Every attorney involved in criminal cases inevitably encounters a client who’s accused of a sexual crime. Despite believability, it is one of the few crimes when the client is presumed guilty until proven innocent. Regardless of the attorney’s role in the case it is imperative that attorneys understand the purpose of psychosexual evaluations (PSE), which client is a good candidate for the PSE, when they should be administered, and who provides such evaluations. This article is a very brief summary of what PSEs entail and has been specifically written for attorneys who practice in Oklahoma and Arkansas.

Prior to the “Me Too” movement, sexual offenses and deviance were defined in a more clinical or legal manner. However, recent events have broadened the catchment of PSEs and created a whirlwind of confusion for those who are not knowledgeable about the sex offender community. The term offender is of legal value, and has no clinical finding or value to practitioners regarding risk severity. Deviance is a “two-pronged” definition for sexually arousing behavior, meaning WHO or WHAT turns on the client? It is better explained by referencing the Diagnostic & Statistical Manual (DSM) 5. It’s the most current manual forensic examiners and mental health practitioners utilize for evaluating and diagnosing clients. Non-normative behaviors would include: exhibitionism, fetishes, pedophilia, sexual sadism and masochism and a host of other disorders and behaviors. The client may have specific populations or activities they find attractive such as adult men or women, teenagers, pre-pubescent children, or animals. The activities may be sadism, rape, or something that elicits sexual arousal (e.x. masturbating in the mall parking lot). Others may be more aroused by child pornography. The DSM-5 is difficult to decipher if one does not have a mental health background and should only be utilized by a licensed practitioner who is well-versed in evaluation and diagnostics. As always, search engines are not a reliable or accurate source of information for mental health concerns.

Sexual addiction, sex crimes and convicted offenders are considered specialty populations. The leading organization that aids in research, public policy, practice and awareness is The Association for Treatment of Sexual Abusers (ATSA). PSEs are an all-inclusive assessment of biographical history, sexual relationships and practices, employment, education, and social involvement. The purpose of a PSE is to answer the questions how likely is a subject to re-offend, and what are the conditions that would increase that likelihood? A forensic practitioner does not necessarily need to possess any particular license, but the most exceptional practitioners have experience in forensic treatment, certifications, and extensive knowledge in the tools they utilize in administering a PSE. Neither Oklahoma nor Arkansas require licensure or certification for sex offender treatment. Consequently, screening practitioners is pertinent to the case and a client’s defense. Practitioners should be aware of the ATSA guidelines that dictate best-practices regarding sex offender evaluation and treatment. Evaluations should include self-report measures, actuarial risk, and structured clinical judgement aiding in the reduction of bias and experiential opinion. Counsel should always ask the expert how the evaluation is formatted and why the expert chose that particular format.

Superior PSEs contain a battery of tools of a broad variety. Some tools are considered general psychological tools and others are tailored to sex-offense behaviors. Actuarial tools are designed to look at two major groups of risk factors: static and dynamic/acute risk factors based on the Risk-Need-Responsivity model. Other assessments include the Adult Assessment of Sexual Interest-3, Personality Assessment Inventory, Multiphasic Inventory II, Static-99R, Stable-2007, Clarke Sexual History Questionnaire, and many others. Collectively, PSEs may aid in identifying which level of registration is appropriate, inpatient or outpatient mental health treatment, and strengths of the client to reduce recidivism. Further, PSEs also evaluate for weaknesses or distorted thoughts such as denial, minimization, inappropriate sexual fantasies, and justifying their sexual harm of others. An example of this would be, “I didn’t create the child pornography, I’m not hurting anyone by just looking.”

PSEs can be a valuable asset for negotiations or resolutions of sexual offense specific crimes. Prior to a conviction an evaluation can be utilized to reach agreeable plea deals, reduce charges, or establish other means of punishment within the Containment Model. Post-conviction evaluations are mandated by courts in various state. Unfortunately, Oklahoma does not endorse such practices and outcomes can vary by county. It is the attorney’s job to understand the process, educate the client on his or her options, and proper application of a psychosexual evaluation. 

Those who openly admit to committing their alleged crime are the very best candidates, as this enables a more open process for the client and evaluator. Those clients who have been convicted but are awaiting sentencing are also excellent candidates. Most of the tools utilized for risk and recidivism are created from an “offender only” research pool. By not having a formal conviction the evaluator is applying a mold to a person, and this should be communicated as such to those involved. The clinician should work for the trier of fact and only the trier of fact, and never make recommendations or speculate to the client’s innocence or guilt. Equally, an attorney should never ask a forensic practitioner to do so, nor to edit or omit their opinion. ATSA considers this to be a violation of ethical principles due to the obvious limitations of assessments and their evaluators. 

Furthermore, if the attorney is representing or charging an adolescent, a developmentally delayed person, or a female they’ll want to clarify with the clinician if they are able to evaluate special populations. It may sound ridiculous, but the tools utilized come from a large adult male-only population, resulting in fewer options when evaluating adolescents, women, and those who have cognitive delays. Actuarial tools may require a formal conviction in order to be employed, and will be considered invalid if used improperly. 

Sentencing is a three-fold process of punishment, rehabilitation, and safety of the public. While some may agree that punishment and rehabilitation are both appropriate others may be more concerned about those the public should be afraid of instead of those they are mad at. The cost of incarceration has not deterred judges or juries from lengthy prison sentences, but it is possible educating them on the value of PSEs could influence future decisions. 

Beginning in 2019, Oklahoma will have an ATSA chapter in an effort to educate the public, influence policy for the better, and provide all those involved with the proper resources needed to make more informed decisions. Look for more information to come regarding Oklahoma ATSA in future issues.

This article was featured in the Tulsa Lawyer Magazine October 2018 edition: https://issuu.com/tulsacountybarassoication/docs/10-18_tulsa_lawyer