TESTING MODES FOR WRONGFUL ALLEGATION OF CHILD SEXUAL ABUSE.

By Kenneth Pangborn

There have been great debates in the "false allegations" community on how these cases are defended. Dr. Ralph Underwager has been very outspoken in his disapproval of the use of the penile Plethysmograph (PPG) as has Private Investigator Alan Cowling. Both have pages on their respective website devoted to the subject outlining all the places it has not been allowed into evidence. Cowling going into great detail on how he uses the Abel screen. (Which has problems of its own.)

Here is what Cowling claims on his website:
In United States v. Powers, 59 F.3d 1460 (4th Cir. 1995), the court excluded the penile Plethysmograph test because it failed to qualify under Daubert's scientific validity prong. The evidence produced at trial clearly showed that these factors weighed against the admission of the penile Plethysmograph test results. First, the Government proffered evidence that the scientific literature addressing penile plethysmography does not regard the test as a valid diagnostic tool because, although useful for treatment of sex offenders, it has no accepted standards in the scientific community. Second, the Government also introduced evidence before the judge that a vast majority of incest offenders who do not admit their guilt show a normal reaction to the test. The Government argues that such false negatives render the test unreliable. The Powers court noted the fact that it was unable to locate any decisions acknowledging the validity of penile plethysmography other than in the treatment and monitoring of sex offenders. See also, Garren v. State, 1996 WL 37987, 220 Ga. App 66, 467 S.E.2d 365 (1996)(sustaining trial court's refusal to admit evidence of test).

The above cases represent some interesting mental gymnastics. On one hand the "government" claims that the device is "useful for the treatment of sex offenders" it has no other uses. Yet the "government" the self same government that claims the device has no validity imposes its use in terms of sentencing, in parole issues, in predicting recidivism, and even in some cases in job screening. The accuracy of the Plethysmograph has yet to be successfully attacked. What is a valid criticism is the lack of uniform standards for interpreting the results, lack of standardized stimuli, and a lack of any form of licensing by the states. The problem isn't with the device itself it is with the idiots who use them. And the same problem exists with the Abel screen. In that anyone who can come up with the money attends a 2 week training course and becomes certified to interpret the results. While the Abel test is scored by the Abel Company in Atlanta, the interpretation is done by those who have purchased the systems from the Abel Company. The problem with the PPG was that Farral Instruments of suburban Omaha, Nebraska also would sell the PPG's they manufactured to anyone, even high school drop outs. The consequence was some very nutty claims made for the machine, because states refused to regulate their use to properly trained psychologists and psychiatrists. Instead every nutty social worker and even police officer was eligible to attend a short course and become "certified" to administer and interpret the test results.

Critics of the PPG claim people can "fake" results. That is true. Some men can suppress erections. Some men can also "pump" to create an erection. The critics of the PPG are generally not people well familiar with the state of the art. Most of the PPG hardware available today are extremely sensitive and the artifacts created by suppression or by coaxing an erection are detectable to the trained operator. Once the attempt to "influence" the results has been made, the test is "invalidated" and becomes useless to the person wishing to prove their innocence. If the person attempts to disengage from evaluation by looking away from the stimuli or closing their eyes, test subjects in the good laboratories are observed by video. Again is they attempt this, the test becomes immediately invalid. There are also several other methods to assure the subjects are actually attending to the stimulus. This will not be commented on here for obvious reasons.

There is a wealth of research proving the validity, "sensitivity, and specificity" of the PPG in sexual deviance evaluations. The Hanson and Bussiere metaanalysis (1996) clearly demonstrated that the PPG is the best instrument available to predict recidivism. There are those who claim that there is a difference between predicting recidivism and answering the question of sexual behavior prior to a conviction. This is a semi-valid point. The difference is, however, limited to understanding that a deviant response by a test subject before a conviction should be regarded with extreme caution. Mere response to a stimuli or lack of a response cannot be taken as the final answer. Just because a person responds to a sexual stimuli does not mean the person will act on that arousal. As part of some PPG evaluations and central to the Abel Screen in ALL cases are stimuli to teen females. Over 95% of the adult males tested show a response to the developed teen age girls, even though they may never have acted sexually with a teen. That is because other factors contribute to human sexual behavior. In locker-room talk, adult males refer to teen age girls as "jail bait" or "San Quentin quail" or say things like "16 will get you 20." Most men can control their behavior and they do not chase after teen age girls. Also using the logic of some that response equates to behavior, you would be required to believe that the adult males are all rapists, that arousal to any woman means they must act on that. Those claims betray a fundamental lack of understanding of sexuality and human behavior.
Most, if not all, of the courts that have reached the issue of the admissibility of penile plethysmography tests have excluded evidence of the tests. See e.g., See, e.g. R.D. v. State, 706 So. 2d 770(Ala. Crim. App. 1997); Nelson v. Jones, 781 P.2d 964 (Alaska 1989) cert. denied, 498 U.S. 810 (1990)(judge sitting as fact finder in family relations matter rightfully gave no weight to penile Plethysmograph evidence as unreliable); People v. Stoll, 49 Cal. 3d 1136, 265 Cal. Rptr. 111, 783 P.2d 698, 713 n. 21 (1989) (dicta); People v. John W., 185 Cal. App. 3d 801, 229 Cal. Rptr. 783, 785 (1st DCA 1986) (defendant failed to establish that the Plethysmograph "was a reliable means of diagnosing sexual deviance" and ruled the test inadmissible). See also In re Mark C. v. San Diego County Dept. of Social Services v. David C. , 7 Cal. App. 4th 433, 445,8 Cal. Rptr. 2d 856 (1992)(penile plethysmography and other test battery excluded); Gentry v. State, 213 Ga. App. 24, 443 S.E.2d 667 (1994); Stowers v. State, 215 Ga. App. 338, 449 S.E.2d 690 (1994); Dutchess Cty. Dept. of Social Services v. Mr. G., 141 Misc.2d 641, 534 N.Y.S.2d 64, 71 (1988) ("the results of the Plethysmograph as a predicator of human behavior cannot be considered"); Cooke v. Naylor, 573 A.2d 376 (Me. 1990); State v. Ambrosia, 67 Ohio App. 3d 552, 587 N.E.2d 892, 899 (1990)(penile plethysmography unreliable in classifying pedophilia); In the Interest of A.V., 849 S.W.2d 393 (Tex. Ct. App. 1993) (proponent of test failed to establish its reliability).
Penile plethysmography cannot meet Daubert's validity or relevance tests because the test results are not generally accepted, are not sufficiently accurate, the test is subject to faking and voluntary control by test subjects, there is no standardized set of stimuli or scoring used by plethysmography experts and the results are not relevant to the question of whether the Defendant is a child molester.

The Plethysmograph on interest in child sexual abuse has been found in some research as to have as much as a 100% specificity and a 94% sensitivity. In scientific terms that is in the same range as DNA evidence. The problems have been that in most of the cases listed above those attempting to utilize the evidence were not properly trained to be able to defend the device, and in the cases where the expert was (Nelson, Ambrosia etc) it was the lawyer who failed his burden to show the test in its proper light.

The real issue is that this debate shows a lack of fundamental understanding of the issues and the science. There is a propensity on the part of many lawyers to become so enamored with science that they want to blaze a trail in the law using it. The PPG is a useful tool, but useful to the expert in forming an opinion. Or more properly in solidifying an opinion they have reached by other means. An unskilled lawyer will place the expert on the stand to prove the Plethysmograph as opposed to getting to the baseline opinion of the expert. If one actually READS the Nelson decision, as an example, the lawyer never got anywhere neat the Doctor's opinion. It was a debacle trying to bring the PPG into the courtroom and make it the issue. The lawyer failed miserably in establishing the doctor's qualifications, instead romancing wildly on the PPG itself and being handily defeated because the attorney tried to prove the point rather than allowing his expert to do so. The client lost his child forever because of that ineptness.

Cowling points out that we have managed to get the PPG "into evidence" but he is only partially correct. We have been able to get the "OPINION" of the expert into evidence. There is a difference here that seems to escape people. I am not sure why it is so hard to grasp. The "tests" are irrelevant. It is the "opinion" of a properly qualified "expert" that is important. The testing merely buttresses the opinion. The tests become mere stage props or very necessary window dressing.

Cowling and Underwager vaunt the Abel Screen. Yet recently the Abel test has come under the self-same attacks as the PPG and more. The problem is that poorly trained evaluators (social workers) cannot adequately defend the test methodology or even explain it. And this problem is compounded with the fact that the actual scoring of the test is done in the Abel Company offices in Atlanta and not by the practitioner, so the results are subjected to "hearsay" objections. A recent Texas case threw out the Abel Screen.

There are many people who attempt to "copy" the A-Team approach, such as prepping clients, accompanying them for testing and the like. Yet they lack sufficient training to understand just what needs to be explained to a client, or how to interpret what they see in the results for legal purposes. Another "consultant" claims that a deviant response means sexual misbehavior is inevitable. Well as already addressed, that is incorrect. Normal adults can, and do conform their responses to those impulses to socially acceptable standards and never act out inappropriately.

In the A-Team program the testing we utilize is comprehensive and not limited to one test. Our clients are subjected to both the PPG and Abel screen unless it is appropriate to do otherwise. As well as being subjected to a Polygraph. In our experience we have noted several cases where a client passed the Abel Screen and yet showed a deviant response on the PPG and confessed to us on a polygraph. There are some troubling indications that the new "probability scales" on the Abel are now going the other direction and showing wholly innocent people to have a high probability of deviant actions. Until this sorts itself out in the coming year, we regard the Abel test with great caution when it is not supported by both the PPG and Polygraph. We continue to use a broad spectrum of written tests as well as the mechanical devices.

The proper expert is important. But having a TEAM that knows the proper use of the information is even more important.

In answer to the critics of the PPG and by extension the A-Team, I leave this with you to judge for yourself.

Steinhauser (1989) called the plethysmograph "the most objective, reliable, and valid means for assessing deviant sexual arousal." The plethysmograph device (called a strain gauge) is a small rubber-like ring which the person places on his penis in total privacy. As a matter of fact, the entire procedure is private and confidential. Each person is fully informed about the procedure, and participation in the assessment is voluntary. The person being assessed will be in a private room. A computer in another room continuously monitors changes in penile circumference indicative of sexual arousal. By presenting the person with different stories or pictures, the computer generates a profile of the person's individual patterns of sexual arousal. This information is very useful for a number of reasons: (1) a valid measure of a person's baseline levels of sexual arousal toward different sexually-oriented stimuli; (2) allows for treatment to focus on specific deviant arousal and behavior (and therefore
maximizing treatment effectiveness); (3) clarification for the person and the treatment team of the person's deviant behavioral patterns; (4) allows for person to lessen his denial; (5) the Plethysmograph measures behavioral change over time to evaluate whether or not treatment is effective; (6) it allows person to validate his own progress in treatment, fostering a sense of hope and accomplishment. Plethysmographic assessment is always used as one part of a complete assessment of sexual behavior. Potential risks associated with this procedure include feeling uncomfortable in the laboratory surroundings, and feelings of anxiousness, nervousness, or feeling angry. Should these reactions happen, the procedure is terminated immediately. The procedure should be fully compliant with the international standards set by ATSA. Let me provide you with further background information regarding the penile
Plethysmograph. The assessment of sexual arousal patterns has become a critical element in the detection and treatment of sexual deviations (Abel & Blanchard, 1976; Alford, Morin, Atkins, & Schoen, 1987; Kelly, 1982; Laws & Marshall, 1991; Marshall, 1973, 1979), and has over its many years of service been an important element of appropriate arousal detection and ultimately public safety. In order for sexual offenders to be properly identified, and once identified appropriately treated and monitored, it is essential to use the best clinical tools at our disposal. If we do not use the best tools we have, public safety is compromised because we may misclassify or misdiagnose paraphilic behavior. Therefore, individuals who are in the community or released back to the community may in fact be at high risk for continued sexually abusive behavior if we do not utilize the
appropriate assessment instruments. While the Plethysmograph cannot prevent the possibility of negative outcomes for sexual offenders and the community, it can certainly minimize these risks because it is one of the most reliable and valid instruments we currently have to assess patterns of sexual arousal that may be consistent with sexually abusive behavior patterns. The Plethysmograph has even been used in the correct diagnosis of sexual dysfunction (Annon, 1975; LoPiccolo & Stock, 1986; LoPiccolo, Stewart, & Watkins, 1972 ).

The Plethysmograph is a very well-researched instrument, and therefore in no professional sense can it or should it be considered "experimental." This is due to a number of factors, such as:
(1) the Plethysmograph has been in use for over 30 years, much longer than other physiological measures such as PET and MRI scans, for example, which as you know are not considered to be experimental;
(2) the Plethysmograph is a very widely used instrument in most states in this country, and has been for quite a long period of time; and
(3) the Plethysmograph is a purely objective measure of sexual arousal and is based upon the principles of male physiology. As a matter of fact, the majority of research on sexual arousal patterns (O'Donohue & Plaud, 1994), has been conducted with sexual offenders. Behavioral researchers such as myself, for example, have examined such issues as the classical conditioning (Plaud & Martini, 1996; Rachman, 1966; Rachman & Hodgson, 1968), operant conditioning (Cliffe & Parry, 1980; Kantorowitz, 1978; Rosen, 1973; Rosen, Shapiro, & Schwartz, 1975), and habituation and spontaneous recovery (Koukounas & Over, 1993; Meuwissen & Over, 1990; O'Donohue & Geer, 1985; O'Donohue & Plaud, 1991; Plaud, Gaither, Amato-Henderson, & Devitt, 1996; Smith & Over, 1987b)
of sexual arousal with human males.The assessment of male sexual arousal patterns was first conducted by Freund (1963), using an instrument which recorded changes in penile volume (phallometry). In this seminal study, Freund was able to correctly classify subjects according to their stated sexual preferences by measuring changes in penile volume in response to stimuli depicting male and female adults and children. Different types of penile circumference gauges (plethysmography) were developed and tested by other researchers (Bancroft, Jones, & Pullan, 1966; Barlow, Becker, Leitenberg, & Agras, 1970; Fisher, Gross, & Zuch, 1965) soon thereafter. Although there has been some debate over which type of measure is superior (Abel & Blanchard, 1976; Langevin, 1989; McAnulty & Adams, 1992; McConaghy, 1989, 1992; Wheeler & Rubin, 1987), most professionals agree that both types are equally effective, and that plethysmography is the most valid approach to measuring sexual arousal. The circumferential measures, however, are currently the most commonly used due to practical concerns they are easier to use and apply and they are more sturdy and reliable (Howes, 1995).

In a review of all of the physiological measures in use over 25 years ago (e.g., skin conductance, heart rate, blood pressure, pupillary responses, and temperature), Zuckerman (1971) concluded that penile erection measures were the most sensitive measures of sexual arousal available. Proulx (1989) asserted that penile responses are the only physiological response which is
specific to sexual arousal in men and can differentiate between sexual arousal and other arousal states such as anger and fear. Thus, many researchers agree that the penile plethysmograph is a reliable and valid means of assessing a male's sexual arousal patterns (Howes, 1995; Maletzky, 1995).

Over the past 30 years, I am confident in reporting to you that the plethysmograph has been validated in clinical settings for the following purposes:

Identification of individuals with excessive arousal to stimuli relating to sexual abuse. It is well documented that there is a strong relationship between a person's patterns of sexual arousal and the probability that they may or will act upon that arousal. An important first step is to have an adequate assessment of a person's unique sexual arousal patterns, which is precisely what the plethysmograph has been developed to detect.

Discernment of a lack of arousal to stimuli of consenting adult interactions. It has also been shown that a lack of sexual arousal to sexually appropriate stimuli (e.g., adults) can contribute to sexually abusive behavior. Again, the plethysmograph can directly assess for this possibility, and treatment regimens can then be developed to address this important factor that would probably go unnoticed if a plethysmographic assessment were not performed.

Determination of specialized treatment alternatives. The plethysmograph can be used to pinpoint with accuracy the specific sexual arousal patterns that need to be a focus of clinical treatment. Without information about an individual's unique patterns of sexual arousal, this can be difficult if not impossible to adequately accomplish.

Reduction of distortions evident in self-report of arousal. Frequently sexual offenders minimize or deny their sexually offensive behaviors and their role in perpetrating sexual offenses. The plethysmograph can serve as a direct and objective measure of sexual arousal patterns which oftentimes can help sexual offenders identify their inappropriate arousal patterns, and stop their pattern of distortions, which is a critical component of clinical treatment.

Evaluation of specialized treatment alternatives (an important component of our program). Again, the plethysmograph can be used to pinpoint arousal patterns which can then be incorporated (and individualized) directly into specialized treatment services.

Studies have shown that the plethysmograph is currently the best information gathering tool that we have, especially when compared with other ways we try to assess sexual offending behaviors, such as clinical interviews, and standardized psychological testing (such as the MMPI-2). In the studies cited above, diagnostic accuracy has been shown to be as high as 90%, and when combined with other approaches even higher. Frenzel and Lang (1989) estimated the reliability of the plethysmograph to be as high as 93%. These data are far superior than any other form of assessment for sexual arousal. Given the importance and potential seriousness of making clinical errors in judgment when sexual offenders are not properly identified (especially to our society), it becomes critical to do the best we can in the assessment of sexual arousal patterns for our patients. The plethysmograph, when properly administered, represents the most reliable and valid approach to assessing patterns of arousal that are central to correct diagnosis and appropriate treatment.