June 1, 2016

Non-testifying consultants: Does attorney-client privilege apply?

Is the work product of an expert who is retained only as a consultant -- not as a testifying witness -- confidential under the doctrine of attorney-client privilege?

With courts around the United States divided, that was the question before the Georgia Supreme Court in the case of Henry Neuman of Georgia, which I reported on back in 2012.

During Neuman’s high-profile murder trial, the trial judge had allowed prosecutors to introduce the notes of two confidential defense consultants, whom they had identified by snooping through jail visiting logs. The notes contradicted the testimony of the defense’s testifying experts, and Neuman was convicted.

In a 6-1 decision, the Georgia Supreme Court came down solidly on the side of protecting confidentiality. The trial judge's error was harmful enough for the state high court to reverse Neuman’s conviction, paving the way for a retrial.

Non-testifying experts serve as “agent[s] of the defense team,” the court held, so all communication between them and attorneys falls under the privacy umbrella of attorney-client privilege. Even when an insanity defense is raised, “the cloak of privilege” only falls away at the point that defense counsel elects to call an expert as a witness, ruled the court.

Such protection is essential so that attorneys can vigorously defend the accused, by obtaining expert advice on evidentiary strategy or by consulting with multiple experts who may hold conflicting views, without worrying that they are creating adverse witnesses against their client, the court explained:

“The attorney-client privilege is vital in cases such as this one where the defendant’s sanity is at issue because the privilege allows the attorneys to consult with the non-testifying expert in order to familiarize themselves with central medical concepts, assess the soundness and advantages of an insanity defense, evaluate potential specialists, and probe adverse testimony…. [W]ithout the protection of privilege, the defendant’s attorneys run the risk that the psychiatric expert they have hired to evaluate the defendant will render an opinion inconsistent with the defense’s insanity theory and the expert will then be made an involuntary witness for the State.”

This is precisely what happened at Neuman’s trial. Psychologist Peter Thomas and forensic psychiatrist Rand Dorney had conducted initial screenings to assist Neuman’s attorneys in assessing the viability of a criminal responsibility defense. After the trial judge permitted prosecutors to subpoena their records, the defense was forced to call the two as witnesses in order to keep the prosecution from calling them as rebuttal witnesses.

The Georgia Supreme Court ruling is HERE. My prior blog post on the case is HERE. A Fordham Law Review article on this topic is HERE.

Hat tip: Denis Zavodny  

April 17, 2016

The Psychology of Arson

arson1 Each year, about 60,000 bushfires rage across Australia, wreaking environmental devastation and costing lives and economic losses. An estimated half or more are deliberately set.

Considering arson's devastating toll, surprisingly little is known about who sets fires, and why. Intensive efforts to catch and prosecute firesetters have also done little to douse the flames.

It is no surprise that Australia is the epicenter of efforts to fill that gap, with several ongoing research and intervention programs. Now, two forensic psychologists and a mental health nurse have published a book that brings together cutting-edge theory and practical advice grounded in empirical research.

The Psychology of Arson represents the collected knowledge of 30 experts from around the world. Chapter by chapter, it explores the psychosocial factors underlying arson by children and adolescents (who make up a large share of firesetters), by suicidal and homicidal people, by women, by the mentally disordered and cognitively impaired, and by men who set fires for purposes of sexual gratification.

Forensic practitioners will find especially useful the sections on risk assessment, treatment, and management of firesetters, while researchers will benefit from the concluding chapter identifying research gaps and needs in this understudied area. The organization facilitates digestion: Each chapter starts with a clearly written summary of key points, followed by logically organized subheadings and text.

Particularly innovative is the authors’ attempt to go beyond the simplistic theorizing of early research to offer up an evidence-based theoretical model that can inform clinical interventions and even prevention efforts. Their nuanced multi-trajectory theory classifies arson based on four key factors: fire-related scripts, offense-supportive thoughts, emotional regulation issues, and communication problems.

Forensic psychologists Rebekah Doley
 and Theresa Gannon
The editors and lead authors are highly qualified for this project. Rebekah Doley of Bond University in Australia is an internationally recognized authority on firesetting who co-directs the Centre for Forensic and International Risk Management; Theresa Gannon of Kent University in the UK, Director of the Centre of Research and Education in Forensic Psychology, is similarly renowned, with numerous scholarly publications on firesetting. Rounding out the team is a widely published mental health nursing professor, Geoffrey Dickens of Abertay University in Dundee.

January 31, 2016

What’s Wrong With “Making A Murderer”?

Making A Murderer is generating huge buzz on social media; dual petitions calling for Steven Avery’s exoneration have garnered more than 600,000 signatures to date. But after slogging through the 10-hour Netflix “documentary,” I was left feeling disturbed by the drama’s narrative and premises. Here's why:

1. The narrative is grossly misleading.


The hook to this story is protagonist Steven Avery’s prior exoneration: He served 18 years in prison for a rape of which he was ultimately exonerated by DNA evidence; just three years after his release, he was arrested for the unrelated murder and mutilation of another young woman in rural Manitowoc County, Wisconsin.

It’s an intriguing hook. But others – including the superb podcasters at Radiolab in 2013 – had already mined it. So filmmakers Moira Demos and Laura Ricciardi went for a different twist: Avery was innocent, framed by corrupt police whose reputations were tarnished by the wrongful conviction scandal.

Viewers are treated to interminable audio clips of the convicted killer proclaiming his innocence and whining about the injustice of it all. With its sympathetic focus on Avery and his socially marginal family, the documentary excludes much of the hard evidence pointing to Avery.

Perhaps the most blatant example of misinformation is the portrayal of Avery and his victim as strangers. In fact, the evidence presented at trial suggested that Avery not only knew Teresa Halbach, a photographer for Auto Trader magazine, but was targeting her. After a photo assignment at his family's auto salvage yard in which he greeted her wearing only a towel, she complained to her bosses that she was “creeped out” by him. Yet he continued to call and ask for her to be sent back out. Phone records revealed that on the day of her murder, he repeatedly called her cell phone, using *67 to block his ID. Not only was her cremated body found in his burn pit just a few steps from his trailer, but two separate witnesses testified they had seen Avery putting items into a barrel of his from which police later recovered her incinerated cell phone and camera. Avery's nephew also told police he had helped Avery hide the victim's vehicle in the salvage yard, and DNA evidence of Avery's sweat under the hood corroborated his account.

This brief list is not exhaustive; there's lots more inculpatory evidence that the series omits or glosses over.

2. It lionizes a sexual predator.


There are plenty of sympathetic characters in prison. A great many of them are unquestionably guilty. Steven Avery – innocent or guilty – is not one of them. He comes across as shallow, callous and self-absorbed, fitting the part of a cold and calculating predator.

Prisoners who served time with him during his first bid confirmed that he was not a nice guy. They told investigators that he showed them diagrams of a torture chamber he planned to build when he was released, so that he could "torture and rape and murder young women.”

There is further evidence of tremendous rage toward women. While in prison, he threatened to mutilate and kill his former wife. And despite his exoneration in the original rape for which he was convicted, prosecutors presented evidence in a pretrial affidavit of two other rapes of girls and women for which he was never prosecuted. There are also allegations that he sexually molested child relatives, including his codefendant and nephew, Brendan Dassey.

Perhaps most ominously, just three weeks before Halbach’s murder, he bought a set of leg irons and handcuffs, suggesting that the crime was premeditated and elaborately planned.

It is only if we know this background information -- excluded from the Netflix series -- that we can make proper sense of the trial judge’s admonition to Avery at his sentencing hearing:

“You are probably the most dangerous individual ever to set foot in this courtroom.”

3. Journalistic bias of this magnitude is unethical.


Filmmakers Laura Ricciardi and Moira Demos
In several drawn-out scenes, the filmmakers depict the TV news crews covering the trial as bottom-feeding hyenas, lacking any compassion or mercy as they circle and nip at the heels of the beleaguered Avery clan.

This is a clever cinematic device. It imparts the illusion that the documentarians are above the fray, more neutral and trustworthy than the media rabble. 

In reality, they are no less superficial. We get no greater clarity, and certainly no deeper analysis. The difference is merely one of perspective. Lengthy scenes in the Avery kitchen, watching Steven's mother Dolores prepare and eat her lunch, emphasize the one-sidedness of the series: Demos and Ricciardi are essentially mouthpieces for Steven Avery.

It’s not that police do not lie, or plant evidence. They do it all the time. So it's certainly possible that police planted the victim's car key in Avery’s bedroom, as the Averys claim. But framing Avery would have required much more. Police would have had to know the location of Halbach's body in order to move it to Avery's burn pit. They would have had to plant Avery's sweat under the hood of Halbach's car, where his nephew's account predicted it would be. All told, this convoluted conspiracy theory stretches credulity.

Ironically, while the filmmakers castigate police for going after Avery’s nephew (instead, they cast unsupported aspersions on the victim's male friends and relatives), Avery and his defense team had no such compunctions. Their alternate suspect list included the boy, along with other male members of the Avery clan.

Some observers, such as journalist and private investigator Ann Brocklehurst, imply that business interests may have contributed to this over-solicitude toward the Averys:
“Ma and Pa Avery are portrayed lovingly as salt-of-the-earth types. They’re never asked how they managed to raise three sons with such a long and documented history of violence.... [I]f the filmmakers had decided one of the brothers, nephews or brother-in-law likely did it, Ma and Pa might have pulled right out of the multi-year film project and left the directors empty-handed. A Shakespearian or Faulkneresque tale of a dysfunctional and dangerous family is of no use to anyone if you don’t have the legal rights to tell it.”
Journalists’ code of ethics warns reporters not to distort either facts or context, and to take special care to avoid misrepresentation or oversimplification. Intentionally or not, Demos and Ricciardi clearly violated this standard.

4. “Innocence porn” exceptionalizes criminal justice problems.


The trope of the wrongfully convicted is a time-honored sub-genre of true crime. New Yorker writer Kathryn Shultz traces it back to the late 1880s, with a popular magazine column called “The Court of Last Resort” by criminal defense lawyer turned author Erle Stanley Gardner, better known for his Perry Mason detective series. As Shultz notes, recent films and TV series in this genre have been quite successful in getting criminal cases reopened and convictions overturned: 

“Although it subsequently faded from memory, 'The Court of Last Resort' stands as the progenitor of one of today’s most popular true-crime subgenres, in which reporters, dissatisfied with the outcome of a criminal case, conduct their own extrajudicial investigations. Until recently, the standout representatives of this form were 'The Thin Blue Line,' a 1988 Errol Morris documentary about Randall Dale Adams, who was sentenced to death for the 1976 murder of a police officer; 'Paradise Lost,' a series of documentaries by Joe Berlinger and Bruce Sinofsky about three teen-agers found guilty of murdering three second-grade boys in West Memphis in 1993; and 'The Staircase,' a television miniseries by Jean-Xavier de Lestrade about the novelist Michael Peterson, found guilty of murdering his wife in 2001. Peterson has been granted a new trial. Randall Dale Adams was exonerated a year after 'The Thin Blue Line' was released. Shortly before the final 'Paradise Lost' documentary was completed, in 2011, all three of its subjects were freed from prison on the basis of DNA evidence.”

Last year’s NPR  podcast series, Serial, probing the case of a young man named Adnan Syed who had been convicted of killing his former high school girlfriend, became an overnight sensation. (And, guess what: A judge has just granted a motion for a new post-conviction review of the evidence in that case.) What with the popular success of Making A Murderer, more such cultural events can be anticipated.

But while documentaries like Serial or Making A Murderer may seem progressive in shining a spotlight on the legal system and exposing flaws therein, they may actually further a narrative of exceptionalism. In other words, miscarriages of justice are rare events caused not by systemic problems, but by ___ (fill in the blank: corrupt police, shyster attorneys, bungled evidence handling or analysis, etc.).

And only the innocents -- the exceptions to the rule -- are worthy of attention. 

5. The nephew got second billing.


Instead of hanging their tale on the threadbare hook of Avery’s prior exoneration, the filmmakers could have delved more deeply into the routine misfiring of the legal system by centralizing Avery’s nephew and codefendant, 16-year-old Brendan Dassey.

Brendan Dassey, the 16-year-old nephew
Like his uncle, Dassey may very well be guilty. But in his case, neither innocence nor deliberate corruption is essential to the narrative. Guilty or innocent, framed or not, the manner of his prosecution was rotten to the core, illustrating more common and systemic flaws in the criminal justice system.

“Innocent people don’t confess,” prosecutor Ken Kratz told the jury.

That false gospel went unchallenged because – for reasons never explained in the series – the juvenile’s defense team chose not to call a confession expert, who could have dissected Massey’s statements and explained to the jury how the detectives’ skillful manipulations produced a potentially unreliable confession.

This was a boy with a low IQ and limited education, who was interviewed by detectives on multiple occasions, for hours and hours on end, without either his mother or his attorney present. He was easily confused and misled into believing that if he confessed, all would be forgiven and he would go home. His statements were contaminated when police fed him facts, which he then regurgitated. 

Private investigator Michael O'Kelly
Dassey also had the misfortune to be initially represented by an unethical attorney who decided early on that Dassey was guilty, ignoring the boy’s protestations to the contrary. The attorney, Len Kachinsky, in turn hired a private investigator with highly confused loyalties. Indeed, the PI wrote a eugenics-laced email to the defense attorney revealing his unabashed antipathy toward his client's family:

“This [family] is truly where the devil resides in comfort. I can find no good in any member. These people are pure evil.... We need to end the gene pool here.”

Together, the loyalty-challenged attorney and investigator brow-beat a detailed confession from their client, which they promptly turned over to police. Although both the attorney and his investigator were removed from the case before trial, neither suffered any official sanction for their betrayal of their duties, or the damage caused to Dassey's case.

6. The entertainment spectacle has produced a destructive backlash.


In perhaps the most poignant moment in the series, defense attorney Dean Strang -- the show’s moral compass -- critiques the “unwarranted certitude” rampant within the criminal justice system, with everyone from police and prosecutors to defense lawyers, judges and jurors far too convinced that they are privy to The Truth.

Across the board, he mourned, the system suffers from “a tragic lack of humility.”


Steven Avery with rape victim Penny Beerntsen
Unfortunately, the filmmakers fell into that very same trap. It was apparent to many that they had naively embarked on their 10-year project wearing blinders. Penny Beerntsen, the original rape victim (whose misidentification sent Avery to prison), was one such observer. A remarkable woman who is active in the innocence movement, Beerntsen told the New Yorker that the filmmakers’ certitude troubled her:

“It was very clear from the outset that they believed Steve was innocent,” she told me. “I didn’t feel they were journalists seeking the truth. I felt like they had a foregone conclusion and were looking for a forum in which to express it.”

It is no surprise that Avery and his family have staunchly denied his guilt: He was framed once, so why not twice? After all, they point out, the $36 million judgment he was seeking for his false imprisonment could have bankrupted Manitowoc County. But for the filmmakers to fall so under the Averys’ spell that they would radically distort the facts is disconcerting. Their bias was transparent, and the excluded evidence easily available. It seems arrogant to regard the public as too gullible to do any basic fact-checking.

Predictably, a furious backlash has ensued, with social media pundits and entertainment outlets competing to debunk the series. Rather than systemic flaws in the system, the discourse has devolved into a pointless, dichotomous debate over guilt or innocence.

Worst of all from the interests of the innocence movement, some are asking the question: If Steven Avery had never been exonerated, would Teresa Halbach be alive today?

The innocence movement can counter with the fact that Avery is an extreme outlier: Of all the many hundreds of people who have been exonerated and freed from prison, only a tiny handful have reoffended with a serious offense.

But Avery is an outlier for another reason as well: He may not have raped Penny Beerntsen, but he was far from innocent even back then. Police in his rural community already had him on their radar screen, as a dangerous young man, someone who thought nothing of assaulting a female relative with a gun or dousing a cat with oil and throwing it on a bonfire to watch it burn.

The filmmakers insist that it was never their intent to manipulate their audience, nor to propel such a mass rush to judgment – in either direction. In hindsight, however, perhaps the grisly murder of Teresa Halbach was not the best choice for a documentary about innocence?

-------------------
 POSTSCRIPTS

On Aug. 12, 2016, U.S. District Court Judge William Duffin granted Brendan Dassey's petition for a writ of habeas corpus, based on the false promises that were made to him (in conjunction with other relevant factors, including his age, intellectual deficits, and the absence of a supportive adult), and ordered that he either be released or granted a new trial. The 91-page ruling is HERE

On June 22 2017, a three-judge panel of the 7th Circuit Court of Appeals upheld the District Court's decision. Its 128-page ruling is HERE. As of that date, Dassey remained in custody while prosecutors decided whether to appeal to the Supreme Court. New York Times reporting on that appellate ruling is HERE.

On Dec. 8, 2017, by a narrow vote of 4-3, the full 7th Circuit Court of Appeals reversed the decision of its three-judge panel. Citing the need for appellate courts to be deferential of trial courts, it held that the original trial court decision upholding Dassey's conviction was not patently erroneous or unreasonable. In a strongly worded dissent, Justice Ilana Rovner called the decision "a profound miscarriage of justice" that condoned the use of psychologically coercive techniques and condemned "an impaired teenager" to spend his life in prison. The majority decision and two dissenting opinions are HERE. They are highly recommended reading as they illuminate the current state of tension surrounding psychologically coerced confessions and especially the controversial Reid interrogation method.  

In June of 2018, the U.S. Supreme Court declined to hear Dassey's appeal, meaning Dassey will continue to serve his life sentence.

And in July of 2018, Dassey's ethically challenged attorney Len Kachinsky, who later became a judge, was charged with stalking his former court clerk. He has been suspended from practice, and faces up to five years in prison if convicted. The allegations against him are creepy enough that they might make for a good true-crime show in their own right.

January 1, 2016

“Help! I am being held hostage in a reality show!”

The Suspicion System: How the social world shapes delusions


Not so long ago, any decent-sized psychiatric hospital had at least two or three Jesus Christs in residence, and plenty of other patients serving as conduits for the CIA or the KGB.

Nowadays, Jesus Christ is harder to find. You are far more likely to encounter reality TV stars: patients whose every move is choreographed by hidden directors, videotaped by hidden camera crews, and broadcast without consent to an audience of millions. “We see many, many young people who have had the sensation of being filmed,” a psychiatrist at a public clinic in London told the New Yorker. His estimate: One or two out of every 10 patients he sees. 

This so-called Truman Show Delusion is not so irrational in our modern surveillance state, where we (and our cars) are photographed and videotaped whenever we venture into the public space, microphones capable of recording our conversations and instantly beaming them to authorities are hidden in street lighting, and – as exposed by Edward Snowden – the NSA is intercepting vast swaths of our communications and storing them in a massive, top-secret vault in the Utah desert. Soon, our homes will afford no privacy; the CIA is cheering the advent of the “smart home” as a bonanza for clandestine eavesdropping. If you scoff at the notion that They are watching you, revisit the chilling scene in the Bourne Ultimatum (2007) in which Matt Damon tries to avoid the cameras in London’s Waterloo Station.   

The solipsist premise of Peter Weir’s 1998 Truman Show, starring Jim Carrey as an insurance adjuster who realizes that his entire life is actually a TV show, was not original. The psychiatric patient in Robert Heinlein’s 1941 short story, “They—,” was convinced that he was an actor on a stage; the troubled protagonist of Philip K. Dick’s 1959 novel, Time Out of Joint, also starred in his own self-constructed reality. But in an innocent era before the entrenchment of the panoptical gaze or reality TV – in which any random person, it seems, can wake up to find him- or herself an instant social media celebrity – these stories were fantastical, and thus incapable of producing mass contagion. 

But the cultural environment influences more than just the superficial content of persecutory or grandiose delusions. Far more profoundly, it impacts who will catch psychosis, and why. This blog’s readers may know that early use of cannabis significantly increases the risk of psychosis, as does experiencing childhood adversity such as severe abuse or parental loss. You may also be aware that merely growing up in a city puts one at heightened risk of mental breakdown; there is a near-linear correlation between population density and psychosis. But consider these further research findings:

  • The greater a nation’s income inequality, the higher its per capita rate of psychosis. 
  • Immigration is a major risk factor for psychosis – and not just for the immigrants themselves, but for their first-generation offspring. Nor is this risk equally distributed: It is highest for darker-skinned people relocating to whiter countries, especially if they settle outside of ethnic enclaves.

The burden of social defeat


In Suspicious Minds: How Culture Shapes Madness, psychiatrist Joel Gold and his philosopher brother Ian identify social fragmentation as the construct tying these seemingly disparate strands together. More precisely, the experience of social defeat, in which a person who is persistently demeaned, humiliated, or subordinated ultimately comes to see himself as a second-class citizen.

I have long found delusional beliefs fascinating. In particular, I enjoy talking with delusional people, and trying to understand the meaning of their beliefs. In this, I’ve gained a lot from the theories of luminaries in the field such as Brendan Maher, Richard Bentall and John Read. But Suspicious Minds is brilliant in pulling together all of the extant research to create a single unified theory, one that foregrounds and humanizes the delusional person’s experience.

The theory developed out of Joel Gold’s experiences as attending psychiatrist at New York City’s notorious Bellevue Hospital. After treating several patients with Truman Show delusions, he – in partnership with his brother Ian, a philosophy professor at McGill University in Canada – published a 2012 article on the phenomenon in Cognitive Neuropsychiatry. That, in turn, generated a deluge of emails from people all around the world who were relieved to realize they were not the only one who thought their lives were being secretly filmed and broadcast to the masses.

The Gold brothers’ theory of delusions as a social phenomenon goes against the grain in this era of pharmaceutical industry domination and biological reductionism, especially here in the United States, where the social context of mental illness has been systematically suppressed in favor of simplistic theories of genetic or chemical imbalances.

But things have a way of circling back around. Almost 50 years ago, against the backdrop of the assassination of Martin Luther King and the ensuing inner-city rebellions, African American psychiatrists William Grier and Price Cobbs dissected the psychic burden of prejudice. To survive, they wrote in their influential 1968 book Black Rage, oppressed people must maintain a delicate balancing act of being ever-vigilant and suspicious, yet without succumbing to frank paranoia:
“[S]urvival in America depends in large measure on the development of a ‘healthy’ cultural paranoia. [The black man] must maintain a high degree of suspicion toward the motives of every white man and at the same time never allow this suspicion to impair his grasp of reality. It is a demanding requirement and not everyone can manage it with grace…. Of all the varieties of functional psychosis, those that include paranoid symptoms are by far the most prevalent among black people.”
The panoptical gaze in The Bourne Ultimatum
Suspicion, then, is necessary and adaptive, especially for those most vulnerable to exploitation. But when chronic stressors overwhelm the brain’s capacity to cope, delusions are kindled. This is the essence of the Golds’ theory of delusions as the product of an overtaxed “Suspicion System.”

Drawing on recent research in neuroscience and evolutionary psychiatry, the Golds locate the Suspicion System in the amygdala – evolved to anticipate threat by interpreting ambiguous signs of potential social danger – and connected brain regions. Delusions take hold, they posit, with a breakdown in communication between this early-warning Suspicion System and the more rational, slower-thinking (“System 2” in Daniel Kahneman’s formulation) cognitive network that should be dampening the amygdala’s over-enthusiasm.



A solid theory should not only be logical, elegant, and empirically supportable, but should also explain diverse manifestations of a phenomenon. The Golds’ theory explains not just persecutory delusions, but each of the other 11 major delusional themes (e.g., grandiose, religious, erotomanic) as well. For example, grandiosity  – which we see in the Truman Delusion  – can be interpreted as a way of deflecting threat, much like a puffer fish blows itself up or a cat arches it back when faced with danger:

“Flexing your social muscles makes you less vulnerable to exploitation by others, and putting your high status front and center in a potential exploiter’s mind might make them think twice about victimizing you…. Grandiosity is thus a symptom of a Suspicion System on overdrive, a caricature of the normal adaptive strategies we employ every day…. Paranoia and grandiosity … are functionally connected: paranoia is a broken form of threat detection, and grandiosity is a broken threat response.”
With ever-growing income disparity and economic stress, social network disintegration, loss of privacy,  and social media's increasingly panoptical reach, we may expect more and more alienated people with trouble psyches to succumb to Truman Show delusions. Let us hope that, in treating them, we do not lose sight of their humanity, for they really are  not so different from us. As the Golds put it, “mental illness is just a frayed, weakened version of mental health.”

Indeed, if we listen, these frantic souls may even have something to teach.

October 25, 2015

Sex addiction: Science or pop fad?


Thirty-one years ago, when Patrick Carnes walked onto the Phil Donahue television show to promote his new book on sexual compulsivity as an addiction, his notion was – in his own words – “widely perceived as a joke.” 

But Carnes got the last laugh. With the mainstreaming of the addiction industry (eating, gambling, exercising and working are all potential addictions now), Carnes has risen to become guru of a lucrative empire with dozens of rehab centers staffed by thousands of paraprofessionals. Media outlets including Newsweek have uncritically jumped aboard, warning of a grim, pornography-fueled plague afflicting up to 5 percent of the U.S. population.  

With neuroscience all the rage, celebrities including Bill Clinton and Tiger Woods have been recast from mere cads to tragic victims of a progressive and often-fatal “brain disease.” The push for scientific legitimacy reached a zenith in 2013, with an unsuccessful bid to legitimize “hypersexuality” by adding it to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-5).

So, what changed over the course of the last three decades that made the public more receptive to seeing sexual misconduct through the lens of addiction?

In their meticulously researched Sex Addiction: A Critical History, three cultural historians from the University of Auckland in New Zealand trace the rise of this social movement primarily to a politically conservative, sex-negative backlash against the sexual liberation movement of the 1960s and 1970s. 

One clue to its underlying cultural values, historians Barry Reay, Nina Attwood and Claire Gooder observe, is the movement's enduring strand of homophobia. Even before Carnes's 1983 book Out of the Shadows popularized sexual addiction, the term had been invoked by Lawrence Hatterer, a psychiatrist whose work in the 1950s-1960s focused on curing the “illness” of homosexuality. Heteronormativity remains prominent in the field, with gay men who violate heterosexual norms of sexuality labeled as sex addicts.

Unlike many purported disorders that are promoted by researchers or the pharmaceutical industry, sex addiction is a bottoms-up movement, with people self-diagnosing themselves via self-help books or quick-and-dirty Internet surveys. Its infiltration into popular culture owes in large part to the media’s abdication of its role as scientific gatekeeper, argue the authors of Sex Addiction. As the Columbia Journalism Review also pointed out in a critique of the Newsweek puff piece, “The problem with relying on therapists, as most of the articles over the years have done, rather than qualified experts in academia, is that they have a vested interest in promoting the idea that there’s a widespread problem. The more people believe it, the more money they make."


In contrast to the lay public, academic scholars have remained skeptical of a construct that is too broad and amorphous to have any scientific validity; everything from viewing pornography or having an illicit affair to feeling ashamed about one's sexuality can count toward a diagnosis. Indeed, research studies have found that people’s anxiety over their sexual behavior is tied more to their moral values and level of religiosity than to the actual intensity of their behavior.

It is findings such as these that open sexual addiction up to ridicule. One prominent critic, David Ley, author of The Myth of Sex Addiction, has mocked sexual addiction literature as "valley-girl science" -- a hodge-podge of anecdote and metaphor rather than any provable theory. As he told a Salon interviewer:
“All of these behaviors have been happening for millennium — people cheating, people having lots of sex…. There’s nothing new about this…. For every one of the behaviors they raise as addictive — whether it’s porn, strip clubs, masturbation, infidelity, going to prostitutes — I can present 10,000 people who engage in the exact same behavior and have no problems, and they can’t explain why that is.”
Historically, hysteria over sexual depravity is somewhat cyclical. Way back in the 1870s, a crusade against "smut" by a U.S. Postal Inspector and politician named Anthony Comstock resulted in thousands of arrests and the destruction of 15 tons of books. Interestingly, Comstock's passion for moral purity stemmed from his own personal demons; as a youth, he was said to have masturbated so compulsively that it almost drove him to suicide.

Treating a case of "Madness of the Womb" (1600s)
The pathologizing of female lust has a particularly long tradition, dating back hundreds if not thousands of years. In the late 1600s, women were diagnosed with nymphomania (a diagnosis that still exists in the World Health Organization's International Classification of Diseases, or ICD), or “madness of the womb," a disease said to be triggered by amorous courtings, lascivious books and dancing. As with today’s sexual addiction, the condition was considered progressive; if not promptly treated it would lead to “true and perfect madness.” Treatment included bleeding, cool baths with lettuce and flowers, marriage to "a lusty young man" or -- no kidding -- rubbing of the afflicted woman's genitals by "a cunning midwife."

Nowadays, as then, there is a common pattern in the way proponents of scientifically questionable new problems attempt to establish their legitimacy. First, they announce discovery of the problem; next, the problem’s lineage is traced back through time to show that it existed all along but was overlooked or neglected. Finally, and most critically, alarmist claims are made about a growing epidemic.

This pattern could be observed in the 2013 campaign to legitimize “hypersexuality” by making it a DSM disorder. For example, the claims-making process included articles by psychiatrist Martin Kafka  tracing hypersexuality’s lineage back to the pioneering sexologists of the 19th century. But in their first-rate scholarship, the Auckland historians scoured those primary sources – the writings of early sexology heavyweights such as Magnus Hirschfeld, Havelock Ellis, Richard von Krafft-Ebing and Iwan Bloch – and found that their descriptions of the sexually compulsive bore little resemblance to contemporary hypersexuality or sex addiction. Rather, the early sexologists described tortured souls who were both rare and bizarre, typically suffering from more global psychiatric or organic maladies rather than a primary sexual disorder. For example, writing in 1908 about the “sexually insane,” Iwan Bloch described him as resembling a “wild animal” who:
“rush[es] at the first creature he meets … to gratify his lust …. He seizes in sexual embrace any other living or lifeless object, and in this state may perform acts of paederasty, bestiality, violation of children, etc. In these most severe cases we can always demonstrate the existence of mental disorder, general paralysis, mania, or periodical insanity … as a cause.”
Judging from singular descriptions like this, the early hypersexual was an extraordinary creature, a far cry from the mundane individual proposed for the DSM-5. Indeed, the proposed operational definitions for contemporary hypersexuality are striking in their breadth. For example, one diagnostic criteria proposed for the DSM-5 was experiencing seven or more orgasms per week by any method. Based on one survey of the general population in Sweden, this arbitrary cutoff would have pathologized almost half of all men (44%) and more than one out of five women.

Despite official rejection of hypersexuality by the American Psychiatric Association in 2013, the ideology of sexual addiction is gradually seeping into forensic quarters. For example, in some civil detention sites for sex offenders, minimally trained "treatment providers" play the role of moral arbiters, determining what forms of sexual desire are "appropriate" based not on their illegality or potential harm but whether the providers find them "healthy."

To be deemed “healthy” in some such programs, captive patients are required to develop vanilla “masturbation fantasy scripts” that resemble a corny Hallmark card:
"My masturbation fantasy involves Amanda. She is 40* years old, with flowing auburn hair and large green eyes. We enjoy cuddling by the fireplace, taking long walks on the beach in the moonlight, and gazing into each other’s eyes by candlelight."
(*The fantasy object must be the same approximate age as the offender; if she is more than five years younger, he will be told to rewrite his script to make it more "appropriate.")

Despite the enduring popularity of teachers, nurses and -- especially -- librarians as objects of male fantasy, in the burgeoning sexual offender treatment industry, even these cultural tropes may be labeled as "deviant." In one case I was involved in, a man's fantasy of seducing a librarian was advanced as evidence of sexual danger, based on the notion that the library (even after hours) is a public setting.

Of course, this not-so-thinly veiled moralism masquerading as treatment has no empirical support as a method to reduce former sex offenders’ risk to the public. But it does comport with popular cultural notions of addiction and sexual compulsivity, however unproven -- even bizarre -- they may at times be.

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Sex Addiction: A Critical History by Barry Reay, Nina Attwood and Claire Gooder is as well written as it is insightful; I highly recommend it. Also recommended is clinical psychologist David Ley’s thoughtful work, The Myth of Sex Addiction.