Psychologist Karen Franklin provides an interesting commentary on the article Normative Versus Consequential Ethics in Sexually Violent Predator Laws: An Ethics Conundrum for Psychiatry which supplements a companion article in the same issue, Alice In Actuarial-Land: Through the Looking Glass of Changing Static-99 Norms. There's a lot of controversy among forensic psychologists these days about the validity of the Static-99, the chief measure of sexual recidivism used in SVP assessments. The claim by many is that the Static-99 simply isn't a good measure of sexual recidivism: many of the studies are unpublished, the recidivism rates vary widely based on which sample norms are used, and the instrument fails to account for dynamic factors - those that can change over time (e.g., substance abuse, loss of sexual function). These are serious concerns and are a further detraction from basing confinement of nebulous mental abnormalities based on criteria defined by legislatures (although in all fairness, the American Psychiatric Association has numerous diagnosable sexual mental disorders, including pedophilia based on questionable grounds as well). But the question at the end of the day is what to do given the reality of SVP laws?
The Ethics of SVP Evaluations
One answer is simply to say that we don't know that much about sexual recidivism with the level of precision necessary to justify civil commitment. Many psychologists who oppose SVP commitments make this argument. But note that it cuts both ways: As the hypothetical case in the Alice in Actuarial-Land case makes clear, the problem with the Static-99 is that the risk might be low or quite high. Another approach is to employ clinical judgment along with actuarial assessments. The general position of most forensic psychologists holds that clinical judgment is error-prone and should be avoided in favor of hard data, like risk assessments measures akin to the Static-99. But the reality is that all evaluations entail some clinical judgment: from when a psychologist decides to employ an assessment tool, which tool the psychologist utilizes, to interpreting the results. In this vein, what seems to matter - and what Sreenivasan et al. seem to suggest - is that since clinical judgment will be used, what matters is that the inferential leaps are transparent and fully explained. Whether one wants to see this as a consequential ethical position seems irrelevant insofar as forensic psychologists don't make SVP laws nor do they decide their constitutional status. For better or worse, the courts have decided that legislatures are free to craft laws which provide for civil commitment of people who have dangerous mental abnormalities that "creates a likelihood of such conduct in the future if the person is not incapacitated" (Kansas v. Hendricks, 521 U.S. 346, 357 (1997)). The debate, of course, centers around just that very notion: what is the likelihood of recidivism? And while some states have quantified that threshold, most have not. What that threshold should be to justify civil commitment is truly a normative matter that science simply cannot answer.