In their response to my paper (Glaser 2003), Jill Levenson
and David D'Amora have performed a useful service in clarifying many of
the subtle and perplexing ethical issues which make the treatment of sex
offenders such a challenging task. They argue that, in contrast to my own
thesis, traditional codes of ethical practice in the mental health field
(and they specifically cite those formulated by the APA and the NASW) can
provide a relevant and practical framework for ethical decision-making by
therapists dealing with sex offenders. In particular, they provide a very
detailed and thoughtful refutation of six examples provided in my paper
of where treatment programs for such offenders might breach traditional
ethical codes of mental health practice.
When asked to provide a commentary on their response, my initial reaction
was to think of further examples to rebut their views. While this might
have been of some value, there is a risk that it could degenerate into a
series of "yes-it-is-no-it-isn't" declarations on both sides.
Rather, what I would like to do is to discuss in broader terms the reasons
that a new ethical basis for sex offender programs is required and to provide
further clarification of the approach to the problem suggested by therapeutic
jurisprudence.
WHAT IS ETHICAL MENTAL HEALTH PRACTICE?
When mental health clinicians treat sexual offenders, a fundamental ethical
issue is that of whether there is a code of ethics which distinguishes
their practice from codes which might be followed by other professionals
involved with such offenders (e.g. law enforcement officers, legal practitioners,
correctional officers etc.). Indeed, much recent debate has been focused
on whether there is a "unique" ethics for psychiatrists (and,
by implication, other mental health professionals; see Radden 2002, 2004;
also see Crowden 2003, 2004). There seems to be considerable agreement
that mental health ethics emphasizes three issues which are probably not
as prominent in other professional work (and indeed not as salient for
non-mental health helping professionals). These include the features of
the therapeutic relationship (which is the "key ingredient in therapeutic
effectiveness"), the vulnerabilities of the psychiatric patient (including
not only their diminished judgment and autonomy but also the stigma and
exploitation to which they are often exposed), and the "therapeutic
project" (which, at the very least, "seeks to restore some earlier
level of functioning and to relieve debilitating signs and symptoms."
See particularly Radden 2002).
In dealing with these professional challenges, the mental health clinician
has a distinctive (some would say unique) role, which binds them to certain
ethical courses of action more strongly than the general moral precepts
applying to the rest of the community. Health practice in forensic settings
(of which, of course, the treatment of sex offenders is one example) provides
numerous instances of the dilemmas involved and one of these is set out
by Radden herself, even though she muddies the waters somewhat by talking
about the obligation to treat a patient's physical, rather than psychological,
difficulties:
[A] doctor is bound to treat the wounds of a fleeing convict before,
or even instead of, assisting in the convict's capture. Broad-based
morality would dictate that the convict must be caught; professional-role
morality would dictate that he must be treated. (Radden 2004).
In other words, the health practitioner has special moral responsibilities
which extend beyond those of the average citizen. She has to take into
account the "therapeutic" significance of her therapeutic relationship
with the convict, has to give primary consideration to his vulnerability
when treating his wounds, and must do her utmost to provide the best treatment
that she can, even though this may mean that he could successfully escape
lawful arrest.
Moreover, this specific role conferring moral obligations on mental health
clinicians cannot be simply feigned or played out like a soap opera. They
cannot manipulate or deceive clients, particularly clients who, by the
nature of their condition, may have difficulty in distinguishing the genuine
from the fake. Rather, the therapist has to possess certain specific virtues
which enable them to perform their role successfully (to "inhabit",
rather than act, their role). Such virtues include, apart from the traditional
"health care virtues" (such as trustworthiness, honesty, kindness
etc), specifically important virtues in mental health work such as compassion,
humility, fidelity, respect for confidentiality, veracity, prudence, warmth
and sensitivity, and perseverance (Radden 2002).
Herein lies the problem for therapists attempting to provide contemporary
and evidence-based treatment for sex offenders. As I attempted to demonstrate
in my previous paper, the practices followed by these therapists, by their
very nature, cannot conform to these specialized and sometimes very rigorous
ethical rules which appear to be so necessary for mental practitioners
to fulfill their traditional roles. This is, of course, the fundamental
area of disagreement between Levenson and D'Amora and myself, but before
elaborating further, I need to comment on two important points kindly
raised by them.
Firstly, in contrast to the implication in their paper, I am in no way
advocating the abandonment by mental health clinicians of sex offender
treatment programs. As I made very clear in my own paper, there is ample
evidence that mental health clinicians have contributed enormously to
making sex offender treatment programs both more efficacious and more
humane.
A second issue concerns the detailed empirical and clinical data presented
by Levenson and D'Amora to justify, in practical terms, practices such
as the limiting of confidentiality and the preference for involuntary
treatment highlighted in my own paper. I have no quibble with these justifications
and indeed would agree completely with the authors that these practices
are nearly always necessary to achieve a successful outcome, particularly
the reduction of risk to potential victims. However, the point which must
be emphasized here is that the mere fact that an intervention works does
not mean that it can be ethically justified. To take a rather extreme
example, some cultures might deal with stealing behaviors by cutting off
an offender's arms. Objectively, such an intervention could successfully
produce a major reduction in recidivism rates for the normally high-risk
group of property offenders. Yet, there would be obvious ethical concerns
associated with its use. While I am in no way suggesting that the contemporary
practice of sex offender therapists is as draconian as this example, the
point must be made that a clinical intervention cannot be ethically justified
by the fact that it works or even by its widespread use by various practitioners
in the area.
HOW DO SEX OFFENDER PROGRAMMES ETHICALLY BREACH THIS?
To return to the major thesis of this paper: What is it that sex offender
therapists do which so obviously breaches traditional codes of mental
health ethics? A broad answer to this question may be found in the documents
kindly referred to by Levenson and D'Amora (and I apologize for not referring
to them in my own previous paper). These are the Professional Code
of Ethics of the Association for the Treatment of Sexual Abusers (2001a)
and the same Association's "Practice Standards and Guidelines for
Members of the Association for the Treatment of Sexual Abusers" (2001b).
Interestingly enough, the Code of Ethics makes no mention of issues
such as the primary obligation of therapists. However, the "Standards
and Guidelines" state unequivocally as their first "guiding
principle" that:
Community safety takes precedence over other considerations and ultimately
is in the best interests of sexual abusers and their families.
Other important guiding principles include:
- Many sexual abusers will not comply with treatment or supervision
requirements without external motivation. Internal motivation improves
the prognosis for completing a treatment program, but in and of itself
may not be sufficient for treatment engagement and compliance.
- Criminal investigation, prosecution and a court order requiring specialized
sexual abuser treatment are important components of effective intervention
and management …
- members should work co-operatively with probation/parole officers,
child welfare workers, clients' support persons and therapists working
with victims. (ATSA 2001b).
All of these principles clearly state that:
A. "Community Safety" always trumps any other therapeutic
considerations, including respect for an offender's autonomy or personal
opinions. Indeed, with the justification of "community safety",
the therapists can choose to completely ignore these.
B. The therapist is justified in using force ("external motivation")
to make an offender complete a program.
C. The therapist will follow and, if necessary, enforce, the views
of community agencies who may often have no interest in an offender's
welfare (e.g. the police, courts, corrections officers, victims' advocates
and supporters etc.) in order to promote "effective intervention
and management".
Most importantly of all, this disregard for the offender's autonomy and
welfare is not an occasional exception to ethical rules prompted by unusual
or extreme circumstances (such as a dire risk of serious harm to the offender
or someone associated with them) but rather a routine requirement which
is deemed necessary for good treatment practice.
It is obvious that standards and guidelines such as these cannot in any
way be consistent with the ethical mandates for a good mental health clinician
discussed above. The therapeutic relationship is given, at best, a secondary
role in the therapeutic enterprise: coercion and the enforcement of the
therapist's own values are seen as much more important influences. Very
little account is taken of the vulnerability of the "patient"
and indeed there is a requirement for the therapist to administer state-ordered
coercive measures, no matter how oppressive these might be for the individual
offender. Finally, the therapeutic enterprise itself, although admittedly
aiming at restoring some type of "normal" functioning for the
offender, deals with problems that the offender may find neither debilitating
nor maladaptive (even though their behaviors certainly represent a major
risk to vulnerable people in our community).
It is hypocritical to suggest that the ATSA "Standards and Guidelines"
will ultimately promote treatment "in the best interests of sexual
abusers and their families". Cynics could easily argue that if this
is their true aim, then a therapist would also be morally obliged to teach
sex offenders and those associated with them, techniques for avoiding
detection and prosecution of their crimes. Of course, I in no way endorse
such a view but it highlights the mental gymnastics that one has to perform
in order to reach the conclusion that therapists coercively acting as
agents of social control can still see themselves as being primarily interested
in their clients' welfare.
WHAT CAN THERAPISTS DO?
I have already emphasized that the absence of appropriate ethical justifications
for clinical interventions with sex offenders does not mean that they
have to be abandoned. Indeed, as also highlighted in my previous paper,
there are good reasons for mental health clinicians to stay involved in
the field. But any professional group serving the community needs an ethical
code to define standards of conduct for its members and to make those
public, as a demonstration of the commitment it has made to serve the
community in a particular fashion.
The challenge is therefore that of devising ethical precepts which best
apply to the specific (and, some would say, unique) role which sex offender
therapists serve in our community. For the reasons explained above, these
precepts cannot be derived from the elements which are specific or unique
to general mental health practice, precisely because treatment with sex
offenders requires therapists to continuously and actively breach the
guidelines of these more traditional mental health ethical codes.
In my own paper, I proposed a therapeutic jurisprudence approach as an
initial step in formulating guidelines for ethical practice in this area.
The response of Levenson and D'Amora to this suggestion was a quite understandable:
"so what?" and they pointed out that the therapeutic jurisprudence
model is "remarkably similar to existing 'best practice' standards
and ethical guidelines promulgated by ATSA". (In a sense, I take
this as a back-handed compliment because it supports, at least in part,
the point that I have been trying to make, i.e. that therapeutic jurisprudence
offers a more consistent approach than more traditional mental health
ethical codes).
It has to be acknowledged, however, that there has been a gap in my reasoning
here. In particular, I did not specify the broader ethical issues which
therapeutic jurisprudence was more successful, than other approaches,
in addressing.
To do this, we need to refer to our earlier discussion of Radden's thoughts
regarding the virtues characterizing mental health professionals and the
importance of demonstrating those virtues in a sincere and genuine fashion.
As we have seen, Radden warns that feigning traits such as honesty, compassion,
etc. ultimately results in manipulation and deception of the patient and
corruption of the therapist's own character because the patient, due to
their vulnerability in a therapeutic relationship, has less chance of
recognizing the therapist's pretences.
This virtue, i.e. of possessing congruence between one's behaviors and
one's inner thoughts and feelings, of being "true to oneself",
have been labeled as "good faith". Some regard it as being the
"philosophical virtue par excellence" because it characterizes
its possessor as someone who
sets truth above all things, above honor or power, happiness or systems,
and even virtue or love. He would rather know that he is evil than pretend
that he is good; he would rather stare love's absence in the face when
it occurs or his own egoism when it prevails (which is almost always)
than persuade himself falsely that his is loving or generous. (Comte-Sponville
2003:209).
A desire to carry out treatment in good faith underlies most therapeutic
endeavors. Sex offender therapists are no exception and most ethical therapists
will clearly explain to their offender clients such issues as the limits
on confidentiality, the non-voluntary nature of the treatment, the links
between the therapist and corrections authorities etc. But the problem
which remains is that of expectation: despite what the therapist says,
and because they are a mental health clinician or, at the very least,
present themselves as a therapist, it is understandable that the offender/client
will expect them ultimately to give ethical priority to issues such as
the therapeutic relationship, the vulnerability of the client, and the
benefit of therapy for the client as an individual.
Often, of course, there will be little or no conflict between these matters
of ethical concern and other matters for which the therapist is responsible
such as the protection of society and the need to cooperate with agencies
who may have no interest in the client's welfare. However, where there
is such conflict, the therapist has the potential to become as devious
and deceptive (of both self and others) as the client. This deviousness
and deception can take many forms. At a relatively harmless level (for
example), enhancing an offender's self-esteem not only is for his own
benefit but also follows the "hidden agenda" of improving his
ability to deal effectively with high-risk precursors to relapse. More
sinisterly, encouraging an offender to be open and honest about prior
offences (particularly undetected ones) may improve the offender's ability
to trust the therapist, but also promotes self-incrimination which may
ultimately be severely detrimental to him.
In other words, for therapists in sex offender programs, there is frequently
another agenda behind even the most obviously benevolent intervention,
because of the very nature of the conflicting interests which the therapist
has to follow. For even the most congruent and "up-front" therapist,
it may become increasingly difficult to be completely honest with clients
(and indeed with themselves) as to what their true motives are for initiating
particular interventions.
Astute readers will by now have noted that the context of this ethical
discussion is that of virtue ethics, originally formulated by Aristotle
as a response to the perennial question of how people are to lead flourishing
and happy lives. Aristotle proposed that since human beings function best
(and are most characteristically human) when they lead virtuous lives,
then living according to these virtues (some of which Aristotle goes on
to describe in detail) will lead to enjoyment of the "good life".
(Aristotle, Nichomachean Ethics, book 2, chapter 7; Hughes 2001: chapters
3 & 4).
Interestingly enough, this context of virtue ethics has recently been
adopted by Tony Ward when discussing his "good lives" approach
to the rehabilitation of sex offenders. Ward points out that
[when] offenders agree to enter a rehabilitation program, they are
implicitly asking therapists "how can I live my life differently?"
and "how can I be a different kind of person?" This requires
a clinician to offer concrete possibilities for living good or worthwhile
lives, to take into account each individual's abilities, circumstances,
interests and opportunities. (Ward and Stewart 2003).
Ward's approach to rehabilitation interventions, rather than (for example)
emphasizing the situations or things which an offender needs to avoid
or abandon, focuses on alternative ways which they can use to achieve
the "goods" which they are so desperately seeking through their
offending, e.g. intimacy, feelings of power etc.
I personally have some reservations regarding Ward's approach. After all,
even Aristotle, at the end of his huge treatise on ethics, was forced
to admit that many (probably most) people would be too ignorant or unwilling
to recognize the advantages of living a virtuous life and thus would have
to have virtue forced upon them, if necessary by the authority of the
State (Aristotle, Nichomachean Ethics, book X, chapter 9; Glaser 2004.)
Nevertheless, any therapist who is assisting an offender to acquire the
skills which will help them achieve the "good life" without
resorting to criminal activity must offer "concrete possibilities"
(as Ward emphasizes) for them to do so. Importantly therapists must, as
far as possible offer demonstrations in their own interactions with offenders
as to how these possibilities can be realized. Clearly, an offender is
unlikely to abandon the deviousness and self-deception at which so many
sex offenders become so adept, if the therapist, even inadvertently, repeatedly
shows ulterior motives and a lack of congruence in their dealings with
them.
FROM GOOD FAITH TO THERAPEUTIC JURISPRUDENCE
A therapeutic jurisprudence approach, as discussed in my previous paper,
is one answer to the lack of consistency between traditional mental health
codes of practice and the practicalities of treating sex offenders. It
is, as noted there, the "study of the role of the law as a therapeutic
agent" and, in particular, of the influence of the law on emotions
and on psychological well-being (Wexler and Winick 1996: xvii). It does
not mean that a "therapeutic" outcome becomes the law's primary
aim: the perspective of therapeutic jurisprudence on sex offenders, for
example, emphasizes the continuing importance of preserving the civil
and legal rights of individual offenders and, particularly, the avoidance
of unjust outcomes such as overly harsh punishments, even if justified
in the name of "treatment" (Glaser, 2003). Furthermore, therapeutic
jurisprudence explicitly encourages the application of ethics of punishment
rather than those of treatment to the treatment of sex offenders, i.e.
treatment programs, while having their primary aim as the protection of
society, are obliged to cause only the minimum of suffering to the sex
offender necessary to achieve this.
The focus therefore moves away from the ethical areas highlighted in traditional
mental health practice. That is not to say that the issues discussed above
such as the therapeutic relationship, the vulnerability of the client
and the beneficial aims of therapy are not important. However, they are
only conditionally important in so far as consideration of them may reduce
unnecessary suffering and make punishment of the offender both more efficient
and more humane. If, however, society is at risk, then these concerns
will be over-ridden every time.
Therapeutic jurisprudence, therefore, uses its awareness of the law's
effects on an offender's psychological and social functioning in a purely
instrumental fashion. It recognizes that, generally, the protection of
society can be better guaranteed if the offender does not have to sacrifice
too much in their lives to lead a law-abiding lifestyle and, in particular,
that the offender retains, as far as possible, the normal legal rights
and privileges of any other citizen.
But the therapeutic jurisprudence approach is more than just a utilitarian
or instrumental one. As we have already noted, an inviolable principle
espoused by it is that "therapeutic" considerations can never
trump the rule of law. That means that it more closely conforms to the
aim of maintaining good faith in one's dealings with the offender: whatever
happens to an offender, he must be made aware of the nature and consequences
of the decisions being made about him by those making the decisions, e.g.
the police at the time of his arrest, the prosecution when he is brought
to trial, the courts when he is being sentenced, etc. Therapeutic jurisprudence
might advocate that such decisions and such awareness may be rendered
less painful in certain circumstances (through its understanding of the
psychological and social impact of the law). However, it would never condone
the abandonment of such legal safeguards, no matter how "therapeutic"
this might be.
Often, for sex offenders participating in treatment programs, these requirements
for openness, accountability, fairness etc. (i.e. "good faith")
in those making decisions regarding them, present no problems. There are
many cases where the aims of protecting society and ensuring the well-being
of the offender closely coincide. However, there are a number of contentious
or ambiguous cases where the requirement for good faith is hard to fulfill
and these have been discussed above, e.g. the requirement for an offender
to be as honest as possible about previous offending behaviors, which
may result in self-incrimination.
Recent work has demonstrated the value of a therapeutic jurisprudence
approach in making explicit the role of sex offender treatment programs
and, in particular, the loyalties and priorities of the therapists. La
Fond and Winick (2003) have developed a detailed proposal for "sex
offender re-entry courts" as a response to current sentencing practices
for sex offenders such as harsh sentences, indeterminate civil commitment,
or sex offender registration and notification laws, all of which rely
heavily on predictions on future behavior made at a single point in time
which may or may not be accurate. They suggest instead the establishment
of courts which use a risk management approach to determine graduated
release into the community and subsequent long-term supervision and treatment,
using repeatedly up-dated evaluations of risk and the offender's responses
to treatment and supervision measures.
The reader will immediately see that the aim is not primarily that of
more humane treatment of the offender (although this is certainly a welcome
"side-effect"). Rather, it involves a community protection initiative
that
[is] both smart and tough. It strikes an appropriate balance between
enhancing community safety by aggressively monitoring more sex offenders
in the community, while also creating and managing powerful incentives
for sex offenders to invest in rehabilitation, thereby reducing sexual
recidivism and increasing community protection. (La Fond and Winick
2003:320).
The ethical implications of this development are important. Treatment
programs will be specifically linked to a "problem-solving court"
which applies "principles of therapeutic jurisprudence to motivate
sex offenders to deal with their underlying problems and to monitor their
compliance with, and progress in treatment …". The judge becomes
effectively "a member of an interdisciplinary team, in this case
serving as a 're-entry manager' for sex offenders" (La Fond and Winick
2003:314). The offender knows exactly where he stands: Non-compliance
with treatment, inappropriate behaviors and refusal to answer appropriate
questions regarding their activities (for example, during a polygraph
examination) would result inevitably in the use of sanctions by the court.
On the other hand, compliance with treatment, appropriate behaviors and
truthful answering of questions (with the proviso that such answers could
not be used in subsequent probation or parole revocation hearings) would
result in rewards such as increased liberty of movement and more favorable
assessments of risk on offender registration data-bases.
The offender thus has no illusions as to what he is being offered. He
is being given punishment which, to be sure, is hopefully just, humane
and aimed at minimizing the suffering he must undergo. But it is punishment
nevertheless and it is in this light that he is able to see more clearly
the context of "treatment" offered as part of that punishment
regime and the implications of this.
CONCLUSION
I introduced my previous paper with a discussion of the difficulty in
distinguishing "treatment" from punishment. Treatment is aimed
primarily at benefiting an offender, the object of punishment is primarily
to protect society. For many sex offenders, participation in treatment
programs will be mainly a benign experience and, because the avowed aims
of treatment and punishment in their individual cases are very similar,
they will not be too fussed by the ethical commitments of the practitioners
who treat them. Yet in other cases these practitioners will be torn between
their traditional obligations to the offender and their mandated responsibility
to protect society.
Mental health clinicians must continue to be involved in sex offender
treatment programs, because techniques developed by them have been shown
to substantially reduce the risks posed by such offenders to future potential
victims and society in general. However, ethically, the use of such techniques
is no longer treatment, it is punishment, and to confuse the two is both
unethical and dangerous. The mere fact that a treatment technique which
works in treatment settings also works for the purposes of punishment
does not ethically justify its being labeled as "therapeutic"
when it is applied in the process of punishment. Furthermore, sex offenders
who have spent so much of their lives deceiving themselves and others
as to the true nature of, and motives for, their actions, will certainly
derive no inspiration to reform from a therapist who, however inadvertently,
disguises the true reason for the various interventions which they require
sex offenders to undertake.
A therapeutic jurisprudence approach restores the virtue of good faith
to dealings with an offender. The insistence of therapeutic jurisprudence
on the primacy of the rule of law, despite its own emphasis on mitigating
wherever possible, the psychological and social impact of the law on individual
offenders, promotes good faith in our "therapeutic" interactions
with sex offenders. It may well be distressing for an offender to realize
that he will always be required by his therapist to make a sacrifice (often
considerable) of his own well-being for the good of society. However,
he will also be comforted by a recognition that the law will attempt to
ensure that his therapist's demands on him are neither harsh nor disproportionate
and that his therapist's support and assistance arise from a genuine desire
to minimize his suffering to the least extent necessary. For the sex offender
that is better than an erratic and inconsistent trust which can be breached
at any time because of the therapist's conflicting and often-disguised
loyalties.
REFERENCES
Aristotle (1973). Nichomachean Ethics in J. L. Ackrill (ed) Aristotle's
Ethics. London: Faber and Faber
Association for the Treatment of Sexual Abusers (ATSA) (2001a). Professional
Code of Ethics. Beaverton, OR: Author
Association for the Treatment of Sexual Abusers (ATSA) (2001 b). Practice
standards and guidelines for members of the Association for the treatment
of Sexual Abusers. Beaverton, OR
Comte - Sponville A (2003). A short treatise on the great virtues:
The uses of philosophy in everyday life. London: Vintage
Crowden A (2003). Ethically sensitive mental health care: Is there a
need for a unique ethics for psychiatry? Australian and New Zealand
Journal of Psychiatry, 37: 143-149.
Crowden A (2004) The debate continues: unique ethics for psychiatry.
Australian and New Zealand Journal of Psychiatry, 38: 111-
Glaser B. (2003) Therapeutic Jurisprudence: An ethical paradigm for therapists
in sex offender treatment programs. Western Criminology Review
4 (2), 143-154
Glaser B. (2004). Learning morality from Aristotle: What rehabilitation
programmes can (and cannot) teach offenders in Hampel G and Roylance B
(eds) The Greek Conference: Collated Papers (CD). South Melbourne:
The Greek Conference
Hughes G J (2001). Aristotle on Ethics. London: Routledge
La Fond J Q and Winick B J (2003). Sex offender re-entry courts: A cost-effective
proposal for managing sex offender risk in the community. In R A Prentky,
E S Janus and MC Seto (eds) Sexually coercive behaviour: Understanding
and management. New York: New York Academy of Sciences
Radden J (2002) Notes towards a professional ethics for psychiatry. Australian
and New Zealand Journal of Psychiatry. 36: 52-59
Radden J (2004). The debate continues: unique ethics for psychiatry.
Australian and New Zealand Journal of Psychiatry, 38: 115-118
Ward T and Stewart CA (2003) Good lives and the rehabilitation of sex
offenders. In T Ward, D R Laws and S M Hudson (eds) Sexual deviance:
Issues and controversies. Thousand Oaks (Calif). Sage
Wexler D B and Winick B J (1996). Law in a therapeutic Key: Developments
in Therapeutic Jurisprudence. Durham NC: Carolina Academic Press.
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