Forensic aspects and the criminal justice system

Authored by Henry Strick van Linschoten

Starting from the clear and simple proposition that crimes are not mental disorders, and that mental disorders are not crimes, this section mainly tries to cover the many misunderstandings that exist in the sphere of the overlap that exists between people convicted of crimes, people who have diagnosed “mental disorders” according to DSM and ICD, and the people with whom we work as counsellors and psychotherapists. And this with a partial, but not complete, eye on sexuality as the topic of this module. The problems of confusion, lack of clear knowledge and feelings of uncertainty are caused or exacerbated by the fact that schools and universities teach little or nothing about mental disorders or about the criminal justice system, and neither do most training programmes in counselling and psychotherapy. The end-result is that psychiatrists know their DSM; lawyers know the law and the criminal justice system; forensic psychologists and forensically specialised psychiatrists know a lot about people with psychological problems or mental health problems in prisons – but general psychotherapeutic practitioners rarely know even many basic points.

A good reference as introduction to the issues covered here, but with much more detail, is the British-based and contemporary Vossler et al. (2017).

Let us list a number of situations that most general psychotherapists are unlikely to encounter.

• Working with people while they are in prison is a specialty. It is only done by people who have applied to and been accepted for such positions. The work is usually done under close supervision of an experienced insider with special training and years of experience of forensic work. It cannot be done on an ad hoc basis, as the prison system requires extensive and time-consuming background checks before letting anyone spend time in prison with prisoners. While it is desirable that this work is done, as people in prison have mental health issues at least as much and probably more than the general population, and psychotherapy may help with rehabilitation and with reducing the re-offending rate – it is only for the few, not the many.
• Working with known sex offenders is equally rare and specialised. A few institutions and groups specialise in this work, including the Portman Clinic in London, but this necessary work requires special training, the building up of experience, and specialised supervision. It is not for most psychotherapists and is not the reason to learn more about forensic issues, or the criminal justice system, or about the relationship between mental health problems and committing crimes.

Following are some reasons why it is so important to expand one’s knowledge about crime, mental health and psychotherapy.

• Many or most psychotherapists will sooner or later work with the victims of crime, or at least of threatened crime and / or crimes that have not led to criminal convictions (e.g. think about unsolved assault, harassment and rape cases; and about many or most of the cases of child abuse we hear about and are involved in). It will help, sometimes greatly help, if we have an outline of what is involved in bringing someone to justice and how the criminal justice system works, in the country in which one practises. It is not possible in the context of this module to even scratch the surface of this.
• There are legal and ethical issues involved when we hear in confidence in our therapy room about what our clients have done, what they fantasise about, what they feel urges to do. Some of the ethical issues will be touched on in the section on Ethics below. A main issue is whether there is a legal obligation in some circumstances to break confidentiality, how certain you need to be, and how to go about it if you do. For that, an idea of the difference between the concept of crime and that of mental disorder is important – though it is only a part.
• It is well possible that we will work in our consulting room with clients who have the potential to commit crimes, and who fantasise about that. For fantasies about sexual activity which if enacted would be criminal, Kahr (2007) is a good source that gives representative information about sexual fantasies in the British population. It clearly is very desirable (but not at all easy) to be convinced that nothing in our work makes it more likely that a crime will be committed; and hopefully, we might be working with feelings and fantasies in a way that leaves our clients less distressed, and less likely or not likely at all to act on their fantasies – if they are criminal. In any case, if part of our response to fantasies or urges would be, to be so shocked that we could not bear listening to them, we may well never hear them, in which case none of the above good possibilities even has a chance of realisation. That means being able to listen to unpleasant, distasteful, violent, criminal behaviours, or fantasies about them. This is not an unknown theme, and typically gets a certain coverage in training, but especially in the areas of sexuality, unusual sexual acts, violence, paraphilic disorders, coercion and crime, most people have limits beyond they would find it difficult to go – even with supervision.

Much of the material described in this module, and in the references, would be helpful in the ideal familiarisation of an experienced general psychotherapist. Whether it is themes in dreams, fantasies and images that we are told, or directly material coming up in the countertransference, the more familiar we are with certain human possibilities and desires, the easier it will be to do good work with the client, and the less we will feel overwhelmed or even incapacitated. The different Kinsey reports (1948; 1953), the Hite report (1976) and other overviews of the range of human sexual behaviour can all greatly help.

Clients who have been subject of sexual assault or rape, with or without evident PTSD as a result, are a special group to work with. Not everyone can do this or wants to do it, but it is a very important service to such survivors that there are counsellors and organisations that do. If we do this work, or encounter it without having sought it out, we may need extra supervision, and extra CPD to prepare us for this work. [some references here to be added]

Not many people will work with clients who have definite paedophilic urges, who have not offended and / or have not been caught (and how would we be certain of this?), but who are distressed and have parts that do not want to offend and ask for help. In most cases, unless you feel called to do this work, it may be best to refer these people to counsellors or psychotherapists who have relevant experience and training.

These are categories of sex offenders who are likely to be on the Sex Offenders Register (technically a part of the Violent and Sex Offender Register, kept by the Criminal Records Office, which is managed for the Association of Chief Police Officers in the UK) when they have been convicted, and their prison sentence is spent. They need and deserve psychotherapeutic support. And are not easy to work with. [reference]

DSM-5 devotes a full page at the start of the work to the issues for psychiatrists of the boundary and difference between their work and that of the criminal justice system (DSM-5, 2013:25). Paraphrased, they stress that DSM-5 diagnoses are designed to support clinicians, public health professionals, and researchers, rather than the court system. If the criminal justice system refers to the presence or absence of a mental disorder, a DSM-5 diagnosis can help. Mental health diagnosis can also help in future decision-making (such as about probation), and in risk assessment. However, there are clear limitations, and risks of mental health diagnoses being misused or misunderstood. Standards of competence, of criminal responsibility, and of legal definitions of disability, are not directly envisaged or catered for in the text of DSM-5 or ICD-11. It is rare that the presence or absence of a diagnosis directly informs about a specific level of impairment, disability, or the presence or absence of diminished control over a person’s behaviour. This guidance was written for psychiatrists but is just as relevant for counsellors and psychotherapists.

A key issue that is used in therapy and in the criminal justice system, but that in a way transcends them, is that of consent. This has legal meanings and consequences, which are for lawyers to work with. Consent has consequences for DSM and ICD diagnoses, as it appears in the criteria for a number of the paraphilic disorders, and in the definition of sexual partner or spouse violence.

Consent is also highly central for good sex, as well as for ethical sex. There is a real shortage of good literature about consent – often it is assumed that

• it is ‘evident’ what consent is, or
• it is ok to follow the cultural norm of many countries that you may assume that there is consent if there is no overt distress, or
• if a person does not explicitly say no (and saying a direct verbal no is rare in many cultures, including British culture), you are safe to assume that there is consent.

These assumptions do not constitute a good or even an acceptable basis. Ideas about “informed consent” advocated in Bioethics textbooks (e.g. Beauchamp and Childress, 2013), used by lawyers and in hospitals (again often devised by lawyers), are far too legalistic for most people to be realistic. One of the best practical and yet detailed texts on a higher standard of consent that takes into account relational psychology, is chapter 5 in Barker and Hancock (2017).

References

American Psychiatric Association. (2013). Diagnostic and statistical manual of mental disorders: DSM-5 (5th ed.). Arlington, VA: American Psychiatric Association.

Barker, M.-J., & Hancock, J. (2017). Enjoy sex (how, when and if you want to): A practical and inclusive guide. London: Icon Books.

Beauchamp, T. L., & Childress, J. F. (2013). Principles of biomedical ethics (7th ed.). New York: Oxford UP.

Hite, S. (1976). The Hite report: A nationwide study of female sexuality. New York: Seven Stories Press.

Kahr, B. (2007). Who’s been sleeping in your head? The secret world of sexual fantasies. New York: Basic Books.

Kinsey, A. C., Pomeroy, W. B., & Martin, C. E. (1948). Sexual behavior in the human male. Philadelphia, PA: W B Saunders.

Kinsey, A. C., Pomeroy, W. B., Martin, C. E., & Gebhard, P. H. (1953). Sexual behavior in the human female. Philadelphia, PA: W B Saunders.

Vossler, A., Havard, C., Pike, G., Barker, M.-J., & Raabe, B. (2017). Mad or bad? A critical approach to counselling and forensic psychology. London: Sage.