The Respondent is the subject of a petition for sex offender civil management pursuant to Article 10 of the Mental Hygiene Law ("Article 10", the "Sex Offender Management and Treatment Act" or "SOMTA"). The instant decision concerns this Court's conclusion following a Frye hearing (See Frye v. United States, 293 F.1013 [D.C. Cir.1923]) about whether the diagnosis proffered by the State here, "Other Specified Paraphilic Disorder ("OSPD"), arousal to non-consenting persons" has gained general acceptance in the relevant psychiatric community. This diagnosis was also referred to by a number of equivalent terms during the hearing including the shorthand "OSPD Non-Consent", its predecessor term (as explained infra) "Paraphilia Not Otherwise Specified (Paraphilia NOS) Non-Consent", "Biastophilia" (derived form the Latin word for rape), Paraphilic Coercive Disorder ("PCD"), Paraphilic Rapism or simply "Non-Consent". For the reasons outlined infra, the Court holds that these diagnoses are not generally accepted in the relevant scientific community under the Frye standard.

The instant offense arose from charges concerning nine victims on nine occasions in 2000 and resulted in the Respondent's conviction for multiple counts of Sodomy in the First Degree [*2]and related crimes. Mr. M. is currently 40 years old. His instant crimes all followed a similar pattern. Mr. M. would follow his female victims, who ranged in age from 11 to 18, into an elevator or stairwell of a building, usually threaten the use of a knife and then demand and in multiple cases receive oral sex. After ejaculating into his victims' mouths, he would flee. Mr. M. reported during an interview that "the look of fear in the victims was a thrill' and a turn on' for him".^[FN2] He also reported that he was unable to stop offending, wanted to get caught and let some of his victims who cried too much leave. He admitted to having up to ten victims but was not sure if there were more.

The State's expert, Dr. Field, initially diagnosed Mr. M. with Other Specified Paraphilic Disorder ("OSPD") "arousal to nonconsensual oral sexual activity" and Antisocial Personality Disorder ("ASPD"). His current diagnosis, as noted supra, is OSPD "arousal to nonconsenting persons" and ASPD. Dr. Field noted that Mr. M. was aroused to his victims' fear. He did not outline in detail, however, any of the diagnostic criteria he used to assign his OSPD diagnosis. He opined that Mr. M. suffered from a Mental Abnormality under Article 10.

The Respondent's expert, Dr. Leonard Bard, found in a report dated October 20, 2014 that Mr. M. could not be diagnosed with a paraphilia (a sexual disorder, defined infra) or ASPD and did not suffer from a Mental Abnormality. With respect to the "Non-Consent" diagnosis, Dr. Bard opined that this diagnosis had "recently been rejected for inclusion in the diagnostic manual [of mental disorders] . . . It is a condition created for legal proceedings like this one and given its lack of any specific criteria or underlying research, should be considered both unreliable and invalid".^[FN3]

Six psychologists or psychiatrists testified at the hearing, three for each party. The Court also received multiple articles into evidence. The testimony and articles are described below. The factual portion of this Decision begins with an explication of the Diagnostic and Statistical Manual of Mental Disorders.

All of the experts analyzed the Diagnostic and Statistical Manual of Mental Disorders 5th Edition (the "DSM-5"). That manual's provisions and history are also one basis for this Court's decision. The provisions of the DSM-5 and immediately preceding edition are therefore first outlined here. The manual's historical development is outlined in the summary of the witness testimony.

The DSM was first published in 1952 and has gone through multiple numerical iterations with the most recent 5th edition published in 2013. The immediately preceding edition, the DSM-4-TR (Text Revision) was published in 2000. Dr. David Thornton described the DSM as an attempt by American psychiatry to harmonize diagnostic practices. It has been called the "Bible of mental disorders" and is "like the institutional embodiment for the consensus of main [*3]treatment and psychiatric opinion in the United States" (Thorton, 28-29).^[FN4] Dr. Raymond Knight described the manual as including "a consensus of experts in psychiatry about those particular disorders that should be treated" (506). It is the result "partly of tradition", partly of a consensus of leading psychiatrists, partly of "politics" and to "some extent influenced by research". (Thornton, pp. 28-29). The manual emerges "through a complex, heirarchical process informed by expert working groups, consultation on possibilities, and multi-layered review" (Thornton, Power Point, p. 2).^[FN5]

The DSM-5 classifies eight named paraphilic disorders (not including the disorder at issue here). It defines the word "paraphilia" as "any intense and persistent sexual interest other than sexual interest in genital stimulation or preparatory fondling with phenotypically normal, physically mature, consenting human partners" (685).^[FN6] One may have a paraphilia, however, without having a paraphilic disorder. A paraphilia describes a sexual interest and is a "necessary but not . . . sufficient" predicate for a paraphilic disorder (686). A paraphilic disorder "is a paraphilia that is currently causing distress or impairment to the individual or a paraphilia whose satisfaction has entailed personal harm, or risk of harm, to others" (685-686). The eight listed paraphilic disorders are: Voyeuristic Disorder, Exhibitionistic Disorder, Frotteuristic Disorder, Sexual Masochism Disorder, Sexual Sadism Disorder, Pedophilic Disorder, Fetishistic Disorder and Transvestic Disorder.

The DSM-5 also includes the diagnosis "Other Specified Paraphilic Disorder" ("OSPD"), which, with the specifier "Non-Consent" is at issue here. The OSPD provision reads in relevant part:

This category [Other Specified Paraphilic Disorder] applies to presentations in which symptoms characteristic of a paraphilic disorder that cause clinically significant distress or impairment in social, occupational or other important areas of functioning predominate but do not meet the full criteria for any of the disorders in the paraphilic disorders diagnostic class. The other specified paraphilic disorder category is used in situations in which the clinician chooses to communicate the specific reason that the presentation does not meet the criteria for any specific paraphilic disorder. This is done by recording "other specified paraphilic disorder" followed by the specific reason (e.g., "zoophilia").^[FN7] (705).

This passage goes on to provide 6 non-exclusive examples of OSPD diagnoses: the sexual attraction to obscene phone calls, corpses, animals, feces, enemas and urine. The DSM [*4]also includes the diagnosis "Unspecified Paraphilic Disorder" ("UPD"), which is not at issue here. These are paraphilias where a clinician chooses not to specify the reason the criteria for one of the eight listed paraphilias have not been met, including presentations for which there is insufficient information.

According to the manual, the eight listed disorders were chosen because "they are relatively common, in relation to other paraphilic disorders" and because some are classified as crimes. The manual notes that this list is not exhaustive and that "[m]any dozens" of paraphilias have been identified and named". The diagnoses of OSPD and UPD, according to the manual, "are therefore indispensable and will be required in many cases" (685). The DSM-5 also includes a section entitled "Conditions for Further Study" described as "conditions on which future research is encouraged" (783). OSPD Non-Consent is not listed as one of these conditions. The distinction between conditions for which detailed criteria are provided and the general OSPD and USPD categories is not limited to paraphilic disorders but applies similarly to all disorders in the DSM-5. Thus, disorders for which specific criteria are not provided by the DSM are covered by the formulations "other specified disorder" and "unspecified disorder". The DSM gives as an example of the former "other specified depressive disorder, depressive episode with insufficient symptoms" (15).

The DSM edition immediately prior to the DSM-5 was the DSM-4-Text Revision (the "DSM-4-TR"). The DSM-4-TR had a different nomenclature for categorizing paraphilias. Conditions were not broken into "paraphilias" and "paraphlilic disorders". Nor did the DSM-4-TR have two categories: OSPD and USPD. Rather, a single category of disorder called "paraphilia" existed. The OSPD and USPD category equivalent in the DSM-4-TR was "Paraphilia Not Otherwise Specified" ("Paraphilia NOS"). Drs. Thornton and Kunkle opined that the general Paraphilia NOS category was generally accepted in the psychological community under the DSM-4-TR. The 8 listed paraphilias in the DSM-5 are comparable to the paraphilias listed in the DSM-4-TR and its immediately preceding edition the DSM-4 (without the "TR" designation).

Testimony of State Witness: Dr. David Thornton

Dr. Thornton is the research director of the "Sand Ridge Center" which treats sex offenders under the Wisconsin "Sexually Violent Persons" or "SVP" program.^[FN8] He received a psychiatry degree in the United Kingdom but is not licensed to practice psychiatry in the United States. He previously worked extensively in the British prison system doing policy based research and developing programs, including treatment programs for sex offenders. He began working at the Wisconsin SVP program in 2001 as its treatment director. In 2013, he became the director of the system's research unit.

Dr. Thornton worked as an "expert advisor" to the group developing the DSM-5's paraphilia section. The concept of a "paraphilia" was introduced in the DSM's third edition (the [*5]DSM-3). Any experience a human being may have can be "sexualized" by someone. "[Y]ou may not be attracted by the idea of progressively cutting flesh off somebody and eating it but there are people who are . . ." (32). Four or five hundred sexual interests have been categorized and given pseudo-Greek or Latin names. Dr. Thornton said the eight named paraphilias in the DSM-5 were those which "commonly presented themselves for treatment". Id. It is difficult to say why the eight named paraphilias were chosen because it is partly based on tradition.

Under the Wisconsin SVP program, about 20% of offenders receive an OSPD Non-Consent diagnosis. The diagnosis is used in other states and is used "more commonly" in SVP programs than in the community generally (61-62). The diagnosis is also more of a focus in SVP programs than in other criminal justice contexts. He said that in one DSM-5 field trial, it was determined that no one outside the SVP Program context met the criteria for PCD. Dr. Thornton opined that OSPD Non-Consent was a generally accepted diagnosis in the psychiatric community.

In "OSPD Non-Consent" "the sexual interest is in the imposition of sexual activity on another person, whose behavior clearly signals that they don't want sex to happen". This involves "struggle and resisting" by the victim who is seen to "loathe strongly" and experience "psychological suffering" (65). OSPD Non-Consent meets the definition of a paraphilia under the DSM-5 because a paraphilia can include a sexual interest with an other than consenting adult partner. He said that he and a number of other researchers believed there is a "sadism continuum". On the most severe end is brutality and the possibility of future killings. Further down the scale are arousal to bondage, humiliation and fantasies of hurting people, fantasies of scaring someone into sexual consent or forcing someone to do something. OSPD Non-Consent is a "lesser form of sadism". Id. Not all forcible rapes are a manifestation of the disorder.

Research into this issue has come in three forms. First are Penile Plethysmograph, or "PPG" tests. These are tests which measure a subject's physical sexual arousal through the use of a sensor on the shaft of a penis to measure changes in penis size in response to visual or aural stimuli, for example, depictions of consensual vs. coercive sex. Such tests are generally used and accepted in the clinical psychology community. A stronger response to rape stimuli than to stimuli depicting consensual sex would support a Non-Consent diagnosis. A collection of PPG studies have indicated that most men are more attracted to consensual than coercive sex.

Normally, cues indicating mutual sexual interest increase PPG arousal while cues indicating female coercion inhibit sexual arousal at least partially. For convicted rapists and men indicating a willingness to rape, however, there is an association between coercion cues and heightened arousal. "Among rapists typically between a third and a half will show stronger responses to stimuli depicting coercion than to stimuli depicting consent".^[FN9] Dr. Thorton outlined the results of a study of 33 rape offenders who were assessed using a PPG rape stimulus set and received stimuli in three categories: consensual, coercive and brutal (the latter corresponding to a sexual sadism diagnosis). He found that 48% of rapists had a consensual preference, 30% a coercive preference and 21% a brutality preference.

A second research method involves "rating scales" and Dr. Thornton's development of a "Paraphilic Rape Checklist" meant to detect a Non-Consent diagnosis not rising to the level of [*6]sexual sadism. The items on the checklist are: evidence of pre-planning, evidence of a rape script being repeated, a history of three or more sexual assaults, a history of carrying out one or more rapes when consensual sex was available, evidence of coercion beyond what is required to obtain victim compliance, a history of sadistic acts like strangling, PPG data and self-reports of a rape or sadistic fantasy or urge. These measures are meant to distinguish an offender who has a rape preference from one who rapes opportunistically or because he is antisocial but is not attracted to the nonconsensual aspect of a rape. Dr. Thornton also developed a "Severe Sadism" checklist which includes items evidencing torture, infliction of intense pain, humiliation, mutilation, the use of objects, cutting, strangling or threats designed to terrify rather than only coerce. This checklist is derived from similar checklists compiled by other researchers. He testified that other "paraphilia colleagues" had developed their own rape scales but was not aware whether those other scales incorporated elements of his checklist (137-138).

Dr. Thornton conducted a study on the reliability of the Paraphilic Rape Checklist ("PRC") and Sadism Checklist ("SC"). He found that different evaluators agreed on scoring for each checklist 64% of the time which he described as moderate.^[FN10] He said that the scales had a higher rating with respect to their internal consistency among scored items, with this percentage being 77 or 78%. He next found that there was a correlation between the number of behavioral signs in the PRC with the percentage chance a subject would be aroused to a coercive sexual scenario in a PPG test or report a rape fantasy. Subjects with one behavioral sign, for example, had a preferential PPG result or self-report 50% of the time while subjects with 4, 5 or 6 behavioral signs had those results 100% of the time. Comparing these results to those on the SC checklist, he concluded that "[p]araphilic rape partly overlaps with severe sadism but has substantial variance that is independent of severe sadism" but also cautioned that these results might be attributable to measurement error.^[FN11] Non-Consent and Sexual Sadism are part of a continuum with 25% of cases overlapping and 75% not overlapping. Half of those subjects whom Dr. Thornton found had evidence of paraphilic rape were diagnosed with Sexual Sadism and half were not.

Research by Dr. Knight (another witness at the instant hearing) used subject self-reports and determined arousal to coercion in what he described as an "Agonistic, or Sadism Continuum", which is a series of 17 increasingly coercive fantasies or behaviors beginning with "Make female do I want turns me on [SIC]" to "Beaten woman while having sex".^[FN12] The scale was described as a "probabilistic Guttman". [Dr. Thornton, in the Court's view, did not explain in detail what a "probabilistic Guttman" scale is but according to Wikipedia, "on a Guttman scale, items are arranged in an order so that an individual who agrees with a particular item also agrees [*7]with items of lower rank-order".^[FN13] Dr. Thornton presented a chart in his Power Point of Dr. Knight's work but did not explain the statistical percentages in the chart. The significance of the percentages was not self-evident.]

Dr. Thornton testified that it is "possible" to assess rape related paraphilias reliably but that does not mean clinicians in routine practice do so (107-108). Clinicians may be influenced by the "allegiance effect" (influenced to make findings in accordance with the position their employer is taking) and routine clinical practice may lack the rigor of controlled studies. Dr. Thornton said that state evaluators "invariably" used Non-Consent diagnoses and that evaluators for defendants "generally" did not use them (109). He said the diagnosis was "consistent" with the DSM. Id. It is rare that a person will be treated for a Non-Consent disorder outside a forensic setting. He also said that in Wisconsin there are evaluators who are not prosecutors but are employed by the courts or the State and generally use the diagnosis. The "diagnosis has been applied too widely" (113). He divided rapists into three categories: sexual sadists, opportunistic rapists who use rape as a method to have sex and rapists with a non-sadistic rape paraphilia. He estimated that generally about 30-50% of rapists (by forcible compulsion) could be diagnosed with PCD.

[Recommendations regarding paraphilias under the DSM-5 were first considered by the "sub-work group" then forwarded to a more general "work group" on "Sexual and Gender Identity Disorders"^[FN14] and finally subject to approval or disapproval by the board of the American Psychiatric Association (APA).] The paraphilia sub-work group did not have any role in the decision to not include PCD in the DSM-5 Appendix as a condition warranting further study. Non-Consent has been repeatedly rejected as a named paraphilia by the DSM both because it would open the door to excessive civil commitments and because it might allow rapists to argue they were not guilty by reason of a mental disability. Dr. Thornton and others conducted three "field trials" for the Non-Consent diagnosis during the time it was being considered for inclusion in the DSM-5, in Wisconsin, Florida and California. The rejection of Non-Consent in the DSM was "political" in the sense that the APA "is strongly opposed to . . . civil commitment" and ultimately makes decisions about what is included in the manual (129).

He described the inter-rater reliability (the degree to which two evaluators looking at the same subject would reach the same diagnosis) of Non-Consent in the field trials as "moderate" and about as reliable as the established diagnosis of Sexual Sadism (130). One reason for the rejection of the Non-Consent diagnosis in the DSM-5 was that it was "hard to fully distinguish PCD from sexual sadism" (131). It is not true that the non-specifically identified paraphilias are only those which are rarely seen. For example, bestiality is quite common among Wisconsin SVP patients but is not one of the eight listed paraphilias. The PPG is a good indicator of arousal but is imperfect like other measures. The proposed DSM-5 criteria for PCD and the criteria used in the field trials were different from the Paraphilic Rape Checklist designed by Dr. Thornton.

Testimony of State's Witness: Dr. Christopher Kunkle

Dr. Kunkle has been the director and chief psychiatric examiner of New York State's sex [*8]offender civil management program operated by the Office of Mental Health ("OMH") since 2012. He received his Ph.D. in 2007, began working at an OMH psychiatric center which managed SOMTA patients that year and has continued doing such work since then. Dr. Kunkle defined OSPD Non-Consent as "intense and persistent sexual arousal to nonconsensual sexual activity that includes either force or verbal threat to coerce the individual into sexual behavior" (181). He said he determined Non-Consent diagnoses by looking at prior behaviors, psychological or sexual testing and an offender's statements. He would consider whether the offender had evidenced a pattern of rapes, as opposed to one incident, whether the victims were strangers, whether there was evidence of sexual fantasies involving rape and whether the rapes were planned.

Dr. Kunkle described the results of a database review of cases screened by OMH from the enactment of SOMTA (in 2007) until February 12, 2015 during which 13,000 offenders were subject to initial OMH screening. 1,120 were subject to a psychiatric evaluation. Of that number, 124 were given a Non-Consent diagnosis. Article 10 petitions were filed in 112 of these 124 cases.^[FN15] Approximately half of these 124 diagnoses (58) occurred during the first two years of the statute's implementation (192-193). Dr. Kunkle said he believed the disorder was diagnosed more frequently during the first two years of Article 10 because OMH had contracted extensively with outside evaluators at that time to conduct evaluations, because evaluators did not receive the training later provided by OMH or because evaluators were not "well-educated" about paraphilias (194). OMH became "more specific about assigning the [Non-Consent] diagnosis" as time went on. Id.

In response to the question of whether offenders diagnosed with NOS Non-Consent in 2007 or 2008 were "misdiagnosed" Dr. Kunkle replied: "I don't know". He opined that were such offenders diagnosed incorrectly, "I would fathom those cases were meted by the court process" (217) and said that if an OMH clinician came to a conclusion that a Non-Consent diagnosis was no longer appropriate the clinician would provide that opinion during an annual review for a confined offender, for example. He said he was not aware of a case which had been "flat out misdiagnosed" but made it to the SOMTA commitment stage (217-218). When asked what criteria State evaluators used in 2007 and 2008 to diagnose Non-Consent, Dr. Kunkle replied: "I don't know". When asked whether these criteria were the same ones OMH used today, he replied: "I don't know" (218).

Dr. Kunkle opined that the diagnosis of OSPD Non-Consent was generally accepted in the psychiatric community and said that "there is a strong basis of research and practice indicating that the consensus of individuals believe this condition exists" (196). He opined that even among evaluators who generally work on behalf of respondents in SOMTA proceedings, there are some who believe the diagnosis is legitimate. The disorder was not included in the DSM-5 as a specifically named paraphilia because there were individuals who did not believe it could be precisely diagnosed and some who had political views on the subject. By "political" he meant the view that the diagnosis was being used to "drive an agenda that's not clinical in nature, [*9]such as a civil commitment; the incarceration of individuals" (203). In the past, there were also concerns among victims that the diagnosis could furnish an excuse for rape.

Dr. Kunkle testified that he was not aware of Dr. Thorton's paraphilic rape checklist. He said he had reviewed the research of multiple people in arriving at the criteria he used to diagnose Non-Consent. He acknowledged that he did not have PPG results for offenders he assessed for the disorder in all cases. He did not provide a clear answer to the question of whether a person who was not inhibited by a victim's resistance (as opposed to an individual who was affirmatively aroused by such resistence) would have OSPD Non-Consent. He said it would depend in part on whether a behavior would recur.

OMH currently provides general guidance about the markers for Non-Consent but each evaluator determines the criteria he or she will use to diagnose the disorder (218). OMH currently has 18 or 19 evaluators, none of whom have opined that the diagnosis of Non-Consent does not exist. OMH has not conducted any studies to determine the inter-rater reliability of evaluators diagnosing the disorder.

Dr. Wilson is a psychologist who treats, evaluates, trains and consults regarding sex offenders and sex offender risk assessments. As a graduate student, he worked for Dr. Kurt Freund, who invented the PPG test and has conducted PPG testing. He received a Ph.D. in cognitive science in 1996. From 1998 until 2005 he was the chief psychologist for the Canadian Correctional Service. He worked at the Florida civil commitment program which is run by a private company from 2007 until 2011 and became its clinical director. Now in private practice he is retained both by the State and respondents.

Dr. Wilson estimated that there are 150 to 250 paraphilias which have been named but "not all of these are common enough to warrant their own diagnostic framework" (257). Some, also, have not "sort of been well-established enough" to warrant specific DSM criteria. Id. Scientific literature describing an attraction to non-consensual sex dates back over 100 years. He described the phenomenon as a "strong degree of sexual arousal" to having sex against the will of the victim (272). Under the DSM paraphilia definition, normal sexual arousal requires arousal to sex with a "consenting" adult. Dr. Wilson described a "taxon" as something which could be discretely defined while a dimensional construct indicates something that exists by degrees. He said Non-Consent was dimensional because arousal could exist on a continuum from consensual to sadistic. As the continuum increases, an offender may be sexually aroused by the violence itself (rather than only the victim's non-consent) with the high end of the scale being sexual sadism. Information about arousal to non-consent can be gleaned from the reports of victims, perpetrators or PPG tests.

Dr. Wilson distinguished an attraction to non-consent from coercive sexual behavior which arises from other causes like intoxication, group behavior, not understanding that "no means no" or people who were "jerks" or "somehow anti-social" (283). He opined that OSPD Non-Consent was generally accepted in the scientific community. Dr. Wilson recounted "meta analyses" of PPG studies. A meta analysis is a compilation of the results of multiple studies providing a greater sample size than one study. "[W]hat the PPG studies have shown is that consistently, people who engage in rape, show more of a sexual arousal to scenes or scenarios of sexual coercion of rape than people who never have engaged in the behavior" [or ever been [*10]known to have engaged in the behavior] and also more sexual arousal than people who have engaged in non-sexual violence (287). "The PPG literature has shown that we can consistently differentiate people who engage in rape from people who do not" (289). Dr. Wilson said his research attempted to determine the subset of rapists whose arousal is due in part to the non-consent of the victim where non-consent "is part of what makes them more sexually aroused" (290). He said the disorder exists for a person where the "primary driving force" behind sex is the attraction to non-consent.

In the continuum between normal sexual behavior and sexual sadism there is a significant grey area particularly in the middle. "[T]here's no precise diagnostic framework that would split those cases [in the continuum] with one hundred percent certainty" (296). People on the low end can be distinguished from people on the high end. One manifestation of the higher end of the continuum is violence above what is required to ensure victim compliance. Studies by Raymond Knight have been successful to some extent in distinguishing people with sexual sadism from those with a lesser paraphilic disorder. There is a higher degree of inter-rater reliability in diagnosing sexual sadism. There is not a clear distinction between violence used to ensure victim compliance and sexual sadism where an offender is aroused by the violence itself. It is also difficult to draw a line between a person attracted to non-consent and a sexual sadist. One way to attempt to do this is by the use of the "Severe Sexual Sadism Scale" which attempts to rank offenders with respect to acts of extreme violence, terror or humiliation. The research on this is "still emerging" (303).

Referencing his work in Canada, Dr. Wilson said he had seen OSPD Non-Consent applied in non-SVP contexts "[o]n hundreds if not thousands of occasions" (306). He opined that the OSPD Non-Consent diagnosis was generally accepted among persons in prosecution roles in SVP proceedings and that there was an "implied bias" in holding such positions (308). He said that persons working for the state in other contexts diagnosing and treating sex offenders also used the diagnosis. With respect to private practitioners, there are a "large number of people who are using it" and some people who don't. Id. With respect to psychiatric professionals working for respondents, some people use it and some don't. He opined the diagnosis is not one of the named paraphilias because it does not have a well enough established diagnostic framework both with respect to distinguishing Non-Consent from sexual sadism and distinguishing rapists with a paraphilia from those without one. Since the latter distinction relies on self-reports which subjects may not want to provide "we don't necessarily always know" why a rapist offends (311). A person diagnosed with Non-Consent, compared to a rapist without a paraphilia, has a condition which is more "intractable" and therefore would be at a higher risk to re-offend, other things being equal (311-313).

With respect to inter-rater reliability a percentage of 60 or 70 would be moderately reliable while in a forensic setting it would be better if the percentage were 80 or higher. He said that a PCD study he conducted had an inter-rater reliability percentage of 83. Dr. Wilson said he did not use any specific criteria for diagnosing OSPD Non-Consent and did not use Dr. Thornton's paraphilic rape checklist or a Non-Consent checklist created by Dr. Dennis Doran in his book "Evaluating Sex Offenders". He said he used criteria from the DSM-5 paraphilia sub-work group to diagnose Non-Consent. A person who commits multiple rapes is more likely to have PCD than an offender who commits one rape. He agreed that the diagnosis has been [*11]overused in the past.

Dr. Wilson opined that Non-Consent was rejected as a specific DSM-5 diagnosis both because it was difficult to define and because "the DSM can be as much a political document as . . . a diagnostic tool" (326). He said that some perspectives about violence against women suggest rape is a crime of power, control and violence but that there are a "small subset" of offenders who commit rapes "for fundamentally — paraphilic reasons" (327). Part of the "political reasoning" for not including a defined rape paraphilia was that assigning a clinical diagnosis to rapists could be seen as excusing their behavior and be offensive to women. This concern began with the DSM-3 and continues.

Rapists are more aroused to non-consent in PPG tests than non-rapists. In surveys, about a quarter to a half of all men report that if they could have sex with anyone, anytime, without permission, they would do so. However, the percentages become lower when the question includes information about the sexual partner being unhappy, even where these questions also include the stipulation that the man would not be punished. A fair number of men have engaged in some sexually coercive behavior by the age of 35. "The issue of rape is a really complicated one which is part and parcel of the reason why we don't have a precise diagnostic framework for it in a thing like DSM-5 . . ." (336).

Dr. Wilson agreed that, "broadly speaking" "one cannot reliably distinguish between nonconsent and sexual sadism" (338-339). He also agreed that "you cannot reliably distinguish between someone who is aroused by the nonconsent of the victim versus somebody who is raping despite the nonconsent" (339). However, research has demonstrated increased PPG responses to coercive scenarios among rapists. Different evaluators may use different criteria to diagnose Non-Consent but these differences are "fine details" (344-345).

Dr. Schlosser is a forensic psychologist who primarily works providing sex offender evaluations with most of his work done in Article 10 cases. He received his Ph.D. in 1997 and is board certified in forensic psychology. He previously worked as a psychologist for the Navy, the Utah Prison system, and from 2006-2008 at the Central New York Psychiatric Center (CNYPC) operated by OMH. Article 10 was enacted in 2007 and while at OMH he worked on developing protocols, policies and procedures under the new statute. He described this as "building a plane while flying it" (360).

According to Dr. Michael First, who communicated with the DSM-5 paraphilia sub-work group, Non-Consent was rejected for inclusion as a named paraphilia in the DSM-5 because of a "lack of empirical research and supported foundation as well as a concern about false positives [persons being diagnosed with the condition who did not have it]" (368). Dr. Schlosser testified concerning field trials to assess inter-rater reliability for the proposed DSM-5 PCD diagnosis at civil commitment centers in Florida and Wisconsin (discussed supra). "Validity" refers to whether a diagnosis exists and can be distinguished from other conditions. No field tests were done to assess the validity of the PCD diagnosis for inclusion in the DSM-5.

One of these studies yielded a Kappa coefficient in the .5 range and another found a Kappa in the .6 range, which would both be "fair to good" depending on how a researcher [*12]viewed Kappa coefficients (338).^[FN16] The concern about PCD's inclusion in the DSM-5, however, was about false positives. Inter-rater reliability declines when evaluations move from a field test into the real world. There are three reliability issues which arise with respect to PPG tests. First, are problems with the way the test is administered, which result in invalid PPG results in half of cases. Second, in a forensic context, subjects may seek to defeat the PPG, for example, by masturbating prior to the test to decrease arousal. Medication can also confound the test.

It is difficult to distinguish a male who is aroused by non-consent from a male who is not inhibited by it. The etiology of an attraction to non-consent has been difficult to establish and it is also difficult to distinguish a person who is sexually aroused to non-consent from a person responding to non-consensual stimuli in a PPG study, for example, because of "a trauma based reaction to past victimization" (398). With respect to research distinguishing rapists who have or do not have PCD, "we're just not there as a field yet". Id. Most evaluators who believe PCD is a legitimate diagnosis rely on a book written by Dennis Doran in 2002 about evaluating sex offenders which particularly concerns SVP proceedings. The DSM-4-TR has introductory language indicating that a paraphilia can concern attractions to non-consenting persons but Dr. Schlosser believes that language was intended as an introductory provision for some of the eight named paraphilias and was not intended to allow the use of PCD as a legitimate diagnosis. He based that conclusion on the writings of Dr. Allen Francis, the editor of the DSM-4—TR. The DSM-5 does not have this prefatory language.

PCD may be an appropriate diagnosis in some cases in a clinical setting but should not be used forensically because of its lack of research and clarity. It is used most often by state evaluators in SVP proceedings. Most evaluators who diagnose Non-Consent do so based on behaviors only, which is illegitimate. Dr. Schlosser believes the diagnosis is not generally accepted in the psychiatric community and that there is only "a very very small subgroup" of mental health professionals who accept it. Most professionals who work with sex offenders focus on interventions rather than diagnoses. The Non-Consent diagnosis is generally accepted among state evaluators. It is not generally accepted among most private practitioners who may be retained by either the State or respondents in SVP proceedings, although some clinicians use it. It is generally not accepted by People who work for SVP respondents.

Dr. Schlosser acknowledged that he had assigned the PCD diagnosis twice since the publication of the DSM-5 in cases where a subject also had sadistic traits but would not do so now because "at this time the data required to make that diagnosis has not been defined enough for me to do so" (414). Virtually no offenders evaluated under Article 10 have had PPG studies and a very small minority have made self-reports regarding Non-Consent. Without those tools, Non-Consent cannot be diagnosed. Dr. Schlosser testified that Non-Consent is on a continuum with sexual sadism but cannot be reliably distinguished from that latter disorder. Most people in the psychological community believe rape is more of a non-sexual phenomenon involving anger and other things rather than a sexual phenomenon. He said Non-Consent was not generally [*13]accepted in the board-certified forensic psychiatric community and among all evaluators who work in SVP proceedings it is "more evenly split" (423). State evaluators may find the diagnosis acceptable because of an "allegiance effect". When Article 10 was enacted, the Non-Consent diagnosis was used "regularly and easily" but is used less now (432). OMH did not have criteria for diagnosing Non-Consent when Dr. Schlosser worked there.

Dr. Knight testified that he is a psychologist who has been employed for his entire professional career in that field at Brandeis University where he is currently the chair of the Psychology Department. His extensive research on sexual aggression began in 1977 and became a focus of his research work in 2000. He has authored numerous peer-reviewed studies including work on paraphilias and sexual aggression. He is a former president of the Association for the Treatment of Sexual Abusers (ATSA) and continues to be very involved in the organization. Dr. Knight was an advisor to the paraphilia sub-work group for the DSM-5 and involved in prior DSM formulations.

A condition called "sexual assault disorder" was first proposed in 1976 as part of the DSM-3 but was rejected because evaluators believed it might be used as an excuse to exculpate rape offenders as being mentally ill. A similar disorder was then considered for the DSM-3-TR in 1985. That proposal, by Dr. Knight, was for what he called a "preferential rapist" and was rejected because of problems with its scientific validity. A similar disorder was rejected in the DSM-4 and DSM-4-TR. It was also rejected for inclusion in the research Appendix for both manuals.

A similar proposal was made for the DSM-5 and resulted in a very public debate. The DSM-5 paraphilia sub-work group ultimately did not recommend a Non-Consent diagnosis for inclusion as a named paraphilia because of its weak empirical data (532). He said the fact that the DSM-5 described normal sexual arousal as applying to "consenting human partners" did not mean that PCD is a valid disorder. He described PCD as "the most rejected disorder in DSM history" (532) having been rejected for inclusion as a specified disorder in the DSM five times. It was a condition for people who "wanted a diagnosis that they could use for rapists". Id. Dr. Knight opined that given the current state of research, Non-Consent cannot be distinguished from Sexual Sadism.

Unfortunately, the Court found most of Dr. Knight's testimony incomprehensible. Much of that testimony concerned his attempt to explain graphs and charts which the Court could not follow. The Court repeatedly indicated it did not understand Dr. Knight's testimony, at one point saying simply: "You can keep going, it is all lost on me" (585). The transcript of Dr. Knight's testimony also contains apparent typographical errors. Consider these representative quotations:

We are talking about not the measures that we have but what the latent underlying structure is behind those measurements and we weren't able to measure those things until Paol Meehl [spelled this way in the transcript] called — measurements called toxometrics fashion analysis. It is very difficult it will blow you away; much more complicated a very simple notion we can give you outcome of cosnistent [spelled this way in the transcript] studies about that notion very — a taxon is a naturally occurring difference in kind [the court understood that last [*14]clause] (593).

I am going to go straight, if you have a taxon you can get specific eitiology; we could have one paraphilia that indicates that it might be some — whether you don't have a taxon there are multiplicity of variables added to make that. The last one is for me as a researcher, it tells me how I analyze data if I have dimension I use the extreme group of analyses and I am going to be all screwed up and get very confusing results. You have to use appropriate analysis, kind of variables that you have only whereas here we only look at a cutoff issue (594).

[Explaining a chart] We are down here at the bottom, that's how we see the world, we do not see the world from a God's eye view or Miss Jones if you are not an atheist. We don't see reality as it is in and of itself, we see it from down here with measurements if we have a — if we have a taxon there is a group that is provided by nature and the best differentiation of the group is at the intersection right here between the taxon and the complement (595).

Similar issues arose on cross-examination and in questioning by the Court. When the Court attempted to solicit Dr. Knight's views on whether the Non-Consent diagnosis was generally accepted in the psychiatric community, for example, Dr. Knight, in the Court's view, simply refused to answer the Court's questions, insisting on answering his own questions and at one point repeatedly insisting that a question the Court was posing was really two questions, not one (632-638).^[FN17]

Dr. Calkins has been a licensed psychologist since 2003, has a Masters of Legal Studies and is a professor of psychology at John Jay College of Criminal Justice who specializes in the study of sexual offenders. She conducts and supervises research on sexual offending, teaches and supervises students doing clinical work. She has never seen a Non-Consent diagnosis used outside an SVP program and has never evaluated an SVP respondent.

Dr. Calkins opined that OSPD Non-Consent is not a generally accepted diagnosis in the psychiatric community, if the community is defined as psychologists or psychiatrists generally. She asserted this was the relevant community to consider, arguing, for example, that if general acceptance was being assessed for a disorder like depression, that "is not something that is only diagnosed by a very, very small pocket of all psychiatrists or psychologists. We accept this as a generally accepted diagnosis because we see it in community health centers, we see it in [*15]hospitals, we see it in the community, we see it in prisons . . . " (99). Similarly, pedophilia is diagnosed everywhere and patients sometimes arrive at a community health center outside any forensic context and are diagnosed with the disorder.

Another community which could be considered would be the several thousand practitioners who work with sex offenders as reflected in the membership of ATSA or ("the ATSA community"). Dr. Calkins opined that Non-Consent is not generally accepted in that community and that she had not seen it used outside SVP programs. A third possible category would be evaluators who work for SVP programs. She estimated there are 100,000 psychologists or psychiatrists in the United States, 20 states with SVP programs with 25 evaluators per state yielding 500 SVP evaluators with roughly half (250) employed by the State. This final group uses the diagnosis. "[T]hat comes out to around one quarter of one percent of the entire psychological, psychiatrist community, who would use this diagnosis in any kind of regular way" (104).

Dr. Calkins opined that the DSM is "a good measure of what's considered to be generally accepted in the field" (105). The Non-Consent diagnosis "really doesn't exist" outside SVP cases (106). A diagnosis should have "validity" meaning it is true or real. It should also be able to be diagnosed reliably, meaning that clinicians would agree a given person had it. Dr. Calkins referenced two studies, one of which she co-authored, described in the Appendix infra, which concluded that there was poor inter-rater reliability for the Paraphilia NOS diagnosis generally. These studies did not measure inter-rater reliability for the paraphilia NOS Non-Consent diagnosis, however.

A number of factors indicate the Non-Consent diagnosis is not valid. First, it has been rejected for inclusion as a named paraphilia in the DSM five times. Other OSPD diagnoses have not been so rejected. Second, there have been no studies on the "predictive validity" of the diagnosis, that is, studies which would indicate it was predictive of some future behavior. Third, there have been few causal studies of why rape offenders offend. Fourth, rape has historically been considered a crime not a mental disorder. Fifth, there have been no published "field trials" which have examined how the disorder is diagnosed in practice although Drs. Thornton and Wilson conducted field trials which did not result in a published study and were not peer reviewed. These studies indicated fair to moderate reliability in diagnosing PCD by trained clinicians using criteria developed by the researchers. These criteria, however, are not used by other clinicians who diagnose the disorder. Non-Consent is different than other OSPD paraphilias because while other OSPD paraphilias are rare, rape is not.

Dr. Calkins opined that Non-Consent is part of a dimension along a sadism scale and cannot be reliably distinguished from sexual sadism. None of the potential measures of validity (outlined immediately supra) indicate Non-Consent is a valid diagnosis. She opined that PPG tests are useful for treatment but not sufficiently reliable to make diagnoses in a legal setting because of their high rates of false positive and negative results. PPG devices are not uniform, subjects can deliberately suppress arousal and arousal may be increased or decreased because of artificial laboratory settings. Dr. Calkins does not believe a criminal rapist can be distinguished from a paraphilic rapist through PPG tests or otherwise. Rape fantasies are common among both men and women. Dr. Calkins acknowledged that the DSM-5 does not prohibit the use of OSPD diagnoses in legal proceedings.

Articles Received in Evidence

The Court received multiple articles in evidence written by psychologists or psychiatrists who have evaluated sex offenders or conducted research in the field. Some of these articles were opinion pieces reflecting the authors' views on the validity of the Non-Consent diagnosis and others recounted the results of research studies. The articles the Court believed were most relevant are summarized here except with respect to one article which was cited by the New York Court of Appeals in State v. Donald DD. and Kenneth T. 24 NY3d 174 (2014) ("Donald DD" or "Kenneth T.") which is outlined in the discussion of that case, infra. Additional articles received in evidence are outlined in an Appendix to this Decision. The articles other than those in the Appendix are given shorthand designations next to their titles.

This article outlines issues which arose in adopting the DSM-5's paraphilia section. The author notes that unlike other DSM sections, paraphilias are primarily diagnosed in forensic settings. There were three particularly contested DSM-5 paraphilia proposals: to add PCD and a new named paraphilia called "Hypersexual Disorder" and to broaden the pedophilic diagnosis to include pubescent as well as prepubescent children. None of these proposals were adopted. The DSM-4 and 4-TR, according to the author, had a "forensically significant editing error . . . This error, a misplaced or' allowed the diagnosis of a paraphilia to be based entirely on the presence of criminal sexual behavior, sidestepping the requirement that the behavior be a manifestation of a deviant sexual arousal pattern" (195). The DSM-5 now generally has the deviant sexual arousal pattern as its centerpiece and places behaviors and fantasies in subsidiary roles.

Dr. First asserts the OSPD category is "intended to be used for presentations that do not meet the criteria for any specific DSM-5 disorder; for presentations of uncertain etiology with respect to whether the condition is substance induced, due to another medical condition, or primary; and for presentations where there is insufficient information to make a more specific diagnosis" (198). "By virtue of their residual and often idiosyncratic nature, cases diagnosed as [OSPD] . . . [including PCD] are, by definition, outside of what is generally accepted by the field and thus should be used in forensic contexts only with great caution" (199).

[This article was written prior to the adoption of the DSM-5 and thus in part analyzed the "NOS" category under the DSM-4 and 4-TR]. Non-Consent is not a diagnosis under the "International Statistical Classification of Diseases and Related Health Problems" or "ICD-10".^[FN20] Attempts to provide a PCD diagnosis in the DSM-3-TR from 1983 to 1986 resulted in "vigorous [*16]opposition" from multiple organizations (461). It was understood by the 1980's that rape "is a violent assault motivated by the rapist's desire for power and domination rather than by sexual arousal". Id. The APA Board rejected the proposal in 1986 by a vote of 10-4. Two new proposals were included at that time in the DSM Appendix as conditions warranting further study but the Non-Consent diagnosis was not.

The DSM-4-TR assigned "V-codes" applicable to sexual abuse involving "sexual coercion rape". V-codes do not describe a mental disorder but rather problems which are "a focus of clinical attention" (463) (citations omitted). This is further evidence the DSM did not intend PCD to be diagnosed in the "NOS" category. While the vague standards of the NOS category may be appropriate in clinical settings that category should not be used in forensic settings because NOS diagnoses are "ad hoc inventions of individual diagnosticians" (465). The Non-Consent diagnosis is not generally accepted in the field because "it is based on a construct that was deliberately rejected as unsupported by research and the behavioral sciences when it was considered for inclusion in the manual of diagnosis that is based on professional consensus" Id. The author asserts that psychologists who use the Non-Consent diagnosis may be in violation of APA ethical standards because the diagnosis is not supported by established scientific and professional knowledge. Some men may rape because of a paraphilia but more research needs to be done to allow the Non-Consent diagnosis to be used in forensic settings.

Diagnoses in SVP proceedings "frequently are reflexive and indefensible" (456). The DSM was never intended to differentiate between categories of sex offenders with the result that offenders are placed in categories (like pedophilia) primarily based on behaviors and the needs of the legal system. It is plausible that some rapists have a paraphilia but "in practice this newly contrived diagnosis [Non-Consent] reflects bad faith, bad science, and often, bad clinical judgment". Id. The diagnosis has questionable reliability and there is considerable scientific evidence that rape is associated with "misogynistic anger, negative or hostile masculinity, rape-related cognitive distortions . . . and impersonal sex" Id. (citation omitted).

A review of previous studies indicates that rape offenders as well as men who report they have engaged in coercive sexual behavior, on average, responded with greater sexual arousal as measured by PPG tests to sexually coercive scenarios than other men. A new study compared 24 men charged with a sexual assault against a woman with offenders who had committed non-sexual violence against a woman and non-offending men (the latter two groups being the "comparison" samples). The participants were shown audio consenting and coercive sexual scenarios. "[C]omparison participants showed a preference for consenting scenarios, whereas rapists showed little discrimination between rape and consenting scenarios and perhaps a slight preference for rape" (218). An interesting question for future research is whether a distinction [*17]can be made among three sexual arousal patterns. The first is an attraction to non-consensual sex, but not necessarily sex involving physical injury or suffering. The second is to sadism, the sexual arousal to suffering. The third is to antisociality, the indifference to the feelings of others.

This paper concerned two studies. Both involved 24 male college students. In the first, students were equally divided into a "sexually coercive group" and a control group based on their answers to questions. PPG results were obtained after showing the participants a range of videotaped sexual scenes ranging from consensual to sadistic. "Participants in the sexually coercive group showed significantly greater physiological arousal than did those in the control group in response to the rape scenarios involving verbal pressure, verbal threats, physical force and sadistic rape." (239). The arousal differences began when force was introduced into the videos. At that point, the noncoercive group's arousal declined while the coercive group's arousal remained stable or increased. This is consistent with the "sexual inhibition" hypothesis of rape which suggests that sexual aggression is more likely when cues of non-consent fail to inhibit sexual response. The data indicated, however, that "the sexually coercive group preferred consensual sexual scenarios over force scenarios". (239). The study also found that non-sexual aggression towards women was not arousing to either group. "[T]he groups did not differ in their responsiveness to videotape presentations depicting consensual activity . . . " Id.

In the second study, a similar group of 24 men was measured using only auditory stimuli. The results of this study were consistent with the first study with respect to the sexually coercive group. However, while the control group exhibited some sexual arousal to force scenarios in the first study, possibly due to naked slides, they exhibited no significant arousal to force audio tapes. The authors opine that this is because the control group required "significantly provocative" cues to result in arousal. "[C]oercive males appear to be aroused by minimal sexual cues" (240).

This paper, co-authored by hearing witness Dr. Raymond A. Knight, explored whether PCD could be reliably distinguished from Sexual Sadism by reviewing PPG studies in order to assess the DSM-5 proposal to include a PCD disorder separate from Sexual Sadism. The authors concluded that PCD was not a categorically separate disorder from Sexual Sadism but rather a lower degree of "agonistic fantasizing and behavior on a continuum" (91) and that the creation of a separate disorder for PCD under the DSM-5 was therefore not justified. The authors also recommended against including PCD as a subject for further study under the DSM because this would tend to facilitate its acceptance as a bona-fide disorder.

The Court has also taken judicial notice of its experience in SOMTA cases. This Court has presided over 14 SOMTA trials since 2008, written numerous SOMTA decisions and [*18]presided over every other type of SOMTA proceeding on multiple occasions (other than annual review hearings for confined offenders). The Non-Consent diagnosis has been assigned in many of these cases. This Court has therefore noted its own admittedly anecdotal experiences at certain points in its legal analysis.

CONCLUSIONS OF LAW

The Frye test considers the "question of whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally." People v. Wesley, 83 NY2d 417, 422 (1994); see also, Parker v. Mobil Oil Corporation, 7 NY3d 434 (2006). The scientific principle "must be recognized" and "sufficiently established to have gained general acceptance in the particular field in which it belongs". Id., at 422-424, quoting Frye, supra. "The Frye test emphasizes counting scientists' votes, rather than verifying the soundness of a scientific conclusion'". Id. at 439 (Kaye, Ch.J., concurring) see also, People v. LeGrand, 8 NY3d 449 (2007). Under the Frye test, the burden of proving general acceptance rests on the party presenting the disputed evidence. Zito v. Zabarsky, 28 AD3d 42, 44 (2d Dept 2006). General acceptance can be established through "texts and scholarly articles", expert testimony and judicial opinions. People. v. Wernick, 215 AD2d 50, 52 (2d Dept 1995), affirmed, 89 NY2d 111 (1996).

The vast majority of the evidence presented at the hearing addressed the question of whether the diagnosis of OSPD Non-Consent was based on consistent criteria and was valid and reliable. While this testimony was relevant to the inquiry here, it did not directly address the question the Court must decide. As Judge Abdus-Salaam, then writing for the First Department explained, the Frye test:

often involves considering whether a sufficient quantum of other experts in the same field accept the reliability of the theory or process. . . Since the implication of this approach is that it entails a process of weighing the views of each sides' experts, it is not surprising that a trial court would be tempted to weigh the relative merits of the experts introduced by each side to decide whether the proposed expert testimony is reliable. However, even where the court's task is weighing, or counting, the scientists' votes, nevertheless, it is not the court's job to decide . . . which expert's conclusions are correct." Marsh v. Smyth 12 AD3d 307, 311 (1st Dept 2004) (emphasis in original).

In Zito v. Zabarsky, supra, the Court held that "general acceptance does not necessarily mean that a majority of the scientists involved subscribe to the conclusion. Rather it means that those espousing the theory or opinion have followed generally accepted scientific principles and methodology in evaluating clinical data to reach their conclusions". 28 AD3d at 44, quoting Beck v. Warner-Lambert Co, 2002 NY SlipOp 4043 (U), 6-7. The First Department recently cited that proposition with approval in Sadek v. Wesley, 117 AD3d 193 (1st Dept 2014).

OSPD or USPD Generally vs. OSPD Non-Consent

Initially, it is also important to recognize the distinction between whether the diagnosis of OSPD with a valid specifier is generally accepted and whether OSPD with the specifier "Non-Consent" meets the Frye test. It is clear to this Court that the OSPD designation itself is generally accepted in the psychiatric community assuming a valid specifier is attached to it. [*19]Justice Riviezzo, following a Frye hearing, provided an extended analysis of why the general OSPD diagnosis is valid in State v. Mercado, 50 Misc 3d 512 (Kings County Supreme Court 2015) and this Court generally concurs in that analysis.

The DSM-5 unquestionably provides that the OSPD diagnosis with an appropriate specifier is valid. There are paraphilias and paraphilic disorders concerning the sexual arousal to corpses, animals and fesces, for example, notwithstanding the fact that such disorders are not among the eight listed paraphilias in the DSM-5. Some commentators have opined that OSPD diagnoses are simply never appropriate in forensic settings because of their lack of defined criteria. In this Court's view, however, the evidence at the hearing did not support that proposition and in any event, that general question is not at issue here. It is also clear to this Court that the general diagnosis of Unspecified Paraphilic Disorder (USPD) is generally accepted in the psychiatric community. Justice Gross reached that conclusion after a Frye hearing in State v. Harris, 48 Misc 3d 950 (Bronx County Supreme Court 2015).

This Court has concluded the Non-Consent diagnosis is not generally accepted in the relevant psychiatric community for the following reasons, each of which will be discussed in turn:

(1) The New York Court of Appeals has indicated a strong inclination towards the conclusion that PCD is not a legitimate diagnosis.

(2) In a decision after a Frye hearing on the same question as here, the trial Court in State v. Jason C., 2016 NY SlipOp 26018 (Kings County Supreme Court [Riviezzo, J.]) recently held the Non-Consent diagnosis is not generally accepted. While this Court does not agree with every aspect of the Jason C. decision, it finds much of the Court's reasoning and its ultimate conclusion persuasive.

(3 ) The DSM-5 clearly supports the view that PCD is not a generally accepted diagnosis.

(4) The state did not prove that when the "scientists votes are counted" in the relevant psychiatric community, PCD is generally accepted.

(5) PCD cannot be reliably diagnosed given the current state of psychiatric knowledge. Even assuming PCD is a legitimate diagnosis, it has been overused and abused in SVP cases.

(6) The Court does not find the fact that Non-Consent has been used as an SVP diagnosis in other states to warrant the conclusion that it is legitimate here.

In Kenneth T., the Court's four judge majority decision dismissed the petition on grounds of legal insufficiency. The majority also addressed the Non-Consent diagnosis at issue here, [*20]however. The Court's assertions regarding that diagnosis relied on an earlier three judge dissenting opinion in State v. Shannon S., 20 NY3d 99 (2012) which opined that a different Article 10 diagnosis would likely not meet the Frye test. The Kenneth T. Court's assertions about the Non-Consent diagnosis, and other appellate rulings on Article 10 Frye issues, have prompted a wave of motions in New York courts about whether various diagnoses and assessments applied in Article 10 cases are generally accepted.^[FN25]

In Kenneth T. the State's expert testified that the Respondent, who had been convicted of one completed and one attempted forcible rape, had Paraphilia NOS involving fantasies, urges and behaviors towards non-consenting persons. The Court first asserted that "Paraphilia NOS is a controversial diagnosis" and a "catch-all" category for diagnoses not specifically listed in the DSM. 24 NY2d at 186. The Court went on to note that the three dissenting judges in Shannon S. who were now part of the Kenneth T. majority, had said the paraphilia NOS diagnosis presented by two of the state's expert witnesses in that case "amoun[ted] to junk science devised for the purpose of locking up dangerous criminals" and expressed "grave doubt" such a diagnosis would survive a Frye hearing. Id., quoting Shannon S., supra, 20 NY3d at 110 (Smith, J., dissenting). In Shannon S., however, the Paraphilia NOS Non-Consent diagnosis was not at issue. The expert in that case diagnosed the Respondent with Paraphilia NOS Hebephelia, which he defined as a paraphilic attraction to pubescent girls.

There are certainly arguments that Paraphilia NOS Hebephilia is a problematic diagnosis. But the fact that Paraphilia NOS Hebephilia has the same "NOS" prefatory designation as Paraphilia NOS Non-Consent does not make the validity of these diagnoses necessarily equivalent, anymore than the fact that because Paraphilia NOS Necrophilia, (a sexual attraction to corpses), may be a valid diagnosis, Paraphilia NOS Non-Consent must be valid as well. The Shannon S. majority upheld the validity of the Paraphilia NOS Hebephilia diagnosis in that case and the dissenting judges in Shannon S. disagreed with that ruling.^[FN26] The decision did not [*21]address Paraphilia NOS Non-Consent in any way.

The Kenneth T. Court referenced in a footnote at least one aspect of what it perceived were the problems with the Non-Consent diagnosis saying: "[p]rominent members of the psychiatric community have criticized the practice of diagnosing so-called paraphilia NOS nonconsent' on the basis of a history of committing sex crimes". n. 6. That footnote referenced two articles, one of which was received as evidence in the instant motion: "Paraphilia NOS Nonconsent: Not Ready for the Courtroom" (the "Frances Article").^[FN27]

In this opinion piece, the authors make it clear that they are skeptical of SVP statutes generally. The two authors were the Chair and Editor of the Text and Criteria for the DSM-4 paraphilia section and assert they are responsible for what they see as the confusion surrounding the Non-Consent diagnosis which they say is illegitimate. They attribute the confusion to the fact that the DSM-4 was written prior to the advent of SVP statutes and that language in the DSM-4-TR definition of paraphilia references the fact that a paraphilia can involve "suffering and humiliation" as well as "children or other non-consenting persons". (Article, p. 556). "In fact", the authors say, "it was never anticipated that the opening sentence of the section would be considered a forensic definition of paraphilia or be used in determining the suitability of long-term psychiatric incarceration". Id.

The operative language in the paraphilia definition of the DSM-4-TR, according to the authors, was rather designed as a table of contents to catalog the eight named paraphilias. PCD was rejected for inclusion as a named paraphilia in the DSM-5 because "the rationale and supporting evidence [for the disorder] were so thin". Id., p. 559. "The differential diagnosis of rape behavior would have to include rape for gain . . . opportunistic rape, date rape, gang rape, rape for dominance, rape under the disinhibiting influence of substances, rape related to an antisocial personality pattern of criminality and rape influenced by other mental disorders. . . " Id. Research on the disorder is in the "most formative stages of development". Id. The second article cited by the Kenneth T. Court, (which was not received as evidence during the instant hearing), had one author (Dr. Allen Frances) in common and is entitled: "Defining Mental Disorder when It Really Counts: DSM-IV-TR and SDP/SVP Statutes"^[FN28] This opinion piece was published three years prior to the preceding article and makes similar arguments.

[*22]The Kenneth T. majority held that the principle of stare decisis indicated the Shannon S. majority holding that Paraphilia NOS Hebephilia was a valid diagnosis in that case should not be overruled. Kenneth T. and Shannon S., however, again considered two completely different disorders, linked only by the fact that they were both one of hundreds of possible diagnoses in the NOS category.

In this Court's view, the Kenneth T. court's description of the Non-Consent diagnosis as "junk science devised for the purpose of locking up dangerous criminals" also conflated two related issues. As the Kenneth T. Court argued, the Non-Consent diagnosis, as discussed infra, has been misused in SVP cases. On the other hand, the important work done by researchers like those who testified at the instant hearing to identify a rape paraphilia is clearly not "junk science". The effort to understand why men rape, to determine whether some rapes result from a paraphilia, to identify which men might rape and ultimately to prevent rape are obviously goals of paramount importance. The effort to define a rape paraphilia is an emerging discipline. It is not an invalid one. The Court of Appeals has not ruled on whether PCD is a legitimate disorder. It would obviously consider the record of a Frye hearing were it presented.^[FN29] But the Court has also obviously already stated a strong point of view on the issue. Wholly apart from whether that view is correct, the Court's assertions must be given weight here.

In a wholly different category is the trial court's decision in State v. Jason C. Unlike Kenneth T., Jason C. is obviously not binding on this Court. But this Court finds both the ultimate conclusion and much of the Court's reasoning in Jason C. uniquely persuasive. In Jason C., Justice Riviezzo conducted a Frye hearing on instant question in which six expert witnesses testified, five of whom also testified in the instant matter.^[FN30] She then conducted an exacting analysis, extensive legal research and considered essentially the same arguments made by the parties here. While Justice Riviezzo's focus differed from the Court's here and while this Court does not agree with all of her conclusions, the Court did find much of her analysis persuasive.

Justice Riviezzo focused most of her analysis not on the task of "counting scientists votes" (as the Court did here) but on the threshold question of whether PCD can be reliably diagnosed. She reached the following conclusions:

[T]here is no agreed upon criteria for this condition [PCD] even among SVP practitioners. . . [T]he court cannot find a diagnosis generally accepted' when there is not, at the very least, a generally accepted criteria that defines the condition. 2016 NY SlipOp at 10.

This proposed diagnosis cannot be reliably distinguished from other motivations for Rape [*23]such as Antisociality or Sexual Sadism. Id., p 13.

[T]here has been little peer review on the two major considerations that apply to both psychological research and general science — the reliability and validity of a diagnosis. Id., p. 17 (citation omitted).

The Court found the fact that other states with SVP programs allowed the diagnosis (discussed infra) not persuasive and held that "[t]he State has not convinced this court that the relevant scientific community is just those engaged in SVP proceedings or that a greater extended community of psychological or psychiatric practitioners find this diagnosis to be generally accepted" Id., p. 20.

As Dr. Knight testified, a condition called "sexual assault disorder" was first proposed in 1976 as part of the DSM-3 but was rejected. A similar disorder was considered for the DSM-3-TR in 1985 but was rejected again because of concerns about its scientific validity. A similar disorder was again rejected by the DSM-4, 4-TR and DSM-5. It has also been twice rejected for inclusion in the DSM as a condition warranting further study. As noted supra, the process for adopting a new paraphilia diagnosis in the DSM-5 included three stages: a recommendation from the paraphilia sub-work group, the approval or disapproval of the "work-group" on sexual disorders and finally a vote by the APA board. After significant discussion and research, the PCD proposal was never recommended by the first of these entities. (Knight 532).

Dr. Thornton testified that the DSM has been called the "Bible of mental disorders" and is "like the institutional embodiment for the consensus of main treatment and psychiatric opinion in the United States" (28-29). Dr. Knight described the manual as including "a consensus of experts in psychiatry about those particular disorders that should be treated" (506). Other witnesses testified similarly. Witnesses also consistently opined the DSM was a "political" document. This assertion had a partially pejorative connotation meant to convey that the rejection of Non-Consent as a named paraphilia in multiple DSM versions was less about diagnostic legitimacy than other agendas. Two broad "agendas" were identified. The first, going back decades, was to not legitimize rape as a psychiatric condition when it was in reality a brutal violent crime which subjugated women. While there was some evidence that agenda remains vibrant today, a different concern has arisen with the advent of SVP statutes: a "political" determination to not use the creation of a Non-Consent paraphilia as a vehicle to subject rapists to civil confinement.

The hearing evidence indicated the APA, which ultimately must approve new diagnoses under the DSM, opposes SVP laws. The New York State Psychiatric Association indeed expressed vehement opposition to the adoption of Article 10 in New York when the bill was presented to Governor Spitzer for his signature in 2007:

. . . "[M]ental abnormality" as defined [under Article 10] is essentially a vague and circular determination that has no scientific or clinical basis. "Mental abnormality" as defined in the bill remains a non-medical definition of what purports to be a clinical condition which usurps psychiatric terminology to achieve a social and political result. Because "mental abnormality" has no medical foundation, mental health professionals, [*24]including psychiatrists, have no special expertise in assessing individuals for the presence of "mental abnormality" as defined in the bill.^[FN31]

The hearing evidence made clear that the great skepticism among many psychologists and psychiatrists about SVP laws has likely influenced decisions about whether PCD should be designated as a named paraphilia.^[FN32]

The DSM-5 provides no rule that a condition which has been explicitly rejected as a named disorder can then not be validly assigned an "Other Specified" designation. The fact that the DSM has repeatedly rejected the inclusion of a defined Non-Consent paraphilia for "political" reasons, however, is another way of making the obvious point that a consensus has never developed in the psychiatric community to include it as a named paraphilia. It has never been generally accepted. The psychiatric community has repeatedly "counted votes" in its "sub-work" groups, committees or membership to see if PCD warrants a specified paraphilia designation. The proposition has been rejected — five times over a period of 40 years. Dr. Knight characterized it as "the most rejected disorder in DSM history" (532). With respect to the Frye standard, whether that occurred for legitimate diagnostic reasons or less worthy "political" goals doesn't matter. As Dr. Knight argued: "Repeated rejection of paraphilic coercive disorder proposals constitutes substantial evidence that this disorder' and its variants are not generally accepted by the relevant scientific and professional community".^[FN33]

Of course, it is not that simple because the OSPD category is generally accepted if accompanied by a legitimate specifier. But the evidence at the hearing indicated that disorders are given OSPD designations rather than listed as named paraphilias for three reasons. The first is that the disorder is rarely seen. But there was no evidence at the hearing that paraphilic rape was not included as a specified disorder because it was rare and extensive evidence that rape is unfortunately not a rare occurrence. The second reason, as Dr. Thornton testified, is tradition, or to perhaps put it differently, inertia. But that is a normal feature of any political process. It is usually more difficult to change something through a deliberative system than to keep it the same. The DSM approval process is obviously bureaucratic and difficult. But the fact that PCD has never overcome the bar of tradition is not an argument that it is legitimate. It is an argument that it has never gained general acceptance.

The third reason a disorder does not become a specified condition under the DSM is that it has not been sufficiently defined or researched. Multiple witnesses for both sides said that has been an important reason for PCD's rejection. Dr. Wilson testified that "[t]he issue of rape is a really complicated one which is part and parcel of the reason why we don't have a precise diagnostic framework for it in a thing like DSM-5 . . ." (336). Dr. Schlosser said the disorder's rejection was based on the "lack of empirical research and supported foundation as well as a concern about false positives" (368). Dr. Thornton testified that one reason for the rejection of the Non-Consent diagnosis in the DSM-5 was that it was "hard to fully distinguish PCD from sexual sadism" (131). Rationales like this explain why the Frye standard exists. It exists to prevent the use of scientific methods of questionable reliability and validity.

The history of the deliberative processes which have repeatedly rejected Non-Consent also provide no indication its rejecters believed it would continue to be validly applied as an NOS (or later OSPD) diagnosis. The evidence indicated the opposite. It revealed that some psychologists were so concerned the diagnosis might remain viable even after its rejection that they urged its exclusion in the DSM-5 even as a condition warranting further study. The increased assignment of the diagnosis over the past twenty years has not been based on a clinical imperative. It has been primarily driven by SVP statutes which require a diagnosis to subject rapists to civil confinement.

Frye hearings typically concern whether a scientific method or technique is so new or novel as to not yet have gained general acceptance in the relevant scientific community. See, e.g., Marsh v. Smyth, 12 AD3d 307, 310 (1st Dept 2004) (Saxe, J. concurring). The Frye case itself described the inquiry as considering "when a scientific principle or discovery crosses the line between the experimental and demonstrable stages." 293 F at 1014. There is nothing new or novel about the Non-Consent diagnosis. It has been the subject of debate for decades. What has not yet been demonstrated is that the disorder is valid or reliable. That (along with "political" agendas and tradition) explains why it has never been adopted as a named paraphilia.

This Court also does not credit the view that language in the DSM-4, 4-TR and DSM-5 introductory provisions concerning paraphilias support the view that PCD was intended to be diagnosed in forensic settings. The DSM-5, as noted in the definition supra, does define normal sexual arousal, inter alia, as being towards "consenting human partners" and defines paraphilias generally by what they are not (i.e., not normal patterns of sexual arousal) rather than what they are. Thus, one can certainly argue that by defining normal sexual arousal as being to consenting human partners, an attraction to non-consenting human partners is a paraphilia by definition. The Frances Article cited by the Court of Appeals in Kenneth T., in responding to similar arguments regarding different language in the introductory paraphilia section of the DSM-4-TR, however, noted that this earlier general language was intended to provide a table of contents for the named paraphilias and was never intended to legitimize the use of Non-Consent diagnoses in forensic settings. The paraphilia definition in the DSM-5, in requiring that among other attributes normal sexual arousal must be to consenting adults and that arousals outside this category are paraphilias, likewise implicitly references criterion sets for multiple named paraphilias which include non-consent including Sexual Sadism Disorder, Frotteuristic Disorder, [*25]Exhibitionistic Disorder and Voyeuristic Disorder.^[FN34]

Some legal determinations are based on which party bears the burden of proof. That is, a result is compelled because the party with the burden does not meet it, while the opposite result might be reached were the burden placed on the opposing party. That, in this Court's view, is what occurred here with respect to what the Court will refer to as the "head count" that is, the enterprise of attempting to determine how the votes of the relevant scientific community on the instant question would be tallied were a hypothetical election held. The conflicting evidence at the hearing did not demonstrate that OSPD Non-Consent was generally accepted. Nor did it demonstrate the converse.

The first question which must be asked with respect to the head count is what community should be considered. There are three reasonable possibilities. The first are psychologists and psychiatrists generally. The second are psychologists or psychiatrists who have as a meaningful part of their practice the diagnosis, evaluation or treatment of sex offenders or perform research in the field. Dr. Calkins noted that a useful measure of those practitioners would be members of the field's primary professional association, ATSA, or what she called the "ATSA Community". The third possibility would be psychologists and psychiatrists who work in SVP proceedings. Case law provides no clear answer for which psychiatric community should be considered here.

The Court of Appeals found the diagnosis of "Rape Trauma Syndrome" was generally accepted in People v. Taylor, 75 NY2d 277 (1990). While the Court did not explicitly articulate which scientific community it was relying upon in that case, it prominently cited to the DSM-3-R for the proposition that rape could lead to posttraumatic stress disorder to support its conclusion that Rape Trauma syndrome was a generally accepted diagnosis. In citing to the DSM the Court appeared look to the psychiatric community generally, rather than a smaller group. In People v. Wernick, supra, the Court similarly held that the question of whether "neonaticide syndrome" was generally accepted in the scientific community in a case where the defendant was convicted of killing her newborn child was whether the condition was "generally accepted in the field of psychiatry or psychology". 215 AD2d at 52.

The trial court in People v. Thomas, 46 Misc 3d 945 (Westchester County Supreme Court, 2014 [Zambelli, J.]) addressed an analogous question in denying a Frye hearing about whether the diagnosis of "Shaken Baby Syndrome" had general acceptance. It held that it was the field of medicine generally rather than the field of biomechanics which was the relevant community. The Defendant apparently argued that the causation question at the heart of the case, whether, inter alia, the acceleration and deceleration force necessary to cause subdural hematomas could be generated by shaking a baby, was best answered through the science of biomechanics. The Court found, however, that physicians had been routinely found competent to [*26]opine on medical causation in such cases.

On the other hand, in holding that expert testimony concerning factors influencing the reliability of eyewitness identifications had been generally accepted, the Court of Appeals in People v. LeGrand, 8 NY3d 449 (2007) noted a survey demonstrating acceptance by "an overwhelming majority of the experts in this particular field" (apparently referring to experts in the field of eyewitness identification, rather than psychology or social science generally). 8 NY3d at 458. The Court held that three of the four factors proffered by the Defendant as being relevant to the reliability of eyewitness identification were "generally accepted by social scientists and psychologists working in the field". Id.

Former Chief Judge Kaye provided what may be the best analysis of these competing considerations in her concurring opinion in People v. Wesley, supra, which considered the general acceptance at the time of DNA evidence. She explained: "If the field [through which general acceptance is measured] is too narrowly defined, the judgment of the scientific community will devolve into the opinion of a few experts. The field must still include scientists who would be expected to be familiar with the particular use of the evidence at issue, however . . . " 83 NY2d at 438 (citation omitted). In accordance with that proscription, this Court believes the community which should be assessed here is the middle one outlined supra, the ATSA Community.

There are valid arguments that what should be considered here are the views of psychologists or psychiatrists generally. A person with PCD, however, would be unlikely to be seen outside a forensic context. A rapist does not typically contact a psychotherapist outside a forensic setting to seek treatment for his attraction to non-consenting partners. Such offenders are usually treated in prison, on parole, through probation departments, from court referrals or through SVP programs. (Thornton, 110). The therapists they are referred are usually those with experience in treating sexual disorders. A psychotherapist with a general practice would be unlikely to have an informed view about whether PCD was generally accepted because it would be a disorder she would rarely if ever encounter.

There was no evidence at the hearing that PCD is an accepted diagnosis among psychologists or psychiatrists generally. But that, in this Court's view, is not a fair question. The narrow class of psychiatrists or psychologists who work in SVP programs is also not an appropriate community to review here for a different reason. The concern which motivated the strong views of the Court of Appeals on the instant Frye question was that PCD appeared to be an illegitimate classification designed only for civil commitment. Considering the narrow class of SVP practitioners would fail to undertake the broader inquiry inherent in the view that PCD might not be legitimate if it were only used in SVP cases. "A Frye court should be particularly cautious when . . . the supporting research is conducted by someone with a professional . . interest in the technique" People v. Wesley, supra, [Kaye, J. concurring] (quotation omitted). There is also no rationale for narrowing the community in that way.

The State did not demonstrate that PCD was a generally accepted diagnosis in the ATSA community. The evidence at the hearing indicated that evaluators who are employed by the State in SVP programs overwhelmingly or perhaps even uniformly apply Non-Consent diagnoses. Evaluators employed by respondents in SVP programs often or usually do not consider the diagnosis legitimate, although the evidence indicated this view was not as uniform as the [*27]converse view of state evaluators. The hearing evidence indicated that psychologists or psychiatrists who might work in SVP programs for both the State or Respondents had mixed views on the subject. That was also what the evidence indicated with respect to the views of the ATSA Community generally. There is also a strong a correlation between the type of work an evaluator does and whether the diagnosis is considered valid. In the instant case for example, the State's evaluator, Dr. Field, assigned a Non-Consent diagnosis while the Respondent's evaluator opined the diagnosis was illegitimate. These generally varying views are likely based in part on allegiance effects.

The evidence concerning the "head count" provided no clear answer on whether PCD is a generally accepted diagnosis in the ATSA Community. Since the burden on this motion is on the State, that lack of evidence supports the view that the instant motion must be denied. As former Chief Judge Kaye again cogently framed the issue: "Where controversy rages, a court may conclude that no consensus [on general acceptance under Frye] has been reached". People v. Wesley, supra, 83 NY2d at 439 [Kaye, J. concurring].

In Jason C., Justice Riviezzo's primary reason for finding the Non-Consent diagnosis was not generally accepted was that there was no "generally accepted criteria that defines the condition". 2016 NY SlipOp at 10. The evidence at the instant hearing indicated the same thing. This Court does not agree, however, that the absence of such generally accepted criteria answers the question of whether the Non-Consent diagnosis has gained general acceptance. That, in this Court's view, is a different question.

It is certainly true that a court cannot find a diagnosis has gained general acceptance if a court cannot fathom what that diagnosis is. But that is not true here. All of the experts at the instant hearing shared a common understanding of what PCD is. It is a sexual arousal to a victim's manifestation of non-consent. Justice Riviezzo recognized the same point. Id. Moreover, even experts who have rejected PCD as a legitimate paraphilia acknowledge there are likely some men who are sexually aroused to non-consenting partners.

The differing criteria which the experts in this case used to define PCD and the problems with the validity and reliability of the diagnosis largely explain why PCD has not gained general acceptance. But, as Judge Abdus-Salaam, then writing for the First Department cautioned in the passage cited supra, a court should resist the temptation to find a diagnosis has not gained general acceptance because the court determines the diagnosis is not reliable. Marsh v. Smyth, supra. The ultimate question here is not whether PCD has uniform diagnostic criteria, is reliable or is even valid. The question is whether it is has gained general acceptance.

As Justice Riviezzo outlined in much greater detail in Jason C., there are no uniformly applied diagnostic criteria for PCD. Dr. Thornton during the instant hearing testified in detail about the "Paraphilic Rape Checklist" he designed to assess the disorder. But other witnesses said they used different criteria to make PCD diagnoses. Dr. Kunkle, the State's leading SOMTA clinician, said he was not even aware of Dr. Thornton's checklist. Dr. Thornton testified about the field trials he used to evaluate PCD for inclusion in the DSM-5. But those field trials also didn't use the checklist he designed.

Dr. Wilson used still different criteria for diagnosing the disorder, noting that it existed [*28]when a person's "primary driving force" was an attraction to non-consent. Dr. Kunkle testified that even among the 18 or 19 OMH evaluators who assign Non-Consent diagnoses in New York SVP cases, there are no uniform criteria. Dr. Wilson testified that a book written by Dr. Dennis Doran, "Evaluating Sex Offenders", which had been widely consulted by SVP evaluators, used a still different Non-Consent checklist to assign PCD diagnoses. Dr. Thornton said other "paraphilia colleagues" also used different checklists to diagnose the disorder but he was not aware of the extent to which those other lists incorporated his own (Thornton, 138-139). There was also no consensus on the incidence of PCD among rapists. Dr. Thornton testified, for example, that in a PPG study he conducted, 30% of rapists had a coercive preference and 21% had a brutality preference. Dr. Wilson, however, described offenders who rape "for fundamentally paraphilic reasons" as a "small subset" of rapists generally.

The Difficulty of Distinguishing Arousal From Lack of Inhibition

The second major difficultly in assigning Non-Consent diagnoses is the extensive evidence presented at the hearing that it is difficult to distinguish a man who rapes because he is attracted to non-consent from a man who rapes because he is not inhibited by coercive cues. The former offender could be diagnosed with a rape paraphilia while the latter could not be. The LaLumiere and Lohr studies demonstrated this, in the Court's view, most plainly by presenting PPG evidence which supported the view that subjects in the studies who were inclined to rape were not generally aroused to non-consent but were rather not inhibited by it. This has also been described as the distinction between rapists who have a paraphilia and those who are antisocial. The Frances Article cited by the Kenneth T. Court noted that any differential rape diagnosis would have to be able to distinguish PCD from rapes prompted by numerous other causes, including antisociality. Dr. Wilson acknowledged that "you cannot reliably distinguish between someone who is aroused by the nonconsent of the victim versus somebody who is raping despite the nonconsent" (339).

As Justice Riviezzo explained the issue in Jason C., citing Dr. Knight's testimony, "where normal' men would find the distress of the victim as inhibiting, some men responding to the rape scenarios [positively] might not find the coercion exciting or arousing, but rather, lack the ability to be inhibited by the stress cues of the victim" 2016 NY SlipOp at 16. Dr. Thornton presented PPG research which he said indicated that between a third and a half of rapists will show stronger responses to stimuli depicting coercion than to consent. He also presented research which showed a correlation between the behavioral signs on his Paraphilic Rape Checklist and the chance an offender would be aroused by coercive PPG cues or report a rape fantasy. But other evidence indicated distinguishing paraphilic from antisocial rapists was very difficult and that rape fantasies were common.

Even presuming it is possible to accurately distinguish paraphilic rapists from antisocial offenders, the evidence indicated such distinctions are generally not likely accurately assigned in practice. In Jason C., Dr. Thornton testified that "the research evidence indicates that there's a real phenomenon there and that, at least, some time, under some condition, people could describe it [PCD] with reasonable accuracy". Id., at 17. This Court fully credits that modestly stated conclusion. But that does not make the disorder appropriate for forensic use.

The Difficulty of Distinguishing PCD From Sexual Sadism

Multiple witnesses also testified to the difficulty of distinguishing PCD from Sexual [*29]Sadism. Dr. Wilson described research designed to distinguish non-consent from sadistic offenders as "still emerging" (303). He acknowledged that "broadly speaking" "one cannot reliably distinguish between nonconsent and sexual sadism" (338-339). Witnesses agreed that Non-Consent and sexual sadism exist on a continuum and that Non-Consent is a lesser version of sexual sadism. Experts agreed, however, that it was difficult to distinguish the two conditions, especially in a large middle grey area. Dr. Thornton, in fact, as noted supra, attributed the rejection of PCD in the DSM-5 in part to this issue.

Dr. Knight testified in Jason C. that since Non-Consent and sexual sadism exist on a continuum, "any criteria that were proposed to identify the cutoff for a diagnostic category for PCD would likely be arbitrary" and that any "criteria set would be necessarily over or under inclusive, have no established validity, and would result in great error in its application" 2016 NY SlipOp at 15. Dr. Wilson testified in Jason C. that PPG tests may not reliably distinguish between PCD and sexual sadism because the two categories of offenders sometimes respond to coercive stimuli in the same way. Id. Justice Riviezzo finally made the valid point in Jason C. that "there have been very few researchers who have published on [PCD] in peer reviewed journals. The import of this is that there has been little peer-review on the two major considerations that apply to both psychological research and general science — the reliability and validity of a diagnosis." Id. at 17 (citing the testimony of Dr. Knight).

The hearing indicated that there are important efforts being made to define PCD. The research done by the witnesses who testified at the hearing is impressive and commendable and it is unfortunate this fine work has been conflated with the separate problem of the misuse of that science in SVP proceedings. But, as multiple witnesses testified, that science is still developing. As Dr. Schlosser asserted: "we're just not there as a field yet" (398).

Whatever research problems exist in defining PCD, they pale in comparison to the reliability and validity problems the diagnosis has experienced in the real world of SVP proceedings, at least in New York. Dr. Schlosser testified that when Article 10 was enacted [in 2007], the Non-Consent diagnosis was used "regularly and easily" but is used less now (432). He described his work evaluating sex offenders at OMH in 2007-2008 as "building a plane while flying it" (360).

Dr. Kunkle, the State's leading SOMTA clinician, made the extraordinary statement that he simply didn't know whether offenders diagnosed with Non-Consent in 2007 and 2008 had been misdiagnosed and didn't know how the criteria used at that time compared with those used today. Dr. Schlosser noted that virtually no offenders initially evaluated for Article 10 have had PPG studies and very few had self-reports. Without such information, he said he did not know how a Non-Consent diagnosis could be made.^[FN35]

In presiding over multiple SVP cases with Non-Consent diagnoses for the past 8 years, this Court cannot recall every encountering a State evaluator who attempted to demonstrate an offender was affirmatively aroused to a victim's non-consent rather than not inhibited by it because of antisociality. The Court does not recall ever seeing the results of a PPG test indicating an attraction to non-consent presented by the State during a trial. It does not recall ever having an expert attempt to distinguish an alleged rape paraphilia from a sexual sadism disorder. Rather, experts in the cases this Court has presided over have generally looked primarily at an offender's coercive sexual behavior and then alleged this behavior was the result of an NOS paraphilia. But as Dr. Schlosser testified, diagnosing PCD only from sexually offending behavior is illegitimate. That is necessarily true since the uncontroverted evidence at the hearing demonstrated that a large proportion of rapists do not have a rape paraphilia. The instant case, in fact, is the only one this Court can recall in which a Defendant made statements indicating an arousal to victim's non-consent. That may be a welcome reflection of the use of more discriminating criteria by OMH evaluators in assigning the diagnosis. The instant hearing has also caused this Court to reflect on whether it has been lax in countenancing the use of Non-Consent diagnoses in the courtroom when they were primarily based on coercive sexual behaviors. The responsibility for the absence of scientific rigor in this field is not limited to OMH evaluators.^[FN36]

The State argues there are 17 states with SVP statutes which have allowed the use of Non-Consent diagnoses and that this provides compelling evidence the disorder is generally accepted. Justice Riviezzo conducted extensive research on this issue and found this argument unpersuasive. She determined there was not a single case in any of these jurisdictions which had ever reported the results of a Frye or Daubert ^[FN37] hearing on the admissibility of the Non-Consent diagnosis and at least six states which had held (contrary to the law in New York) that testimony about a sex offender's diagnosis was not subject to a Frye hearing. She explained that New York [*30]State had a jurisprudential history which provided for the admission of expert testimony in cases like this only when the Frye standard was met. She also found unpersuasive three New York trial court cases which had admitted Non-Consent testimony and denied a Frye hearing based on written submissions, noting that none of these cases had adequately litigated the Frye issue. 2016 NY SlipOp at 18-20. This Court concurs with Justice Riviezzo's reasoning and conclusions on that issue.

In Donald DD., the Court's four judge majority held "evidence that a respondent suffers from antisocial personality disorder ["ASPD"] cannot be used to support a finding that he has a mental abnormality . . . when it is not accompanied by any other diagnosis of mental abnormality". 24 NY3d at 177.^[FN38] Two trial courts (this one and Justice Riviezzo) have now held that OSPD Non-Consent is not a valid diagnosis. Multiple trial courts, including this one and Justice Riviezzo, have also concluded that, based on Donald DD., the diagnosis of ASPD with psychopathy is not materially different from the diagnosis of ASPD alone and therefore cannot serve as a valid Mental Abnormality predicate, although a minority of trial courts have reached contrary conclusions.^[FN39] What the confluence of these decisions might mean if they were eventually affirmed is that offenders who rape post-pubescent victims (or, as in this case, force such victims to engage in oral sex) would rarely be subject to Article 10.

The statute would continue to apply to pedophiles (or, depending upon the results of Frye hearings being held by this and four other courts, hebephilia, an attraction to pubescent minors). It might continue to apply to a minority of other offenders, for example an offender with a psychotic disorder.^[FN40] ASPD (often with an accompanying diagnosis of psychopathy) and Non-Consent, however, are the two diagnoses which have generally allowed rapists to be subject to civil management. Without those diagnostic predicates, many of those offenders might no longer [*31]be subject to the statute. On the other hand, in a 3-2 decision, the Third Department in State v. Richard TT., 132 AD3d 72 (3d Dept 2015), appeal dismissed, 26 NY3d 994, the Court found the combined diagnoses and conditions of ASPD, psychopathy, Borderline Personality Disorder, cannabis and alcohol abuse, "impulsive sexual behavior" and "hypersexuality" were sufficient diagnostic predicates.

The legal landscape shifted again on March 15, 2016 when the First Department reversed this Court's decision in Jerome A. in State v. Jerome A. (Anonymous), supra. As noted supra, in Jerome A., this Court found that the diagnosis proffered by the State of ASPD with psychopathy was not materially different from the diagnosis of ASPD alone and therefore required the petition's dismissal under Donald DD. This Court's decision was based on the fact that: (i) most trial courts had reached the same conclusion; (ii) the Donald DD. Court found that psychopathy was an "extreme form of ASPD" (n. 6); (iii) the Donald DD. Court dismissed the petition in that case, even though the Respondent was also diagnosed with psychopathy; (iv) Donald DD. held that ASPD "proves no sexual abnormality. It therefore cannot be the sole diagnosis that grounds . . . a [Mental Abnormality] finding" (24 NY3d at 190) [and psychopathy is also not a "sexual abnormality"]; (v) the DSM-5 describes ASPD and psychopathy as synonomous ("[ASPD] has also been referred to as psychopathy'") (DSM-5, p. 659); (vi) the State's expert in Jerome A. agreed that under the DSM-5 "psychopathy and ASPD are essentially the same thing". Id.; (vii) the State's expert in Jerome A. described her conclusions regarding psychopathy as tentative;^[FN41] (viii) the State's expert in Jerome A. testified that the Respondent's psychopathy provided him with greater volitional control than if he had ASPD alone ^[FN42] , and (ix) the Court did not find the State expert psychologist's assertions about psychopathy derived from a literature review of "brain scan" evidence credible in other respects.^[FN43]

The First Department, in State v. Jerome A. (Anonymous) appeared to reach the contrary conclusion. They pointed out that the State's expert "offered extensive testimony regarding the [*32]distinctions between ASPD and psychopathy" and asserted that the Donald DD. Court "did not state that a diagnosis of ASPD with psychopathy is insufficient to support a finding of mental abnormality" (citing Donald DD). The First Department also faulted this court's dismissal of the petition at the "early juncture" of a probable cause hearing saying: "In article 10 proceedings, issues concerning the viability and reliability of the respondent's diagnosis are properly reserved for resolution by the jury unless the respondent's evidence is deficient" (citations omitted).

In this Court's experience, Article 10 rape offenders diagnosed with ASPD can also often be diagnosed with psychopathy. Most rape offenders who might be diagnosed with Non-Consent can also be diagnosed with ASPD. If that is true, however, State v. Jerome A. (Anonymous) may resurrect Article 10 cases which might otherwise fail because offenders were diagnosed with ASPD, psychopathy and Non-Consent. The Non-Consent diagnosis, pursuant to the instant decision and Jason C., may now be invalid. ASPD alone, under Donald DD., is clearly invalid. But ASPD with psychopathy would now appear to be a legally sufficient Mental Abnormality predicate under State v. Jerome A., (Anonymous). In the instant case, however, Dr. Field in his 23 page report did not diagnose the Respondent with psychopathy. He noted in his listing of dynamic risk factors: "Psychopathy/Psychopathy Combined with Sexual Deviance — does not apply." Report, p. 6.

These shifting legal currents reflect the extraordinary lack of clarity in the rules governing these proceedings. This Court wrote extensively about those issues in its decision State v. Floyd Y., 46 Misc 3d 1225 (A), 2015 NY SlipOp 50302 (U) at 14-17 (New York County Supreme Court 2015), reversed on other grounds, State v. Floyd Y. (Anonymous) 135 AD3d 70 (1st Dept 2015). There, this Court pointed out that in the 18 months prior to this Court's decision on March 10, 2015, the Court of Appeals decided nine Article 10 appeals. The Court of Appeals found the trial court erred, at least in part, in eight of those nine cases with the only exception being a venue change issue. The Court of Appeals reversed appellate division decisions which had affirmed trial court judgments or jury verdicts in six of those eight cases, with an additional case called into question by the Court's later decision in Donald DD. In every case in which a trial error was found, it concerned a ruling adverse to a respondent. The Court of Appeals has ruled in only one Article 10 case since then, holding the trial court erred in allowing a State expert to testify by video-conference but that the error was harmless. State v. Robert F., 25 NY3d 448 (2015). The Court's last substantive decision addressing the legal standards applicable to Mental Abnormality determinations under Article 10 was Kenneth T. and Donald DD. which were decided on October 28, 2014.

Appellate division cases during the same period have raised a host of new questions. One need look no further than the 16 individual and often duplicative Frye hearings which are now in various stages to understand the extraordinary efforts being made to understand how these cases should proceed. It has now been almost nine years since Article 10 was enacted. The rules governing the statute, in this Court's view, are more confused than they have ever been. Today's decision will do little to change that.