Allen J Frances M.D.

DSM5 in Distress

Federal Court Denies the Fake Diagnosis of 'Hebephilia'

Confirmation that statutory rape is not an SVP mental disorder

Posted Jan 26, 2012

The current fad of misdiagnosing 'Paraphilia, Not Otherwise Specified'' in Sexually Violent Predator hearings is the most glaring error now occurring at the difficult boundary between psychiatry and the law. Misguided and incompetent psychiatric diagnosis too often has paraded as expert testimony. The resulting confusion is detrimental to the integrity of the law and also to the integrity of mental health practice. It reflects badly and sadly on both systems when the misdiagnosis of simple criminals with no real mental disorder results in their involuntary, often lifelong, psychiatric commitment. Carelessly creative diagnosis violates the intent of the SVP statutes; denies due process and civil rights; and turns involuntary psychiatric commitment into a questionably constitutional form of preventive detention.

Until recently, there appeared to be no remedy for correcting these frequently made diagnostic errors in SVP cases and for undoing their harmful consequences. If individual evaluators stubbornly persisted in misapplying DSM IV definitions in an idiosyncratic way, the only recourse seemed to be case-by-case adversarial challenge by opposing experts able to instruct juries on accurate DSM IV diagnosis. This retail correction of SVP diagnostic adventurism is glacially slow, enormously expensive, and potentially arbitrary. It inappropriately tasks individual jurors with highly technical decisions on what constitutes proper psychiatric diagnosis.

Fortunately, the tide is now turning toward the provision of more wholesale solutions to the SVP mess. First, the wind was badly knocked out of the puffery of 'Paraphilia NOS' by the decision of DSM 5 to join its predecessors (DSM III, DSM IIIR, and DSM IV) in rejecting rape as a mental disorder. Next came the crucial remedial efforts of the California Department of Mental Health to re-educate its evaluators to ensure that they return to careful and mainstream diagnostic practice.

And now we have an extremely clear ruling in a federal case that finds against the misuse of 'Hebephilia' as an excuse for SVP commitment. Here are some telling quotes from Judge Boyle's decision in the Neuhauser case heard in the US District Court in North Carolina:

"The government asserts that Respondent currently suffers from paraphilia not otherwise specified ("NOS"), hebephilia, defined as a 'sexual preference for pubescent minors.' However, this purported mental illness is not listed as an accepted mental disorder in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders ("DSM-IV-TR").... Given that even the government's experts concede that characterization of hebephilia is a hotly contested issue in the mental health community, the Court finds that it would be inappropriate to predicate civil commitment on a diagnosis that a large number of clinical psychologists believe is not a diagnosis at all, at least for forensic purposes. Therefore, the Court finds that the government has failed to meet its burden to show that Mr. Neuhauser currently suffers from a serious mental illness, abnormality, or disorder."

When asked about Judge Boyle's opinion, Ron Mihordin MD JD, the Acting Clinical Director of Evaluation Services for the California Department of Mental Health's Sexual Offender Commitment Program, replied: "The court's ruling and reasoning in this case parallels Cal DMH's strategy for beating back the advance of hebephilia and other weed diagnoses."

Richard Wollert PhD was the key witness in the case. His comment:
"Having sex with a 14 year-old is a crime in the U.S. but not in European countries. So Hebephilia makes a world-wide mental disorder out of a US. crime. It's a bogus and unvalidated concept that assaults the credibility of psychiatric diagnoses."

Judge Boyle has displayed great prudence and clarity in his judicial reasoning. His ruling should serve as a model to help trim the proliferation of fake DSM IV diagnoses (or 'weed diagnoses'- as Dr Mihordin more colorfully describes them). Since precedent can be set only at the Appellate Court level, the best thing that could happen now would be for the government to appeal Judge Boyle's 'Findings of Fact and Conclusions of Law.' This would allow the provision of a well thought out appellate precedent to substitute for the case-by-case, hit-or-miss, diagnostic free-for-all that too often characterizes SVP cases. The uninformed,inaccurate, and incompetent use of DSM IV should no longer be allowed as expert testimony in SVP cases.

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