Psycho-Sexual Evaluations

In sex cases, it may become necessary or desirable to have a client submit to an evaluation of his sexual profile. This evaluation is required, for example, as a pre-requisite to getting SSOSA or other similar sex offender sentencing alternatives. After a conviction for even a misdemeanor sex offense, the court may order an evaluation and compliance with the recommendations of the evaluator as one of the conditions of probation. And in some cases, a defense lawyer may simply wish to have an evaluation in his back pocket while negotiating with the government in order to provide assurances that a proposed resolution is safe and warranted by professional opinion.

These evaluations are referred to as psycho-sexual evaluations and are conducted by a State licensed mental health professional who is capable of providing sex offender treatment. A psycho-sexual evaluation is a powerful and useful tool for its purposes, but it can also be a dangerous and frightening experience for the unprepared. It's critical that your attorney take the time to explain in advance how the process works, what will be revealed during the evaluation, and how the report will be available to others both inside and outside of the courtroom.

The techniques employed by evaluators vary with each provider, but there are several things in common. There will be a battery of objectively scored tests including standard mental health inventory tests, as well as an extensive discussion of the client's life history, including drug and alcohol usage, family and childhood history, educational history, and - most importantly - sexual history. The client may be asked to provide minute detail about every sexual event ever experienced, and an up-to-the-minute description of how often the client currently masturbates or resorts to pornography. Most critically, the client will be asked about other victims whose cases may have gone unreported. Finally, a routine part of every psycho-sexual evaluation is the administration of a polygraph ("lie detector") test, and one of the questions that will be asked during the polygraph, is whether you have been truthful in all of your answers and revealed everything there is to know.

I have represented clients who were previously represented by attorneys who did not prepare them for the evaluation process and wound up revealing other victims, resulting in additional charges being filed against them! It cannot be overstressed: your attorney must sit down with you in advance of the evaluation and prepare you for what is coming and know how to deal with issues that arise during the process.

An important part of knowing how to manage the process is knowing which evaluators to use. Evaluators vary; some are known to prosecutors and judges and others are not. Some have good reputations and others do not. I work with some evaluators who are happy to provide me with a draft copy of their report in advance of publishing in order to give input into the final report. Other doctors won't give me anything until the report is final and will keep me out of the loop. Obviously, this can make a huge difference both in the impact, as well as the credibility, of the report.

Finally, a note on the privacy associated with psycho-sexual evaluations. Under current law as of the time of this writing, unless ordered sealed by the court, psycho-sexual evaluations filed with the court or given to prosecutors are subject to Public Disclosure Act requests, meaning that any citizen can demand a copy. With the exception of the extraordinary, high-profile cases that occasionally garner media attention, most people will never have to worry about their evaluations winding up in the news. But it should also be noted that any wacko who wanted to, could get your evaluation from public records and post it on their web site. It remains technically possible, even if not likely. Although there is little that can be done to avoid the problem in a system such as ours that demands public accountability and transparency, it is critical that your lawyer be aware of these issues in order to take whatever steps are possible to minimize your public exposure.