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IN RE: the Application of the STATE of New York, Petitioner, v. VICTOR H., Respondent, For Civil Management Pursuant to Article 10 of the Mental Hygiene Law.
In this proceeding under Article 10 of the Mental Hygiene Law, respondent Victor H. moved by motion, dated April 28, 2016, for an order precluding all testimony at trial concerning the condition of hypersexuality as that term is defined in the Petition for Civil Commitment filed by the State of New York (“Petitioner” or “the State”) on December 12, 2013. Specifically, respondent alleges that hypersexuality is not a condition or diagnosis generally accepted by the relevant scientific community and thus, the use of expert testimony for that purpose should be precluded under Frye v. United States (293 F 1013, 54 App. DC 46 [DC Cir 1923]). Petitioner opposed the motion.
This Court granted respondent's motion for a Frye hearing and on March 9, 2017, March 10, 2017, May 15, 2017, May 17, 2017, June 12, 2017, June 14, 2017 and June 29, 2017, this Court received expert testimony concerning hypersexuality. On October 2, 2017, this Court issued an oral decision, on the record, denying respondent's motion, and finding that the condition of hypersexuality is generally accepted within the relevant psychological community. This opinion details the Court's factual findings and legal ruling.
Respondent's Criminal Offenses
On June 25, 1990, at 2:30 a.m., respondent climbed a fire escape and entered the window of an apartment of a woman who lived nearby respondent's residence in Kings County (Petition at ¶ 17a). Respondent held a knife to the victim's throat and demanded money and jewelry (Id.). Respondent forced the victim into the bedroom and had her lie face down on the bed (Id.). Respondent forcibly inserted his penis in her vagina and then forced her to touch his penis (Id.). Respondent left the apartment and the victim called the police. A rape kit was performed on the victim and seminal fluid was collected (Id.). This crime, however, went unsolved for one year.
Later that same day, respondent was arrested and charged with the burglary of an apartment in New York County after witnesses observed climbing down a fire escape (Petition at ¶ 17b). Police responded and recovered stolen property in respondent's pockets (Id.). Respondent gave police a false name which resulted in error with respondent's fingerprints and his New York State Information Systems (“NYSIS”) rap sheet which indicated that this was respondent's first arrest. Rather, respondent had a lengthy arrest record with approximately 50 prior arrests and many convictions (Id.). Since respondent's true record was unknown to the police a prosecutors, respondent pleaded guilty to attempted burglary in the second degree and received a sentence of one to three years incarceration. Respondent was released to parole supervision on the attempted burglary charge after ten months on August 8, 1991 (Id.).
On August 14, 1991, only six days after his release from prison, respondent climbed a fire escape and entered the window of an apartment of a young woman who lived nearby respondent's residence in Kings County (Petition at ¶ 17c). The victim was, at that time, employed as an Assistant District Attorney in Kings County (Id.). Respondent held a knife to the victim's throat and threatened to kill her. Respondent forced the victim to lie face down on the bed and forcibly inserted his penis in her vagina and anus. He then stuffed a t-shirt in her mouth and hogtied her hands and ankles with telephone and electrical wires (Id.). He took her credit cards, cash, jewelry and a stereo. Before he left, he drank from a carton of juice and placed it on the counter. The police were called and a rape kit was performed on the victim and fingerprints were collected from the apartment.
Within days of the second rape, a state prison inmate, who was the former cell mate of respondent, contacted law enforcement and informed them that while respondent was incarcerated he stated that he intended to “rape a white woman” upon his release (Petition at ¶ 17d). This informer knew where respondent lived in Kings County which was near the second victim (Id.). The police then matched respondent's fingerprints to several items in the victim's apartment, including the container of juice. Evidence from the rape kit also matched respondent's DNA (Id.).Respondent was located and arrested. His photograph was posted by local media in news reports (Petition at ¶ 17e). The first victim, from the 1990 rape, saw respondent's photograph in the newspaper and recognized him as the same person who raped her (Id.). The first victim contacted police and after a line-up respondent was identified in the 1990 rape. Respondent was indicted for both rapes in two separate indictments. On November 2, 1992, respondent pleaded guilty to two counts of rape in the first degree and was sentenced to an indeterminate term of imprisonment of 11 to 22 years to be served concurrently (Petition at ¶ 17f). Respondent was initially paroled on November 26, 2012, but he violated parole within two weeks by using marijuana and failing to attend treatment within the community. Consequently, respondent's parole was revoked and he was returned to prison for approximately one year.
Respondent has no other known prior sexual offense convictions, however, he has approximately 50 arrests including criminal mischief, robbery, criminal possession of a weapon, and burglary (Petition at ¶ 18–19). The petition further notes that respondent has provided 27 different and 16 social security numbers in connection with his arrests (Petition at ¶ 19). Some of the aliases include references to sex including: Billy Love, Victor Love, Gary B. Love, and Victor Hard (Id.).
Article 10 Procedural History
On or about October 23, 2013, the Department of Corrections and Community Supervision (“DOCCS”) gave notice pursuant to Mental Health Law § 10.05(b) to the Office of Mental Health (“OMH”) and the Office of the Attorney General that respondent may be a detained sex offender and was nearing anticipated release (Petition ¶ 39). DOCCS then notified the respondent that he had been identified as a possible detained sex offender and that he was referred to a case review team to evaluate whether he required civil management upon his release from prison. After a psychiatric examination of the respondent, the case review team concluded that respondent was a sex offender requiring civil management (Petition ¶ 41).
Specifically, Ronald Field, Ph.D., a licensed psychologist employed by OMH conducted a three hour evaluation of respondent and using the Diagnostical and Statistical Manual of Mental Disorders, Fifth Edition (“DSM–5”) diagnosed respondent with the following disorders or conditions:
Disorder: Anti-social Personality Disorder (“ASPD”)
Disorder: Stimulant use disorder, Cocaine, In a Controlled Environment
(Petition ¶ 23; State's Exhibit 29).
Relative to the diagnosis of ASPD, Dr. Field opined that respondent has six of seven possible criteria for the diagnosis including repeated arrests, deceitfulness, impulsivity, a pattern of assaultive behavior, disregard for the safety of others and lack or remorse (Petition ¶ 25). Respondent was also given a score of 31 on the Psychopathy Checklist-revised which places him at a high level of psychopathy (Petition ¶ 26).
Relative to his diagnosis of the condition of hypersexuality, Dr. Field cited a number of examples of respondent's behavior that supported the diagnosis. In April 2013, while incarcerated, respondent wrote a letter to a female stating “I overpower,” “I rip off their shirts,” and “I dominate plain and simple” (Petition ¶ 27). It was reported that while incarcerated respondent was called the “Booty Bandit” because he targeted young inmates who appear to be homosexual and forces them to have sex (Petition ¶ 27). In September 2013, respondent wrote a letter to his daughter requesting that she “line up some pussy of my own for when I come home” (Petition ¶ 28). In October 2013, respondent sent a letter to a male friend asking for his friend “to come out of retirement orally for me, such as the next day I'm home, now you know I'm very horny, hungry for sex, so it is up to you to get with the program, come out of retirement and let me take you to heaven, or you can have me a young boy or female ready and available, once that's done I'll be able to relax and socialize” (Petition ¶ 28).
The case team recommended civil management and the State commenced this proceeding by serving and filing an order to show cause and petition, dated December 12, 2013, alleging that the respondent who was about to be released from a State correctional facility was a sex offender requiring civil management pursuant to Article 10. Attached to the petition was a copy of the Article 10 Evaluation report prepared by Ronald Field, Ph.D. and copies of the required notices.
A probable cause hearing was conducted on April 15, 2014, pursuant to the directives of Mental Health Law § 10.06(g). By order dated April 21, 2014, a court found that there was probable cause to believe that respondent was a detained sex offender requiring civil management under Article 10 of the Mental Hygiene Law.
Thereafter, respondent moved for an order dismissing the petition in its entirety with prejudice pursuant to Civil Procedure Law and Rules § 3211 (a) (7), for failure to state a cause of action based upon the Court of Appeals' decision in the Matter of State of New York v. Donald DD. (24 NY3d 174, 21 NE3d 239, 996 NYS2d 610, 2014 NY LEXIS 3161 ). This Court denied that motion in a written decision July 9, 2015, finding that, after giving the State all favorable inferences to which it is entitled, the State provided facts upon which it is prima facie entitled to relief. Specifically, after reviewing the testimony from the probable cause hearing, this Court determined that unlike in Donald DD., the State was not relying solely upon the respondent's diagnosis of ASPD and his prior sexual criminal history. Rather, in concluding that respondent has a mental abnormality and, more specifically, that his conditions and diagnoses predispose him to commit sex offenses, the State also relies heavily upon his additional conditions and diagnoses of hypersexuality, psychopathy, stimulant use disorder, cocaine, in a controlled environment, and his threats, made both orally and in writing, to sexually re-offend upon his release.
During the course of respondent's Article 10 proceeding, respondent raised objections to his representation by two different attorneys. Mental Hygiene Legal Services represented respondent at the outset of this proceeding. Due to a conflict, counsel was replaced by Philip Smallman, Esq. of the 18–b panel. Mr. Smallman was replaced by current counsel, Mr. Craig Leeds in August 3, 2015.
The Instant Motion and Hearing
On April 28, 2016, respondent filed a motion for a Frye hearing on the condition of hypersexuality. The State responded in an opposition dated June 10, 2016. The Court held extensive hearings on March 9, 2017, March 10, 2017, May 15, 2017, May 17, 2017, June 12, 2017, June 14, 2017, and June 29, 2016, at which four experts were called.
The State called two experts, Dr. Rory Reid and Dr. Jacob Hadden. Dr. Reid is an Assistant Professor of psychiatry and research psychiatry at the University of California, Los Angeles (Reid tr at 18). His doctoral dissertation, which was successfully defended in 2010, concerned the executive functioning of individuals who were seeking treatment for hypersexual behaviors negatively impacting their lives, such as excessive pornography or sexual solicitation (Reid tr at 21). Dr. Reid received training at Harvard University in the effective and ethical conducting of clinical trials (Reid tr at 24). In addition to teaching students, Dr. Reid conducts treatment and neuroimaging studies and presents at various national and international conferences on various psychological issues including hypersexuality.
Dr. Hadden currently has a private forensic practice, but previously worked for OMH as an Article 10 psychiatric examiner; for DOCCS as a psychologist in charge of the sex offender treatment program at Clinton Correctional Facility; and for the Office of Children and Family Services as a psychologist providing services to juveniles in detention (Hadden tr at 5–12).
Respondent called Dr. Leonard Bard and Dr. Raymond Knight. Dr. Bard conducts a private forensic practice in Massachusetts with a focus on forensic evaluations under MHL Article 10, as well as under the equivalent statutes in Massachusetts, New Hampshire, Rhode Island, Virginia, Washington State and various federal courts (Bard tr at 98–99). Dr. Bard has conducted over 1200 forensic examinations of sexually dangerous persons. Dr. Bard spent part of his career working as a research and treatment psychologist at the Massachusetts Treatment Center for Sexually Dangerous Persons which is the facility that confines the sexually dangerous individuals under Massachusetts General Laws Chapter 123(a) (Bard tr at 97). He also worked as a forensic psychologist at a maximum security forensic hospital in Massachusetts.
Dr. Knight is a professor Emeritus at Brandeis University. In addition to teaching, he supervises doctoral and masters students and conducts research. His primary areas of interest include sexual aggression, psychopathy, sexual sadism, hypersexuality and impulsivity and prevention. Dr Knight is the developer of leading typological models for rapists and child molesters (Knight tr at 11).
Argument of the Parties
Respondent argues that the State has failed to prove that the condition of hypersexuality is generally accepted by the relevant scientific community and, in fact, challenges its categorization as a “condition.” Specifically, respondent argues that there is no established criteria or consensus as to the definition of hypersexuality, nor has the criteria proffered by the State been subject to vigorous scientific research published in peer reviewed journals which could be duplicated and tested—a necessary pre-requisite to any criteria gaining general scientific acceptance. Respondent also emphasizes that a similarly defined hypersexuality disorder diagnosis was rejected for inclusion in the latest version of the DSM, the DSM–5, after rigorous review. This rejection, respondent argues, is strong evidence that hypersexuality, either as a condition or a diagnosis, is not generally accepted by the relevant scientific community. Respondent challenges the use of hypersexuality in sex offender civil commitment proceedings as constitutionally infirm due to the lack of criteria.
The State argues that it has met its burden to prove that the condition of hypersexuality is generally accepted in the relevant scientific community. The State asserts that it has not proffered the diagnosis of “hypersexuality disorder” that was rejected by the authors of the DSM–5, but rather the condition of hypersexuality that is published in the DSM–5. The State points to decades worth of research about the condition of hypersexuality that has been published in the numerous peer reviewed journals that were entered into evidence during the hearing. To further support the contention that the condition of hypersexuality has gained general acceptance in the field of psychology, the State offered evidence that hypersexuality is not found exclusively in the context of civil confinement of sex offenders, but also in the context of personality disorders and dementia.
Frye Hearing: Elements and Burden of Proof
In general, the inquiry under Frye v. United States (293 F. 1013, 54 App. D.C. 46 [DC Cir 1923]) is “whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally” (People v. Wesley, 83 NY2d 417, 422, 611 N.Y.S. 2d 97, 633 N.E. 2d 451 ). The burden of proving general acceptance in the relevant scientific community rests upon the proponent of the disputed testimony (See Zito v. Zabarsky, 28 AD3d 42, 812 N.Y.S. 2d 535 [2d Dept 2006]; People v. Kanani, 272 AD2d 186, 709 N.Y.S. 2d 505 [1st Dept 2000], lv denied 95 NY2d 935, 744 N.E. 2d 148, 721 N.Y.S. 2d 612 ).
Admissibility under Frye requires a showing that the expert is competent in the field of expertise which he or she purports to address at trial. This element is not disputed in this case. Further, the testimony must be based on scientific principles or procedures which have been sufficiently established to have gained general acceptance in the particular field involved (People v. Wesley, 83 NY2d 417, 422, 611 N.Y.S. 2d 97, 633 N.E. 2d 451 ). In this regard, the hearing court does not determine whether or not a novel scientific theory is reliable, but only whether it is generally accepted in the relevant scientific community. The emphasis is on “counting scientists' votes” (see Wesley, 83 NY2d at 439 [Kaye, Ch. J., concurring] ). The proffered expert testimony must be “beyond the ken” of the jury (see Matott v. Ward, 48 NY2d 455, 459, 399 N.E. 2d 532, 423 N.Y.S. 2d 645 ; People v. Cronin, 60 NY2d 430, 433, 458 N.E. 2d 351, 470 N.Y.S. 2d 110 ). Here, it is not disputed by the parties that the subject of a psychiatric condition is beyond the ken of the ordinary person. Finally, the testimony must be relevant to the issues and facts of the individual case, and more probative than prejudicial (People v. Scarola, 71 NY2d 769, 777, 525 N.E. 2d 728, 530 N.Y.S. 2d 83 ).
In engaging in a Frye analysis, the Court may consider scholarly articles on the subject matter for the purpose of understanding “general acceptance” (See, e.g., People v. Wernick, 215 AD2d 50, 52, 632 N.Y.S. 2d 839 [2d Dept. 1995], affd 89 NY2d 111, 651 NYS 2d 392, 674 N.E. 2d 322 ; Fraser v. 301–52 Townhouse Corp., 57 AD3d 416, 870 N.Y.S. 2d 266 (1st Dept 2008) [plaintiffs placed in evidence nearly forty articles, treatises and other published studies concerning the relationship between building dampness and mold and sickness in humans; defendants placed approximately fifteen such publications in evidence] ). Both sides, indeed, submitted numerous writings and journal articles on the subject of hypersexuality. Because Frye is concerned with “head counting” of experts, the state of knowledge in the profession is at issue and scholarly articles and journals are, therefore, admissible as reflecting those matters which are generally accepted in the relevant scientific community (Id.).
While the Court found that all four experts were credible witnesses and acknowledges their extensive knowledge, experience and passion for their work, the Court did not, as is explained in more detail below, concur with all of their opinions. The Court has made factual findings based upon only those portions of the testimony relevant to its legal conclusions. In addition, the Court considered the summations of the parties, and consulted the numerous scholarly articles that were received into evidence and mentioned or relied upon by the experts. For the reasons which follow, the Court holds that the condition of hypersexuality is a generally accepted diagnosis in the relevant psychological community.
Definition of the Condition of Hypersexuality Offered by the State
At issue at this Frye hearing is the condition of hypersexuality proffered by the State in the petition filed against respondent for civil commitment. The petition contains the psychological evaluation of Dr. Ronald Field, Ph.D., a licensed psychologist from OHM. Dr. Field defined the condition of hypersexuality as follows:
DSM–V condition: Hypersexuality:
Hypersexuality, which was proposed and rejected as a DSM–5 diagnosis, is listed in the “comorbidity” section of several DSM–5 paraphilic disorders as a condition:
“Conditions that occur comorbidly with ․disorder include hypersexuality (Kafka 2010) and other paraphilic disorders ․”
The DSM–5, in its Glossary of Technical Terms, defines hypersexuality as:
“A stronger than usual urge to have sexual activity.”
The researchers and experts in the fields of hypersexuality and sexual addiction universally agree with this definition, characterizing “stronger than usual urge” to mean higher frequency and/or more intense sexual urges, behaviors, or fantasies that are problematic to the individual (meaning that they cause distress or impairment in social, occupational or other important areas of functioning, involve non-consenting victims, and/or result in legal sanctions).
(State Exhibit 29 at 13) (emphasis in the original).
The definition of a “condition” was discussed by the State's expert, Dr. Reid. Dr. Reid stated that a “condition” is described by the “four Ds” of psychiatric disorders:
dysfunction—the condition causes some level of impairment to the individual;
distress—the condition is distressing to the individual and/or others;
deviation—the condition constitutes a deviation from what would be normally accepted or normative behavior; and
danger—the condition puts at the person at a significant risk of physical and/or emotional harm to themselves and/or others.
(Reid tr at 28). Hypersexual behaviors, such as excessive consumption of pornography, excessive time with commercial sex workers, excessive preoccupation with sex or excessive masturbation, can inhibit an individual from focusing on significant and important relationships, interrupt employment, cause financial hardships, result in sexually transmitted diseases, unwanted pregnancies and physical harm to one's body (Reid tr at 29). Oftentimes, these behaviors themselves are not necessarily problematic. However, it is the excessive engagement in and preoccupation with these behaviors that is considered deviant or outside normative sexual behavior (Reid tr at 30).
Dr. Hadden defined “condition” as a “persistently abnormal state that results in clinically significant distress, impairment in important areas, and/or leads to dangerous outcomes for one's self or other people” (Hadden tr at 40). As described in more detail below, Dr. Hadden, like Dr. Reid, pointed to the places in the DSM–5, where hypersexuality is described as a “condition” (Hadden tr at 44). Dr. Hadden's definition, similar to Dr. Reid and Dr. Field, of the condition of hypersexuality is “an excessive preoccupation with sexual thoughts, fantasies or behaviors that results in interpersonal dysfunction and/or impairment in important areas” (Hadden tr at 48). Dr. Hadden testified that among practitioners in the field there is a recognition that
there is a number of symptoms that go along with the condition of hypersexuality ․ excessive sexual drive, a preoccupation with sexual content, large amounts of time spent engaged with sexual thoughts, fantasies or behaviors ․ perceived lack of control over sexual urges․ The use of sex as the way to cope with negative emotions.
(Hadden tr at 38–39). Dr. Hadden opined that if the condition is present, then those symptoms will be present in some combination (Hadden tr at 38–39).
The Court finds that the condition of hypersexuality as defined above by Dr. Field in the instant petition against Victor H. is generally accepted by the relevant scientific community of psychiatrists and psychologist. The definition of the condition of hypersexuality that the Court finds to be generally accepted is “a stronger than usual urge to have sexual activity” that an individual has difficulty controlling, or that causes distress or functional impairment or results in legal sanctions. (Reid tr at 112; Hadden tr at 40–42). Stated another way, the condition of hypersexuality entails excessive sexual behavior that an individual has difficulty controlling and that results in significant consequences (Reid tr at 112). Yet, another formulation described by Dr. Hadden as “excessive preoccupation with sexual thoughts, fantasies or behavior that results in interpersonal ․ distress and/or impairment in important areas” (Hadden tr at 48).
History of Hypersexuality
There is nothing novel or new about the condition of hypersexuality, as evidenced by the many psychiatric journal articles placed into evidence dating back to 1894. While the name for the condition may have changed, psychologists have long recognized that there exists a condition in which a person engages in or has urges to engage in too much sexual activity and the excessive activity causes that person to suffer distress. In a book called Psychopathia Sexualis originally published in 1886, the psychiatrist author referenced sexual syndromes synonymous to hypersexuality called satyriasis and nymphomania (R. Von Krafft–Ebing, Psychopathia Sexualis at 373 ; State Exhibit 16; Reid tr at 45). Merriam–Webster defines “satyriasis” as “excessive or abnormal sexual craving in the male” and nymphomania as “excessive sexual drive by a female” (Merriam–Webster Online Dictionary, satyriasis [https://www.merriam-webster.com/dictionary/satyrisis] ) [Note: online free version]; Merriam–Webster Online Dictionary, nymphomania [https://www.merriam-webster.com/dictionary/nymphomania] ) [Note: online free version]. Dr. Bard, respondent's expert, acknowledged that the concept of hypersexuality has been talked about in “one variation or another” since the 1800s (Bard tr at 156).
The international equivalent of the DSM, the International Statistical Classification of Diseases and Related Health Problems (“ICD”) which is published by the World Health Organization, has included a category that encompasses the condition of hypersexuality dating back to 1948 in the ICD–6. In every successive update of the IDC, some version of a hypersexuality condition has existed, albeit at times, under different names. The most recent version, the ICD–10, published in 1992, uses the term “excessive sexual drive” and interestingly, also makes use of the terms originally proffered in 1894, namely satyriasis and nymphomania (IDC–10 Online Version: 2016, F52.7 excessive sexual drive [apps.who.int/classifications/icd10/browse/2016/enNo./F52.7]; Reid tr at 52; Respondent Exhibit F).Well-respected researchers in the field of human sexuality have been studying hypersexuality and publishing articles in peer-reviewed journals since at least the early 1990s (M. Kafka, et al, Preliminary Observations of DSM–III–R Axis I Comorbidity in Men with Paraphilias and Paraphilia–Related Disorders, 55:11 J. Clin. Psychiatry [Nov. 1994] (State Exhibit 3); M. Kafka, Hypersexual Desire in Males: An Operational Definition and Clinical Implications for Males with Paraphilias and and Paraphilia–Related Disorders, Vol. 26, No. 5 Arch. Sex. Behav.(State Exhibit 4). Peer reviewed journals follow a process in which an article submitted for publication is sent out for a blind review to colleagues with the specific expertise in the topic at issue. These expert reviewers will offer critical feedback, recommend that the article be revised and resubmitted, or reject as not worthy of publication (Reid tr at 34).
Dr. Knight, respondent's own expert, has written extensively about hypersexuality (see G. Walters, R. Knight, & N. Langstrom, Is Hypersexuality Dimensional? Evidence for the DSM–5 from General Population and Clinical Samples, 40:1309–1321, Arch Sex. Behav. (State Exhibit 14); F. Graham, G. Walters, D. Harris & R. Knight, Is Hypersexuality Dimensional or Categorical? Evidence from Male and Female College Samples, 1–15 Journal of Sex Research  (Respondent Exhibit T) ). In one article that Dr. Knight co-authored, hypersexuality was defined as “a collection of traits characterized by compulsive sexual behavior, intense sexual fantasies, and disinhibited or exaggerated sexual behavior (F. Graham, G. Walters, D. Harris & R. Knight, Is Hypersexuality Dimensional or Categorical? Evidence from Male and Female College Samples, 1–15 Journal of Sex Research  (Respondent Exhibit T) ). That article recognized that because hypersexuality has “negative consequences” such as “increased substance use, incidence of sexually transmitted infections, contact with the legal system, relationship problems, lower life satisfaction and sexual offending” the construct is “important in both clinical and forensic contexts” (Id. at 1). The focus of his articles is not whether the construct of hypersexuality actually exists, but rather whether the construct is “dimensional or categorical” (Id. at 2). Dr. Knight posits that the construct is dimensional, meaning that there is a range of symptoms and behaviors along a spectrum or, in lay terms, from mild to severe forms (Id. at 2). In fact, as discussed below, Dr. Knight's criticism of the proposed DSM–5 diagnosis of hypersexuality was largely that the criteria proposed did not take into account the entire spectrum of possible symptoms, but rather set an arbitrary cutoff of three out of five symptoms that had not been adequately researched and studied (Id. at 2).
As further proof that the condition of hypersexuality is generally accepted, it is quite notable that almost every commonly-used and generally accepted risk assessment instrument (“RAI”) recognizes hypersexuality as a risk factor (Hadden tr at 30–31). RAIs are used to predict the risk of recidivism among violent and sexual offenders and help guide a treatment plan (Hadden tr at 31). Most RAIs ask a series of relevant questions aimed at exploring the presence of dynamic or static risk factors that have been shown through research to be related to a risk of reoffending (Hadden tr at 16). Static risk factors are those that generally do not change, such as the age of the offender at the time of his first sexual offense or the number and gender of the victims. Dynamic risk factors are factors that are subject to change either through treatment (e.g. sexual deviance or substance abuse problems) or from external forces (e.g. community support or levels of community supervision). The answers to the questions generate a point score. The total point score allotted then indicates a low, moderate or high risk of reoffending. Some of the most common risk assessment instruments that reference hypersexuality in some form are the STABLE–2007; the Violence Risk Scale, Sex Offender Version; the Juvenile Sex Offender Assessment Protocol II; and the ERSOR, Estimate of Risk of Sex Offense Recidivism (Hadden tr at 33–34, 55–60; Respondent Exhibits A–B).
Dr. Hadden testified that these RAIs all ask the same types of questions for the purpose of determining the existence of the same set of symptoms of hypersexuality in a patient: such as “how much time you spend engaged with sexual content?; what is the frequency of sexual behavior?; what is your sense of your own ability to control your sexual urges?; how does sex function for you in your life?; and are you using it was a primary way to cope with your negative emotions?” (Hadden tr at 49).
For example, the STABLE–2007 contains a section on “sexual self-regulation” which is broken down into three categories: sexual pre-occupation/sex drive; sex as coping; and deviant sexual interests (R.K. Hanson, A. Harris, STABLE–2007 Master Coding Guide 070601  at 30; Respondent Exhibit A). The Coding Guide explains that “sexual pre-occupation focuses on recurrent sexual thoughts and behaviour that are not directed to a current romantic partner. The degree of casual or impersonal sexual activity may interfere with other pro-social goals (e.g., in debt due to costs of prostitution) or to be perceived as intrusive or excessive by the offender” (Id. at 32; Respondent Exhibit A). Examples of sexual pre-occupations include masturbation, a history of multiple sexual partners, regular use of prostitutes, strip bars, phone sex and sex-oriented internet use and pornography (Id.). Another aspect of the construct is described as “sex as coping” meaning that “when faced with life stress or negative emotions” an individual may “start thinking sexual thoughts or engage in sexual behaviour in efforts to manage their emotions” (Id. at 34; Respondent Exhibit A). Dr. Hadden explained that the STABLE–2007 asks the same type of questions discussed above: the frequency of sexual behavior; the degree to which someone is preoccupied with sexual thoughts and behaviors; and the perceived control over sexual behavior (Hadden tr at 50).
Another RAI, the Violence Risk Scale: Sexual Offender Version, has a chapter under “dynamic factors” called “sexual compulsivity” which it defines as highly repetitive compulsive deviant or non-deviant sexual behavior (S. Wong, M. Olver, T. Nicholaichuk, A. Gordon, Violence Risk Scale: Sexual Offender Version  at 32; Respondent Exhibit B). Examples included in this section are: “excessive masturbation, frequent use of prostitutes, extensive history of indecent exposure, promiscuity or one night stands, frequent use of pornography or sexual fantasies” (Id.).
Respondent points to the use of different terminology and methods of quantifying the excessive sexual conduct within these RAIs as evidence that there is no general acceptance concerning the condition of hypersexuality. Respondent further points to the fact that numerous scales have been created to measure hypersexuality for use in treatment plans and each scale measures hypersexuality in a different way using various terms. For example, Dr. Bard believes that the different names used: sexual addiction, sexual compulsivity, sexual preoccupation and hypersexuality are a “source of confusion” (Bard tr at 108). He believes that the different ways the construct is measured is also an indication that “if we don't know what this is, how can we access it, how can we measure it, how can we have a common set of criteria to talk about it. And if you don't have that, it cannot be generally accepted” (Bard tr at 108–109).
However, this Court is persuaded that the basic construct of the condition of hypersexuality proffered by the State is generally accepted because hypersexuality is frequently diagnosed and treated in the clinical setting despite any variation in the terms and symptoms used to define it. Numerous materials placed into evidence by respondent support this conclusion. For example, Dr. Knight testified that there are twenty-four different scales or tests that have been created to measure hypersexuality for the purpose of treatment (Knight tr at 106). In fact, Dr. Knight has formulated a generally accepted and widely used case formulation instrument or sexualization scale called the Multidimensional Inventory of Development Sex and Aggression (“MIDSA”). The MIDSA is a computerized inventory that measures elements of sexual aggression and provides clinical feedback designed to create treatment plans (Knight tr at 103). A portion of the MIDSA manual is in evidence as Respondent Exhibit DD. While Dr. Knight testified that the scale was meant to “measure hypersexuality as a symptom, not as a disorder,” the very purpose of measuring is to define what is a “stronger then usual urge” so that the treatment plan is specific to the problem facing the sexual offender (Knight tr at 61). Dr. Knight explained that the MIDSA is meant to assess a treatment plan for sexual offenders based upon specific problems that “exacerbate” their sexual offending, such as “hypersexuality ․ impulsivity” or a “failure to establish intimacy in relationships” (Knight tr at 212). As the MIDSA manual concludes, “high scores on these scales warrant therapeutic attention” (Knight tr at 61).
With regard to the hypersexuality component within the MIDSA, as Dr. Knight testified on cross-examination, there are three scales with a total of 13 or 14 questions that comprise the construct of hypersexuality and “describe the intensity and intrusiveness of sexual fantasies and the frequency of sexual activity” (Knight at 215). These three scales are comprised of the following: sexual compulsivity, defined as persons who report being a slave to their sexual urges or being unable to control their sexual urges; sexual preoccupation, defined as persons who report that “they think, daydream and dream about sex frequently;” and hypersexuality, defined as persons who report “frequent sexual activity and/or need to have sex frequently” (MIDSA Clinical Manual  at 59–60; Respondent Exhibit DD).
The importance of identifying and treating hypersexuality within a sex offender is evident. On cross-examination, Dr. Knight agreed that “hypersexuality defined in various ways is a predictor of recidivism” and that “hypersexuality as a symptom or as a dimension ․ is in various ways in many of the actuarials and the dynamic assessors of predicting sexual recidivism” (Knight tr at 191). Within the MIDSA manual is the conclusion that the “frequency and intensity of sexual fantasy and behavior measured by these scales are prime candidates as risk factors” for reoffending (MIDSA Clinical Manual  at 61; Respondent Exhibit DD). The manual further states that “sexual drive, preoccupation and compulsivity ․ correlate highly with each other and in turn with pornography use, expressive aggression towards women, sadism, pervasive anger and offense planning for adult and juvenile sexual offenders” (MIDSA Clinical Manual  at 57; Respondent Exhibit DD).
Dr. Knight produced a chart that compared the components of his MIDSA hypersexuality scale with six other frequently used scales that also attempt to measure hypersexuality. While the components of the scales differed (control, sexual preoccupation, frequency, duration, pornography use etc.), the basic definition remained consistent with the definition proffered here (see A. Stulhofer, T. Jurin & P. Briken (2015): Is High Sexual Desire a Facet of Male Hypersexuality? Results from an Online Study, Journal of Sex & Marital Therapy, DOI: 10.1080/0092623X.2015.1113538 at 2 [March 30 2016] [http://tandfonline.com/loi/usmt20]; Respondent Exhibit GG)(defining hypersexuality as “a clinically relevant phenomenon characterized by frequent sexual fantasies, urges and behaviors that cause marked distress, are difficult to control, and impair social functionality).
For example, Dr. Martin Kafka might see, in his scale, a manifestation of hypersexuality as a total sexual output (masturbation and/or other sexual acts) of seven or more times per week while the STABLE 2007, a RAI, describes a manifestation of hypersexuality as masturbation that is “most days for two or more months or more than fifteen times per month” (Hadden tr at 59–60, 88; R.K. Hanson, A. Harris, STABLE–2007 Master Coding Guide 070601  at 32; Respondent Exhibit A). Another prominent researcher in this field, Dr. Niklas Langstrom, suggests that males who masturbated greater than fifteen times in a month or used pornography greater than thirty-one times in a year showed indications of hypersexuality (N. Langstrom & R.K. Hanson, High Rates of Sexual Behavior in the General Population: Correlates and Predictors, 35 Archives of Sexual Behavior at 37–52 [February 2006]; Respondent's Exhibit I; Bard tr at 122–124).
Similarly, Dr. Field, in his report that accompanied the State's petition for civil confinement, provided numerous “examples of sexual preoccupation” such as a “history of multiple sexual partners (e.g. 30 or more); regular use of prostitutes, massage parlors, phone sex, internet use ․ disturbing sexual thoughts or dreams” (Bard tr at 131). Both Dr. Knight and Dr. Bard took issue with this part of Dr. Field's report, which came after the definition of hypersexuality quoted above. (Supra at 11–12) In particular, Dr. Bard described as “incredible” and “crazy, for lack of a better word” the concluding statement of Dr. Field, respondent's original evaluator, that “any one of these behaviors is evidence of sexual preoccupation. An individual does not need to exhibit all, or even more than one, of the behaviors listed” (Bard tr at 131, 162; State Exhibit 29, Evaluation Report prepared by Dr. Field at 14).
Dr. Bard, in fact, takes issue with the very term “condition” which he believes cannot be defined, and thus, asserts he does not know what it means (Bard tr at 143). While conceding that he has seen the term used in his career in a variety of ways, he believes the problem with that term is that “it opens the door to put anything that the examiner wants in there” (Bard tr at 143). In his forensic practice, Dr. Bard only uses diagnoses in the DSM–5 because, in his opinion, by definition they are generally accepted because they are in the diagnostic manual (Bard tr at 143).
This Court agrees with the State that these descriptions simply emphasize different symptoms of a condition that is generally accepted (Dr. Hadden tr at 66). Dr. Hadden conceded that there is a lack of consensus over some of the terminology and some “imprecision about the language” (Hadden tr at 51). As evidenced by the many articles cited above, and by the different RAIs and treatment scales, there are many terms for the same construct that are used interchangeably: hypersexuality, sexual preoccupation, compulsive sexual behavior, and sex addiction (Hadden tr at 51–52). Dr. Hadden opined that while each label “comes with its own set of assumptions about the mechanism underlying the behavior,” there is still an agreed upon “constellation of symptoms that travel together or are associated with important outcomes that we want to treat” (Hadden tr at 51). As Dr. Hadden explained, the fact that different instruments or researchers are emphasizing different symptoms with questions, does not mean that there is not a general acceptance on what the core construct is, and in fact, “the field is quite unified on that point” (Hadden tr at 68). Moreover, as Dr. Reid explained, there are differences in how the authors attempt to “operationalize” the condition and, in doing so, use different terminology, but in essence, all are describing the “same underlying problem” (Reid tr at 131, 155; Hadden tr at 53).
A review of all literature received in evidence, the peer reviewed journal articles, the risk assessment instruments, and the different treatment scales, corroborates the State's position that the core concepts defining this condition are the same (Reid tr at 155). The debate over the varying symptoms or ways that the condition manifests itself, such as the frequency with which one masturbates or watches pornography or engages in intercourse, simply does not affect the general acceptance of the core concept that defines hypersexuality (Bard tr at 109, 104; Knight tr at 101–102). Rather, it is clear that hypersexuality, regardless of whether it is labeled a condition, construct or symptom, is an important risk factor for sexual recidivism and an essential element to be addressed in the treatment of sexual offenders.
Finally, and quite notably, the condition of hypersexuality is found not just in the context of the civil confinement of sex offenders. Hypersexuality is discussed in the context of dementia, Parkinson's Disease, mania and bi-polar disorders (Hadden tr at 42; Reid tr at 145). Hypersexuality has been studied in the context of the internet and a self-administered screening instrument has been created, the Internet Sex Screening Test, to “help individuals determine if their internet sexual behavior has become clinically problematic” (D. Delmonico et al, The Internet Sex Screening Test: A Comparison of Sexual Compulsives Versus Non-sexual Compulsives, 18 Sexual and Relationship Therapy [August 2003]; State Exhibit 8). The American Psychiatric Association (“APA”), the author of the DSM, has been discussing this topic at APA conferences since at least 2010 (Reid tr at 88).
Hypersexuality in the DSM–5
One of respondent's main arguments is that the State's proposed condition of hypersexuality is nothing more than the proposed diagnosis of hypersexuality disorder that was rejected by the APA for inclusion in the DSM–5. Respondent argues that the rejection of the proposed diagnosis for inclusion in the DSM–5 indicates that hypersexuality is not a generally accepted construct in the psychiatric community.
Initially, the Court notes that early conceptualizations of hypersexuality, albeit with different language or emphasis, existed in previous editions of the DSM. According to Dr. Knight, the first rendition of hypersexuality occurred in the DSM–III in the 1970's under the category of Psychosexual Disorder, Not Elsewhere Classified which dealt with sexual problems such as low sexual desire or hyposexuality and high sexual desire or hypersexuality and used the terms nymphomania for females and Don Juan-ism for men (Knight tr at 39–40; Respondent Exhibit L). Dr. Knight also posited that this phenomenon was actually called sociosexuality or a “proclivity to have impersonal sex” (Knight tr at 40)(J. Simpson & S. Gangestad, Individual Differences in Sociosexuality: Evidence for Convergent and Discriminant Validity, 60 Journal of Personality & Social Psych. 6 870–883 ; Respondent Exhibit M).
Later the DSM–III–R, which was published in 1987, changed the name of the disorder to “Sexual Disorders, Not Otherwise Specified” (Knight tr at 39–40). Dr. Knight testified that the category included “distress about a pattern of repeated sexual conquests or other forms of nonparaphilic sexual addiction, involving a succession of people who exist only as things to be used” (Knight tr at 42–44). In 1994, Dr. Martin Kafka wrote an article that recognized the relationship between psychiatric disorders, or Axis I disorders in the DSM, and paraphilic disorders, which are disorders of a deviant sexual nature such as pedophilia (M. Kafka & R. Prentky, Preliminary Observations of DSM–III–R Axis I Comorbidity in Men with Paraphilias and Paraphilia-related Disorders, 55 J. Clin. Psych. 11 [Nov 1994]; State Exhibit 3). The authors maintained that “non-paraphilic sexual addictions” is a category of disorders that is contained within the DSM–III–R category, “sexual disorders, not otherwise specified” (Id. at 481). The authors defined “non-paraphilic sexual addictions” as “sexually arousing fantasies, urges, or activities involving culturally sanctioned sexual interests or behaviors that increase in frequency or intensity so as to interfere with the capacity for reciprocal affectionate activity” (Id. at 482). Examples included a pattern of activities such as masturbation, promiscuity, phone sex, and pornography dependency, that are unacceptable to the person and cause anxiety.
After the publication of the DSM–III–TR, hypersexuality continued to be studied and reported about in peer review journals although references to sexual addiction were removed from the DSM–IV and DSM–IV–TR (Knight tr at 44–48; see e.g. N. Rinehart & M.McCabe, Hypersexuality: psychopathology or normal variant of sexuality?, 12 Sexual and Marital Therapy 1 1997 (State Exhibit 5); A.J. Finlayson, J. Sealy, & P. Martin, The Differential Diagnosis of Problematic Hypersexuality, 8 Sexual Addic. & Compulsivity 241–251  (State Exhibit 6); M. Miner et. al., Preliminary Investigation of the Impulsive and Neuroanatomical Characteristics of Compulsive Sexual Behavior, 174 Psychiatry Research: Neuroimaging 146–151 (State Exhibit 10). Regardless of the name given to the construct (e.g. hypersexuality, compulsive sexual behavior, sexual impulsivity, sexual addiction), the basic definition proffered by all of these articles is essentially the same: “excessive sexual thoughts, sexual urges or sexual activity which causes distress or impairment” (M. Miner et. al., Preliminary Investigation of the Impulsive and Neuroanatomical Characteristics of Compulsive Sexual Behavior, 174 Psychiatry Research: Neuroimaging 146–151  (State Exhibit 10); Ried tr at 155–156).
The proposed criteria for a stand-alone diagnosis of hypersexuality to be included in the DSM–5 was published on the APA website and was discussed in various articles published in peer-reviewed articles during the DSM–5 revision process (Reid tr at 120; see e.g; R.Reid et. al., Report of Findings in a DSM–5 Field Trial for Hypersexual Disorder, J. Sex. Med. 2012;9:2868–2877, (State Exhibit 15); M.P. Kafka, Hypersexual Disorder: A Proposed Diagnosis for DSM–V, 39 Arch Sex Behav. 377–400  (State Exhibit 11); M. Kaplan et.al, Diagnosis, Assessment and Treatment of Hypersexuality, 47 Journal of Sex Research 181–198 (State Exhibit 12); G. Walters, et al, Is Hypersexuality Dimensional? Evidence for the DSM–5 from General Population and Clinical Samples; 40 Arch Sex Behav. 1309–1321 (State Exhibit 14).
While there is some overlap between the condition of hypersexuality proffered here and the proposed DSM diagnosis, the proponents of the stand-alone diagnosis anticipated far more specific criteria to be met:
A. Over a period of at least six months, recurrent and intense sexual fantasies, sexual urges and sexual behavior in association with four or more of the following five criteria:
1. excessive time is consumed by sexual fantasies and urges, and by planning for and engaging in sexual behavior
2. repetitively engaging in these sexual fantasies, urges and behavior in response to negative mood states (for example, anxiety, depression, boredom and irritability)
3. repetitively engaging in sexual fantasies, urges and behavior in response to stressful life events
4. repetitive but unsuccessful efforts to control or significantly reduce these sexual fantasies, urges and behavior
5. repetitively engaging in sexual behavior while disregarding the risk of physical or emotional harm to self or others
B. There is clinically significant personal distress or impairment in social, occupational or other important areas of functioning associated with the frequency and intensity of these sexual fantasies, urges and behavior.
C. The sexual fantasies, urges and behavior are not due to the direct physiological effects of exogenour substances (e.g., drugs or abuse of medications), a co-concurring general medical condition or to manic episodes.
D. The person is at least 18 years of age.
Specify if masturbation, pornography, sexual behavior with consenting adults, cybersex, telephone sex and strip clubs.
(R. Reid et al., Report of Findings in a DSM–5 Field Trial for Hypersexual Disorder, 9 J. Sex Med 2868–2877 ; State Exhibit 15).
Dr. Reid conducted field trials on the proposed criteria. The results of that field trial were published in 2012 in the peer-reviewed journal, the Journal of Sexual Medicine (Id. at 32). The study consisted of 207 patients who answered a psychological questionnaire concerning overall mental health, impulsivity and sexual behaviors. The questionnaire was meant to test the proposed criteria for the hypersexuality diagnosis (Reid tr at 36). Each subject was evaluated by two different reviewers using the same questionnaire to determine the inter-rater reliability of the criteria (Reid tr at 35–37). While the respondent's experts took issue with this field test, (see Knight tr at 17, 143–148), the working group responsible for updating those relevant sections of the DSM proposed that hypersexuality be included as a distinct diagnosis in the DSM–5 (Knight tr at 225–226). Ultimately, that proposal was rejected by the APA. There is no dispute between the parties that the diagnosis of hypersexuality was not included in the DSM–5 in any chapter nor in section 3 of the DSM–5 which is titled, “Conditions for Further Study” (Reid tr at 100; Hadden tr at 36–37; Knight tr at 58–59).
The parties disagree with the reason for the exclusion of the diagnosis of hypersexuality. The State argues that the DSM revision process is politically charged and resistant to the addition of any diagnosis that could be used in support of the civil confinement of sexual offenders. The diagnoses submitted by those in the field working in the area of sexual disorders are given greater scrutiny as compared to other diagnoses that were included in the latest version of the DSM–5 that were not even subject to field trials (Reid tr at 41). The political nature of this process is exemplified by comparing the standard that was set for the proposed hypersexuality diagnosis, four out of five of the proposed criteria or 80% had to be met, with the diagnosis of a gambling disorder, which required only four out of nine criteria to be met (Reid tr at 41–42; see also M. Kafka, What Happened to Hypersexual Disorder?, Arch Sex Behav. DOI 10.1007/s10508–014–0326–y (June 2014; Respondent Exhibit C) (rejection of hypersexuality disorder leaves clinicians without an adequate substitute for Sexual Disorder Not Otherwise Specified, which was eliminated from the DSM).
Respondent submits that the exclusion was simply and overwhelmingly the result of the disorder not being generally accepted in the field as evidenced by an open letter written to the president of the APA and signed by approximately 100 psychologists urging the exclusion of not just hypersexuality disorder, but two other disorders proffered by the same working group, hebephilia and paraphilic coercive disorder due to unproven validity. Interestingly, the letter also requested that the term hypersexuality not be included in the appendix either (Bard tr at 183–184; Respondent Exhibit J).
Drs. Hadden, Bard and Knight also posited that there was debate about inclusion amidst concerns of “stigmatizing” or “pathologizing” what can be “normal behavior” (Hadden tr at 85; Bard tr at 107; Knight tr at 64). As one article explained, the disorder was rejected for inclusion in the DSM–5 due to fears of stigmatizing “too much sex” by producing “negative feelings—including self-blaming shame and guilt” among individuals who have “above-average sexual interest” who would then “blame their sexuality for any adverse life events” (J. Carvalho et al., Hypersexuality and High Sexual Drive: Exploring the Structure of Problematic Sexuality, 12 J. Sex. Med. 1356–1367(finding a distinction between hypersexuality and high sexual drive); Respondent Exhibit D).
Dr. Knight testified to yet another reason, namely, that hypersexuality did not fit within the “paraphilic disorders” chapter because the construct is “normophilic,” meaning it is a problem of having “too much normal sex” (Knight tr at 50–51). However, he also explained that individuals can engage in too much paraphilic sexual activity also (Knight tr at 53–55). He further indicated his agreement with Dr. Kafka, a proponent of the inclusion of the hypersexuality disorder in the DSM–5, that there is a correlation between individuals who have paraphilias and those who have “lots of normophilic sex” (Knight tr at 51).
Ultimately, the reasons for the diagnosis of hypersexuality's exclusion are irrelevant for the purposes of this Frye hearing two reasons. First, the proposed and rejected diagnosis is categorically different than the condition proffered here. Second, as evidenced by the many references to hypersexuality in the DSM–5, the APA, the organization responsible for its creation, recognizes hypersexuality as a construct and defines it in plain language in the glossary as a “stronger than usual urge to engage in sexual activity” (DSM–5 at 823; Hadden tr ar 32). In fact, Dr. Knight conceded that, in the context of the heated discussions among members of the APA about the inclusion of the hypersexuality diagnosis, “I don't think people had objections to the definition in the glossary” (Knight tr at 229).
“Hypersexuality” is mentioned specifically as a “condition” in different contexts numerous times within the chapter dealing with paraphilic disorders. A paraphilia is an intense and persistent sexual interest in something or someone other than an interest in sexual activity with “normal physically mature, consenting human partners” (DSM–5 at 685). Such an interest becomes a disorder when the interest causes distress, impairment, personal harm or risk of harm to someone else (DSM–5 at 686–687). Examples of paraphilic disorders listed in the chapter are pedophilia, voyeurism and sexual sadism. Within this chapter, hypersexuality is listed, along with “depressive, bipolar, anxiety and substance use disorders,” as “conditions that occur comorbidily with” other paraphilic disorders such as voyeurism, exhibitionism, frotteurism and fetishistic disorder (DSM–5 at 688, 691, 693, 702). This means that hypersexuality can co-occur with paraphilic disorders such as voyeurism, exhibitionism or frotterism (Hadden tr at 17–18, 20–21, 25, 28–29). Dr. Knight further testified that an “important contribution” to the changes from the DSM–IV to the DSM–5 was the concept of the “comorbidity” of different paraphilias, as well as the “comorbid symptom of hypersexuality” (Knight tr at 230).
Also within that chapter, hypersexuality and sexual preoccupation are both listed as risk factors for voyeuristic, exhibitionistic, and frotteuristic disorders (DSM–5 tr at 688, 691, 693). Hypersexuality is also described as a differential diagnosis, meaning a condition or diagnosis that must be distinguished or ruled out from another diagnoses within the chapter, such as sexual masochism disorder and sexual sadism disorder (DSM–5 at 695, 697; Hadden tr at 25–28).
Hypersexuality is also referenced in sections dealing with the “prevalence” of a specific paraphilic diagnosis among adult males in the general population. So for example, in the discussion on frotteuristic disorder, the DSM–5 reports that “[a]pproximately 10% –14% of adult males seen in outpatient settings for paraphilic disorders and hypersexuality have a presentation that meets diagnostic criteria for frotteuristic disorder” (DSM–5 at 693). Under the section titled “Development and Course,” hypersexuality and sexual impulsivity are described as factors that can contribute to the course of the development of various paraphilic disorders listed in the chapter such as frotteuristic disorder (DSM–5 at 693).
Respondent argues that the definition of hypersexuality within the DSM–5, “a stronger than usual urge,” by its plain language does not describe hypersexuality as a “condition” or “disorder.” At best, it describes only a “symptom” and not a diagnostic construct. Respondent further challenges that the references to hypersexuality in the paraphilic section were not voted upon by the APA and therefore, cannot be considered “accepted” by the APA (Bard tr at 104; Knight tr at 27, 61–62). Dr. Bard called the definition “essentially meaningless,” and respondent points to testimony from the State's experts who concede that the definition is “incomplete” and most likely describes just a symptom of other diagnoses. For example, Dr. Hadden recognized that the definition in the DSM–5, as a “stronger than usual urge to have sexual activity” is a basic, “stripped down definition” that more likely describes hypersexuality as a symptom (Hadden tr at 32–33, 42–43). He explained that hypersexuality can also be symptom of some other problems such as bipolar disorder (Hadden tr at 42; Bard tr at 104–105; Reid tr at 101–104; Knight tr at 28–29). Dr. Bard opined that the references to hypersexuality in the DSM–5 are limited to the definition in the glossary and nothing more (Bard tr at 113). In fact, both of the respondent's experts opined that the authors of the rejected diagnosis threw the references to hypersexuality into the text without any peer review (Bard tr at 165; Knight 61–62). Dr. Bard finds only the diagnoses within the DSM authoritative, however not the commentaries (Bard tr at 166).
Ultimately, respondent's arguments do not alter the result here. Even if hypersexuality as defined in the DSM–5 is a “symptom,” as stated above, all of the research indicates a general acceptance among clinicians that hypersexuality, as a “construct” or “condition,” is at its' core “excessive sexual behavior” that results in “significant distress” or “functional impairment” and/or “difficulty in controlling the behavior” (Reid tr at 112). While the respondent's experts take issue with the word “condition,” the fact that a “condition” must cause distress and impairment is evident 1) because otherwise there would be no need for clinical intervention.
Respondent also complains that the proposed condition is lacking sufficient and scientifically valid criteria for consistent use by clinicians. Ultimately, Dr. Bard acknowledges “we know that there are individuals who have excessive sexual drive. There's no argument about that. I've evaluated enough of them” (Bard tr at 134). Dr. Bard also acknowledged that there are various terms he has seen in the literature that all capture this same construct such as sexual addiction, sexual compulsivity, sexual preoccupation and these are “the terms that I see the most often” (Bard at 108) and that there is “overlap” in the definition and that each term defines this problem “a little bit differently” (Bard at 106, 109). Dr. Bard testified that research has shown that there are people who have low sexual drive or “hyposexual” and those who have a high sexual drive, who are “hypersexual” (Bard tr at 105). However, Dr. Bard expressed concern that there is no “good research” about where “we should draw that line” between those who have a usual urge and those who are hypersexual. He further claims that the term “condition” has no “true meaning” in psychology (Bard tr at 105–106). Dr. Knight described that “scientifically we don't have ․ the cutoffs” between when too much sex goes “from good to bad” (Knight tr at 65). Respondent's position is in essence that while psychologists recognize the construct of hypersexuality, they have yet to quantify the answer to the question, how much sex is too much sex? (Dr. Reid tr at 77, 42). Or put another way, how is excessive sex drive quantified, what is normal and what is abnormal or how does one quantify the “stronger than usual urge"? (Bard tr at 134). Like Dr. Bard, Dr. Knight did not testify that the “construct” of hypersexuality does not exist. Rather, he said that hypersexuality is an “equivocal construct” and that “we're moving forward in our understanding” of it (Knight tr at 24). He further testified that “the conceptualization and definition of hypersexuality has changed rather radically over time” (Knight tr at 30). As mentioned above, Dr. Knight indicated his agreement with Dr. Kafka, a proponent of the inclusion of the hypersexuality disorder in the DSM–5, that hypersexuality is thought basically to be normaphilic, meaning a problem of having “lots of normal sex.” However, it can also be paraphilic or a problem have having excessive abnormal sex as defined in the DSM (Knight p. 51). Dr. Knight convincingly testified that hypersexuality is a dimension or a continuum and a definitive cutoff between those who are hypersexual and those who are not has yet to be scientifically determined (Knight tr at 121–122; Reid tr at 77–79). Dr. Hadden agrees that the DSM system is a “system of classification that is categorical. You have it or you don't. However, the underlying nature of most of these problems is dimensional. You have more or less of it” (Hadden tr at 76–77). For example, Dr. Knight conceptualized the dimensions of hypersexuality as a range beginning with normal functioning, to higher frequency arousal, to sexual preoccupation, followed by an interference with a routine and ending in a loss of control (Respondent Exhibit L).
However, the fact that a cutoff has not been scientifically validated, again does not mean that it is not generally accepted that hypersexuality exists as a construct that requires clinical intervention. Nor is the fact that some of these questions cannot yet be answered to a scientifically acceptable degree that satisfies respondent's experts mean that the condition of hypersexuality does not meet the Frye test or therefore, cannot be received as evidence in the civil confinement context. Rather, this Court agrees with the State that the fields of psychiatry and psychology, as much of medical science, requires clinical judgment (Hadden tr at 73). To paraphrase Justice Potter Stewart's observation concerning pornography, “I know it when I see it,” the Court is certain that a psychiatrist or psychologist will know hypersexuality when they see it (Jacobellis v. Ohio, 378 US 184, 197, 84 S. Ct 1676, 1683  (concurring opinion).
Dr. Reid provided an example that demonstrates that respondent's objections are not one of admissibility, but rather of weight. Dr. Reid explained how clinical judgment can determine how hypersexual behaviors manifest in a way that is pathological. According to Dr. Reid, while the typical college student may have two or three sexual partners a quarter, that is very different from having two or three different sexual partners per week (Reid tr at 125). College students may masturbate frequently, but not while driving their car down the highway and viewing pornography (Reid tr at 125). Thus, clinicians will use their clinical judgment to assess whether the excessive sexual behavior manifests in a manner that interferes with one's life or is used as way to cope with stress or difficult emotions (Reid tr at 126).
Similarly, when asked how does one define a “stronger than usual urge,” Dr. Hadden responded that he would use his clinical judgment based on the person's description of those urges. “Generally people who have these very strong urges will self-report that the urges feel overwhelming, that they have difficulty managing them, that they are engaging compulsively in a lot of behaviors based on these urges that they are finding detrimental, and they wish they could stop but are unable to” (Hadden tr at 73–74). In other words, “you are making a clinical determination about how intense (the symptom is) that is relative to what you know about the normal presentation of this thing, in taking a comprehensive look at the context of the person's life, and how their symptom is impacting their life and you make a clinical judgment” (Hadden tr at 74).
When asked the follow up question about where the cut-off is between normal sexual behavior and hypersexuality, Dr. Hadden noted:
so most people that I work with who are not struggling with this problem do not have persistent sexual urges that they feel overwhelmed by that causes them to be unable to live a normal life, to have a normal relationship, to go to work. Most people do not have urges of that intensity, not over long periods of time, not over six months, multiple year durations. When that's the case, it's very easy to make a clinical judgment that this is an abnormal level of urge, particularly when it travels with these other symptoms that I'm taking about.
So they are using sex as a primary way to deal with their emotions. They experience a loss of control, and they're spending hours of their day involved with sexual content, watching pornography, spending all their money at strip clubs. When these things travel together like that and they are totally undermining functioning, then you are in the realm of what's abnormal and you make a clinical judgment about that this symptom is over that threshold.
(Hadden tr at 75).
As Dr. Hadden further described, there may be different assumption about what is driving the behavior, but that does not mean that there isn't a consensus that it exists (Hadden tr at 50–52). Dr. Hadden's description, cited above, is a common sense way to determine clinically whether or not an urge is “stronger than usual” that even Dr. Bard agreed “made a lot of sense” (Hadden tr at 73–77; Bard tr at 134). Dr. Bard's criticism was, in essence, that for treatment purposes such clinical judgment is acceptable, but a subjective process that is “more of the art than the science” does not belong in a forensic setting that requires something more defined (Bard tr at 134–135, 149). Dr. Bard, in this Court's estimation, has a level of discomfort with subjective clinical judgment in the forensic setting as evidenced by the fact that he only uses DSM diagnoses in his forensic practice and does not use the RAIs referred to above, while acknowledging that they are generally accepted, because they are subjective and do not have consistent and objective criteria (Bard tr at 181).
Nevertheless, respondent also placed into evidence the version of the ICD–10 used in the United States that contains the insurance billing code for hypersexuality (2017 ICD–10–CM Diagnosis Code F52.8; Respondent Exhibit F–I; Bard tr at 148–149). Respondent concedes that this version of the ICD–10 is now being used in the United States to bill insurance companies. If the condition of hypersexuality is universally accepted for billing and clinical treatment, this Court is not persuaded that this same condition is not generally accepted in the forensic setting (Bard tr. at 157–158; Knight tr at 136–142).
Respondent's last argument is that there is insufficient data to establish that hypersexuality is a construct that is separate and apart from other disorders with which it is often diagnosed. Dr. Knight testified at great length that hypersexuality is a symptom of “lots of other disorders,” such as bipolar disorder and borderline personality disorder and can co-occur with a “massive” amount of recognized DSM disorders (Knight tr at 65; Respondent Exhibit L). However, he asserts that there is insufficient evidence to prove that hypersexuality is a “unique” or “homogenous, stand-alone” disorder (Knight tr at 65; Respondent Exhibit L). He further argues that the field has yet to determine the cause or “etiology of the behavior” (Knight p. 73–74; N. Raymond, E. Coleman & M. Miner, Psychiatric Comorbidity and Compulsive/Impulsive Traits in Compulsive Sexual Behavior, 44 Comprehensive Psychiatry 370–380 [September/October 2003](Respondent Exhibit AA). In support of the position that hypersexuality may not be a stand-alone diagnosis and that its cause is still being determined, the respondent placed into evidence approximately 18 peer reviewed journal articles that discuss hypersexuality (Respondent Exhibits P–GG).
Even assuming that the cause of hypersexuality is still unknown, the construct of hypersexuality that Dr. Knight describes that can co-occur with many other disorders still shares the same basic definition proffered by the State. For example, Dr. Knight cited Respondent Exhibit AA, referenced above, for the proposition that 100% of the 25 subjects of that study who complained of symptoms of hypersexuality also met the criteria for an Axis I Disorder, such as mood disorder, anxiety disorder or substance abuse, at some point in their lives (Knight tr at 73–74). However, within the article, the authors recognized that there is a “clinical syndrome that has been given many different labels including compulsive sexual behavior, paraphilia-related disorders, sexual addiction and sexual impulsivity” (N. Raymond, E. Coleman & M. Miner, Psychiatric Comorbidity and Compulsive/Impulsive Traits in Compulsive Sexual Behavior, 44 Comprehensive Psychiatry 370–380 [September/October 2003](Respondent Exhibit AA). The authors assert, similar to Drs. Reid and Hadden, that “while researchers debate the appropriate terminology and etiology of the syndrome, it should be noted that the different descriptions of this clinical phenomenon contain more similarities than difference” (Id.). The authors used, as a working definition, that which in essence mirrors the definition proferred by the State, namely recurrent, intense and sexually arousing fantasies, sexual urges or behaviors involving one or more of five different activities (such as compulsive multiple sex partners, compulsive masturbation, and compulsive sexuality in a relationship) that clinically cause significant distress or impairment in important areas of functioning (Id.). The authors also described some of the symptoms of hypersexuality detailed during the hearing and used in Dr. Field's Evaluation Report in this case such as: preoccupation with fantasizing about problematic sexual behavior, spending time resisting urges to engage in the behavior, spending hours engaging in the problematic sexual behavior such as masturbation, viewing on-line pornography, having multiple partners, excessive phone sex, and ignoring the legal and occupational and health consequences of engaging in that behavior (Id. at 370–372)
Many of the journal articles placed into evidence by the respondent focus on the role that impulsivity and inhibition play in hypersexual behavior or the overlap between high sexual drive and hypersexuality. For example, one article sought to determine whether or not hypersexuality can be conceptualized as an “addictive disorder” such as gambling rather than as a sexual disorder. The article sought to compare the personality characteristics of individuals diagnosed with hypersexuality or sexual addiction with those diagnosed with a gambling disorder looking specifically at the impulsivity and 'sensation-seeking dimensions' that the disorders have in common (see J.M. Farre et al, Sex Addiction and Gambling Disorder: Similarities and Differences, 56 Comprehensive Psychiatry 59–68  (Respondent Exhibit S). Yet, another article attempted to understand the “personality factors and behavioral mechanisms” in “hypersexual men who have sex with men” (M. Miner et al, Understanding the Personality and Behavioral Mechanisms Defining Hypesexuality in Men Who Have Sex With Men, 13 J. Sex Med. 1323–1331 (Respondent Exhibit EE). That article defined hypersexuality as “high-frequency and out-of-control sexual behavior” and recognized this construct has also been “conceptualized as sexual addiction, sexual compulsivity, compulsive sexual behavior, paraphilia-related disorders, and out-of-control sexual behavior"(Id.; see also J. Carvalho et al., Hypersexuality and High Sexual Desire: Exploring the Structure of Problematic Sexuality; 12 J. Sex Med. 1356–1367  (Respondent Exhibit FF) (explaining that a typical case of hypersexuality disorder would involve unsuccessful attempts to control one's sexuality; using sex as primary coping mechanism; and experiencing negative consequences of one's sexual behavior and may or may not be related to a high sexual drive).
As mentioned above, the fact that these articles seek to understand the cause of hypersexuality does not diminish the conclusion that hypersexuality is universally accepted as a construct within the psychological community.
Accordingly, the Court finds that the State has met its burden in this Frye hearing to show that the condition of hypersexuality is generally accepted in the relevant psychological community. Therefore, evidence of the condition of hypersexuality may be admitted at trial.
Respondent's motion is denied.
This constitutes the Decision and Order of the Court.
Dineen A. Riviezzo, J.
Response sent, thank you
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Docket No: 117/14
Decided: March 22, 2018
Court: Supreme Court, Kings County, New York.
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