Split Court Clarifies Role of ASPD in Civil Confinement

10-31-2014 New York:

ALBANY - A diagnosis that a person suffers from antisocial personality disorder (ASPD), without any other condition linked to sexual violence, is insufficient to support the finding of mental abnormality needed for civil commitment to a mental heath facility, the state Court of Appeals held.

The ruling clarified what it said was an open question on whether the condition is itself a signal of an offender's propensity to commit sex crimes or an indicator of more general antisocial behavior without links to criminal sexual behavior.

Under Mental Hygiene Law Article 10, a finding of a mental abnormality must be made by a court before it can impose restrictions on offenders upon their release from prison that range from mandatory outpatient treatment to confinement in secure mental health facilities.

Antisocial personality disorder is defined as a condition or disorder that affects the emotional or cognitive capacity of a person in a way that predisposes him or her to commit a sex offense and "results in that person having serious difficulty in controlling such conduct."

Writing Tuesday for a 4-3 majority in Matter of the State of New York v. Donald DD, 172, Judge Eugene Pigott (See Profile) noted that the medical experts testifying at Donald DD's Article 10 commitment trial in Greene County Court in 2010 said ASPD can be summed up as a person's failure to conform to social norms and laws, impulsivity, aggressiveness, disregard for the safety of self or others, lack of remorse, deceitfulness and irresponsibility. Pigott said two of the experts agreed that 93 percent of those diagnosed with ASPD are not sex offenders.

On the other hand, Pigott noted, ASPD experts say as many as 80 percent of the inmates in prison have the disorder.

Pigott wrote, "Our conclusion is not that ASPD is in itself an unreliable diagnosis rejected by the psychiatric profession. …The problem is that ASPD establishes only a general tendency toward criminality, and has no necessary relationship to a difficulty in controlling one's sexual behavior."

In the Donald DD case, Greene County Court Judge Daniel Lalor ordered civil confinement for the offender after a jury found he suffered from a mental abnormality based on expert testimony about his ASPD and his past sexual criminal history. An Appellate Division, Third Department, panel affirmed Lalor's decision (NYLJ, June 13, 2013).

Donald DD's "eclectic" history of sexual misconduct, as the Third Department termed it, included having sex with 14- and 12-year-old girls when he was 18, a sexual attack on an adult acquaintance that Donald DD said was consensual, having forcible sexual relations with his wife and alleged sexual contact with his children.

Pigott said the Court of Appeals' ruling earlier this year in Matter of the State of New York v. John S., 23 NY3d 326, left open the question of whether a civil commitment under Article 10 can be based on the evidence of a person's sexual crimes and a diagnosis of ASPD.

"We hold that it cannot," Pigott wrote.

Quoting the court's ruling in Matter of the State of New York v. Shannon S., 20 NY3d 99 (2012), Pigott wrote that ASPD "means little more than a deep-seated tendency to commit crimes" and, in the context of a civil commitment proceeding, "proves no sexual abnormality."

Chief Judge Jonathan Lippman (See Profile) and Judges Robert Smith (See Profile) and Jenny Rivera (See Profile) joined Pigott.

In a dissent, Judge Victoria Graffeo (See Profile) said she believes ASPD is a "viable predicate for a determination of mental abnormality" in some Article 10 cases.

Graffeo cited the experts' testimony in Donald DD's civil commitment trial which indicated that the offender's ASPD resulted in "cognitive distortions' that permitted him to act in a sexually offensive manner. The judge also noted that two of the experts at Donald DD's trial found a direct link between his ASPD and the "serious difficulty" he had controlling his sexual urges.

Judges Susan Phillips Read (See Profile) and Sheila Abdus-Salaam (See Profile) joined in the dissent.

The court also ruled in another related, though not identical, issue raised in Matter of State of New York v. Kenneth T., 173.

In that case, Kenneth T. argued that his consignment to civil confinement on the basis of ASPD and a condition known as paraphilia NOS were insufficient to establish a mental abnormality under Article 10. Paraphilia NOS, standing for "paraphilia not otherwise specified," is defined as having "sexual fantasies, urges or behaviors directed … at inanimate objects or non-consenting partners or minors," according to the court.

A Second Department panel upheld the confinement determination for Kenneth T.

The Court of Appeals held that the additional diagnosis of paraphilia NOS in the Kenneth T. matter distinguishes that case from the Donald DD appeal. It noted that in the Shannon S. case, a majority of the court upheld a finding of mental abnormality, even though the dissenters called paraphilia NOS "junk science devised for the purpose of locking up dangerous criminals."

Pigott wrote that the court will not overrule Shannon S. based on stare decisis.

In addition, he said the question through which the court would decide if a diagnosis of paraphilia NOS has received general acceptance in the psychiatric community would be decided at a Frye hearing, and no Frye hearing was requested in the Kenneth T. case.

The court reversed the Second Department in Kenneth T. by a 7-0 margin, with the three dissenters in Donald DD concurring.

Ana Vuk-Pavlovic of Mental Hygiene Legal Service for the Second Department in Mineola represented Kenneth T. and George Hoffman of Albany argued for Donald DD.

Assistant Attorneys General Bethany Davis Noll and Kathleen Treasure defended the state in the two cases. ..Source.. by Joel Stashenko, New York Law Journal

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