When an accusation of a sexual nature is made – anything from online solicitation of a minor to sexual assault or even continuous sexual assault – we often consider whether completing a psychosexual examination would be beneficial for our client. When a defense attorney refers a client to complete a psychosexual examination, the attorney will take steps to ensure whatever is discussed at the evaluation is protected by attorney-client privilege (unlike psychosexual examinations that are court-ordered). In other words, the results of a psychosexual examination conducted under attorney-client privilege are only shared with the prosecution or the court – if the defense attorney wishes to do so. If for some reason a psychosexual examination is not favorable, the attorney may use it instead to assist the client in getting counseling, which again may positively effect the ultimate outcome of the case.
A lot of thought goes into whether a person should undergo a psychosexual examination, and how the results might benefit a client. For instance, it may be used to show that a client does not have predilection to be attracted to children. It may be used to show the accused has never been a “hands-on” offender. It might be used to show the person is a good candidate for rehabilitation and probation – which can cut significantly against arguments that a prison sentence is appropriate.
A psychosexual evaluation is a battery of examinations that uses scientific methods to evaluate a person’s psychological and sexual functioning. The psychosexual examination evaluates sexual interests to see if there is a deviation from generally accepted sexual behavior, which could be considered abnormal, and if acted-upon, illegal. Examples of such behavior includes an attraction to minors, family members, and nonconsensual sex. The evaluation also helps provide information about an individual’s risk of re-offending and what treatment might be most effective.
Psychosexual evaluations are administered to both juveniles and adults and used in both criminal and civil courtrooms. Other than being used by proactive defense attorneys in criminal cases, evaluations can also be ordered by a judge as a condition of an open plea or after a plea as a condition of probation. Psychosexual examinations are generally administered by mental health professionals, and in some cases evaluations are conducted by probation employees.
Psychosexual evaluations are typically, but not always, divided into four sections: a clinical interview, psychometric tests, a psychological assessment of sexual arousal, and a risk assessment.
The entire evaluation can be completed in roughly six hours but is usually stretched out over the course of an entire day to allow for breaks in between sections. It is unusual for evaluations to spill over into a second day.
Psychosexual evaluations have become a useful tool for criminal defense attorneys, but when requesting this evaluation, but there are also risks. First and foremost, psychosexual evaluations aid during plea negotiations, help determine trial strategies, and can be a significant mitigating factor during sentencing. As an additional perk, if the evaluation is conducted at the request of the client’s defense attorney, then the results of the evaluation are covered under attorney-client privilege. The client, however, does run the risk of further incriminating him or herself in regards to the current allegation or past unreported allegations. The evaluator is required, by law, to report any other cases of sexual abuse, meaning a client who admits to sexually abusing another individual will likely be subject to a new investigation and will run the risk of new additional charges being filed.
You must tell your attorney about any charged or uncharged conduct that could come up in the interview. You should go in prepared to spend at least one full day talking to someone about the most intimate facts about yourself and your thoughts. It is important to be honest, as the evaluations are designed to pick up on deception.
You should also be prepared for rather invasive tests to determine your response to sexual stimuli. The penile plethysmograph, for instance, is a pressure sensitive device that tests for erectile responses. The most beneficial responses are to consensual adult stimulus. Responses to non-adult or non-consensual stimuli are noted. Notably, the lack of a response at all – due to dysfunction, medication, nerves etc. – while not devastating, is typically not looked upon favorably by courts or prosecutors.
Adolescents require psychosexual evaluations when they participate in inappropriate behaviors such as engaging in sexual activity with children who are three or more years younger, family members, non-consenting partners, animals, or individuals who have mental or physical disabilities. Adolescents also require this type of evaluation if they expose themselves or touch others, or if they are found guilty of any sex offense.
Psychosexual evaluations can be an effective tool for providing a scientific basis for determining whether a person is unlikely to reoffend, a person’s likelihood of rehabilitation, and even proclivity for certain types of offenses. It is important that you are open and honest with your attorney in order for them to provide their best recommendation as to whether, and how, you should undergo a psychosexual examination.