Friday, January 15, 2016

Reflecting back, moving forward: Part 2 – Looking forward to 2016

Welcome to part 2 of our New Year’s blog! In this part we will address what we think are some of the salient issues facing the sexual harm field as we move into 2016.

Kieran McCartan: The thing that really strikes me, and it’s something that I have written about on the blog quite a bit in 2015, is the continued need for cross disciplinary collaboration and looking outside of our silo. This is really starting to happen now, which is great but we need to do more. Looking to other areas of psychology, criminology, social policy, public health, biology and neuro-science [to cite a few disciplines that we have seen the field of sexual harm successfully utilize] has lead us to some really interesting places including conversations about prevention, desistence, trauma informed care, and mindfulness; all of which have really helped our field look at the population that we work with in a different way. What’s next? What is the next area of social, human and biological sciences going to bring to the table? In addition to looking at other research and theories we should also consider what different disciplines can offer us in terms of new methodologies, new forms of data analysis and new places to present our data [in terms of conferences, journals and forums – maybe we go to a specialist conference and present our work rather than inviting the most amenable to ours]. By embracing the fact that sexual harm is a topic that can unite us all together as a common topic of endeavor, rather than isolate us out as a specialist field, we can make great leaps forward.

As a research field we have started to move further away from the mainstream of sexual harm perpetrator to look at female offenders, offenders with learning difficulties, minority groups and sexual harm and so on. This is great, we are no longer playing the game of “erase male, white sex offender and replace with xxxx”, we are really getting into the nuts and bolts of the array of groups that commit sexual harm and seeing what is unique about them that is different to the mainstream [as well as recognizing what is the same] which will help us design treatment programs, risk assessment, management strategies and prevention plans that are fit for purpose. This is “what works” in action!!

I suppose that my main point in all of this is “look outside the defined sexual harm box”, look to other places for inspiration, for knowledge and to see if what we already know works with everybody that we engage with; as I said before we already do this but we can do it much more and reap greater rewards because of it.

David Prescott: In a powerful speech at the Evolution of Psychotherapy conference in 2009, Phil Zimbardo (principle actor in the infamous Stanford Prison Experiment and later President of the American Psychological Association) offered a definition of evil: “When you know better and you still do worse.”

The past 30 years have seen an explosion of science-based knowledge in our field. From Freund’s pioneering research using phallometrics to the certificate-of-confidentiality research of Gene Abel and his colleagues that did much to reveal what people do and don’t get caught for, to the remarkable Hanson and Bussiere meta-analysis of 1998 and the others it spawned and the exploration of therapeutic and protective factors offered by Bill and Liam Marshall, Calvin Langton, James Worling, and others too numerous to mention.

During 2015, our field saw three sex offender civil commitment programs declared unconstitutional, two by federal judges. Perhaps just as importantly, we also saw several world-class programs (at least two in Canada and at least one in the USA) shut down or restructured and handed over in lowest-bid situations. In some cases, programs have opted to use highly scripted curricula instead of ensuring the effectiveness of each clinician. On one hand, professionals needn’t be surprised; cost-cutting measures in the human services are by now familiar. On the other hand, one wonders to what extent therapists are now finding themselves colonized by curriculum developers from well outside the circumstances in which they work. Research consistently highlights the same factors that define evidence-based practice: clinical experience in combination with the best available research and client characteristics. In light of these events, can we really say that our field was better off in 2015 than it was in 2005?

Surprisingly, these recent events have garnered little discussion within ATSA’s membership. Recent listserv discussion has centered more on what goes well within these programs than their shortcomings, with only one suggestion for policy that might be more effective (and even in that case, the author of the post expressed concerned that such policy could also be misused for political ends). One comment dismissed a recent finding of unconstitutionality as resulting from just “a low level federal judge.” One wonders at what point we should all become outraged by the public-safety and human rights implications of our circumstances. How much energy should we spend defending the status quo? Or should we take more of a stand? Questions abound: how do individuals and organizations best put their money where their mouth is? Given that so few policymakers are swayed by actual evidence, how do we influence decision-makers?

The above are questions our field has asked for a long time. Perhaps it’s time for new questions: At what point do we stop accepting the status quo? At what point do we start to wonder whether we’ve lowered our standards of care? At what point do we start advocating for the rights of all people in the equation, including our clients? And at what point do we look in the mirror and ask whether we are doing worse even as we know better?

Jon Brandt: The dark era of “nothing works” with sex offenders introduced a false doctrine that today is still influencing public policy around the treatment and management of sexual offenders (Mancini & Budd, 2015). 

It is now more than four years since the US District Court for Minnesota agreed to consider the constitutionality of sexual offender civil commitment (SOCC) in Minnesota.  Last June, Federal Judge Donovan Frank determined that both the program and underlying statutes are unconstitutional.  Almost simultaneously, another federal court found Missouri’s SOCC program unconstitutional.  In 2015 a Texas state court judge released the first client from Texas’ SVP program, citing unconstitutional confinement.  A Texas appeals court reversed the ruling and the client was returned to custody.

These court rulings did not say that these SVP programs are not providing credible treatment, but rather that the programs, which have almost no releases, are constitutionally compromised.  Over the last year, David Prescott and I wrote a series of blogs on the MSOP lawsuit.  My personal position is not that SVP programs shouldn’t exist, but rather that, in many states, SOCC is overreaching and/or compromised by the failure to effectively move clients through the system. 

On 10/28/15 Judge Frank issued an order for constitutional remedies in Minnesota.  On 12/15/15, the US Court of Appeals stayed Judge Frank’s order.  The Eighth Circuit agreed to hear oral arguments in St. Louis on 4/12/16.  What seems shortsighted about the Appeals Court ruling is that the crux of Judge Frank’s remedies order is that MSOP must begin evaluations to determine which clients meet criteria for SOCC.  Whether or not the rulings of the US District Court of Minnesota are upheld by the Eighth Circuit, there are hundreds of clients at MSOP who must be evaluated, and even under Judge Frank’s timeline, some might not be evaluated until 2018. 

Parties to the Minnesota lawsuit largely agree on one point: there are clients at MSOP who deserve a reduction in custody or a less restrictive alternative.  If that is the case, such clients are being unconstitutionally incarcerated.  Some clients have been at MSOP for more than 20 years, some are intellectually disabled, more than 60 are juvenile-only offenders, and some are elderly and infirmed.  The oldest is 93.  For over 700 clients at MSOP, the New Year marks another year that the exits are blocked and clients are caught in an endless loop of treatment.  If Minnesota is unable or unwilling to comply with a judicial order to evaluate, and annually reevaluate all 700+ MSOP clients, it would seem that Minnesota’s SOCC scheme is still on a collision course with the US Constitution, and perhaps a review by SCOTUS.

In 2008, Eric Janus and Robert Prentky wrote a twenty-year retrospective on the use of SOCC in the US, arguing that civil controls of sexual offenders, including sexual offender civil commitment (SOCC), are misguided and more about moral panic than sound public policies for public safety.  Perhaps we should acknowledge what Judge Frank has referred to as “society’s opprobrium” for sexual offenders – and that, in many cases, unwarranted civil regulations are impeding, rather than facilitating recovery of those who have sexually offended.   Do such public policies make society safer?

In Part 1 of this blog, I gave a shout-out to Elizabeth Mustaine and her colleagues for their 2015 journal article on how professionals might be contributing to misguided polices of civil regulations of sexual offenders, including residency restrictions, community notification, and the sex offender registry.  When residency restrictions amount to banishment, there are thousands of juveniles on the sex offender registry, and research concludes that the vast majority of sexual offenders (even SVP’s) will not reoffend, it is time to challenge public policies that are not only unwarranted, but largely counterproductive, if not outright unconstitutional.  Aside from civil rights violations and collateral consequences, one of the many unfortunate side effects of misguided public policies is that they fuel unwarranted public fear.

When the ethical concerns of working with those who have sexually offended are so difficult to reconcile with laws, court rulings, victim rights, public safety, and public opinion (which at times can be at odds with each other), it seems more important than ever that professionals who work in the field of the treatment and prevention of sexual harm are current on research and guided by best practices.

Kieran McCartan, PhD; David Prescott, LISCW; Jon Brandt, LICSW

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