YANKOWSKI'S TESTIMONY ON THE PHOENIX PROGRAM
September 16, 1992
To the Members of the Committee on Children's Psychological Treatment Programs of the Arizona Senate
With all due respect, Mr. Chairman and Senators:
Thank you for allowing me the opportunity to address the Senate Committee on the issue of the propriety of the use of the plethysmograph and polygraph examinations on minor children at the former Sexuality and Addiction Program at Phoenix Memorial Hospital. I am an attorney who has been cooperating with the Arizona Civil Liberties Union in its investigation and challenge to the use of these techniques and have been involved in several cases arising from that treatment program. We believe that treatment program used techniques that are scientifically unestablished, highly intrusive, and potentially harmful to the children on whom they were inflicted.
I have had the opportunity to review the testimony of the various witnesses who have testified before this committee. In the first two days of testimony, the witnesses have been either: 1) members of various state agencies or the courts who have explained their respective agency's role in program evaluations and/or treatment decisions or 2) plethysmography proponents including Dr. Judith Becker and the other experts presented by Phoenix Memorial Hospita1. All of the experts from whom the committee has heard have devoted substantial portions of their careers to the development of sexual offender programs utilizing the plethysmograph device. All of the experts the committee heard at its last hearing were from a panel put together by Phoenix Memorial Hospita1, and presumably compensated by the hospital, to perform an evaluation of their program. Without impugning the good faith or intentions of any of these witnesses, it is clear that their opinions are naturally biased in favor of plethysmography. They earn their livelihood from conducting such programs and have a vested interest in supporting the use of those technologies.
With all due respect, this committee has not had the benefit of a balanced presentation on the issues raised by the plethysmography/polygraph techniques as it has heard from only professional proponents of these techniques. I believe that this committee should not make any substantive determinations about the merits of this or any treatment without ensuring that it is also informed by the mainstream MEDICAL, psychiatric and psychological communities. In the course of my work in the past several months I have been in contact with many of these individuals who have expressed very serious reservations about the validity of the sex offender program. If testimony from these sources is not volunteered in the course of the public testimony, it is imperative that the committee affirmatively solicit it.
Furthermore, I do not believe that this committee should assume the task of passing upon the merits of a plethysmograph/polygraph-based sexual "offender" program or upon the substantive merits of any other programs. I believe that task would better left to a committee composed of individuals possessing the necessary expertise in treatment modalities and approaches and who could devote the time and resources necessary to a thorough review.
Instead, I think the legislature should focus on mandating a process and procedures through which such determinations can be made in the future. It is critical that before a determination is made to place children in any program that the substance of the program be thoroughly reviewed and approved by a panel capable of evaluating its merits. I believe that when such programs are funded at great taxpayer expense, this panel should include both disinterested professionals and community representatives. The legislature should also mandate a regular process for review and monitoring of any programs. The testimony presented thus far has demonstrated that these functions were not performed with respect to substance of the Phoenix Memorial program.
Several of the witnesses before this committee have presented startling figures regarding the high incidence of child sexual abuse and the need for effective interventions. However, recognition that development of programs of treatment for sexual offenders is a compelling need does not mean that this committee or the public should support unproven, unsupervised experimentation on children.
During the past several months, I have worked with the Arizona Civil Liberties Union and have become familiar with several cases involving the Phoenix Memorial program. As a consequence, I have developed serious concerns about the validity of that treatment program and the propriety of its use of the penile plethysmograph and polygraph examinations. I will summarize some of those concerns:
1. Lack of scientific VALIDITY of the penile plethysmograph examinations
Although it is clear that penile plethysmograph testing is widely used in sex offender programs (although not under the extreme circumstances under which it was used in Phoenix Memorial Hospital), there is no consensus in the scientific or legal community that it is a valid predictor of sexual deviancy. See Simon and Shouten, "Plethysmography in the Assessment and Treatment of Sexual Deviance: an Overview", Archives of Sexual Behavior, 1991, pp. 75-91, and cases discussed below. Even putting aside ethical and legal considerations about the efficacy of such intrusive and intimate testing procedures, I think the use of this test presents a serious risk of erroneously labeling an individual as a sexual deviant and subjecting an individual to a course of treatment that is unwarranted, humiliating, and HARMFUL.
Numerous courts have determined that the results of the penile plethysmograph testing to assess sexual deviancy is not accepted as sufficiently reliable to be admitted into evidence in the courts. See Dutchess County v. Mr. G. and Mrs. G., 141 Misc.Zd 641, 534 N.Y.S.Zd 64, 71 (l988) ("the results of the plethysmograph as a predictor of human behavior cannot be considered. The proof establishes that it is not only a device with, at best, questionable professional recognition, but one whose conceded margin of error is too great to reliably forecast [the child's] safety." While the courts note that these devices are widely used in practice, nonetheless the courts find them inadequately reliable to constitute evidence. See California v. John W. 229 Cal.Rptr. 783 (lst D. App. 1986) (". . . there was clearly no acceptable showing that the physical test was a reliable means of diagnosing sexual deviancy. Dr. Walker testified that it is widely used in many diagnostic and treatment centers which involve sexual offenders, but such a statement does not satisfy the 'general acceptance' standard demanded by [the courts]." Id. at 784. S also Flanaqan v. Florida, 586 So.2d 1085 (1991); Cooke v. Naylor, 573 A.Zd 376 (Me. 1990); Nelson v. Jones, 781 P.Zd 964 (Ala. 1989). The courts have been similarly unreceptive to polygraph evidence also finding that it lacks sufficient reliability to be probative. State v. Valdez, 371 P.Zd 894 (Ariz. 1962).
The use of penile plethysmography with juveniles is particularly lacking in scientific support. Dr. Judith Becker in her testimony before this committee and before the Board of Psychologist Examiners candidly acknowledged that there is no normative data regarding the plethysmograph with juveniles and that, in the absence of empirical studies regarding a treatment strategy for juveniles, "any and all work with children [would be] experimental." Before the Board of Psychologist Examiners she also acknowledged that there was no scientific basis for the use of aversion therapy with children. ALL of the witnesses who testified before this committee acknowledged that there are no follow-up studies indicating that this treatment is effective and not harmful. This lack of scientific basis for the aversion therapy program is confirmed by psychologist James Selkin, Ph.D., whose statement and curriculum vitae are attached. Dr. Selkin is a peer reviewer for the American Psychological Association.
In light of this verified lack of evidence regarding effectiveness, I believe it is inappropriate for the State to expend large sums of taxpayer dollars for this controversial treatment and to subject children, under court authority, to what can only be categorized as research.
2. This type of treatment is potentially harmful
In addition to lacking a scientific basis for the belief that this type of program has a valid application with juveniles, it may affirmatively harm the children. Dr. Otto Bendheim, a Phoenix psychiatrist, has stated in a previous affidavit that because of the unreliability of penile plethysmography and because it involves manipulation of the genitalia and the showing of pornographic materials, it could permanently damage a child's concept of sexuality. He has stated that he believes "it should never be used on children."
Although witnesses on behalf of Phoenix Memorial Hospital suggested that the typical subject was one adjudicated of a serious, violent sexual offense, my information is that this treatment was being much more broadly applied to victims of sexual abuse, as well as perpetrators, and, in at least one instance, to a child where there had not been an adjudication of either. Furthermore, based upon the results the assessment, decisions about a child's future dangerousness have been made and placement decisions to remove the child from the home have been routine. The severity of these consequences demand that such decisions not be based on evidence lacking in firm scientific support.
a. Children who had not been adjudicated of any sexual offense were treated in the program as offenders.
I am aware of instances of children who were victims of sexual abuse being categorized and treated as offenders on the basis of unsubstantiated allegations of sexual misconduct. In at least one instance, a child who was the victim of a severe sexual assault by an adult was categorized and forced to identify as an "offender" even though the child stated that he was a "victim" and wanted to be treated as such. The apparent basis for the offender designation were allegations of consensual sexual contact with peers, not even closely approximating the level of assault to which he had been subjected. Moreover, there were only reports of this sexual misconduct and never any hearings or adjudication of the issue. One can only speculate about the psychological damage inflicted on this child by the insistence that he be forced to identify as an offender.
b. Children were subjected to explicit, pornographic photographs during the plethysmograph testing.
As this committee is well-aware, during the plethysmograph testing children are subjected to nude slides of men, women, and children, including photographs depicting bondage. While the witnesses before this committee defended this practice with the implication that these weren't normal children anyway, I am aware of instances where these photographs were shown to children without a determination that children were exposed to comparable material in the past. As Dr. Becker noted in her testimony before the Board of Psychologist Examiners, there is a danger in exposing children to visual stimuli they might not previously exposed to. Dr. Joseph Geffen, a Tucson psychologist, has noted in previous critique of the program, that through the use of such photographs, a child "could be stimulated by explicit sexual images at a premature age, including images of sexual activities that are illegal and immoral (for example "adolescent bondage"), with an increased risk that he may in the future develop deviant sexual behavior." Dr. Selkin also notes in the attached letter that "[t]here are case reports which have indicated that the stimulus materials used in aversion therapy have triggered instead of extinguished child molesting behavior."
Moreover, I believe that some of the practices at Phoenix Memorial compounded the likelihood that exposure to these stimuli would damage a child. For example, following the plethysmograph testing, the child was informed of the results of the testing by a staff social worker. I am aware of cases where, without any previous indication of bondage experience, children who responded to the "nude adolescent in bondage" photograph were informed of their responsiveness to these photographs -- in essence being told by an adult in authority that they exhibited a deviant sexual interest in bondage. Without data on the responsiveness of "normal children," these children were nonetheless labeled as deviant.
Although the producers of the plethysmograph machine and slide shows now apparently claim that the photographs are obtained with parental consent (!) at nudist camps, previous brochures from Farrall Instruments stated that the photographs were obtained from foreign sources. The brochure itself reads like a pornography catalogue, and depicts very young children (5 years old) not only nude, but bound.
c. Children who were on medications, including prozac, ritalin and mellaril, and who were learning disabled were nonetheless subjected to this treatment.
As acknowledged by Dr. Judith Becker in her testimony before the Board of Psychologist Examiners, the penile plethysmograph test could be harmful to a learning disabled child in that it could damage the child's self-esteem. Presumably, other factors such as whether the child is on medication could affect not only the test results but also the advisability of conducting the examination or any treatment.
d. There are serious concerns that the "consent" obtained for the program was coerced and not informed.
Upon admission into the program, the children were asked to sign a purported consent to treatment. In addition, the child's attorney, CPS worker, parent or guardian also signed a consent. In many instances, I believe the children and parents were coerced into signing the consent by being told that their successful completion of the "program" was a prerequisite to being returned home. Furthermore, I do not believe that children were given the opportunity to revoke consent once admitted to the program -- essentially being forced to continue in this highly intrusive therapy.
Dr. Joseph Geffen noted after his review of documents in one case that:
"It appeared that neither the child nor his parent had any real choice regarding the child's participation in the so-called treatment. There seemed to be a strong element of coercion involved, despite the appearance of consent by the child and his responsible guardian or custodian. Involving a person in any type of treatment which is either aversive or has the potential of being so, is very much frowned upon in our society and is contrary to professional standards of all accepted clinical professions, without at least very elaborate assurances of informed consent. In this particular case, informed consent would have required that the child and his parent and/or guardian be made aware explicitly of several possible harmful and detrimental effects ranging from physical discomfort of using a noxious chemical, to severe emotional trauma, including having sensitized the child to explicit sexual stimuli, including sexual acts which are illegal and immoral, long before he would be expected to have developed the psychological maturity to resist or to cope with these."
I have been informed by some parents that they were not told the specifics of the treatment prior to signing the consent and were not aware of the nature of the plethysmograph testing.
e. Many of the parents of the children in the program are fearful of coming forward to challenge the program because they fear that there will be retaliation against them or their children.
I have been told repeatedly by parents of children who were in the Phoenix Memorial program that they are afraid to come forward with their complaints about the program because they fear retaliation. In at least one instance, a mother's vocal complaints about the program was explicitly cited as evidence that she was not cooperative, and as evidence that her child should not be returned to her. This committee should not draw the conclusion that the absence of people willing to come forward publicly with their criticisms indicates that there are not serious problems with the program -- particularly since I understand there will not be the opportunity for anonymous testimony. Because of the heavy-handed and coercive approach, I personally advised clients not to testify today if they were unable to do so confidentially.
The secrecy which surrounds juvenile court proceedings means that the public has never had the opportunity to scrutinize the actual practice in these facilities. To effectively make any proposals or legislation in this area, the legislature must find a way to obtain access to complete information about the programs. This includes data such as: the source of the referrals; whether there was an adjudication of an offense and, if so, the nature of the offense; the ages and sex of the children referred; the consent procedures, including the options presented and the opportunity to revoke consent; whether the children were medicated or diagnosed with any developmental disability problems; the frequency of the use of restraints on the children; and whether the children manifested expressly or otherwise unwillingness to participate in the program and the program's response to those manifestations.
As all of the experts testified that this type of treatment can not be attempted without, at a minimum, the voluntary cooperation of the subject, one must ask whether such programs are appropriate placements for juveniles who are not in a position to exercise any meaningful choice about where they will be sent.
Thank you for the opportunity to address you on these issues. I appreciate your willingness to explore this very controversial subject and to bring to the forefront the issue of the state's responsibility in the approval and monitoring of children's psychological treatment programs.
RESPECTFULLY SUBMITTED this 16th day of September, 1992