State v. Shannon S.

OPINION OF THE COURT Jones, J. The primary issue on this appeal is whether there was legally sufficient evidence to support the finding that respondent Shannon S. suffers from a mental abnormality as defined under article 10 of the Mental Hygiene Law. On the particular facts of this case, we hold there was. Respondent has an extensive criminal record which includes various sexual offenses involving nonconsenting or underage, adolescent victims. In 1992, at 19 years of age, respondent was charged with sexual abuse in the third degree for pinning down a female acquaintance on her bed, removing her shirt and fondling her while she struggled to push him away. Respondent subsequently pleaded guilty to disorderly conduct and was sentenced to time served. In 1997, at 24 years of age, respondent was charged with rape in the third degree for supplying a 15-year-old girl with marijuana and alcohol, and engaging in sexual intercourse. Respondent pleaded guilty to sexual misconduct in satisfaction of the charge and was sentenced to a conditional discharge and a fine. Two years later, in 1999, respondent was charged with the forcible rape and sodomy of a 13-year-old girl who was babysitting for his sister; the violent nature of the attack resulted in the hospitalization of the victim. — 103 — Respondent pleaded guilty to rape in the second degree and was sentenced to an indeterminate term of 1 to 3 years’ incarceration. Upon release in 2002, respondent, at age 30, commenced a sexual relationship with a 16-year-old girl that resulted in her pregnancy. As a result of this relationship, respondent was subsequently charged in 2003 with rape in the third degree, criminal sexual act in the third degree and endangering the welfare of a child. Respondent, however, absconded and was not prosecuted until 2005 when he was apprehended in Florida and returned to New York. Respondent pleaded guilty to criminal sexual act in the third degree and received a sentence of 2 to 4 years’ imprisonment. While incarcerated, respondent was interviewed, at the request of the New York State Office of Mental Health, by Dr. Jacob E. Hadden, a licensed psychologist and psychiatric examiner. As a result of his personal examination of respondent and a review of the available criminal records, Dr. Hadden diagnosed respondent with paraphilia not otherwise specified (paraphilia NOS), antisocial personality disorder, as well as alcohol abuse. In a written evaluation report, Dr. Hadden concluded that respondent suffers from a mental abnormality within the meaning of article 10 of the Mental Hygiene Law that predisposes him to the commission of sexual offenses and makes it difficult for him to control such behavior. Specifically, Dr. Hadden noted that respondent’s criminal history “demonstrated a deviant sexual interest in adolescents below the age of consent” and “his six year pattern of sexual offending behavior toward adolescent females, despite repeated sanctions, and his pronounced cognitive distortions involving sexual relationships with children indicate the presence of a paraphilic disorder with regard to nonconsenting adolescent females.” Significantly, it was observed that respondent was “unable to give a coherent explanation of why adults should not have sex with children” and instead “he expressed frustration with several of his victims that they reported the incidents.” As a result, the State filed a petition commencing a proceeding under article 10 for the civil management of respondent (Mental Hygiene Law § 10.06 [a]). In an ensuing probable cause hearing, Supreme Court concluded that probable cause had been established that respondent was a sex offender requiring civil management and directed that he be detained at a secure — 104 — treatment facility pending trial (Mental Hygiene Law § 10.06 [k]).1 At the subsequent nonjury trial, Dr. Hadden reiterated his prior conclusions, opining that respondent suffers from paraphilia NOS, antisocial personality disorder and alcohol abuse without physiological dependence in a controlled environment. Paraphilia NOS was defined as “recurrent and intense sexual fantasies, urges, or behaviors which involve . . . [t]he physical or psychological suffering, including the humiliation of oneself or one’s partner or children or other nonconsenting partners which occurs over a period of at least six months and results in personal distress or impairment in some clinically significant area of functioning.” According to Dr. Hadden, respondent’s “four sex offenses with nonconsenting partners” fell within the plain definition of paraphilia NOS; more notably, the 1997, 1999 and 2003 offenses also demonstrated respondent’s particular sexual proclivity for females below the age of consent. In Dr. Hadden’s view, respondent’s continuous engagement in sexual relationships with pubescent females, despite his extensive criminal punishments and ostensible attraction to adult females, evinced a compulsive attraction to minor, adolescent females. It was further concluded that respondent’s “impulsive” behavior and “irritability and aggressiveness,” supported a finding that his paraphilic urges constituted a “congenital or acquired condition” affecting his “emotional, cognitive [and] volitional capacity” and ability to control his sexual offending conduct. Dr. Stuart M. Kirschner similarly diagnosed respondent as suffering from paraphilia NOS based on his personal examination of respondent and review of respondent’s criminal history. Dr. Kirschner determined that respondent’s sexual history, particularly his recurrent sexual offenses involving nonconsenting minors, satisfied the diagnostic criteria for paraphilia NOS and reflected an apparent attraction to pubescent girls—a form of paraphilia known as hebephilia. Dr. Kirschner further testified that the absence of hebephilia from the Diagnostic and Statistical Manual of Mental Disorders (DSM), an authoritative text widely used in the mental health profession, would not preclude such a diagnosis, explaining that the DSM “is — 105 — extremely limited in terms of the paraphilias that are cited” as it only lists “some of the things that a clinician might address in the manual” and, thus, is not intended to be “exhaustive in that sense.” Dr. Charles E Ewing, who testified on respondent’s behalf, concluded otherwise, stating that there was insufficient evidence to determine that respondent suffers from recurrent, intense sexual urges or behaviors. In Dr. Ewing’s view, there was no evidence that respondent “was sexually aroused particularly by teenage girls”; the three criminal incidents involving pubescent females constituted forcible rape and statutory rape, but were statistically insignificant to base a complete diagnosis that respondent suffers from a mental abnormality. Although he testified that paraphilia NOS is recognized by the DSM, Dr. Ewing took issue with the diagnoses of paraphilia NOS and hebephilia, arguing that hebephilia is neither abnormal nor deviant as “most males are sexually attracted to fully formed pubescent women.” Moreover, Dr. Ewing stated that a diagnosis of paraphilia NOS should be reserved for individuals who suffer from sexual disorders that are widely recognized by the medical community and are so unusual as to be “statistically deviant” and “morally deviant,” such as pedophilia. Supreme Court concluded that the State had proven by clear and convincing evidence that respondent suffers from a mental abnormality under article 10 and ordered a dispositional hearing (Mental Hygiene Law § 10.07 [d]). At the subsequent hearing, respondent was found to be a dangerous sex offender requiring civil confinement and was ordered to be committed to a secure treatment facility (Mental Hygiene Law § 10.07 [f]). The Appellate Division unanimously affirmed (85 AD3d 1646 [4th Dept 2011]) and this Court granted respondent leave to appeal (17 NY3d 894 [2011]). Respondent’s primary contention on this appeal is that absent a diagnosis of a mental disease or disorder listed within the DSM, the evidence is legally insufficient to support a determination that an individual suffers from a mental abnormality under the Mental Hygiene Law. Specifically, respondent asserts that a diagnosis of a mental disorder or defect not contained within the DSM renders it unreliable and militates against its viability as a predicate medical condition for a finding of a mental abnormality. — 106 — The United States Supreme Court has previously remarked that “the States have, over the years, developed numerous specialized terms to define mental health concepts” (Kansas v Hendricks, 521 US 346, 359 [1997]), and in the context of civil confinement of dangerous sexual offenders, state legislatures have been granted the latitude to utilize phraseology that, while informed by prevailing medical knowledge, is intended to have greater legal, and not medical, significance. Thus, in the civil confinement arena, there will undoubtedly be an “imperfect fit between the questions of ultimate concern to the law and the information contained in [the DSM’s] clinical diagnosis” (Clark v Arizona, 548 US 735, 775 [2006]; Kansas v Crane, 534 US 407, 413 [2002] [“(T)he science of psychiatry, which informs but does not control ultimate legal determinations, is an ever-advancing science, whose distinctions do not seek precisely to mirror those of the law”]). In New York, the plain language of Mental Hygiene Law § 10.03 (i), in defining a mental abnormality,2 like the analogue statutes of several states (see In re Commitment of Frankovitch, 211 Ariz 370, 375, 121 P3d 1240, 1245 [Ct App 2005]; Commonwealth v Starkus, 69 Mass App Ct 326, 336, 867 NE2d 811, 820 [2007]), does not reference or require that a diagnosis be limited to mental disorders enumerated within the DSM. Therefore, contrary to respondent’s argument, a mental abnormality “need not necessarily be one so identified in the DSM in order to meet the statutory requirement” (United States v Carta, 592 F3d 34, 40 [1st Cir 2010]). Respondent also asserts that a diagnosis lacking in recognition by the mental health community and scientific foundation would contravene the rehabilitative purpose of article 10, thereby indefinitely confining offenders for want of a meaningful way to cure or mitigate mental disorders or defects that predispose offenders to the commission of sexual offenses. That is, no cure exists for an amorphously defined and medically tenuous diagnosis. Understandably, respondent fears the widespread use of untested, nascent or outlier mental disorders or defects in article 10 civil confinement proceedings. Certain diagnoses may, of course, be premised on such scant or untested evidence and “be so devoid of content, or so near-universal in — 107 — [their] rejection by mental health professionals,” as to be violative of constitutional due process and preclude their meaningful use in civil confinement proceedings (McGee v Bartow, 593 F3d 556, 577 [7th Cir 2010]). Paraphilia NOS, however, has been found to be a viable predicate mental disorder or defect that comports with minimal due process (see Carta, 592 F3d at 40-42; Brown v Watters, 599 F3d 602, 611-612 [7th Cir 2010]; McGee, 593 F3d at 567-572). Furthermore, any issue pertaining to the reliability of paraphilia NOS as a predicate condition for a finding of mental abnormality has been viewed as a factor relevant to the weight to be attributed to the diagnosis, an issue properly reserved for resolution by the factfinder (see Matter of State of New York v Leon F., 84 AD3d 1098, 1100-1101 [2d Dept 2011]; Matter of State of New York v Myron P., 86 AD3d 26, 28 [3d Dept 2011]; Carta, 592 F3d at 39-40; Brown, 599 F3d at 612). Any professional debate over the viability and reliability of paraphilia NOS is subject to the adversarial process which, by vigorous cross-examination, would “expose the strengths and weaknesses of the professional medical opinions offered” in reaching a considered legal determination as to whether a respondent suffers a mental abnormality, as defined by statute (Brown, 599 F3d at 612; Matter of State of New York v Andrew O., 16 NY3d 841, 844 [2011] [“The trial, however, boiled down to a battle of the experts”]). In any event, respondent was diagnosed by the State’s experts as suffering from paraphilia NOS, a mental condition included in the DSM, as Dr. Ewing agreed. Indeed, Dr. Kirschner explained that each recognized diagnostic group in the DSM includes a respective “not otherwise specified category,” including paraphilia. Paraphilia NOS was described as “recurrent, intense sexually arousing fantasies, sexual urges, or behaviors” that “cause clinically significant distress or impairment in social, occupational, or other important areas of functioning” and are directed at, as relevant here, the suffering or humiliation of “children or other nonconsenting persons.” Respondent’s behavior was found to satisfy these criteria, and was particularly characterized as hebephilia, a condition subsumed by the paraphilia NOS subcategory. As such, on the particular facts presented here, there was an adequate record to assess the diagnosis of paraphilia NOS and we find no basis to disturb the affirmed findings of the lower court. The State’s expert witnesses opined that respondent’s 1997, 1999 and 2003 sexual offenses against adolescent victims — 108 — demonstrated an attraction to nonconsenting minors that satisfied the plain definition of paraphilia NOS and evinced symptoms of hebephilia. Further, to establish that respondent’s sexual offenses were the result of a mental abnormality, and not merely a series of isolated criminal incidents, both Drs. Hadden and Kirschner identified respondent’s lack of compunction and incapability to comprehend the inappropriateness of his conduct. More significantly, respondent’s recurrent engagement in sexual conduct with pubescent females, despite numerous criminal sanctions and an asserted attraction to adult females, coupled with his impulsive sexual behavior, amply demonstrated respondent’s compulsion to act upon sexual urges pertaining to pubescent females, thus supporting a finding that respondent suffers from a mental abnormality “involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the person is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility” (Mental Hygiene Law § 10.03 [e]; see Matter of State of New York v Donald N., 63 AD3d 1391, 1394 [3d Dept 2009]; Matter of State of New York v Derrick B., 68 AD3d 1124, 1126-1127 [2d Dept 2009]; Matter of John N., 52 AD3d 834, 835-836 [2d Dept 2008]). Respondent’s remaining contentions are either unpreserved or without merit. Accordingly, the order of the Appellate Division should be affirmed, without costs. Footnotes [1] At the conclusion of the probable cause hearing, respondent signed a written consent form to remain in the custody of the Department of Correctional Services at the Wyoming Correctional Facility pending trial. [2] A mental abnormality is defined as “a congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct” (Mental Hygiene Law § 10.03 [i]).