Wednesday, November 25, 2015

Polygraph Testing and Sex Offenders

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

Chaffin, M. (2011). The case of juvenile polygraphy as a clinical ethics dilemma.  Sexual Abuse: A Journal of Research and Treatment, 22:314-328.

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