DECISION AND ORDER The Second Department has directed that this Court conduct a Frye hearing (See, Frye v. United States, 293 F. 1013 [D.C. Cir. 1923]) to resolve the question of whether the diagnosis proffered by the State here, “Paraphilia Not Otherwise Specified, Non-Consent” (hereinafter, referred to as “PNOS Non-Consent”) has achieved general acceptance in the psychiatric and psychological community so as to make expert testimony on that diagnosis admissible. The Court, upon the stipulation of the parties, has also addressed during this hearing whether the diagnosis of “Other Specified Paraphilic Disorder, with a specifier of non-consent” (hereinafter, referred to as “OSPD Non-Consent”), the successor diagnosis to PNOS Non-Consent, has achieved such acceptance. For the reasons outlined below, the Court finds that these diagnoses are not generally accepted in the relevant scientific communities under the Frye standard.In support of the proffered diagnoses, the Petitioner, who bears the burden of establishing their general acceptance, called Dr. Gregory Prichard and Dr. David Thornton to testify. In addition, the Petitioner introduced into evidence a number of academic articles discussing both PNOS Non-Consent and OSPD Non-Consent. The Respondent, in arguing against general acceptance of these diagnoses among the scientific community, called three witnesses to testify: Dr. Leonard Alan Bard, Dr. Raymond Knight and Dr. Cynthia Calkins, and also submitted numerous scholarly articles that called into question the general acceptance and reliability of the diagnoses. Thereafter, the State called one rebuttal witness, Dr. Jacob Hadden, to testify.The Court finds the testimony of each of the witnesses, all highly qualified and distinguished in their fields of psychology, to be credible. It is evident that these witnesses, each also qualified by the Court as an expert, have given a considerable amount of time and thought to the question of whether a diagnosis of PNOS Non-Consent or a diagnosis of OSPD Non-Consent is generally accepted within or relied upon by the scientific community. Drs. Prichard and Thornton are of the opinion that OSPD Non-Consent, and its predecessor PNOS Non-Consent, are valid diagnoses that have received widespread acceptance in the scientific community of mental health practitioners working with sex offenders. The testimony of the Petitioner’s experts, while setting forth support for the views that PNOS Non-Consent and OSPD Non-Consent are valid diagnoses, fails to clearly demonstrate that there are specific criteria for the diagnoses that distinguishes the specifier of non-consent from other motivations for rape, and falls short of establishing that the diagnosis of PNOS Non-Consent or OSPD Non-Consent has achieved general acceptance in the relevant psychiatric and psychological communities. Drs. Bard, Knight and Calkins opined that these diagnoses have not achieved general acceptance within the relevant psychological and psychiatric communities.Given the hearing testimony of the Petitioner’s witnesses, Drs. Prichard, Thornton and Hadden, taken together with the underlying facts of Ronald S.’s case, it is likely that these psychologists would have diagnosed Ronald S. with PNOS Non-Consent or OSPD Non-Consent based upon the criteria outlined by them during the course of the Frye hearing. Indeed, the trial court did find merit in these diagnoses as reflected in the Court’s finding that Ronald S. suffered from a mental abnormality based upon the testimony elicited from the State’s witnesses supporting the then-proffered diagnoses of Paraphilia Not Otherwise Specified, Non-Consent, and Other Specified Paraphilic Disorder (Biastophilia [Non-Consent] with sexually sadistic traits). In accordance with the testimony elicited at the Frye hearing, it is apparent that mental health practitioners who diagnose and treat sex offenders are able to distinguish between certain paraphilias specified in the Diagnostic and Statistical Manual of Mental Disorders Fourth Edition Text Revision (“DSM-4TR”) and Diagnostic Manual of Mental Disorders Fifth Edition (“DSM-5″); for example, pedophilia or frotteurism, and between certain categories of rapists; for example, those motivated by sexual sadism or by lack of consent. Thus, it would seem to follow that these professionals should be able to identify and agree upon criteria with which to distinguish rapists whose actions are incited by a lack of consent from those whose actions are the result of antisocial behavior and then, to diagnose them accordingly.That being said, the question that has been posed to this Court is not whether such a distinction can be made, but whether the diagnosis of PNOS Non-Consent or OSPD Non-Consent has achieved general acceptance in the psychiatric and psychological communities so as to make expert testimony on either or both of these diagnoses admissible herein. On this issue, the testimony of the Respondent’s experts, Drs. Bard, Knight and Calkins, and further, the testimony of at least one of the State’s experts, Dr. Prichard, reflects that there is strong disagreement among the members of the relevant scientific community concerning whether these diagnoses are generally accepted as reliable.The witnesses herein testified that the diagnoses of PNOS Non-Consent and OSPD Non-Consent have, for many years, been at the center of much discussion and debate by their colleagues in the psychological and psychiatric communities, and further, have been the subject of voluminous research studies and analyses. Although there has been a vast amount of information and statistics gathered from these studies that would certainly support the argument for a specific diagnosis of PNOS Non-Consent or OSPD Non-Consent, these diagnoses have been repeatedly denied inclusion in various editions of the Diagnostic and Statistical Manual of Mental Disorders, including the DSM-IVTR and DSM-5. Regardless of whether this denial stems from the practitioners’ concerns about the manner in which the diagnosis of PNOS Non-Consent or OSPD Non-Consent will be utilized in a forensic setting or from a concern that there is an insufficient empirical foundation for such diagnoses, the fact that these diagnoses have not been included in the DSM-4TR or DSM-5 indicates to this Court that there is not yet comprehensive support for the validity of these diagnoses.Unless the Petitioner can establish that the mental health community has reached a consensus concerning the appropriate parameters for a diagnosis of Otherwise Specified Paraphilic Disorder Non-Consent (previously, Paraphilia Not Otherwise Specified Non-Consent), the Court cannot find that these diagnoses have achieved general acceptance in the relevant psychiatric and psychological communities. (See, State of New York vs. Ronald S., 158 AD3d 710 [2nd Dept.])Thus, expert testimony on the diagnosis of Paraphilia Not Otherwise Specified, Non-Consent, and the diagnosis of Otherwise Specified Paraphilic Disorder, Non-Consent, shall not be admissible herein.IT IS SO ORDERED.Dated: February 13, 2019
