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In re Detention of Black

Supreme Court of Washington, En Banc

August 2, 2018

In the Matter of the Detention of Mark A. Black.
v.
MARK A. BLACK, Petitioner. STATE OF WASHINGTON, Respondent,

          YU, J.

         To commit an individual as a sexually violent predator (SVP) pursuant to chapter 71.09 RCW, the State must prove beyond a reasonable doubt that the individual "has been convicted of or charged with a crime of sexual violence and [he or she] suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility." RCW 71.09.020(18). This case concerns the admissibility of expert testimony about whether the subject individual suffers from a mental abnormality.

         The trial court held a Frye[1] hearing and excluded expert testimony regarding "hebephilia" on the basis that such a diagnosis is not generally accepted by the relevant scientific community. The parties do not challenge that portion of the court's decision. However, petitioner Mark Black argues that the court committed reversible error by allowing expert testimony on a diagnosis of "paraphilia not otherwise specified (NOS), persistent sexual interest in pubescent aged females, non-exclusive."

         The Court of Appeals affirmed Black's civil commitment in an unpublished opinion. In re Det. of Black, No. 71292-6-1, slip op. at 10 (Wash.Ct.App. Mar. 27, 2017) (unpublished), http://www.courts.wa.gov/opinions/pdf/712926.pdf, review granted, 189 Wn.2d 1015, 404 P.3d 480 (Wash. Oct. 5, 2017). It concluded that regardless of whether paraphilia NOS was improperly admitted, there was sufficient evidence to find Black had a mental abnormality and a personality disorder based on two other diagnoses that Black did not challenge on appeal. Id. We affirm the Court of Appeals on different grounds and hold that the trial court did not err as a matter of law when it admitted expert testimony on paraphilia NOS, nor did it abuse its discretion when it allowed an expert to describe Black's specific paraphilic focus as "persistent sexual interest in pubescent aged females."

         FACTUAL AND PROCEDURAL BACKGROUND

         In 2011, the State filed a petition to civilly commit 40-year-old Mark Black as an SVP prior to his scheduled release from prison. In support of its petition, the State included the evaluation of Dr. Dale Arnold, who diagnosed Black with sexual sadism; paraphilia NOS, persistent sexual interest in pubescent aged females, nonexclusive; and personality disorder NOS with antisocial and narcissistic characteristics.

         Prior to trial, Black moved to exclude evidence of hebephilia and paraphilia NOS, persistent sexual interest in pubescent aged females, arguing that hebephilia is inadmissible pursuant to Frye. Black was not diagnosed with hebephilia, but he argued that Dr. Arnold's paraphilia NOS diagnosis was just another name for hebephilia and was therefore also inadmissible. According to testimony at the Frye hearing by Black's expert, Dr. Karen Franklin, hebephilia "[i]n general. . . has something to do with sexual attraction or sexual activity or both with . . . adolescents." Report of Proceedings (RP) (Sept. 13, 2013) at 35. Dr. Franklin testified that "[t]here's nothing abnormal or pathological about a certain level of attraction" between an adult and an adolescent. Id. at 93.

         The trial court excluded evidence of hebephilia from being presented at trial because it "is not favored in the relevant scientific community." Id. at 149. However, the trial court allowed expert testimony from Dr. Arnold on the basis that paraphilia NOS is generally accepted in the psychological community and that Dr. Arnold used commonly accepted methodology to diagnose Black.

         At trial, the jury was instructed that to determine Black is an SVP it must find that the State proved the following elements beyond a reasonable doubt:

(1) That Mr. Black has been convicted of a crime of sexual violence;
(2) That Mr. Black suffers from a mental abnormality or personality disorder which causes serious difficulty in controlling his sexually violent behavior; and
(3) That this mental abnormality or personality disorder makes Mr. Black likely to engage in predatory acts of sexual violence unless confined to a secure facility.

         Clerk's Papers (CP) at 1385. The jury was further instructed that its verdict needed to be unanimous, but that it "need not be unanimous as to whether a mental abnormality or personality disorder has been proven beyond a reasonable doubt so long as each juror finds that at least one of these alternative means has been proved beyond a reasonable doubt." Id.

         Dr. Arnold testified that each element was satisfied in Black's case. First, he testified that Black had been convicted of two counts of child molestation in the second degree and one count of attempted child molestation in the second degree, which are all crimes of sexual violence.[2]

         Second, Dr. Arnold testified that Black suffers from two mental abnormalities (sexual sadism and paraphilia NOS, persistent sexual attraction to pubescent aged females, nonexclusive) and a personality disorder (personality disorder NOS), each of which independently causes him serious difficulty controlling his sexually violent behavior. Third, Dr. Arnold concluded that in his opinion, Black "is more likely than not to engage in predatory acts of sexual violence if not confined." 5 Verbatim Report of Proceedings (VRP) (Oct. 28, 2013) at 480.

         Black presented his own expert witness, Dr. Joseph Plaud, who testified that Black does not suffer from a mental abnormality or personality disorder at this time. Dr. Plaud further testified that the paraphilia NOS diagnosis was inappropriate because "it doesn't represent fundamentally disordered sexual arousal. Men are attracted to pubescence." 9 VRP (Nov. 4, 2013) at 946. When asked whether an adult male's attraction to a pubescent aged female could ever be deviant, he testified that it might be illegal but "it doesn't happen as a result of underlying sexual deviance." Id. at 947.

         The jury unanimously determined Black met the criteria for an SVP, and the court ordered his civil commitment.

         ISSUE

         Whether expert testimony on paraphilia NOS, persistent sexual interest in pubescent aged females was improperly admitted at trial?

         ANALYSIS

         This case does not ask us to determine whether evidence of hebephilia can be offered as evidence of a mental abnormality in accordance with Frye. The trial court excluded any evidence of hebephilia following a Frye hearing, and the State has not appealed that decision. Instead, we consider whether the trial court improperly admitted expert testimony on paraphilia NOS, persistent sexual interest in pubescent aged females as evidence of Black's mental abnormality.

         Our review of the trial court's Frye determination regarding paraphilia NOS is de novo. In re Del of Halgren, 156 Wn.2d.795, 802-03, 132 P.3d 714 (2006). Our review of the scope of testimony that the trial court actually allowed is for an abuse of discretion. Id. at 802.

         A. Black's paraphilia NOS diagnosis

         Paraphilic disorders are characterized by

recurrent, intense sexually arousing fantasies, sexual urges, or behaviors generally involving 1) nonhuman objects, 2) the suffering or humiliation of oneself or one's partner, or 3) children or other nonconsenting persons that occur over a period of at least 6 months . . . [and] cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.

         Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders: DSM-IV-TR 566 (4th rev. ed. 2000). Both the former DSM-IV-TR and the current American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) (DSM-5) emphasize that paraphilic sexual urges are not considered a disorder unless they are also persistent over an extended period of time and cause significant distress or impairment. DSM-IV-TR at 568; DSM-5 at 686.[3]

         While certain paraphilic disorders, such as voyeurism and fetishism, are specifically enumerated, others, such as necrophilia and zoophilia, are not. Paraphilia NOS is a diagnosis reserved for those individuals whose paraphilic focus does not fall within the descriptions of any of the eight enumerated paraphilias. It is followed by a description of the individual's paraphilia, which, as defined in the DSM-5, is "any intense and persistent sexual interest other than sexual interest in genital stimulation or preparatory fondling with phenotypically normal, physically mature, consenting human partners." DSM-5 at 685. The DSM-5 also allows for a diagnosis of unspecified paraphilic disorder, where the clinician cannot or does not wish to specifically identify the individual's paraphilic focus. Id. at 705.

         Dr. Arnold diagnosed Black with paraphilia NOS and described his paraphilic focus as pubescent aged females. He reached this conclusion after reviewing approximately 4, 000 pages of records, administering a psychological test to Black, and interviewing him in 2008 and 2011. He described in his evaluation that Black "enjoyed 'grooming' young girls because he found the attention from them exciting." CP at 407. He was sexually ...


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