NYS v. James G.

DECISION AND ORDER “Unspecified Paraphilic Disorder” (hereinafter “USPD”) is a diagnosis that is generally accepted in the relevant psychological and psychiatric community (see State v. Gary K., 179 AD3d 623 [1st Dept 2020]; State v. Jerome A., 172 AD3d 446 [1st Dept 2019]; Matter of Luis S. v. State, 166 AD3d 1550 [4th Dept 2018]; but see State v. Hilton C. (158 AD3d 707 [2d Dept 2018]). However, it may be too imprecise to “offer a solid basis for concluding that civil detention is justified” in cases brought under Article 10 of the Mental Hygiene Law (Kansas v. Hendricks, 521 US 346, 373 [1997] [Kennedy, J., concurring]). To guard against arbitrary and capricious confinement, the trial court must make a “determination [about] whether the evidence meets the threshold standard of reliability and admissibility” (Jerome A., supra, at 447; Gary K., supra, at 624). Thus, by the decision issued on October 25, 2022, this Court ordered a hearing to evaluate whether the State psychologist’s diagnosis of USPD for Mr. G meets the minimum requirement of admissibility. Dr. Stuart Kirschner, who prepared the underlying report and gave the USPD diagnosis, testified as the sole witness at the hearing conducted on January 6, 2023. Upon conclusion of his testimony, the case was adjourned to March 6, 2023, for the Court’s decision. After careful consideration of the reports admitted at the hearing, the expert witness’ testimony, the literature in the psychological and psychiatric community about USPD and relevant case law, the Court concludes that, under the circumstances presented in this case, the diagnosis of USPD meets the threshold standard of reliability and admissibility. Accordingly, the respondent’s preclusion motion is denied. PARAPHILIA AND PARAPHILIC DISORDER According to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (hereinafter “DSM-5″),¹ paraphilia “denotes any intense and persistent sexual interest other than sexual interest in genital stimulation or preparatory fondling with phenotypically normal, physically mature, consenting human partners” (id.). If a paraphilia causes “distress or impairment to the individual or a paraphilia whose satisfaction has entailed personal harm, or risk of harm, to others,” it is clinically diagnosed as a “paraphilic disorder” (DSM-5, Paraphilic Disorders). According to the DSM-5, “[a] paraphilia is a necessary but not a sufficient condition for having a paraphilic disorder, and a paraphilia by itself does not necessarily justify or require clinical intervention” (id.). The DSM-5′s definition of paraphilic disorder lists eight categories, which were selected because they are comparatively more common in relation to other paraphilic disorders, and they entail symptomatic presentations that are typically classified as criminal offenses (id.). The listed disorders are: (1) voyeuristic disorder (spying on others in private activities), (2) exhibitionistic disorder (exposing the genitals), (3) frotteuristic disorder (touching or rubbing against a nonconsenting individual), (4) sexual masochism disorder (undergoing humiliation, bondage, or suffering), (5) sexual sadism disorder (inflicting humiliation, bondage, or suffering), (6) pedophilic disorder (sexual focus on children), (7) fetishistic disorder (using nonliving objects or having a highly specific focus on nongenital body parts), and (8) transvestic disorder (engaging in sexually arousing cross-dressing) (id.; see also tr at 34-35). The authors of the DSM-5 are careful to caution that the eight listed disorders are not exhaustive of all possible paraphilic disorders. In fact, they note that “[m]any dozens of distinct paraphilias have been identified and named, and almost any of them could, by virtue of its negative consequences for the individual or for others, rise to the level of a paraphilic disorder” (id.). For this reason, “[t]he diagnoses of the other specified and unspecified paraphilic disorders are…indispensable” (id.). Although the earlier versions of the DSM had the diagnostic category of “paraphilic disorder, not otherwise specified,” the most recent edition, DSM-5, has divided it into two constructs, the unspecified and the otherwise specified (tr at 13). According to the authors of the DSM-5, this was done in order to enhance the clinician’s diagnostic capacity (DSM-5, Introduction). They stated: The other specified disorder category is provided to allow the clinician to communicate the specific reason that the presentation does not meet the criteria for any specific category within a diagnostic class. This is done by recording the name of the category, followed by the specific reason. For example, for an individual with clinically significant depressive symptoms lasting 4 weeks but whose symptomatology falls short of the diagnostic threshold for a major depressive episode, the clinician would record “other specified depressive disorder, depressive episode with insufficient symptoms.” If the clinician chooses not to specify the reason that the criteria are not met for a specific disorder, then “unspecified depressive disorder” would be diagnosed. Note that the differentiation between other specified and unspecified disorders is based on the clinician’s decision, providing maximum flexibility for diagnosis. Clinicians do not have to differentiate between other specified and unspecified disorders based on some feature of the presentation itself. When the clinician determines that there is evidence to specify the nature of the clinical presentation, the other specified diagnosis can be given. When the clinician is not able to further specify and describe the clinical presentation, the unspecified diagnosis can be given. This is left entirely up to clinical judgment. (id.). Thus, the DSM-5 provides that both the unspecified category and “Other Specified Paraphilic Disorder” (hereinafter “OSPD”) are applied where symptoms “cause clinically significant distress or impairment in social, occupational, or other important areas of functioning…but do not meet the full criteria for any of the disorders in the paraphilic disorders diagnostic class” (DSM-5, Paraphilic Disorders). However, they differ because USPD is used when “there is insufficient information to make a more specific diagnosis” (id.).² On the other hand, OSPD is used in situations in which the clinician “chooses to communicate the specific reason that the presentation does not meet the criteria for any specific paraphilic disorder” (id.). Some examples of OSPD include, but are not limited to, “recurrent and intense sexual arousal involving telephone scatologia (obscene phone calls), necrophilia (corpses), zoophilia (animals), coprophilia (feces), klismaphilia (enemas), or urophilia (urine) that has been present for at least 6 months and causes marked distress or impairment in social, occupational, or other important areas of functioning” (id.). Since the clinician is required to record the specific reason for OSPD, the decision to use USPD versus OSPD generally “depends on whether the clinician wants to specify explicitly the type of atypical paraphilic focus” (Michael B. First, DSM-5 and Paraphilic Disorders, J Am Acad Psychiatry Law 42:191, at 199 [2014]; see generally Jerome A., 58 Misc3d 1202 [A], at *2-6). The authors of the DSM-5 also warn of using the DSM-5 diagnostic criteria and text in a forensic setting because they are “primarily designed to assist clinicians in conducting clinical assessment, case formulation, and treatment planning” (DSM-5, Cautionary Statement for Forensic Use of DSM-5). Accordingly, their use in a court proceeding must be accompanied by “an awareness of the risks and limitations of its use in forensic settings” (id.). Given the different realities of using the DSM-5 diagnostic criteria and text in clinical and forensic settings, USPD, “a diagnosis whose hallmarks are its lack of specificity, defined criteria and demonstrated reliability” raises serious due process concerns (Jerome A., 58 Misc3d 1202 [A], at *18). For instance, the USPD diagnosis may lack “a sufficient degree of inter-rater reliability” (id.). There is also a danger of it being used as a “substitute for a diagnosis which has been precluded by a court because the precluded diagnosis was not generally accepted in the psychiatric community” (id.). Thus, it is of utmost importance to require the clinician to provide a supporting narrative describing why the diagnosis was appropriate when assigning a USPD designation in a forensic setting (id.). RESPONDENT’S CRIMINAL BACKGROUND, DIAGNOSIS, AND PROCEDURAL HISTORY The respondent’s criminal history dates back to 1986, when he was 22 years old. The first case that is reported on his Fingerprint Response Summary is an arrest for Robbery in the First Degree (PL §160.15 [2]) and Criminal Use of a Firearm in the First Degree (PL §265.09 [1]) in Kings County. In November 1986, while the Kings County case was pending, the respondent was re-arrested in New York County for Robbery in the First Degree (PL §160.15 [1]), Sodomy in the First Degree (PL §130.50), Rape in the First Degree (PL §130.35 [1]) and other related charges. Regarding that case, the pre-sentence report, prepared on April 9, 1987, stated: two victims “who are ‘call girls’, made arrangements to meet defendants James G[] and David Rodriguez” at an “apartment located on West 56th Street…” When the victims entered the apartment Mr. Rodriguez “displayed a gun and defendant James G[] displayed a knife, as they demanded money from” the victims. They “threatened to kill” the two victims and forced Victim 1 (identified by name in the PSR as the victim Mr. G[] sexually offended) to give them her jewelry. The victims were allowed to answer phone calls and were able to “alert their associates by their telephone conversation when they were in trouble” by using a code. Their “associates were able to contact the police…Prior to the arrival of the police, defendant G[] forced Victim 1 [Name Redacted] at knife point, into oral sex and intercourse” while his associate forced the other victim “into oral sex at gunpoint.” Both Mr. G[] and his associate tied the victims with a cord then left the apartment. As they were leaving, the police arrived and Mr. G[] and his associate “began to flee.” Mr. G[] and his associate were apprehended. Mr. G[] was found in possession of a knife and Victim 1′s jewelry. His associate, Mr. Rodriguez, was found in possession of a gun. (Jonathan Miljus, Psychological Examination, August 12, 2021, at 6 [Petitioner's Exhibit 4]). In the following year, the respondent pleaded guilty to Attempted Robbery in the Third Degree and Robbery in the Second Degree in full satisfaction of the Kings County and New York County matters, respectively. As relevant to this decision, Rape and Sodomy charges were dismissed in exchange for his guilty plea in the New York County case. The respondent was sentenced to a state prison term. He was released on parole on March 1, 1991.³ In 1995, the respondent was arrested in Bronx County for Robbery in the First Degree (PL §160.15 [3]) and other related charges. While the case was pending, he was re-arrested for Rape and Endangering the Welfare of a Child in March 1996, and Forgery and Criminal Possession of Forged Instrument charges in July 1996. The rape charge involved allegations that the respondent had vaginal intercourse with a 12- or 13-year-old female approximately three times between February 15, 1996, and March 27, 1996 (Petitioner’s Exhibit 4, at 7). Ultimately, the Rape and Endangering the Welfare of a Child charges were dismissed as covered by his guilty plea in the Forged Instrument case. The respondent was sentenced to conditional discharge. In 2002, the respondent was indicted in Bronx County for Rape in the First Degree (PL §130.35 [1]) and other related charges. The Sex Offender Registration Case Summary for this offense states as follows: [O]n April 28, 2001 G[], at age thirty-seven, subjected the then twelve-year-old niece of his live-in paramour to sexual intercourse. The police were called to investigate a domestic violence incident involving the child on January 14, 2002 when G[] tried to remove her clothes. She managed to run away, receiving just a bruise. During the investigation, she revealed that G[] had also molested her when she was staying with him while her mother gave birth nine months earlier. In that incident, the child was sleeping and woke up to ask G[] where her mother was. G[] grabbed her and tried to take her clothes off, but she got away. He then grabbed her and fondled her body while he kissed her neck. He threw her onto a sofa bed where he removed her clothes, held her down with his body weight and inserted his penis unto her vagina. Police reports indicate he pushed the child up against a wall, punched her in the shoulder and forcibly subjected her to sexual intercourse. He told her not to tell. She managed to grab her clothes and run out of the apartment. She found blood in her shorts later when she took them off. (Petitioner’s Exhibit 4, at 8-9). The respondent pleaded guilty to Rape in the First Degree and received a sentence of five years in prison, followed by five years of post-release supervision. He was released to parole on May 26, 2006, and began to attend a sex offender treatment program. In 2010, the respondent was indicted on Rape in the First Degree (PL §130.35 [1]) and other related charges. In this case, the 14-year-old victim stated that “she was forced to have sexual intercourse with her uncle, James G[], on or about May 15, 2008″ (Petitioner’s Exhibit 4, at 11). As a result of this incident, “she became pregnant and subsequently gave birth on February 2, 2009″ (id.). DNA results confirmed that the respondent is the father of the child (id.). This case was resolved by the respondent’s guilty plea to Attempted Rape in the First Degree and his receiving a sentence of 12 years of incarceration and 5 years of post-release supervision. This conviction forms the basis for the instant MHL Article 10 petition. In August 2021, the respondent was evaluated by OMH Psychiatric Examiner Jonathan Miljus, Ph.D., to determine whether he is a sex offender with a mental abnormality as defined by MHL Article 10. Based on a review of relevant medical and psychiatric records, court records, sex offender treatment records, an interview with the respondent, and other pertinent information, Dr. Miljus diagnosed the respondent with “Antisocial Personality Disorder,” “Other Specified Paraphilic Disorder — (Non-Consent)” and “Borderline Intellectual Functioning (Petitioner’s Exhibit 4, at 47-50). After the filing of the instant Article 10 petition, the petitioner retained Stuart Kirschner, Ph.D., as a psychiatric examiner. The respondent declined to participate in an interview with Dr. Kirschner upon advice of counsel. Similar to Dr. Miljus, Dr. Kirschner reviewed relevant medical and psychiatric reports, courts records and sex offender treatment records, and other pertinent information, and diagnosed the respondent with “Antisocial Personality Disorder,” “Other Specified Personality Disorder (Narcissistic and Paranoid Traits)” and “Unspecified ParaphilicDisorder” (Stuart Kirschner, Psychological Examination, April 11, 2022, at 30-34 [Petitioner's Exhibit 2]). By an agreement between the parties, executed on August 22, 2022, the petitioner will not introduce any evidence regarding the diagnosis of “Other Specified Paraphilic Disorder” at trial. On October 25, 2022, the Court granted a hearing to determine whether Dr. Kirschner’s assignment of the USPD diagnosis may be admitted at trial since his report lacked sufficient supporting narrative. Prior to the commencement of the hearing on January 6, 2023, the petitioner served opposing counsel and filed with the Court a supplemental letter prepared by Dr. Kirschner dated January 4, 2023. In the addendum, Dr. Kirschner provided, “My finding that Mr. G[] meets the criteria for [USPD] diagnosis is based upon his sexual offending history, namely, his victim pool and the manner in which he offended against his victims” (Respondent’s Exhibit 1). Specifically, he offered New York State Article 10 Evaluation Reports by Dr. Paul Etu, prepared in 2011, and Dr. Jonathan Miljus, prepared in 2012, as one of the predicates for his diagnosis. Dr. Kirchner noted that Mr. G was given the provisional diagnosis of “Paraphilia Not Otherwise Specified” by Dr. Etu, indicating that he has been assessed as having deviant sexual interests as early as 2011. Further, since the second psychiatric examiner, Dr. Miljus, concluded that Mr. G has deviant sexual interests by assigning the diagnosis of “Other Specified Paraphilic Disorder (Non-Consent),” Dr. Kirschner concluded that it “warrants the diagnosis of a Paraphilic Disorder” (id. at 2). In addition, Dr. Kirschner asserted in his report that the USPD diagnosis was appropriate based on the Limestone Preftest Penile Plethysmograph results (hereinafter “PPG”), which was completed on August 24, 2019 (Respondent’s Exhibit 1). The doctor found that Mr. G’s profile produced by the PPG demonstrated “a broad range of deviant sexual arousal responses combined with sexual arousal responses that were within the normal range” (id. at 3). At the same time, Dr. Kirschner explained that the result was “possibly an under-representation of Mr. G[]‘s actual sexual arousal pattern” based, in part, on his lack of truthfulness in his oral responses. Dr. Kirschner highlighted that there were “multiple discrepancies between phallometrically assessed sexual arousal and [Mr. G's] report of sexual interest” (id. 2). For instance, there was “significant arousal to a number of stimulus sets depicting deviant sexual behavior, including sexual contact with male and female minors in both persuasive and coercive scenarios, coercive sexual contact with female adults, and child female violence” (id.). According to the doctor, Mr. G also demonstrated “significant arousal to age-appropriate sexual behavior with adult women and adult men” (id.). In comparison, during his oral response, the respondent indicated that he was “not sure” on his level of sexual interest in the Grammar School Female Coercive trial, and “moderately” sexually interesting to Teen Female Persuasive trial (id.). Dr. Kirschner focused on Mr. G’s demonstration of a preference for sexual contact with adult females in coercive scenarios over consensual sex with adult women (id.). According to Dr. Kirschner, Mr. G showed a preference for sexual contact with teen females in a coercive scenario over sexual contact with adult men or infant females (id.). In addition, the respondent demonstrated a preference for sexual contact with teen females or grammar school males in a coercive scenario over consensual sex with adult women (id.). There is another documented disparity between the respondent’s self-reported sexual interest and objective sexual interest data measured by the Affinity 2.5 Report. In this test, the respondent self-reported that his highest sexual interest was adult females (id.). However, the objective sexual interest data suggested that his strongest sexual interest was likely to be adolescent juvenile females, while adult females, preadolescent juvenile females, adult males, and adolescent juvenile males also emerged as possible sexual interests (id.). Dr. Kirschner also underlined several responses that Mr. G gave during his participation in the prison-based sex offender treatment program as examples of his deviant arousal patterns warranting the USPD diagnosis. For instance, according to a treatment group note from August 2, 2018, Mr. G stated that he was aroused by teenagers and that he had been aroused in the past by an 11-year-old sitting on his lap one time (id.). In another reported incident, Mr. G said that, once or twice, he had thoughts of his victims while masturbating and that he gets aroused by watching rape scenes in movies (id.). Based on these factors, Dr. Kirschner concluded that Mr. G has a “variety of deviant sexual interests” (id. at 4). However, he asserted, “[t]he criteria for a specific paraphilic disorder is not met, in part, because there is contradictory and insufficient information to make a more specific diagnosis. Some of the impediments to making a more specific diagnosis are Mr. G[]‘s unreliability as an informant and his attempts to interfere with objective measures of sexual arousal” (id.). Finally, an additional issue of sexual sadism, which was not discussed in the addendum, was brought out during the hearing. In response to the respondent’s questioning, Dr. Kirschner answered that he is “not convinced the [Mr. G] might not, with more information meet the criteria for sexual sadism” because of the respondent’s stated interest in rape scenes and that he gets aroused by rape scenes and the noises that the female is making (tr at 52). In addition, the doctor discussed that Mr. G has used violence during the commission of his sexual crimes, which not only involved coercive, non-consent sex with females but also violent encounters such as tearing and ripping the clothes off of one girl and punching another one in the shoulder (id.). Dr. Kirschner testified that “there’s something that’s mentally disordered in [Mr. G's] condition” when he chooses to commit such criminal acts, especially since the respondent is capable of having consensual relationships with adult females (id.). LEGAL ANALYSIS 1. Burden of Proof As an initial matter, although the parties agree that the burden is upon the petitioner as the party offering the disputed expert testimony (see e.g. State v. Ronald S., 186 AD3d 1227, 1228-1229 [2d Dept 2020]), they disagree about the standard of proof that must be applied in this evidentiary hearing. The respondent argues that since “the State must establish at trial, by clear and convincing evidence, that a detained sex offender suffers from a mental abnormality as defined in that statute” (State v. Floyd Y., 22 NY3d 95, 99 [2013]), the same standard must apply. The petitioner opposes, contending that a preponderance standard applies. The respondent did not provide the Court with any case to support its claim, and the Court was unable to find one through its own research. As noted above, the instant hearing was ordered on the strength of the Appellate Division’s holding in Gary K. and Jerome A. (Gary K., 179 AD3d 623; Jerome A., 172 AD3d 446). On remand, the hearing and the trial in Jerome A. were conducted together, resulting in a combined decision (67 Misc3d 1220 [A] [Sup Ct, NY County 2020]).⁴ In the decision, the court found that the respondent was a detained sex offender who suffered from a mental abnormality under MHL Article 10. The court also concluded that the USPD diagnosis did not meet the minimal due-process standards. The court did not offer an extended explanation on the applicable standard of proof. Given the absence of any case on point, the Court is not persuaded by the respondent’s argument for a higher quantum of proof. In Parker v. Mobil Oil Corp., the Court of Appeals held that “[t]he Frye inquiry is separate and distinct from the admissibility question applied to all evidence — whether there is a proper foundation — to determine whether the accepted methods were appropriately employed in a particular case” (7 NY3d 434, 447 [2006]). The Court continued, “[t]he focus moves from the general reliability concerns of Frye to the specific reliability of the procedures followed to generate the evidence proffered and whether they establish a foundation for the reception of the evidence at trial” (id.). In so holding, the Court did not impose a higher standard of proof for the admission of scientific tests or psychiatric diagnoses that were subjected to the Frye inquiry. Nor did the Floyd Y. Court single out MHL Article 10 cases as having a higher standard for the admission of basis hearsay (supra). Under New York evidence, “relevant evidence” is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the proceeding more probable or less probable than it would be without the evidence” (Guide to NY Evid rule 4.01. Relevant Evidence, https://www.nycourts.gov/judges/evidence/4-RELEVANCE/4.01_RELEVANT%20EVIDENCE.pdf [last accessed February 22, 2023]). All relevant evidence is “admissible except as otherwise provided or required by the Constitution of the United States or the Constitution, statutes, or common law of New York state” (id.). Thus, the court, as the gatekeeper, must ensure that the probative value of relevant evidence is not outweighed by the danger that its admission would “create undue prejudice to a party,” “confuse the issues and mislead the jury,” “prolong the proceeding to an unreasonable extent without any corresponding advantage to the offering party” or “unfairly surprise a party and no remedy other than exclusion could cure the prejudice caused by the surprise” (Guide to NY Evid rule 4.06. Exclusion of Relevant Evidence, https://www.nycourts.gov/judges/evidence/4-RELEVANCE/4.06_EXCLUSION%20OF%20RELEVANT%20EVIDENCE.pdf [last accessed February 22, 2023]). In the absence of any other rules to the contrary, these are the standards and rules that must be applied. 2. The USPD Diagnosis Meets the Threshold Criteria for Admissibility Moving on to the substantive arguments, the petitioner avers that there is an adequate foundation for the diagnosis based on the respondent’s own statements, PPG results, and sex offender history. On the other hand, the respondent argues that the USPD diagnosis was given as an attempt to “end-run” the diagnoses that have been deemed inadmissible by New York State courts, which are paraphilia non-consent and hebephilia (tr at 56). According to the respondent, Dr. Kirschner’s testimony makes it clear that his deviant sexual interest in rape and adolescent females formed the basis for the doctor’s assignment of the USPD diagnosis. However, because “paraphilia non-consent” was deemed inadmissible as not generally accepted in the relevant psychiatric and psychological community by the Second Department in State v. Richard S. (158 AD2d 710 [2d Dept 2017]), the respondent claims that the doctor’s testimony about his deviant sexual interest in non-consensual sex, such as rape, must be disregarded. He further contends that the assignment of the USPD diagnosis is an attempt by Dr. Kirschner to work around the “non-consent” designation, which he knows to be an inadmissible diagnosis. To support, he underscores Mr. G’s diagnosis of “Antisocial Personality Disorder,” “Other Specified Paraphilic Disorder — (Non-Consent)” and “Borderline Intellectual Functioning” by Dr. Miljus in August 2021 (Petitioner’s Exhibit 4, at 47-50). In comparison, in Dr. Kirschner’s report, which was prepared on April 11, 2022, less than a year after Dr. Miljus’, Mr. G is diagnosed with “Antisocial Personality Disorder,” “Other Specified Personality Disorder (Narcissistic and Paranoid Traits)” and “Unspecified Paraphilic Disorder” (Petitioner’s Exhibit 2, at 30-34). Moreover, the respondent points out that hebephilia, which is a strong and persistent sexual interest by adults in pubescent children, is not generally accepted in the relevant psychological and psychiatric community and its inclusion has been rejected by the DSM-5 (see also First, supra, at 192 ["Ultimately, the proposals for adding paraphilic coercive disorder and hypersexual disorder and for expanding pedophilia to include hebephilia were rejected"]). The diagnosis was further determined to be inadmissible in various New York court cases like State v. Ralph S. (53 Misc3d 496 [Sup Ct, NY County 2016] [Conviser, J.]) and State v. David D. (53 Misc3d 1041 [Sup Ct, Albany County 2016]). As such, the respondent posits that the Court may not consider his sexual interest in adolescent females as a valid basis for his USPD diagnosis. Finally, the respondent argues that it would be a violation of his due process interest to use the USPD diagnosis when he does not meet the “full criteria” for pedophilia, which is sexual interest in prepubescent children, or sexual sadism, which is deviant sexual attraction to inflict humiliation, bondage, or suffering (tr at 59). In rebuttal, the petitioner argues that whether a clinician can testify about hebephilia is a different matter than whether they can rely on it to inform their USPD diagnosis. According to the petitioner, one of the reasons why hebephilia is not found to be generally accepted in the relevant psychiatric and psychological community is because of the absence of agreed-upon criteria for it. Such concerns are not present in this case, the petitioner claims, because the respondent has a self-professed sexual interest in adolescent females. At the outset, the Court rejects the respondent’s claim that Dr. Kirschner diagnosed him with USPD to avoid having to assign diagnoses that have been rejected by the DSM-V or various New York courts. When asked by the respondent during cross-examination, Dr. Kirschner flatly rejected such a suggestion by stating, “[I]f I thought that the only problem that Mr. G had was that he had a paraphilic disorder non-consent and that was not an acceptable diagnosis by the [American Psychological Association], then I shouldn’t put down unspecified when I’m really thinking non-consent” (tr at 43). The Court credits the doctor’s testimony, and this is sufficient to distinguish Jerome A. (67 Misc3d 1220 [A]). In that case, the court concluded that the respondent’s arousal to non-consent and victim suffering formed the primary basis for the paraphilia diagnosis and determined that a USPD diagnosis was inadmissible at trial as it was assigned in an attempt to “end-run” the court’s Frye preclusion (id. at *14-15). According to the DSM-5, a paraphilia is a “necessary but not a sufficient condition for having a paraphilic disorder, and a paraphilia by itself does not necessarily justify or require clinical intervention” (DSM-5, Paraphilic Disorders). Thus, a USPD diagnosis for “when there is insufficient information to diagnose a paraphilia” would not be acceptable (State v. Jerome A., 58 Misc3d 1202 [A], at *19 [Sup Ct, NY County 2017]). On the other hand, it would be acceptable “when there is sufficient information to diagnose a paraphilia but insufficient information to put a respondent’s symptoms into a particular paraphilic box” (id.). In this case, Dr. Kirschner concluded that Mr. G meets the criteria for the USPD diagnosis based upon his sexual offense history, past New York State Article 10 Evaluation Reports, PPG test results, the Affinity 2.5 Report, and Mr. G’s past comments during the prison-based sex offender treatment program. He testified that Mr. G has paraphilia that cannot be neatly placed into any one “paraphilic box” because “he’s got more than non-consent and he’s got more than just an interest in young teenage girls. He’s got rape issues. He’s got violence issues. There’s — there’s indication that he’s interested in prepubescent children” (tr at 43). Indeed, Mr. G’s offending patterns demonstrate his deviant sexual interest in young girls, rape, and violence. For example, in 2002, the respondent was arrested for subjecting the then 12-year-old niece of his live-in paramour to sexual intercourse (Petitioner’s Exhibit 4, at 8-9). In that case, the respondent molested the victim while she was sleeping, and forcibly removed her clothing, held her down with his body weight, and inserted his penis into her vagina (id.). Police reports indicated that he pushed the child victim up against a wall, punched her in the shoulder, and forcibly subjected her to sexual intercourse (id.). She managed to grab her clothes and run out of the apartment (id.). She found blood in her shorts later when she took them off (id.). In 2010, the respondent was indicted for Rape in the First Degree (PL §130.35 [1]) and other related charges for forcing the 14-year-old victim to have sexual intercourse with him (id. at 11). The victim became pregnant with the respondent’s child and subsequently gave birth on February 2, 2009 (id.). Additionally, in 1996, the respondent was arrested for allegedly having vaginal intercourse with a 12- or 13-year-old female approximately three times over a two-month period. Although the question of whether the hearsay basis evidence from the 1996 arrest may be introduced at trial has not been determined, it provides yet another source for Dr. Kirschner’s expert opinion (see Floyd Y., 22 NY3d at 107 ["the expert may base an opinion on hearsay if it 'is of a kind accepted in the profession as reliable in forming a professional opinion'"] [internal citation omitted]). As Dr. Kirschner emphasized during his testimony, Mr. G’s criminal history demonstrates that his sexual interest in pubescent girls is “at the lowest possible end” of the hebephilia spectrum, meaning girls who are 12, 13, and 14 (tr at 44). According to the DSM-5, an individual may be diagnosed with pedophilic disorder if they have “recurrent, intense sexually arousing fantasies, sexual urges, or behaviors involving sexual activity with a prepubescent child or children (generally age 13 years or younger)” (DSM-5, Pedophilic Disorder [emphasis added]). Contrary to the respondent’s argument, then, his offending history involving female victims who are aged 12 to 14 places him in the overlapping spheres of pedophilia and hebephilia.⁵ When considering the behavioral data, such as the respondent’s offending history, it can be considered “indicative of a paraphilia only if it can be established that the behavior is being driven by a persistent and intense deviant sexual arousal pattern” (First, supra, at 195). In other words, the court must be careful to distinguish between “a lack of inhibition” and sexual arousal when certain conditions are present (see Jerome A., 67 Misc3d 1220 [A], at *16 ["a lack of inhibition is not the same as an arousal to non-consent"]; State v. Kareem M., 51 Misc3d 1205 [A], at *29 [Sup Ct, NY County 2016] ["you cannot reliably distinguish between someone who is aroused by the nonconsent of the victim versus somebody who is raping despite the nonconsent"]). That Mr. G committed the above-mentioned offenses because of his sexual arousal, as opposed to his lack of inhibition, is shown through the objective test results like the PPG and the Affinity 2.5 Report. According to the PPG results, Mr. G’s profile demonstrated “a broad range of deviant sexual arousal responses combined with sexual arousal responses that were within the normal range” (Petitioner’s Exhibit 1, at 3). There was “significant arousal to a number of stimulus sets depicting deviant sexual behavior, including sexual contact with male and female minors in both persuasive and coercive scenarios, coercive sexual contact with female adults, and child female violence” (id.). Mr. G demonstrated a preference for sexual contact with adult females in coercive scenarios over consensual sex with adult women (id.). He also demonstrated a preference for sexual contact with teen females or grammar school males in a coercive scenario over consensual sex with adult women (id.). Furthermore, Mr. G’s deviant sexual interest was measured by the Affinity 2.5 Report. Although the respondent self-reported that his highest sexual interest was adult females, the objective sexual interest data suggested that his strongest sexual interest was likely to be adolescent or juvenile females (id.). The objective data was corroborated by Mr. G’s own statements made during the prison-based sex offender treatment program. For instance, according to a treatment group note from August 2, 2018, Mr. G stated that he was aroused by teenagers and that he had been aroused in the past by an 11-year-old sitting on his lap one time (id.). In another reported incident, Mr. G said that he had thoughts of his victims once or twice while masturbating and that he got aroused by watching rape scenes in movies (id.). These factors provide additional basis for Dr. Kirschner’s claim that his assignment of the USPD diagnosis is based on Mr. G’s demonstrated and self-professed sexual attraction to violence, rape, and pubescent females, not lack of inhibition. Furthermore, it is important to distinguish between violence and rape on the one hand and non-consent on the other because the respondent argues that they are different names for essentially the same diagnosis. However, Dr. Kirschner explained that “non-consent” could involve situations like the “non-consent of a minor just by the fact that the person’s a minor” as well as when “one adult doesn’t consent to the act” in a two-adult relationship (tr at 46). Furthermore, “if someone drops a drug in someone’s drink and knocks that person[] out and carries them home and rapes them[,] that’s very different from having — from beating up the victim, tying the victim up, pummeling the victim and raping the victim” (id. at 47). Dr. Kirschner testified that this lack of specificity was one of the reasons why the “non-consent” diagnosis was rejected from inclusion in the DSM-5. As discussed above, the respondent showed deviant sexual interests in violence and rape and not just non-consent. This distinction is important because there is also a component of sexual sadism in Mr. G’s profile. Dr. Kirschner answered one of the respondent’s questions by stating that he is “not convinced the [Mr. G] might not, with more information meet the criteria for sexual sadism” based on the respondent’s stated arousal by rape scenes and his use of violence in his sexual crimes (tr at 52). Dr. Kirschner asserted that “[t]he criteria for a specific paraphilic disorder [are] not met, in part, because there is contradictory and insufficient information to make a more specific diagnosis. Some of the impediments to making a more specific diagnosis are Mr. G[]‘s unreliability as an informant and his attempts to interfere with objective measures of sexual arousal” (Petitioner’s Exhibit 1, at 4). Since the respondent’s argument to disregard Dr. Kirschner’s testimony regarding Mr. G’s deviant sexual attraction to non-consent misses the actual diagnosis by the doctor, it is rejected by the Court. In a similar fashion, the respondent’s assertion that it would be a violation of his due process interest to use the USPD diagnosis when he does not meet the “full criteria” for pedophilia or sexual sadism is rejected. As discussed above, the respondent’s sexual interest in young females under the age of 13 is well-documented through his criminal offense history, various objective test results and his own admission during the sex offender treatment program. The Court is unpersuaded by his argument based on sexual sadism because, similar to his diagnosis for pedophilia, the respondent has demonstrated his attraction to violence and infliction of pain and suffering to the victim. What the doctor claims is not that the respondent does not meet the threshold criteria for assignment of a paraphilic disorder, but simply, there is not enough information to assign any specific paraphilic disorder. Finally, the Court finds that the probative value of the USPD diagnosis is not outweighed by the risk of undue prejudice to the respondent. By nature, all Article 10 cases involve sex crimes, deviant sexual interests, and discussions of mental abnormality. Given the Court’s determination today about the underlying reliability of the USPD diagnosis, there is no undue prejudice to the respondent. Furthermore, because there is sufficient specificity regarding USPD to allow for proper defense at trial, the Court does not see the potential to confuse the issue and mislead the jury or any danger that the introduction of the USPD diagnosis would prolong the proceeding to an unreasonable extent or unfairly surprise the respondent. CONCLUSION For the reasons stated above, the respondent’s motion for preclusion of the diagnosis of Unspecified Paraphilic Disorder is denied. This constitutes the decision and order of this Court. Dated: March 3, 2023