In the Matter of the Detention of Mark A. Black.
MARK A. BLACK, Petitioner. STATE OF WASHINGTON, Respondent,
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.
trial court held a Frye 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."
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unpublished opinion.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)
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."
AND PROCEDURAL BACKGROUND
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
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.
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.
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
(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.
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.
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
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.
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.
jury unanimously determined Black met the criteria for an
SVP, and the court ordered his civil commitment.
expert testimony on paraphilia NOS, persistent sexual
interest in pubescent aged females was improperly admitted at
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.
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.
Black's paraphilia NOS diagnosis
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.
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.
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.
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 ...