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Catch-22 and the Static-99

Well, that looks a little better, doesn't it?  There are some things I need to do, like fixing up the blogging links.  I'll explain more about that when I do it.  There's also an ATOM/RSS feature, which allows you to get a feed from this site:  instead of having to check in, you'll get a summary of the posts in Internet Explorer.  Click on the link and do some reading about it if you're interested.  I've started getting feeds from various websites, and it's a pretty cool feature.  Also, beneath each post, you'll see a couple of icons.  The first is a printer; if you click it, you'll be able to print out that particular post.  Handy to have for those "Hey, I've got a case on that very thing" situations.  The second is an email icon, which allows you to email the post to someone else, which is handy to have for those "Hey, you've got a case on this very thing, don't you" situations.

On to the law.  Last week, in State v. Butler, the 8th District handed down a decision affirming the trial court's designation of a defendant as a sexual predator.  Butler had been convicted of rape back in 1987, in which he'd stabbed the victim (and has been in prison since then), and he'd had prior convictions, including one for aggravated robbery.  What apparently most impressed the appellate court (and the trial court as well) was Butler's scores on the Static-99, a test intended to measure the likelihood of sexual reoffending.  Butler graded out at a "39% chance of re-offending in five years, a 45% chance of reoffending in ten years, and a 52% chance of reoffending in fifteen years."  That, combined with Butler's record, his diagnosis of anti-social personality, and the details of the crime, was sufficient to uphold the designation.

Butler's scores on the Static 99 weren't off the charts by any means -- I've seen cases where it's as high as 75% -- but it was enough to put him at a "high" risk of reoffending.  Does that mean that a low score militates against a sexual predator designation? 

Well, as they say in the car rental commercials, "not exactly."  In fact, the 8th District has been almost cavalier in dismissing low scores as irrelevant.  In State v. Ellison, the Static-99 showed the defendant had a low to moderate risk of reoffending, but the court rejected that as an argument against the defendant's being designated a sexual predator:

The court was not obligated to give the psychological report any great weight. The utility of the STATIC-99 evaluation as a diagnostic tool for individual risk assessment is open to question. The evaluation merely performs an actuarial assessment of an offender's chances of reoffending. While actuarial risk assessments are said to outperform clinical risk assessments, actuarial assessments do not, and cannot, purport to make a prediction of a particular offender's future conduct. In fact, the use of an actuarial assessment could arguably be at odds with Ohio's statutory scheme.  RC 2950.01(E) and 2950.09(B) require a determination that the offender is likely to engage in the future in one or more sexually oriented offenses. This is an individualized determination for a particular offender. The STATIC-99 cannot purport to make an individualized assessment of future conduct any more than a life expectancy table can provide a accurate prediction of a particular individual's longevity.

The court was even more dismissive a year later in State v. Hornack, where the defendant's Static-99 scores were 6%, 7%, and 7% in the relevant time periods.  Citing Ellison, the court held that "the Static-99 test results are of practically no worth in predicting the risk of sexual recidivism."

That's not to suggest that the Static-99, or any other test, should be determinative.  The facts in Hornack and Ellison were egregious, involving sexual abuse of young children, in Hornack's case his own daughter.  Still, there should be some consistency in how that evidence is treated.  You can't have the courts trumpeting high scores as proof of a likelihood of sexual recidivism, but dismissing low scores as completely irrelevant to the issue.


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