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  • Writer's pictureChris Zachar

Using Sexual Risk Assessments to keep clients out of prison

sexual risk assessment, psychosexual, sentencing, sexual assault
Don't roll the dice: minimize your risk of a prison sentence with a sexual risk assessment

Sexual assault prosecutions are incredibly high-stakes ordeal for any defendant. Many people are sentenced to prison following conviction of sexual assault, and in too many cases a defense attorney does not adequately address a client’s risk to reoffend while negotiating and resolving a case. Experienced criminal defense attorneys frequently recommend that clients participate in a psychosexual examination to help negotiate a good plea agreement or argue against prison during sentencing.

So what is a psychosexual examination?

A psychosexual examination, or sexual risk assessment, is a professional risk & needs assessment conducted by a mental health professional who has been specifically trained to evaluate a client’s risk of committing future sex offenses and whether the client is amenable to treatment in the community. The most highly-qualified evaluators will have a Ph.D. or Doctorate in Psychology and several years of experience evaluating and treating sexual offenders. However, many of the actual treatment providers in the community are therapists with a masters degree.

The psychosexual examination is generally composed of two parts. First is the objective risk assessment test that is administered and scored. The two most commonly used tests are the Static 99/Static 99R & the RRASOR. These tests are validated actuarial instruments designed to generally assess a defendant’s risk of sexually reoffending. The premise is the same as an insurance adjuster relying on grids to come up with a quote for auto insurance, the examinations will note a client’s risk factors and note the percentage of similarly-situated defendants who eventually reoffend. Like any other risk assessment, they aren’t able to predict whether a particular defendant will reoffend; they only compare the defendant to rates of reoffending among similar individuals.

The actuarial assessments rely on static and dynamic risk factors. Static factors are those beyond change. For instance, a client’s age, number of prior offenses, and previous failures on supervision are all static factors. Dynamic factors are those that the client can modify to reduce risk, particularly by agreeing to attend appropriate sex offender, mental health, or substance abuse treatment. This component of the examination is used to identify risk areas, identify the degree of risk, and identify whether a client can be effectively treated in the community. Many first time offenders, young offenders (25 or under), statutory offenders (offenses based solely on age), and intrafamilial offenses (offenses occurring with a family member) tend to score low risk on the Static 99 & RRASOR. Offenses involving the use of force, imprisoned or restrained victims, impaired victims, and multiple victims tend to score high risk.

The second component of a psychosexual examination is the professional interview. This component is significantly more subjective, and consists of a conversation about a client’s background, the offense, and tools available in the community to limit risk in the future. A good evaluator will get to know the client, including any history of trauma or buse in their lives, and explain the offense in context. Good evaluators will use this section of a report to explain and limit any high-risk scores, as well as explain in plain language what treatment needs are available in the community. The total examination takes close to a full day, and most psychologists can score tests and provide a report within six to eight weeks. Experienced criminal defense attorneys will be familiar with the types of risk instruments and which evaluators will be most likely to help a client’s case.

How does a psychosexual examination help my case?

Sex offenses are often high profile & high stakes cases. The media and community tend to pay attention to serious sexual assault prosecutions and judges feel increased pressure to sentence people convicted of serious sex offenses to substantial terms in prison. Effectively arguing for probation or reduced sentences when a client is convicted of a serious sex offense requires objective evidence that a client can be treated in the community.

Two of the primary factors every judge must consider during sentencing is the risk that a client presents to the community, and the client’s potential to be rehabilitated in the community. One obvious benefit of a psychosexual examination is that a defense attorney can objectively show the judge that a client is at low risk to reoffend in the future. A closely related benefit is when an evaluator believes that the client is appropriate for community-based sexual offender treatment. Even when a case receives media attention, judges can point to a favorable sexual risk assessment as public justification for imposing probation rather than a prison sentence.

Without a professional risk assessment, the only information a judge will receive about the client’s risk will often be a probation agent’s subjective opinion as to what the client’s risk is. Spoiler alert: they’re never on a defendant’s side and will almost always recommend prison sentences when a client is convicted of a serious sex offense. For that reason, I almost always recommend a professional risk assessment when a client is at risk of going to prison.

For similar reasons, sexual risk assessments are important tools when negotiating with a prosecutor. In many cases, and particularly with young clients, a sexual risk assessment is a tool that can convince a prosecutor to amend charges so a client does not have to register as a sex offender. Many prosecutors will agree to amend statutory sex offenses to misdemeanors or allow young clients to complete non-criminal diversion agreements if they complete a risk assessment in advance.

What if a risk assessment isn’t favorable?

Psychosexual examinations are almost always completed on behalf of a defense attorney. This means that it is covered by the attorney-client privilege and the report is only given to the defense attorney. In cases where a sexual risk assessment will not help a client, the report stays in the attorney’s file, never to see the light of day.

What if a client admits to committing an offense during the examination? Does the examiner have to report it?

Since risk assessments are conducted at the request of a defense attorney, and normally completed after a client has decided to pursue a plea agreement, mandatory reporting requirements will generally not apply and what is said during an examination remains confidential.

What does something like this cost? Is it worth it?

A thorough examination and report completed by an experienced professional generally costs between $3000.00 and $5000.00. Many examiners will offer a lower rate to clients who are represented by the State Public Defender’s Office. This is understandably a lot of money, but when a client’s freedom is on the line, it’s money well-spent. I don’t recommend psychosexual risk assessments unless I believe it will have a significant impact on keeping a client out of prison, off the sex offender registry, or allow the client to avoid a criminal conviction altogether.

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