopher from whom I learned that most good philosophy is not done in academia, but in the street. vii

viii Acknowledgments Stephen Asma s brilliant and creative book On Monsters has in fl uenced our work, but I want to single it out as perhaps the most unique book on the subject I have ever read. It is panoramic in scope, but written with such grace that its scholarship may not be immediately apparent. Unfortunately, we only discovered Stephen s book in the late stages of the writing of our book, so its in fl uence is more sotto voce than it should be. Another friend and scholar who has written a book on sex offense laws, from which we learned a great deal, is sociologist Chrysanthi Leon. Her book, Sex Fiends, Psychopaths, and Pedophiles, traverses some of the same territory we examine here. Doug Husak, my colleague in the Rutgers University Department of Philosophy, where I teach as an adjunct professor, exempli fi es the best work in applied philosophy. His work on the philosophy of criminal law and overcriminalization is rigorous and a joy to read. I understand criminal law far more deeply because of his work. I have also learned from law professors Eric Janus and Michael Perlin far more than the references to their work in this book represent. My friends have helped to shape my moral and intellectual development over the years, proving Aristotle s claim that one ought to choose one s friends wisely. In 2003, as a new, but not young, criminal defense attorney, I represented sex offenders who had been civilly committed after serving their prison terms. While I had studied mental health law in law school, including the important United States Supreme Court cases on sex offender laws, the work of representing these most dehumanized of our criminal defendants must be learned on the ground. Joan Van Pelt, Esq., taught me everything I know about how to represent civilly committed sex offenders. She is a political conservative, but in the pre-tea-party sense: she respects the rights of even those our society has deemed monsters. Our colleague Lew Sengstacke has always challenged my more over-the-top ideas, for which I am grateful. Incredibly important to my thinking about forensic psychiatry are Daniel Greenfield, M.D., and psychlogist Tim Foley, who taught me about not only the ethical problems of the field, but also about the diagnoses often used to label sex offenders. Joan Broadman, playwright and professional copy editor, read an early version of chapter one, hated it, but provided excellent writing suggestions that we followed. Laura Kramer has been both my partner and my mentor in sociology for over 20 years. I cannot thank her enough for her love and insight. Two other friends, neither of whom are academics but both of whom are among the most intellectually stimulating people I have ever met, should know they mean the world to me: Mick Archer, jazz pianist extraordinaire, and Lisa Markwart, with whom I share a passion for Marcel Proust. Mick will create his masterpiece when he no longer has to earn a living playing music other people want to hear. Lisa will write a great book a memoir, perhaps, or a novel or a collection of poetry in which I hope I play at least a minor role. Barry and Betty Codell are among my oldest friends. Our friendship dates back to 1965, when Barry and I worked together in a Chicago bookstore and did impressions of Bob Dylan. Barry is the world s foremost, if not the only, philosopher of maieutics;

Acknowledgments ix and Betty is a poet who stopped writing many years ago, but who continues to have a poetic imagination. One of my former students, and now a friend, Karim Lakhani, M.D., has shared his brilliant insights into bioethics in practice and changed my thinking about certain issues. The rest of my friends and co-workers I must thank in the form of a list. Lists are a literary form that are far more important that most people know. Many criminal defense attorneys have taught me the law over the last few years: Marcia Blum (also my theater companion), Mark Friedman, Susan Brody, Dan Gauthier, Susan Green, Steve Hunter, Mike Jones, Yvette Kyles, Sylvia Orenstein, Lon Taylor, and Josh Sanders. For their friendship at work and in life, I am grateful to Alyssa Aiello and Rochelle Watson, with whom I share musical and literary tastes. The list has to stop somewhere, but many other friends and colleagues have helped me grow as an attorney and a philosopher. I hope they do not dislike this book too much, but they will surely tell me how it should have been written. The administrative assistants at work supported me in myriad ways: Anne Marie, Kecia, Geneva, and Sheletta. Since my share of this book was written outside the ambit of my job, they could not help me with it, but they unfailingly supported me in my day job. Raa fi ah Muhammad, who began as my administrative assistant 9 years ago, is now a close friend with whom I share a love of hip hop. Sometime in the next few years she will complete law school and she will be a terri fi c attorney. I also want to thank the brilliant classical, jazz, rock, folk, and hip hop musicians, whose art taught me about the depths of emotion to which music can take you. I won t name them because there are too many, but suf fi ce it to say that without their music I would be lost. I cannot overstate the extent to which music has been my most important companion. I must thank my extended family: my aunts, uncles, and cousins, all of whom are farmers and small-business entrepreneurs, and, as they are politically far more conservative than I, they keep me honest. It may seem silly to most readers, but my extended family deserves my gratitude far more than anyone because they helped to shape me in myriad ways. As I write, my Uncle Emil has just died, and last year my Uncle Eli died, both at age 97. They were extraordinary and brilliant farmers. My Aunt Annie died several years ago, but my aunts Eleanor and Rose, both in their 90s, are thankfully still in my life. I have my aunts and mother to thank, because of their strength and kindness, for my respect for, and love of, powerful, intelligent women. Without my family, I would be anchorless. I have dedicated this book to my late parents: Zora ( Peggy ) Obradovic and Lemuel ( Red ) Douard; and my sister and nieces: Marianne, Brittany, and Tammy. My mother was a beautician and farmer who had an intuitive sense of justice and compassion. My father was a machinist, union man, jazz musician, booky, repo man, and used car salesman, more or less in that order. Among other things, they taught me that prejudice is simply stupid, and that everyone deserves a second chance. Finally, I thank my co-author Pamela D. Schultz. As I started developing my ideas about the legal and moral problems when sex offenders are framed as monsters and predators, I read Pamela s book Not Monsters. Her book helped to crystallize my belief that whenever we dehumanize with rhetoric people who frighten or

x Acknowledgments disgust us, we fail to accord them the respect due all humans. They are, as Pamela urges in the book, not monsters, and we cannot properly address the problem of sex offending, and especially child sexual abuse, if we refuse to acknowledge that offenders are human. Pamela s personal experiences, recounted below, lend her insights a gravitas far weightier than the central intellectual insight she and I share. Pamela D. Schultz When I was a graduate student at Wayne State University in the late 1980s and early 1990s, I struggled with balancing my academic goals with the challenges I encountered in my personal life. It was during this time that I was fi nally able to face the reality of what had been a de fi ning perhaps even the de fi ning period of my life. As a child, I had been molested by a neighbor, a man who was a close and trusted friend of the family. The sexual abuse began when I was 5 or 6; it ended when I was a young adolescent. Although, like many children, I was fascinated by fairy tales and myths that used fanciful monsters to teach lessons and warn of the consequences of bad behavior, I hadn t expected to be living next to one. No one else seemed to recognize the danger, either, so I found ways of coping with the abuse on my own. Because it began when I was too young to understand what was happening, I treated it as any other game of let s pretend. When I got old enough to realize what was occurring, I did not know how to articulate it aloud and so I did not tell anyone about it. The man who molested me was adept at keeping secrets, after all, and my confused silence kept me one of his many little secrets. Years later, his death shattered my somewhat successful effort to bury the experience deep in my subconscious. It was a pivotal moment for me, to realize that the person I had become was either because of, or in spite of, my childhood molestation. From a place of maturity, I also realized that the man who abused me was not a monster, however monstrous his actions. I believe that it would have been easier to come to terms with my abuse if he had been an unquali fi ed monster, a mindless, slavering beast I could dismiss as instinctually, irredeemably evil. But I had known him well, apart from the abuse, and although he took advantage of me, he also had a caring, sensitive, even oddly protective, side to his personality. When therapy did not suf fi ce to help me reconcile this complexity, I turned to scholarship. I found solace and understanding in translating my pain into an academic exercise; it became the topic of my dissertation. I was blessed with a brilliant, sensitive adviser who became both my muse and my friend as the process evolved. Bernard Brock was a renowned expert on the work of Kenneth Burke, a symbolic interactionist to the core, who used his impressive knowledge to comment on issues ranging from politics to spirituality. Bernie taught me that intellect should be wielded with compassion and conviction. His un fl agging advice, insights, and guidance shaped my ideas and solidi fi ed my commitment to use my experience in some concrete way. Even though Bernie passed away some years ago, his ideas

Acknowledgments xi continue to in fl uence mine. I miss him terribly but I can still feel his presence and hear his voice in everything I write. I would also like to thank my parents, whose trust was cruelly betrayed by the neighbor they considered a friend. Although by today s standards, my parents would have been inattentive to the danger living next door, in the 1960s and 1970s, child sexual abuse was hardly a household word as it (perhaps sadly) is now. The man who molested their daughter had been adept at keeping secrets and entrapping his victims in a web of silence. He took advantage of my parents kindness. He broke their hearts, too. They were devastated by his betrayal and horri fi ed to learn that they had not protected their daughter from a predator. But it was the values they instilled in me, and the abiding love they always showed me, that were the tools I used to cope with the abuse. My parents unshakable, unwavering faith in me has been a constant comfort. It means so much to me to know that I have made them proud. I have dedicated this book to my husband, Brien, and my children, Eileah and Brysen. Brien is the kindest, strongest man I have ever met and I am extremely lucky to count him as my biggest fan (the feeling is mutual). Eileah is brilliant, full of drama and imagination; my life is vastly more exciting with her in it. Brysen is warm-hearted and empathetic, with an infectious sense of humor; he is always ready with a hug or story to make me laugh. I am so grateful to be blessed with such a wonderful family. I would also like to acknowledge my friends and colleagues at Alfred University, and in particular the countless students who are forced to listen to their professor babble on about uplifting subjects such as sexual offenses and sex offenders. Their insights and patience are invaluable. Last but hardly least I want to thank John, my co-author, for his guidance, advice, and patience in bringing this project to fruition. John, you have inspired me to become a better scholar, and perhaps a better person as well. John and I extend appreciation to the following people at Springer Publishing who have made this collaboration possible: David Weistubb, general editor of the series International Library of Ethics, Law, and the New Medicine, of which this volume is new addition; Meagan Curtis, Publishing Editor; and Christopher Wilby, Publisher s Assistant. Finally, we wish to thank the two anonymous reviewers who were kind enough to read our manuscript in the early stages and offered many excellent suggestions for improvement. The fi nished product is vastly better because of their insights.

Contents 1 Monstrous Crimes, Framing, and the Preventive State: The Moral Failure of Forensic Psychiatry... 1 1.1 Introduction... 1 1.2 Frames, Metaphor, and Cognition... 6 1.3 Monsters and Monstrous Crimes... 7 1.4 Psychopathy: The Monstrous Brain... 9 References... 10 2 Sexual Predator Laws: A Gothic Narrative... 13 2.1 Law, Morality, and Emotion in American Law... 15 2.2 The Monster Among Us: The Social Context of Revulsion... 19 2.3 Sexually Violent Predator Acts... 21 2.4 Megan s Law... 25 2.4.1 Stories of Abjection: The yuck Factor... 26 2.5 Becoming a Public Problem... 28 References... 32 3 Metaphor, Framing, and Reasoning... 35 3.1 Metaphor as Productive Cognitive Tool... 37 3.2 Metaphorical Images: Emblematic Compression... 40 3.3 Framing and Meaning... 42 3.4 Thinking with Metaphors: Pretend Play and the False Belief Task... 46 3.5 Dead Metaphors are Powerful Metaphors... 48 References... 49 4 Monsters, Norms and Making Up People... 51 4.1 Monster as Physical Abnormality... 53 4.2 Monster as Social Symbol... 57 4.3 Making Up People The Monster Within... 60 xiii

xiv Contents 4.4 Scapegoats and the Social Utility of Outsiders... 63 4.5 The Monster as Sexual Deviant... 68 References... 69 5 The Sex Offender: A New Folk Devil... 71 5.1 Moral Panic... 73 5.2 Witchcraft and Satanic Panic... 75 5.3 The Child Sexual Murderer... 87 References... 92 6 The Child Sex Abuser... 95 6.1 Child Abuse as a Public Problem... 96 6.2 The Sex Offender Kind... 107 6.3 The Ambiguity of Normal... 109 References... 110 7 The Mask of Objectivity: Digital Imaging and Psychopathy... 113 7.1 The Moral Monster Within... 115 7.2 DSM-IV-TR: A Floating Taxonomy... 116 7.2.1 SVPA Psychiatric Reports: The Forensic Context of the DSM-IV-TR... 117 7.3 Psychopathy: The Mask of Sanity... 120 7.4 fmri: Localizing the Monster... 121 7.5 The Monstrous Crime and the Monstrous Brain... 123 7.5.1 Maps, Atlases, and Distinguishing the Normal from the Abnormal... 125 7.6 Abnormal Brains... 127 7.6.1 Expert Testimony: The Mask of Objectivity... 128 7.6.2 Sex Offenders as Psychopaths... 129 References... 131 8 Forensic Psychiatric Testimony: Ethical Issues... 133 8.1 A Prima Facie Moral Dilemma... 134 8.2 Ethics Subverted: The Shifting Terrain of Forensic Psychiatry... 135 8.3 Do Forensic Psychiatrists Possess a Body of Well-Grounded Knowledge?... 137 8.4 Are Forensic Psychiatrists Biased?... 139 8.5 Why Even the Best Forensic Psychiatrists Are at Moral Risk... 141 8.6 The Basis for Moral Evaluation: Principles, Narratives, Social Context... 142 8.7 Stories and Narratives... 143 8.8 Monsters, Strangers, and Social Order: Forensic Psychiatrists as Moral Police... 146 8.9 The Monstrous Brain: Science or Science Fiction?... 147

Contents xv 8.10 What Is to Be Done?... 152 8.11 Moral Conversation: An Exercise in Hot-Tubbing... 153 References... 154 9 Public Health Approach to Sexual Abuse... 157 9.1 Public Health and Sexual Violence Prevention... 158 9.2 Public Health Law: Brief Introduction... 159 9.3 Biological and Personal Narratives: The Individual Level... 161 9.4 Interpersonal Relationships: The Social Context... 162 9.5 Environmental Factors: The Community Risk Level... 163 9.6 Cultural Beliefs, Norms, and Inequities: Societal Risk Factors... 164 9.7 Public Health and Research... 164 9.8 Minimax Strategy: Designed to Protect Us from Monsters... 166 9.9 Likelihood of Risk... 167 9.10 Magnitude of Harm... 168 9.11 Epidemiological Criminology... 169 9.11.1 Shaming and Blaming via Disgust: Why Hot Preventive Measures Fail... 170 9.11.2 Situational Factors in Crime Prevention... 174 9.12 Reentry: A Fundamental Problem... 175 9.13 Conclusion... 176 References... 176 10 Conclusion: A Criminological Paradigm Shift... 179 References... 188 Index... 191