OVERVIEW

Courts rely on assessments to make decisions regarding everything from sentencing to treatment to release. Psychosexual evaluations, risk assessments, and psychophysiological assessments are often all used in tandem. Sometimes assessments are ordered by the court, in which case a person is obligated to participate in the assessment process. Otherwise, if seeking an assessment it is necessary to obtain the person’s informed consent. There are potential risks, benefits, and limitations inherent in every assessment procedure, as well as in deciding whether or not to perform a risk assessment. Risk assessments cannot be reliably performed on individuals who do not have criminal charges or convictions. However, preliminary workups of risk assessments can be produced for individuals pending charges, and then a formal risk assessment can be finalized after charges have been filed.

Sexual abuser-specific assessments can be used for:

• “Understanding the nature and extent of a client’s sexually abusive behavior;
• Exploring the criminogenic and other needs that should be the focus of treatment and other interventions;
• Estimating short and long-term recidivism risk, both sexual and non-sexual;
• Identifying specific responsivity factors; and/or
• Obtaining baseline information regarding a client against which progress and other changes can be gauged.”[1]

Such assessments are not intended to be used for:

• “Substantiating or refuting allegations that are the focus of a criminal, civil, child custody, or other investigation;
• Exploring the veracity or motivations of an alleged victim’s statements;
• Guiding law enforcement, prosecutorial, or charging determinations;
• Suggesting the existence of a predetermined profile of a sexual abuser against which an individual can be compared to determine fact; or
• Addressing or alluding to a client’s potential guilt or innocence, or otherwise speaking to issues that are within the purview of a trier–of–fact.”[2]

[1] Association for the Treatment of Sexual Abusers. “ATSA Practice Guidelines for the Assessment, Treatment, and Management of Male Adult Sexual Abusers.” Beaverton: Oregon, 2014.

[2] Ibid.

PSYCHOSEXUAL EVALUATIONS

Psychosexual evaluations are concerned with determining why a person committed a sexual offense and their likelihood of doing so again. Psychosexual evaluations assess a person’s sexual history, interests, and any deviant or paraphilic behaviors, looking for mitigating factors across a wide range of areas. They also involve a risk assessment, as risk has less to do with the number of images and more to do with hoarding/OCD/collecting behavior. For these reasons, they can be useful in identifying a person’s treatment needs and risk for sexual recidivism.

A psychosexual evaluation is appropriate when attempting to gather information on the risk of reoffending for sexual crimes and evaluating protective factors and treatment recommendations. They are not appropriate for determining guilt or innocence, determining who the sexual victim was, determining whether someone will commit a first offense, or determining someone’s sexual identity.[3]

Psychosexual evaluations may use several tests and assessments, including interviews, document reviews, general psychometric testing, instruments designed to measure sexual attitudes and interests (MMPI-2, Static 99R), and psychophysiological measures of sexual arousal/interests/preferences (penile plethysmography).

Relevant information on a client’s sexual history and behavior includes:[4]

• Psychosexual development, early sexual experiences, and history of age appropriate, consensual sexual relationships
• Nature and frequency of sexual practices (such as masturbation, non abusive and appropriate sexual behaviors, unconventional or risky sexual activities)
• Paraphilic interests, fantasies, and behaviors that may nor be sexually abusive (such as fetishes and masochism)
• Use of sexually-oriented services or outlets (such as magazines, hiring prostitutes over the Internet, telephone sex lines, and adult establishments)
• Abusive or offense-related sexual arousal, interests, and preferences
• History of sexually abusive behaviors, both officially documented and unreported (if identified through credible records/sources)
• Information about current and/or previous victim(s) (e.g., age, gender, relationship to client)
• Contextual elements of sexually abusive behaviors (dynamics, motivators, patterns, circumstances)
• Level of insight, self disclosure, and denial (of the behaviors, motivations or intent, level of violence and coercion)

It is essential to provide evaluators with all available discovery and information in order for them to provide a full and accurate assessment. Otherwise, there is the risk that their expert report and testimony will later be discredited.

The total evaluation could last between 5-8 hours, likely split between multiple sessions, and must be completed in person.[5] The report will likely take several weeks to complete. By predicting and preventing risk, psychosexual reports give defense teams the resources they need in order to ensure that their clients receive the services that they need.

[3] “Psychosexual Evaluation.” Levitan Psychology, July 27, 2022. https://www.levitanpsychology.com/psychosexual-evaluation/.; “What to Expect During a Psychosexual Evaluation.” PCS Forensic, October 3, 2023.

[4] Association for the Treatment of Sexual Abusers. “ATSA Practice Guidelines for the Assessment, Treatment, and Management of Male Adult Sexual Abusers.” Beaverton: Oregon, 2014.

[5] “Psychosexual Evaluation.” Levitan Psychology, July 27, 2022. https://www.levitanpsychology.com/psychosexual-evaluation/.; “Psychosexual Evaluations.” Psychological Affiliates, n.d. https://www.psychologicalaffiliates.com/psychosexual-evaluations.

RISK ASSESSMENTS

Differentiating higher risk from lower risk offenders is useful for courts because they address how likely an offender is to reoffend and what can be done to decrease this likelihood. They can be used to make decisions regarding: sentencing and criminal adjudications, determination of treatment needs, settings, and modalities, sex offender registration and notification proceedings, and civil commitment proceedings.[6]

Risk assessments can either be general, sexual abuser-specific or child sexual abuser-specific. Experts may utilize a variety of methods when assessing sex offender risk. Approaches will generally either be: unguided (unstructured) clinical judgment, guided (structured) clinical judgment, research-guided clinical judgment, and a pure actuarial approach.[7] One study found that empirically derived actuarial approaches were more accurate than unstructured clinical judgment in assessing the risk of recidivism.[8] There are two primary types of risk assessments: static and dynamic.

Static risk assessments use historical factors, such as a defendant’s age at their first offense and prior criminal history, to assess long-term recidivism potential. There is no factor that predicts recidivism alone, so experts will examine a variety of risk factors relating to sexual criminality and a lifestyle of instability. The most widely used and most accurate instruments used for assessing the likelihood of sexual recidivism are the Static-99, Static-2002, MnSOST-R, Risk Matrix 2000-Sex, and the SVR-20. The Static-99 is the most commonly used risk assessment, but it cannot be used in child pornography-only cases. For child pornography-only offenders, the CPORT is the only acceptable risk assessment. See Appendix A for more information on specific static risk assessments and Appendix D for information on the CPORT.

Dynamic risk assessments use changeable risk factors, such as substance abuse and unemployment, to evaluate change in offender risk level.[9] Mental health information is typically not integrated into a static risk assessment, but is included in a dynamic risk assessment. Dynamic risk assessments account for changing circumstances, and thus provide a more accurate assessment of a person’s current risk and needs. Instruments incorporating dynamic factors include the Stable-2007/Acute-2007 and the SRA-FV. See Appendix B for more information on specific dynamic risk assessments.

The field is “moving toward measures of risk that incorporate both static and dynamic risk factors.”[10] Such instruments include the Level of Service/Case Management Inventory (LS/CMI) and the Violence Risk Scale: Sexual Offender Version. See Appendix C for more information on specific static and dynamic risk assessments. Furthermore, because there is no agreed upon “best” instrument for assessing the risk of sexual offenders, experts may choose to use multiple instruments during the assessment process.[11] Decisions “about the best approach or instrument to use should be made in the context of the assessment setting, the characteristics of the individual being assessed, and the specific purpose of the risk assessment.”[12]

Relevant information for sexual-abuser specific risk assessments includes:[13]

• Criminal history (such as prior arrests or convictions)
• Victim-related variables (e.g. relationship, age, gender)
• Sexual deviancy (such as offense-related sexual arousal/interests/preferences and sexual preoccupation)
• Antisocial orientation (such as attitudes, values, behaviors, and lifestyle instability)
• Intimacy and relationship difficulties (such as unstable relationships, conflictual intimate relationships, deficits in social support, and restricted social interaction and involvement
• Self-regulation difficulties (such as hostility, substance abuse, impulsivity, and access to victims)

After the assessment, clinicians may provide qualitative or quantitative measures of risk.

It is important to note that many actuarial assessment instruments, such as the Static-99R, cannot be used for people who only have child pornography convictions because those engaged in online-related offending are qualitatively different from other kinds of offenders.[14] In general, reoffense rates for child-pornography only offenders is low, ranging from 2-7% for any kind of sexual recidivism. Instruments for child pornography-specific offenses, such as the CPORT-2, are being developed. See Appendix D: Other Tests for information on the CPORT-2 and other alternative instruments. It is important to consider which test is the most relevant to the case at hand.

[6] Baldwin, Kevin. “Sex Offender Risk Assessment.” Sex Offender Management Assessment and Planning Initiative, U.S. Department of Justice, July 2015.

[7] Hanson, R.K., & Bussière, M.T. (1998). Predicting relapse: A meta-analysis of sex offender recidivism studies. Journal of Consulting and Clinical Psychology, 66, 348–362.

[8] Hanson, R.K. (2009). The psychological assessment of risk for crime and violence. Canadian Psychology, 50, 172–182.

[9] Bonta, J, Approaches to offender risk assessment: Static vs. dynamic. Public Safety Canada, Research summary, Vol. 4 No. 2. (1999).

[10] Baldwin, K. “Sex Offender Risk Assessment.” Sex Offender Management Assessment and Planning Initiative

[11] Baldwin, Kevin. “Sex Offender Risk Assessment.” Sex Offender Management Assessment and Planning Initiative, U.S. Department of Justice, July 2015.

[12] Ibid.

[13] Association for the Treatment of Sexual Abusers. “ATSA Practice Guidelines for the Assessment, Treatment, and Management of Male Adult Sexual Abusers.” Beaverton: Oregon, 2014.

[14] Briggs, P., Simon, W.T., & Simonsen, S. (2011). An exploratory study of internet-initiated sexual offenses and the chat room sex offender: Has the Internet enabled a new typology of sex offender? Sexual Abuse: A Journal of Research and Treatment, 23, p. 72-91.

PSYCHOPHYSIOLOGICAL ASSESSMENTS

Research-supported assessment measures such as phallometry and viewing time can be used for: “obtaining objective behavioral data about the client that may not be readily established through other assessment means,” “exploring the reliability of client-self report,” and “exploring potential changes, progress relative to treatment, and other case management goals and objectives.”[15] Although not fully supported by research for reliability and validity, polygraphs “may have utility in facilitating disclosure about sexual history, offense-specific behaviors, and/or compliance with treatment and other expectations.”[16]

Phallometry

Phallometric testing using penile plethysmography involves measuring changes in penile circumference (or sometimes penile volume) in response to sexual and non-sexual stimuli.[17] Phallometric testing “provides objective information about male sexual arousal and is therefore useful for identifying atypical sexual interests, increasing client disclosure, and measuring changes in sexual arousal patterns over the course of treatment.”[18] Such tests are performed in conjunction with other inventories and assessments. Furthermore, there is “limited data available regarding the use of the plethysmograph with clients who have developmental disabilities and clients with an acute major mental illness,” so phallometric tests should be used and interpreted with caution when working with such populations.[19]

The report will include a description of the method used, the types of stimuli used, the person’s behavior during testing, and a summary of the person’s profile of responses. If a person attempts to fake results, such as by looking away from the stimuli, this will be noted in the report as well. The test results will be interpreted with other relevant information, and should not be used to make inferences or draw conclusions as to whether someone has or has not committed a specific sexual crime.

Viewing Time Measures

Measured viewing time is primarily used to identify sexual interest in children. The relative amount of time that a person spends looking at pictures of people of various ages is measured. Research suggests that people “who have engaged in sexually abusive behaviors against children look relatively longer at stimuli depicting children than adults.”[20] There is little research done on the accuracy and usefulness of viewing time measures for people with developmental disabilities.

The report will include a description of the method used, the types of stimuli used, the person’s behavior during testing, and a summary of the person’s responses. If a person attempts to fake results, this will be noted in the report as well. The test results will be interpreted with other relevant information, and should not be used to make inferences or draw conclusions as to whether someone has or has not committed a specific sexual crime.

Polygraphy

Polygraph testing involves an examiner recording several of a person’s physiological responses during a structured interview to form opinions about the person’s deception when answering questions. There are empirical questions about polygraphs’ reliability and validity, so they are not used consistently throughout jurisdictions.

There are four common post-conviction polygraph tests: instant/index offense tests (clarify discrepancies between the client’s and the official descriptions of the conviction offense), sexual history disclosure tests, maintenance/monitoring tests, and specific issue tests.

Post-conviction sex offender polygraph testing can be used to: facilitate a person’s disclosure of sexual history information (including offense-related behaviors), elicit clarifying information about the offense, explore potential progress or compliance related to treatment and other goals, and make decisions about the person going forward. However, given the variation in factors that affect reliability and validity, the results should be interpreted with caution.

It is useful to conduct polygraphs outside of the formal psychosexual evaluation process. This allows for the collection of more independent and valid information. To find a polygraph examiner, reference the American Polygraph Association, the National Association of Polygraph Examiners, and similar organizations to identify certified examiners who administer sexual abuser tests. The test results will be interpreted with other relevant information. There is very little research on the effectiveness of polygraph testing with people who have developmental disabilities or low IQs. It is important to be aware that a person could disclose potentially incriminating information to a mandated reporter during a polygraph test.

[15] Association for the Treatment of Sexual Abusers. “ATSA Practice Guidelines for the Assessment, Treatment, and Management of Male Adult Sexual Abusers.” Beaverton: Oregon, 2014.

[16] Ibid.

[17] Ibid.

[18] Ibid.

[19] Ibid.

[20] Ibid.