Forensic Misuse of Sex Addiction
Claims of sex addiction are surprisingly often used in court.
Posted Jan 18, 2016
Though sex addiction remains excluded from the American Psychiatric Association’s catalog of mental and behavioral disorders, the concept has gained substantial prominence in American approaches to problematic sexual behaviors. Though it is commonly believed that sex addiction remains a niche, “pop” form of treatment and diagnosis, it has crept substantially into American legal and forensic cases and is gaining disturbing levels of credibility.
In 2015, this writer, with two co-authors, published the first ever review of forensic applications of sex addiction. An exhaustive review of hundreds of legal records was conducted. Though it has been suggested that there is little likelihood of the sex addiction or related hypersexual disorder concepts being misused in legal settings, this review found a volume of evidence suggesting that our legal system should undertake thoughtful consideration of this issue. Further, sexuality therapists and mental health professionals who use these concepts are at risk of damaging their own credibility, and incurring legal liability under charges of malpractice and insurance billing practices.
This review found that use of sex addiction in US legal proceedings clustered into four general areas of the law:
Administrative Law, including licensing and certification of professionals such as healthcare providers and lawyers.
Civil Law, addressing lawsuits for damages;
Family Law, including divorce proceedings and child custody issues;
Criminal Law, including both trials for criminal responsibility and guilt, as well as legal proceedings related to sex offender registration.
Administrative Law: According to one study, nearly half (48%) of the non-substance addictions reported by state bar associations involved claims of sex addiction. In many of these cases, licensing bodies ordered professionals into mandated sex addiction treatment programs, as a term of the individuals maintaining their license and livelihood. Examples of these include:
- A licensed obstetrician was charged with having sex with patients and using alcohol while providing treatment. He was ordered into sex addiction assessment and treatment. Records indicated no order for alcohol assessment or treatment, and the physician retained his medical license.
- A District Attorney who sent sexually-charged text messages to the female victim of a man he was prosecuting for domestic violence. He resigned, but was subsequently sued, where he defended his actions as reflecting a sex addiction triggered by prescription medications.
Civil Law: Claims of sex addiction were identified in many different types of civil law cases, where the sex addiction concept was used in numerous different manners related to alleged damages. In contrast to other areas of law the concept of sex addiction appears to have gained little traction in civil law proceedings.
- A psychotherapist began treatment with a man who’d been hospitalized for substance addiction. Though the therapist did no testing, she decided that the man was actually a sex addict, and began treating him under this formulation, though he disagreed with the treatment and diagnosis. The therapist later attempted to trick the man into attending a residential sex addiction treatment program, under the premise that it was a substance disorder program. The therapist filed unsubstantiated allegations of child sexual abuse against the man. Ultimately, the man and his wife successfully sued the therapist for destroying their marriage, and for malpractice. The therapist lost the suit, and her license was sanctioned.
- In 2013, an attorney sued Apple, alleging that the computer company had caused his porn addiction by failing to install filtering software. The suit alleged that his porn addiction had caused emotional damage and destroyed his marriage. The same attorney later filed suit in Florida, seeking the ability to marry his porn-filled computer, as his porn addiction had led to him desiring only sex with his computer, as opposed to real women.
Family Law: In matters of family law, involving marital disputes, divorce proceedings, and child custody battles, claims of sex addiction are often used to paint one partner as hopelessly disturbed and aggressive. Claims of sex addiction are often invoked related to issues of sexual incompatibility. Family lawyers have identified the concept of sex addiction as an important issue to consider in marital disputes involving sex or porn.
- A couple divorced after the wife alleged that her husband had habitually treated her in cruel and inhumane ways. The wife claimed that her husband constantly asked her oral and anal sex, and they had sex about three times a week, though the husband wanted it more frequently. The wife claimed that her husband was addicted to pornography and sex, though she admitted that during their marriage, she had watched pornography consensually with her husband and she hadn’t seen him with any such material in five years. After the couple initially separated, the husband sought treatment for gambling problems. In the residential treatment program, he completed a sex addiction screening test and was told he needed an extra week of sex addiction treatment. He declined and was never formally treated for sex addiction. Ultimately, though the courts were split over the allegations of the husband being a sex addict, and agreed that he had acted poorly in the marriage, the divorce was granted on the grounds of the husband treating his wife cruelly and inhumanely.
- In a relatively unique case, allegations of sex addiction were leveled against a wife in a case involving a custody dispute between a surgeon and his teacher wife. Across their marriage, the wife was suspected of infidelity on several occasions. They ultimately separated and divorced after the husband discovered his wife in an affair with another woman. During the custody proceedings, the husband accused his wife of being a sexual addict, an accusation that was unproven. This accusation ultimately contributed to the court’s perception of the husband as being unreliable and as having poor credibility. In the initial proceedings, the wife was awarded full custody of the children, on the basis of her primary role as caregiver to the couple’s children. The presiding judge stated “Wife has demonstrated Christian values of forgiveness, repentance, and tolerance while Husband has failed to demonstrate those same attributes as they pertain to his Wife...Husband still maintains that Wife is wicked and immoral, continues to maintain that Wife is a lesbian and continues to hang on to hate and anger…” At appeal, this judge’s decision was reversed, and the father was ultimately awarded full custody, based upon the appellate court’s concern that the initial court had been inappropriately swayed by the wife’s testimony.
Criminal Law: Testimony related to claims of sex addiction appear in numerous aspects of criminal law. In trial, claims of sex addiction are sometimes presented to mitigate guilt or responsibility. In sentencing, sex addiction diagnosis or treatment is sometimes offered to attempt to reduce punishment or decrease fears of recidivism. United States Sentencing Guidelines recommends consideration an individual’s ability to control their behavior. Some defendants have successfully presented claims of behavioral addiction to support assertion that they had diminished control at times of offense.
Criminal defense attorneys sometimes explicitly identify “sex addiction” as a potential defense for sexual charges, particularly in cases of child pornography. One attorney’s website (accessed during creation of the original article and since changed) listed out several possible defenses against charges of child pornography, and includes “sex addiction” amongst them: “Addiction — Although not a true defense, if you can offer psychological testimony that you are addicted to the material and show the appropriate remorse, you could persuade the judge to give you a lenient sentence and undergo counseling as a condition.”
- In 2015, former Subway spokesman Jared Fogle plead guilty to multiple sex crimes, including possession of child pornography and child sexual exploitation. At his sentencing hearing, Fogle’s psychiatrist testified that the man had become hypersexual after he famously lost weight, the event which led to Fogle’s successful employment by Subway.
- When he pled guilty for heinous crimes in Cleveland, Ariel Castro blamed his imprisonment, rape and kidnapping of three women on "porn addiction." "My addiction to pornography and sexual addiction in general has taken a toll on my mind," he told the judge.
- A businessman was arrested for child pornography he had created and distributed on the Internet. For years, the man had travelled to Asia for business, where he visited brothels which included children. He filmed and shared his sexual encounters. After he was arrested and charged, he attended several months of sex addiction treatment. At trial, a psychiatrist diagnosed him with pedophilia, while a psychologist stated his condition was sex addiction. In a letter the man wrote to the district court a week before sentencing, he admitted his actions and acknowledged their wrongness adding “but it was to[o] late, my ‘sex addiction’ was now in full control of me.” He was initially sentenced to 17 and a-half years in prison, but the sentence was appealed as too lenient by prosecutors. Federal Appeals Court held that the judge in the initial trial had been swayed by testimony about the man’s impaired ability to control himself. After appeal, the man was sentenced to the maximum sentence, thirty years in Federal prison.
- An Idaho college administrator was arrested for trading sex for financial aid to needy college students. At trial, he blamed his actions on sex addiction, and reported that he was now in treatment. He received a ten thousand dollar fine and three years probation. He was not sentenced to any time in prison, because he had sought out treatment for himself.
Even though claims of sex addiction fail to meet legal standards of expert testimony, it appears that most claims of sex addiction go unchallenged in court. Though different courts and attorneys give the idea of sex addiction different degrees of credibility, it’s clear that the idea of sex addiction has become embedded in legal proceedings, to our detriment. Claims of sex addiction are confused with the issues related to sex offenses. Individuals who have committed sexual crimes are sent to sex addiction treatment, a modality with no evidence for effectiveness. When sex offenders are mislabeled as sex addicts, the public may be put at increased risk, and justice may not be served.
Overwhelmingly, cases involving claims of sex addiction involve males. It is especially noteworthy that claims of sex addiction in administrative law and licensing/certification cases were exclusively made regarding professional, educated and often successful males. Issues of male sexual privilege may need to be considered, before excusing or explaining these cases as related to a currently unaccepted mental health diagnosis.
Allen Frances, MD., Psychology Today blogger, testified in one California civil commitment case, and asserted that “Compulsive sexuality is ‘an incompetent diagnosis in a forensic case,’ and a psychologist who would offer such a diagnosis as an expert opinion should not be taken seriously.” It is clear in this review that experts who testify on the concept of sex addiction are rarely, if ever, acknowledging that this concept is, at best, an “experimental treatment” given the consistent rejection as a formal diagnosis for the past thirty years. Further, those professionals who treat and bill for services under this concept may be engaging in unethical behavior by failing to inform their patients of the limits of the diagnosis. Billing insurance companies for sex addiction treatment services occurs, and is likely to be regarded as “upcoding” by insurance investigators.
It is important that the role of “sex addiction” in legal proceedings be critically examined. Because “sex addiction” is often accepted and endorsed in the general media, and because attorneys are mostly concerned with the outcome of cases, it’s understandable that attorneys introduce this concept to serve their cases and clients. It’s essential that mental health professionals, forensic psychologists and psychiatrists, sex offender therapists and sexologists, all endeavor to educate the courts about these questions and concerns, when “sex addiction” claims or labels are presented in court.Further, even those who believe in the concept of sex addiction are likely to shudder at the ongoing misuse of this concept in the legal system.
Where professional licensing boards are involved, it seems appropriate and judicious for these groups to make decisions about both impairment and treatment, upon the most current, accurate empirical and medical evidence available. Accurate, ethical testimony based upon the most current medical diagnostic framework and research preserves judicial effectiveness, the credibility of clinical testimony, protects victims and ensures that individuals are held responsible for their behaviors, and offered the most current and effective treatments.
Details of the above cases and examples are available in the source article. Though this article focused on US law, there are numerous examples of similar issues playing out in other jurisdictions.
*Disclosure: David Ley has provided testimony in legal cases involving claims of sex addiction.
**Acknowledgments to co-authors of the original paper: Julie Brovko and Rory Reid.