Risk assessment can be counter-productive to just outcomes for offenders and / or victims

Self Defense is my Risk Management System; Stu Dunn (left), Dean Baines (right)

When it comes to human beings causing psychological or physical harm to one another I find myself sitting in the camp of risk prevention. As a martial artist I promote awareness and a respectful wariness of those demonstrating unusual or even hostile behaviour – a preventative or protective habit – with the back up “risk management system” firmly in place that I call self defence. To illustrate what I mean, a number of years ago a good friend of mine was drunk on his first night in Bangkok and staggered down a dark alley by himself and was subsequently mugged, with thankfully only his pride being hurt. A year or so later another friend of mine who knew about the incident and that I did martial arts asked me; “What would you have done in that situation?” My simple response was; “I wouldn’t have been there,” which really meant – I would not have been drunk in an alley by myself at night in a foreign country. I would have avoided the situational risk. Avoidance of risk – mainly dangerous risk – to me is just plain common sense.

Parents take on risk prevention all the time when it comes to keeping their children safe – often to the ruination of their child’s game – however parents are able to see the bigger safety picture as to what could go wrong with running with scissors or play fighting next to a glass coffee table for example. Based on this need for risk prevention children have no rights in this area, no say, what the parent says goes – much like our legal system. If a child defies their parent, they are normally punished, often be being shut in their room – much like what happens when someone defies the law. However parents and society do not identify raising children in a safe environment as unjust – quite the opposite – parents can be punished if they do not provide this environment and protection as a form of neglect (Stuff.co.nz, 2012). This amateur form of risk prediction is aimed at preventing children from hurting either themselves (e.g. falling from an unsafe structure), someone else (e.g. fighting, pushing, mocking etc) or something else (e.g. mother’s favourite rose bush), and in some cases this may shift into a basic risk management (e.g. the parent knowing their child’s habits and behaviours and proactively avoiding dangerous risky situations).

Now to take a step back and query; if it’s ok to intervene with a child’s risky behaviour and take away their basic freedom and privileges as a form of management and / or punishment, why is there such a debate over the risk of reoffending criminals replacing the importance of the gravity of their crime? In my opinion, most parents would agree with Hudson (2002) that assessing, preventing and managing the dangers that face their children in day to day life vastly outweighs the importance of the child’s rights and freedoms. Perhaps this is because children do not know any better? Maybe they are unaware of the dangers and risks or lack the foresight to predict the harmful path they walk? And this is where the differences between a parent protecting ones child and the legal system denying a convicted child sex offender from parole. The line between risk management and just outcomes becomes cloudy when moral ambiguity such as the battered woman who kills her partner in self defenceis considered – the idea of a just outcome can become extremely subjective. Was the woman a victim or the offender? The rights of each party under these circumstance is gray depending on what angle the torch is shone, for example Natalie Ford stabbed a knife into her partner’s heart as was acquitted (NZ Herald, 2011), whereas Jacqueline Wihongi was found guilty of murdering her boyfriend under potentially similar circumstances (Stuff.co.nz, 2010). And what would you personally do to stop someone who intended on harming yourself or a family member? How would you feel if the person who threatened your family was known to police and had done this before? What if you have children and a known child sex offender was moving into your neighbourhood? It is with this continued theme that that I shall examine the forensic psychology domain of convicted sex offenders and how this contributes to the key debate of risk assessment versus just outcomes.

What role does risk assessment play with just outcomes? Children are often heard claiming injustices while yelling; “It’s not fair,” – I would suggest this also happens in our legal system, and will explore this further by first asking the question; what is risk? I will then continue by defining justice, then conclude with a brief review of opposing opinions on risk management and whether it is counter productive to just outcomes for offenders, as well as victims.

Before looking at risk assessment, it’s best to understand what we mean by risk. Murphy (2002) suggests that as risk can mean different things to different people; its very definition is ambiguous. Combining Murphy (2002) and Mullen’s (2001) descriptions creates a straight forward definition that will be used for this paper: risk in the forensic psychology setting is danger of causing harm to oneself (suicide) and causing injury to another. Following on from this, a risk assessment is an in depth process to determine the likelihood as to whether the subject in question poses any danger to themselves or another if released from incarceration. For example, what are the chances that a convicted child sex offender coming up for parole would reoffend and sexually abuse children again once release. According to Coombes (2012) only a very small percentage of child sex offenders actually reoffend. Heilbrun (1997) suggests that if someone is constantly watched they will be less likely to commit a crime, which can create a self fulfilling cycle – what person would reoffend with the world watching them so closely? However according to Rogers (2000) there could be higher chances of reoffending due to society being extremely unforgiving to offenders – this produces the conditions for recidivism. According to Silver, Mulvey & Monahan (1999) risks of violence and reoffending can also be linked to the environment. Silver et. al discovered a significant coloration of higher risks of violence between with mental patients “concentrated poverty” – a disadvantaged environment which includes high unemployment rates, single parents and low income amongst other factors. This suggests that the environment someone is released into can make a significant difference to predicted violent behaviour.

Rogers (2000) argues that the dynamic (social / modifiable) factors are more important to take into account than a subjects static (individual / unmodifiable) factors due to the protective and preventative aspects of treatments (such as therapies) that still allows a level of personal freedom for the subject. This is backed by Carson (2003) who states that prevention of risk is more important than pathology. Rogers (2000) says that most risk assessments are static heavy, basing the risk of reoffending mainly on a subject’s background, criminal record and history of violence, which can create ethical issues such as impaired personal freedom even when a subject has served their time, and accuracy with a one-size-fits-all base rate approach, amongst other issues.

Heilbrun (1997) suggests that at least two models of risk assessment be employed to decisions where violent risk is a possibility; prediction and management. The main purpose of the prediction model is to establish as precisely as possible the probability of dangerous behaviour within a set timeframe, where the main goal of the management model is to minimalise any chances of this dangerous behaviour from happening at all (Heilbrun, 1997). One of the weaknesses of the management model is the necessity of ongoing monitoring (Heilbrun, 1997), which may be restricted by economic viability or encroach on the rights of the subject being scrutinised.

Risk assessment falls into two categories for consideration; the clinical approach, which is an informed decision based on the history and knowledge of the subject, and an actuarial approach which utilizes previous case studies based on similar circumstances allow a profile to be created (Arrigo & Shipley, 2005). Where on one side Heilbrun (1997) considers the actuarial approach superior in accuracy over the clinical approach, Murphy’s (2002) pro clinical perspective is based upon the actuarial approach being too ambiguous and doesn’t actually empower the preventative measures that can be attained through therapeutic dialogue accessed through the clinical approach. Murphy (2002) uses examples such as turning a subject’s hatred into understanding and paranoia into idealization through clinical discussion. Heilbrun (1997) does suggest however that merging the actuarial and clinical processes could reduce risk through enhanced decision making and a working partnership between the clinician and subject; making the basis for his prediction and management models. I personally wonder whether the general push for harsher sentences and the imposing restrictions from the actuarial risk assessment process (Arrigo & Shipley, 2005) is driven by a combination of society’s thirst for blame and the  punishment of who is blamed (Hudson, 2002; Mullen, 2001) and the economic benefits of not providing therapeutic jurisprudence. It seems that predicting whether someone will be a dangerous risk – no matter the level of accuracy in the process – holds more weight in court than proactive counter measures such as ongoing therapy sessions once someone is released (Arrigo & Shipley, 2005). Forensic clinicians are experts on danger (Murphy, 2002); however they are not fortune tellers. Brookbanks (2002) warns of the lure of anticipatory containment, which sounds just one step away from the Tom Cruise science fiction movie Minority Report, set in a world where people are arrested in advance for crimes they have not just committed – or perhaps even conceived. Hudson (2002) also touches on the issues of potentially locking up dangerous individuals who haven’t actually been convicted. Where does justice lie beneath the politics, necessity of blame and need to punish? With the purpose of risk assessment being to accurately predict the chances of the subject re-offending, harming themselves or someone else, what does risk assessment mean to justice?

Within New Zealand over the last year there have been several occasions of what Hudson (2002) refers to as the culture of blame, where something bad happens (such as the Pike River mining accident where 29 died and the collapse at the CTV building in Christchurch that killed 115 people) and a public witch hunt commences – someone must be blamed, then punished. There appears to be a new definition to describe today’s justice; punishment (Hudson, 2002).

Justice can be described with two principles termed formal and substantive justice. Formal law involves the application of legal rules consistently and fairly, where substantive law involves the best verdicts and solutions for each situation (Hudson, 2002). Hudson (2002, p. 101) describes these two components of justice as being “in some tension with each other”, and Murphy (2002) coming to a similar conclusion between the contradictory pull between therapeutic remedies and the call for less leniency. This could also be explained as rehabilitative (therapeutic / substantive) justice and retributive (less leniency / formal / punishment) justice (Hudson, 2002; Murphy, 2002). In my opinion, even though the rehabilitative model of justice could have longer last positive and preventative results for offenders (Murphy, 2002), society and the offender’s victims are continually demanding harsher punishments (Hudson, 2002).

What does this “gloves off crime control” (Hudson, 2002, p. 85) mean for the offenders, such as the convicted child sex offenders mentioned earlier? They have their name involuntarily added to the public pedophile and sex offender database, which breaches confidentiality and informed consent laws normally extended to citizens (Arrigo & Shipley, 2005). Or does society have a right to know who these people are and where they live? What about the victims of the offenders, what rights do they have in staying anonymous and safe? Do they have the right to know where their offender lives in order to stay away from them? There is a fine line between ethical justice and managing the rights of both the offender and victim.

As mentioned above, forensic clinicians are experts on danger (Murphy, 2002), which puts forensic psychologists and psychiatrists into the role of expert witness to portray their professional belief and risk assessment of certain potentially dangerous individuals – it is often these testimonies that lead to someone being released on parole (Arrigo & Shipley, 2005). Racial ethics and individual rights can be breached with cookie cutting one-size-fits-all monoculturalising where one culture is judged based on the standards of another culture (Durie, 1995), and cultural groups can be automatically disadvantaged with their risk assessments based upon their race alone (Silver et. al, 1999). There is also the chance that lawyers within the court may take, manipulate or generally misused a risk assessment even when it comprises of an attempted collective of unbiased and professional judgment (Rogers, 2000). Arthur Conan Doyle’s character Sherlock Holmes said it best; “Perhaps, when a man has special knowledge and special powers like my own, it rather encourages him to seek a complex explanation when a simpler one is at hand.”

Mullen (2001) warns that important aspects of a subject’s care, personal freedom and rights may be abandoned as part of the obsession with the risk of violence. This shift of slowly stripping the rights from offenders is captured nicely by Murphy (2002) as he quotes Dr Johnson; “He who injures one threatens many,” (Murphy, 2002, p. 175). Does this mindset echo the mindset of the justice system? Images of terrorist attacks come to mind, 911, weapons of mass destruction. The relationship between the fear of risk (which includes the fear of making the wrong decision about risk) versus a just justice (human rights, the same law for everyone) is becoming more strained – and out of the hands of everyone but politicians and the legal system (Murphy, 2002; Mullen, 2001; Rogers, 2000; Hudson, 2002). It would seem then that justice can be quite unjust, for both the offenders and the victims.

Risk assessment has the ability to defy a just justice as justice can be manipulated using risk assessments (Rogers, 2000). The major issue with predictive models is that no model exists “that can predict the future dangerousness with a high degree of certainty” (Arrigo & Shipley, 2005, p. 28).  Knowing there is a lack of accuracy, the predictive model of risk assessment could provide information leading to the release of a subject that has not been rehabilitated and could pose a real threat (to the abused children responsible for their incarceration for example), or it could lead to a fully rehabilitated subject being denied parole for the 3rd time. This could be to the favour of the victims of the sexual abuse or not. On the other hand, the management model may provide more ethical and therapeutic options for the offenders, which could mean that the victims are unsatisfied that the punishment side of justice has waned.

How can there ever be an even ground between rehabilitative and retributive justice, and find a balance between risk aversion and a just justice? One way could be to empower forensic psychologists and lawyers to be able to challenge a judge’s decision from court in a similar manner as academics challenge published papers (Fox, 1997). In the example of an initial conviction, if it was there was the opinion of a sentence being too light or too harsh this would allow a forum to ensure a more just justice, e.g. the general public was quite upset that Ewen Macdonald was found not guilty of murder, therefore a harsher sentence was sought on later vandalism charges (3 News, 2012). Another solution could be to ensure that there are harsher sentences on convicted criminals such as child sex offenders, that is widely known. This way there is no “unjust” treatment of someone convicted – they technically gave up their human rights by committing the offenses in the first place. This does bring up mental health issues, competencies to stand trial and insanity, which would need to be looked at separately (Arrigo & Shipley, 2005). Another solution could be to ensure paroled offenders are released as part of their conditions into a specific environment, as Silver, Mulvey & Monahan (1999) suggest can make a significant difference to predicted violent behaviour. Issues preventing this include the cost of monitoring and enabling the correct environment and continued therapy, as well as the social resistance to rehabilitation.

There needs to be a merging of all applications, applied as well as theoretical, prevention and pathology, dynamic and static, actuarial and clinical, prediction and management, formal and substantive, rehabilitative and retributive (Fox, 1997; Heilbrun, 1997; Hudson, 2002; Carson, 2003). In the current state and power that risk assessment sits, it can act as on over enthusiastic prevention of risk by eliminating any chances of risky behaviour in the first place. Prevention can be achieved through therapy and hard work; however it can also be achieved by locking up any potential threat – no matter the chances. Murphy (2002) suggests that there are already risky people with a variety of mental disorders being left to walk the streets due to staff quickly dumping unsuitable cases and of a hidden agenda for the staff to avoid the pain and horror of being around such violent patients. In my opinion there is a gapping hole in the mental health sector with no one wanting to take ownership and not enough funds to permanently fill the gap – agencies passing the hot potato that is the mental health patient before they get caught holding it when the music stops. Further research needs to be done to investigate just how many “risky citizens” are being set free willing, and compare that to the massive resistance of release of those who could have more hope of rehabilitation within the criminal justice system.

In saying that, I would still not wish to have a convicted child sex offender move in next door to me with my kids. I think the real change begins within the minds of each individual in society.

References

3 News – Ewen Macdonald sentenced to five years in prison. Retrieved September 20, from http://www.3news.co.nz/Ewen-Macdonald-sentenced-to-five-years-in-prison/tabid/423/articleID/269335/Default.aspx

Arrigo, B. A. & Shipley, S. L. (2005). Introduction to Forensic Psychology: Issues and Controversies in Crime and Justice. (2nd ed.). Elsevier Academic Press, Burlington, MA01803, USA.

Brookbanks, W. (2002). Public policy, moral panics and the lure of anticipatory containment. Psychiatry, Psychology and Law, 9, 127-135.

Carson, D. (2003). Psychology and law: A subdiscipline, an interdisciplinary collaboration or a project? In D. Carson & R. Bull (eds.). Handbook of psychology in legal contexts (2nd ed), 1-27. West Sussex: Wiley.

Coombes, L. (2012). 175.309 Forensic Psychology Contact Course. Massy University, NZ.

Durie, E. T. (1995). Justice, biculturalism and the politics of law. In M. Wilson & A. Yeatman (eds.), Justice and identity. Antipodean practices, 33-44. Wellington: Bridget William Books.

Fox, D. (1997). Psychology and law: Justice Diverted. In D. Fox & I. Prilleltensky (eds.). Critical psychology: An introduction, 217-232. London: Sage.

Heilbrun, K. (1997). Prediction versus management models relevant to risk assessment: The importance of legal decision-making context. Law and Human Behaviour, 21, 347-359.

Hudson, B. (2002). Balancing rights and risks: Dilemmas of justice and difference. In N. S. Gray, J. M. Laing & L. Noaks (eds.), Criminal justice, mental health and the politics of risk, 99-122, 233-238. London and Sydney: Cavendish.

Mullen, P. E. (2001). Editorial. The prediction and management of violence. Criminal Behaviour and Mental Health, 11, S73-S76.

Murphy, D. (2002). Risk assessment as collective clinical judgment. Criminal Behaviour and Mental Health, 12, 169-178.

Rogers, R. (2000). The uncritical acceptance of risk assessment in forensic practice. Law and Human Behaviour, 25, 595-605.

Silver, E., Mulvey, E. P. & Monahan, J. (1999). Assessing violence risk among discharged psychiatric patients: Towards an Ecological Approach. Law and Human Behaviour, 23, 237-255.

Stuff.co.nz – Ben Rockhouse, Pike River Coalmine Victim Remembered. Retrieved September 23, from http://www.stuff.co.nz/national/7594491/Pike-River-mine-victim-remembered

Stuff.co.nz – Porirua Father Of Eight Guilty Of Neglect. Retrieved September 23, from http://www.stuff.co.nz/dominion-post/news/porirua/7535721/Father-of-eight-jailed-for-neglect

Stuff.co.nz – Woman found guilty of murdering boyfriend. Retrieved September 23, from http://www.stuff.co.nz/national/crime/3850749/Woman-found-guilty-of-murdering-boyfriend

NZHerald.co.nz – Son’s outrage over murder verdict. Retrieved September 23, from http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10744554

Wikipedia – CTV Building. Retrieved September 23, from http://en.wikipedia.org/wiki/CTV_Building

Wikiquote – Sherlock Holmes. Retrieved September 21, from http://en.wikiquote.org/wiki/Sherlock_Holmes

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About Stu Dunn

I have three major professional areas in my life: Team Dunn Real Estate (Harcourts Real Estate with my beautiful wife Bridget), SDL (Behavioural Science Consulting) and Qian Li Dao Academy NZ (Wing Chun Kung Fu). Stu & Bridget Dunn Real Estate: Providing awesome service and results through our approachable, professional and effective real estate services. http://stubridget.harcourts.co.nz/ SDL: SDL helps our clients to understand non-verbal communication and to avoid deception. We do this by providing online courses, training and specialist advice in areas of behaviour, emotional analysis and detecting deception. Both my wife Bridget and I are also FACS certified. I have also written an International Best Seller, True Lies; A Guide To Reading Faces, Interpreting Body Language & Detecting Deception In The Real World. www.MicroExpressions.co.nz, www.facebook.com/sdlmicroexpressions & www.StuDunn.com Qian Li Dao Academy NZ (Wing Chun Kung Fu): The Wing Chun System, known for its incredible speed, powerful straight punches & Chi Sao (contact reflex training), relies on angling & body mechanics rather than brute force. www.QianLiDao.co.nz
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One Response to Risk assessment can be counter-productive to just outcomes for offenders and / or victims

  1. Pingback: Trained Staff More Effective at Identifying Risky Passengers | The Blog for Stu Dunn

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