The Oklahoma Survivor's Act is flawed and perverts justice rather than facilitating it. | Guest

The Oklahoma Survivor’s Act proposes to mandate the opportunity of significantly reducing criminal defendants’ sentences, whether current or past, if they can demonstrate they were a “survivor of domestic abuse,” and that the abuse was a substantial contributing factor in causing the commission of the crime.

However, close examination of the bill raises serious concerns. As a forensic psychologist, I don’t have any “dog in the hunt” so to speak. I am often hired by criminal defense attorneys and prosecutors. I have served as a mitigation expert for criminal defendants who killed abusive partners. I understand the role of past abuse when the court determines a sentence; assuming there is legitimate evidence of that abuse. That being said, this legislation is fundamentally flawed, and in my opinion, perverts justice rather than facilitating it. I offer the following points:

First, criminal defendants already have a right to present mitigating evidence at sentencing. While this bill sounds like another opportunity to mitigate responsibility and punishment, it adds an additional element requiring the defendant to establish causation, and if successful, actually lowers the sentencing range of punishment, quite substantially.

Second, the supposed “evidence” which demonstrates domestic violence, such as domestic violence center records and mental health records, are usually based solely on the self-report of the person being interviewed. Such reports rarely consist of objective data. In many forensic examinations, it is not uncommon to discover that defendants weave tales about domestic violence to counselors who are all too eager to label them victims, despite a lack of proof. Therapists and domestic violence counselors play important roles for persons reporting to be victims, but to assume that such records are factual proof that domestic violence took place is a grave mistake.

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Third, this legislation doesn’t even attempt to hide the fact that the proposed evidence could be biased. Under B.2. it even notes that evidence could include information from an “advocate.” Advocates aren’t neutral or objective.

Fourth, this legislation suggests that expert witness testimony about Post-traumatic Stress Disorder (PTSD) may be submitted to the court. The problem with most mental health diagnoses is that they are based almost entirely on self-reported symptoms, and criminal defendants often attempt to fake mental illness to improve their situation. The "Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition" (which is referenced in this legislation) specifically warns clinicians to suspect “malingering” in such cases. Moreover, scientific research in the field of psychology has demonstrated that clinicians are easily fooled. Research dating back to the mid-1990s demonstrated that untrained subjects were able to effectively fake PTSD. Most mental health assessments in Oklahoma do not address the possibility symptoms were faked.

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Finally, one of the primary mantras of the criminal justice reform movement is that “mental health issues” are a main cause of crime. This is an absolute falsehood. The annual violence rate for persons with mental illness is approximately 3%, which is only slightly more than the general population. Communities have been sold on the idea that increasing mental health funding will decrease crime, but it has not. Scientific research has demonstrated that most offenders commit crimes due to “criminogenic factors” (i.e., associating with criminal peers; antisocial personality traits; substance abuse; impulsivity; etc.). Crime is not a “mental health issue.” The “insanity defense” is used in less than 1% of criminal cases.

In summary, although it may be well intentioned, the Oklahoma Survivor’s Act is an invitation for fraud. Criminal defendants are already afforded an opportunity to present mitigating evidence of domestic violence at sentencing.

Shawn Roberson is a forensic psychologist in private practice, a past chairperson of the Oklahoma State Board of Examiners of Psychologists, and has served as an expert in many of Oklahoma’s highest profile criminal cases.

This article originally appeared on Oklahoman: Oklahoma Survivor's Act flawed, can lower sentencing substantially