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Now, clinical judgment tends to be used only as an introductory sweetener to citations from the Hanson/Bussiere meta-analysis. Factors the Canadian researchers say will predict if sex criminals will re-offend include, but are not limited to, the following:
* The age at which the crimes were committed. (If the crimes occurred before the perpetrator was 15, the study shows, he is likely to re-offend.)
* The marital status of the the subject. (A single perpetrator is likely to re-offend.)
* Whether the subject has a negative relationship with his mother. (If so, the perpetrator is likely to re-offend.)
* Whether the subject has numerous convictions for non-sexual crimes. (If so, the perpetrator is likely to re-offend.)
* And whether the subject has an anti-social personality disorder, as defined by the DSM. (If so, the perpetrator is likely to re-offend.)
Using this criteria, Scott Felix seems like a dead-bang repeater. But is predicting future criminality really that easy? Has the state, with the help of two Canadian scientists, discovered a magical method of protecting women and children from the ravages of rape and molestation? Or are we denying people a fundamental right to earned freedom, based on general correlations that have little meaning when applied to individual cases?
Dr. Fred Berlin is one of the nation's foremost researchers of deviant sexual behavior. He runs the Sex Disorders Clinic at John Hopkins University in Baltimore, Md. In therapy, he has been known to make significant progress with the most heinous sex offenders and serial murderers.
He says applying the Hanson/Bussiere meta-analysis to individual offenders is simply bad science. Taking findings based on group behavior and applying them to predict the future acts of an individual is, he insists, utterly meaningless. And, he says, if psychiatrists are making determinations in that manner, they are acting improperly.
"I am very concerned about denying someone their rights and their freedom based on actuarial studies," Dr. Berlin said in a phone interview from his clinic. He says the Hanson/Bussiere study, with which he is very familiar, is a valuable tool in predicting what entire classes of criminals will do. "But in applying its findings to individuals, you can use it and be 100 percent wrong," he says.
Few know the status of research into the behavior of sex offenders better than Dr. Berlin. Asked if it's possible, given the state of current scientific knowledge, to predict recidivism, he is unequivocal.
"We simply can't, with a high enough degree of confidence, know whether someone is going to re-offend," he answers. "We can make guesses. Is that enough to make these determinations?"
He doesn't pause before answering his own question: "No."
Dr. Charlene Steen is an affable woman whom Scott Felix's attorney compares to Aunt Bea from the old Andy Griffith Show. She sits on a panel of psychologists and psychiatrists that the Department of Mental Health dispatches all over the state to evaluate convicted sex offenders under the sexually violent predator law. She is a true believer in Hanson/Bussiere. Confronted with Dr. Berlin's argument, she responds, "That doesn't make any sense. When you look at people in high-risk categories who have a lot of factors, common sense just tells you they are more risky ... we can't be positive they will re-offend. We can be sure they have a likelihood to re-offend."
And there it is. The reason actuarial data is allowed into proceedings that determine a sex offender's future involves the way the Sexually Violent Predator Act is written. Experts don't have to make a certain diagnosis of the future. All they need to do is make a determination of likelihood to re-offend.
But this determination of propensity -- how solid is it?
"It's imprecise," Steen says. "There is no way we can do a numerical thing." Studies are under way to devise a mathematical formula, which will attach a numerical value to the determination of likelihood to re-offend. But the science isn't there yet, Steen says.
Scott Felix first learned of the sexual predator law in August 1996, five months after he was arrested for being drunk in public and sent to prison for violating his parole. That's when he met Dr. Steen. Steen interviewed Felix for four hours and administered several standard psychiatric tests.
Her diagnosis: numerous personality disorders.
She felt Felix had traits common to several disorders, but he never quite matched all the criteria for any one. So she used a catch-all diagnostic category from the DSM called "Personality Disorder Not Otherwise Specified." In short, he had a little of everything: some anti-social characteristics, some histrionic characteristics, and some criteria that suggested negativistic and narcissistic disorders. In other words, he didn't respect the rights of others, he had to be the center of attention, and he couldn't handle stress, ambiguity, or frustration without acting out in an inappropriate manner. She also ruled that he was an alcoholic and a dyslexic, but those were easy determinations; Felix readily admits to both.
Most important to the prosecution, however, was her diagnosis that Felix had paraphilia not otherwise specified, based solely on his two rape convictions. She said it was in remission, but she said he had the mental disease that predisposes someone to rape.