We recently had a blog
post on the polygraph by David Prescott which readers may want to look at
in relationship to this new one.
Polygraph
testing of sex offenders has come in for a good deal of recent criticism. While polygraphy in general, and
post-conviction sex offender testing (PCSOT) in particular, is not without its
problems, many of the negative comments are based on misunderstandings,
misconceptions, and sometimes just plain mischievousness. Other criticisms, however, are based on
genuine concerns, a number of which are eloquently described in a recent blog
by David Prescott (2015). But what is often
unclear is the extent to which these objections are fundamental to polygraph
testing and PCSOT, or whether they relate to poor or outright bad practice in
delivery.
Supporters
of PCSOT argue that it makes an important contribution to sex offender
treatment and management by facilitating disclosure, bringing to attention
changes in risk (both increases and decreases), and encouraging offenders to
modify their behaviour. As these
outcomes are also sought by treatment providers and offender supervisors in
their work with sex offenders, it would seem that it is not the ends of PCSOT that
critics don’t like, but the way in which it gets there.
Objections
to PCSOT are of two types, ethical and practical. As Mark Chaffin astutely observed (Chaffin,
2011), good practice standards are not the same as ethical principles – even where
the delivery of PCSOT is well managed, potential ethical objections don’t disappear. If PCSOT falls at the first, ethical hurdle
then there is little point in carrying on, so it makes sense to start
there.
Ethical
objections are not hard to find. Terms
commonly used in critical commentaries are ‘coercion’, ‘intrusion’, ‘psychological
manipulation’, ‘intimidation’, ‘self-incrimination’, and ‘overriding autonomy’. Many
of this frightening terminology arises from the notion that polygraphy is
primarily about interrogation, stated explicitly by Chaffin (2011) who
described it as “fundamentally a coercive interrogation tool for extracting
involuntary confessions” (p. 320). But
PCSOT need not, and should not, be about interrogation and confession. Instead, it should be seen as an interview
process in which lying is explicitly discouraged but which otherwise mirrors
ordinary interviewing practice. The
questions asked during PCSOT are asked by supervisors and treatment providers already,
and if they’re not then they shouldn’t be asked by the polygraph examiner. Offenders have an opportunity to explain
deceptive outcomes, but they are not intimidated into doing so.
Provided
that the questions asked during the polygraph test are directly relevant to
treatment or supervision, how is it coercive, or morally problematic, to expect
the offender to answer honestly? The
problem comes not with the answers, but when an offender who is judged to be
deceptive in the absence of disclosures is whisked back to jail, thrown off a
treatment programme, or has his progress impeded in some other way on that
basis alone. This is rightly troubling
given the procedure’s error rate, which is probably in the region of
10-20%. It is not, however, a moral
issue for polygraphy, but for how its results are used. A ‘deceptive’ test in the absence of
disclosure should be seen as a warning sign, an indication that something requires
further investigation or attention, but it should not on its own trigger
definitive action. While that may seem a
flimsy use of a muscular outcome, PCSOT is meant to contribute information to
treatment and supervision, not drive it.
To that end, it would be a great help if we moved away from talking
about ‘passed’ and ‘failed’ tests altogether.
Mandatory
PCSOT is of course coercive in that there are penalties for
non-cooperation. But we’re talking about
convicted and usually high risk offenders, who by virtue of their criminal
convictions are required to accept a range of restrictive and coercive measures
such as conditions on where they live, limitations on employment, curfews, and
treatment requirements.
There
is, however, a belief that the way in which information from polygraph testing
is obtained is inherently hypocritical, with examiners deceiving offenders by
telling them that the procedure is error free while at the same time demanding
that the offender should always tell the truth. While this may occur, it is certainly not good
practice, nor is it necessary. Indeed,
the British Psychological Society (2004) stressed that participants should be
informed of known error rates, a sentiment with which it is hard to
disagree. There is no reason to believe
that PCSOT would cease to be effective in these circumstances, and indeed in
our experience it has not happened in the UK where we are honest about error
rates.
Keeping
with the hypocritical theme is another objection that one of the most commonly
used polygraph formats, the ‘probable lie technique’, requires the examiner to
force the offender to lie to some questions in order to compare the response to
answers to so-called relevant questions.
But though this is what tends to be taught, it is not the lie but the uncertainty
of the answer that is probably the basis of the effect. Regardless, those with qualms about ‘probable
lies’ can make use of an aligned technique in which the offender is told to lie
to certain questions, removing any subterfuge and also avoiding the risk of the
examinee admitting to transgressions that have nothing to do with sexual risk.
The
loudest and most forceful ethical objections seem to come from those in the
adolescent treatment world. The increased
vulnerability of juveniles and adolescents, the worry that more harm than benefit may result from their perception
of the process, and the focus on developmental rather than offending issues per
se changes the tone of PCSOT from what it is when used with adults. Indeed, it is not even clear that polygraphy
works in the same way as it does in adults given differences in brain maturity
and psychological development. Whereas
PCSOT in adult offenders has a steadily thickening evidence base, the same
cannot be said for adolescent testing. But
while even critics like Chaffin (2011), who consider the ethical concerns relating
to adolescent testing to be “substantial”, don’t go so far to say that it is
unethical, they rightly argue for more evidence about the impact of its use in
young people. Until this evidence is
produced it is almost certainly right that PCSOT should be used with great
caution in young people, with decisions made on a case by case basis (in the UK
we do not test those under 18 years of age at all), but care must be
taken not to entangle the specific issues associated with testing young people
with polygraph testing more generally.
None
of the ethical objections referred to above would appear to be fundamental to
PCSOT but to how it is delivered. Which
brings us to the more practical aspects of the process.
In
the US the prevailing approach to PCSOT is the Containment Model based on a
triangle formed by treatment provider, offender supervisor and polygraph
examiner. While it has clear attractions
from a public protection perspective, and helpfully stresses the need for
communication between those working with offenders, it implies that all sex
offenders require high levels of external control to keep them from reoffending. Some offenders, however, genuinely seek to
improve their internal controls and engage with treatment and supervision, and
for them the emphasis on containment risks impairing internal longer term
change. For them the containment model
may not be right, but nor is it the only show in town. PCSOT can have a different focus. Remembering that test outcome and disclosure
are complementary, in those who are working with us polygraphy can function as
a truth facilitator, encouraging them to discuss problematic thoughts and
behaviors and provide reassurance that their risk is stable. And though some argue that disclosures simply
represent a ‘bogus pipeline’ effect resulting from the false belief that the
polygraph is a 100% lie detector and is lost once an offender learns otherwise,
all the evidence shows that disclosures continue regardless. Indeed, rather than denigrating the increase
in disclosure obtained in PCSOT we should be looking for ways to enhance the
effect.
There
are associated concerns that the largely controlling approach of the
Containment Model, and by implication PCSOT more generally, may impact
negatively on both therapeutic and supervisory relationships. Arguments to this
effect, however, are based on theoretical rather than empirical grounds. What evidence there is suggests that PCSOT
can in fact improve relationships. It does
not have to carry with it the implication that sex offenders are not to be
trusted. It should be remembered that
polygraphy also catches offenders telling the truth; one should not
underestimate the benefits for an offender who is able to demonstrate that he
is being honest in his dealings with those working with him, and the positive
impact this can have on his relationship with them.
David
Prescott stresses the importance of establishing a treatment culture “in which
honesty and commitment are valued more than the appearance of compliance with
expectations”. There is no reason why
PCSOT, when used properly, cannot contribute to this. He asks, “What level of disclosure is good enough for treatment to be effective?”
(which can just as well be asked about supervision). This is not just a question for PCSOT, but whatever
the answer is it should be the level of disclosure sought by therapists,
supervisors, and PCSOT examiners alike.
The need for ‘complete confession’ or ‘full disclosure’, while perhaps a
feature of some PCSOT programs, does not have to be what PCSOT is about.
Then there are those who
argue that there is little evidence for the efficacy of PCSOT, noting few
studies into reconviction rates. Is
recidivism, however, the right outcome with which to judge PCSOT. PCSOT is about providing information, the nature
of which is determined by therapists and supervisors and which they believe is important
for supervision and treatment generally.
If this information does not contribute to treatment or supervision, and
ultimately a reduction in recidivism, then either the wrong questions are being
asked, or the answers are not being employed effectively. The blame should not be placed at PCSOT’s
door. It seems odd to want it both ways
– to argue that the information provided by PCSOT lacks value and does not
reduce recidivism, but nonetheless we seek it in other ways.
If PCSOT is not to be judged by recidivism rates,
how should it be evaluated? As it is
about information gain surely attention should be focused instead
on the value of the information provided – the frequency and content of
disclosures, the impact of test outcome on decision making, and actions taken
after a polygraph test can all form part of a cost-value analysis to determine
the value added by PCSOT compared with the cost of administering it. In other words, to what extent does PCSOT better
enable probation officers to monitor risk and initiate timely interventions,
and allow therapists to more accurately identify and address treatment targets?
Where
the critics have it right is their observation that the process depends on
competent polygraph examiners and well-designed and governed PCSOT programs. Examiners must be properly trained and
supervised, the protocols they work to sound, and their work subject to
rigorous quality control. The tendency
to go for those with the cheapest rates or the flashiest websites needs to be
resisted, and there lies the basis of potential problems.
In
the end, one might ask whether it is unethical not to use PCSOT in the treatment and supervision of sex
offenders. If the information obtained
during a polygraph examination adds significantly to what is otherwise known
about treatment need and risk, is it right to deny the potential benefits of
PCSOT to an offender? If PCSOT does
reduce risk, how can one explain to a future victim why it did not form part of
the offender’s treatment and supervision package? While the evidence for PCSOT is supportive
rather than conclusive, objections tend to rely on opinion rather than
fact.
Those
who make use of PCSOT must know the right questions to ask of it, how much
weight to give its results, and how to integrate it with everything else they
do with an offender. More thought needs
to be directed to which offenders are most likely to benefit, the needs that can
best be targeted in those offenders, and whether modifications are necessary
depending on the characteristics of the individual taking part (sounds a bit
like the ‘risk-needs-responsivity’ principle).
In the end, that is an argument for enhancement, not abandonment.
Don
Grubin MD FRCPsych
References
Chaffin, M.
(2011). The case of juvenile polygraphy as a clinical ethics dilemma. Sexual
Abuse: A Journal of Research and Treatment, 22:314-328.
Prescott, D.
(2015). http://sajrt.blogspot.co.uk/2015/08/five-questions-regarding-polygraph.html?m=1.
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