The Assessment of Potential Threat and Future Prediction of Violence: A
Second Look
Joseph A.
Davis 1
Publication Release: Davis, J. A. (2001). The Assessment of Potential
Threat: A Second Look. Journal of Police
and Criminal Psychology. vol. 1, no. 1, pages 1-16. Published through the
Society of Police and Criminal Psychology, San Marcos, Texas. Southwest Texas
State University. Submitted January 2001 for peer review. Accepted April, 2001.
Keywords: threat assessment, dangerousness, prediction, violence,
duty to warn,
Tarasoff, case management,
assault.
Abstract: The assessment of dangerousness is not a diagnosis, but rather a
clinical impression based on the individual's past history of violence and many
other factors. "With regard to the mental state, it has been noted that “the essence of dangerousness appears
to be a paucity of concern for others'" (Roth, 1974). As a subjective opinion, predicting violence
and future dangerousness bears the weight of much scrutiny and due diligence.
Threat assessment evaluations have inherent social and legal ramifications, and
the responsibility must be accepted with the knowledge that accuracy may not
always be achieved. This paper
discusses the various aspects of predicting future violence and dangerousness
and the caveats that come with such tasks.
1.
The author, Joseph A.
Davis is on the part-time faculty in the College of Sciences, Department of
Psychology, California State University at San Diego and adjunct visiting
faculty, USC – School of Public Policy, Center for the Administration of
Justice in Los Angeles. He is a senior
partner with the TAP Group, Inc., the Threat Assessment and Prevention
Group in San Diego, Los Angeles and Long Beach, California and a senior member
of the Stalking Strike Force and Stalking Case Assessment Team (SCAT) with the
San Diego District Attorney’s Office.. Over the past 17 years, Dr. Davis’s
research and teaching interests have focused on public safety,
clinical-forensic psychology, and traumatology. He is the editor of the book
published by CRC Press (July 2001) titled Stalking Crimes and Victim
Protection: Prevention, Intervention, Threat Assessment and Case Management. A
subject matter expert in abnormal psychology, psychopathology, personality
psychology, trauma psychology and psychology-law, Dr. Davis’ applied work
focuses on violence in the workplace, threat assessment and risk management,
trauma prevention, critical incident stress debriefing and intervention, PTSD,
and the crime of stalking.
2.
Special Acknowledgement:
Acknowledgements are provided to my former graduate student in psychology-law,
Sandra Wallace, J.D. for her valuable assistance and support in providing a
literature research for this article and subject matter.
Analogous to the inexactitude by which the human brain
may be understood, the compelling task of predicting violent
behavior or dangerousness cannot be accomplished with empirical
certainty. Behavior, in general, may be defined as an individual's
overt response to his/her environment. Dangerousness is loosely defined as the
potential to commit a physical act of violence upon another person. Since behavior
itself is based upon unquantifiable variables (both
external and internal), the capability of predicting behavior, violent
or otherwise, is necessarily limited. Similarly, the term dangerousness used by
clinicians in diverse settings is, in fact, a vague word for which a definition
has not been codified or standardized for uniform interpretation.
Violence,
as a human predicament, continues to permeate our
society. In the past few decades, victims and law enforcement professionals
have increasingly demanded answers to the cause and deterrence of violence.
While often chiding scholars of the mind (psychologists and psychiatrists) for
their imprecise science, those involved in criminal justice and mental health
nonetheless pass the responsibility of predicting dangerousness to those same
practitioners.
Clinicians,
understandably, find themselves in a quandary. They must consider the
consequences of relying on inconclusive data against the weight of professional
ethics and duty. Clearly, more research and understanding of the violent mind
and its predilections are imperative, as are legislatively enacted standards
for optimum assessment by the clinician. This analysis shall explore the
clinician's role in the prediction of violence, the concept of duty, as well as
discuss the current roadmap to competency in this endeavor.
The Role
of the Evaluator in Threat Assessment
Notwithstanding the imprecise methodology involved,
the concept of dangerousness is well accepted in legal contexts. A
determination of dangerousness constitutes the legal grounds by which an
individual's liberties may be temporarily or permanently deprived. A security
specialist, executive protection professional, behavioral scientist,
criminologist, psychologist or psychiatrist may be called upon to render such a
finding in any one of many areas in which he/she has expertise.
Mental Health and Related Settings
Commitment to mental health facilities is, in most
cases, predicated on a dangerousness factor (i.e., whether a person may be
dangerous to himself or others). Likewise, discharges and passes must meet some
criteria for potential violent behavior. The clinician's worst
nightmare is, of course, to err on the side of liberality, and release a
potentially dangerous individual to the community who does thereafter commit a
violent act.
One well‑known case involved John Hinckley's
requests for unsupervised leaves from St. Elizabeth’s (where
he had been interned subsequent to acquittal by reason of
insanity for the attempted assassination of then‑president Reagan). Dr. Glenn Miller of
that institution determined that Hinckley was sufficiently responsible
to merit the leaves. Failing to account for Hinckley's earlier
correspondences with convicted killers, and other suspicious activities, Dr.
Miller was pressured by public outcry to cancel Hinckley's unescorted
leaves.
In an earlier California case, Phillip Jablonski
was labelled potentially dangerous by a Loma
Linda Veterans Administration Medical Center (VAMC)
psychiatrist. The VAMC psychiatrist,
however, found no legal basis
for committing Jablonski who, in
fact, refused hospitalization. A short time thereafter, Mr. Jablonski
murdered his girlfriend who was preparing to move out of their apartment.
These and countless other less well‑known cases
illustrate the growing need to accurately predict dangerousness and apply a
standard for dealing with potentially violent persons. "Yet several
influential studies conducted in the early 1970s indicate that
mental health professionals might as well consult a medium or draw straws when
it comes to predicting violent behavior" (Bower, 1984). One
might ask whether a trustworthy predictive assessment model can be actually
achieved due to the complex nature of the conduct being examined.
Predicting dangerousness of the criminal, as opposed
to those persons suffering a mental impairment, appears to be an equally
difficult and elusive task. Many correctional personnel, criminologists,
psychologists and psychiatrist forsake caution in hopes of
rehabilitating, heretofore, violent offenders. In these special instances
regarding the correctional population, low recidivism may be viewed as
tantamount to rehabilitation. One problem, of course, is the unreliability
of recidivism measurement. Even if accurate data were available and assuming a
low rate of recidivism, the total number of resultant violent crimes should
serve to nullify justification for early paroles, work releases and furloughs.
Maryland Patuxent Institution became notorious
in the late 1980s for its rehabilitation through psychotherapy. Two
cases in particular showcase the lack of skill employed by clinicians in
predicting dangerousness when granting early releases and paroles. In one case,
James Stavarakas, in jail
for rape, fled a work furlough site and committed another rape. In another, a
released murderer by the name of Willie Horton
terrorized a Maryland couple. Subsequent to these incidents, Patuxent
modified its liberal release programs; however, an increased
ability to accurately predict future violence was not evidenced.
Although no unequivocal standard for predicting dangerousness has emerged, a common
thread does exist. The literature supports the consensus that criminologists,
psychiatrists, psychologists and clinical social workers look for repeated or
recent violent behavior, or verbal threats. A
February 1984 article of the American Journal of Psychiatry reported
that psychiatrists in a particular survey considered patient hostility,
agitation, previous assaultiveness and suspiciousness.
Beyond these general observations, at least two comprehensive approaches have
been developed in order to achieve more accuracy.
An Assessment Model of
Predicting Future Violence
Through considerable research and experience, John Monahan,
Ph.D., a professor of psychology and law at the University of Virginia who is affiliated with the Institute of Law, Psychiatry
and Public Policy located on the grounds of Blue Ridge Memorial Hospital,
devised a questionnaire designed to allow clinicians and threat
evaluators a broader context from which to evaluate potential threats of
violence and future dangerousness (Monahan, 1985).
Clarification of the task serves as the cornerstone of
Monahan's model. Although seemingly elementary, the professional must
discern whether one is really being asked to predict dangerousness (i.e., is it
an issue in the case?). Dr. Robert Sadoff, writing
for the APA Psychiatric News (1987) stated that 11 psychiatrists could not predict future violent behavior
and that courts should not call upon them to do so" (Vatz,
1989).
In spite of this pronouncement, such determinations
must be made frequently in matters of parole, probation, pardons, length of
sentence, civil commitments and in numerous other contexts. Monahan
urges a circumspect approach to prediction of violence.
Beyond the pivotal question of whether a prediction is
being requested, one must then ask for what purpose is the determination being
sought. Apparently, confusion exists at this preliminary juncture. For
instance, many judges surveyed could not articulate the reasons for their
requests for mental health examinations. Clinicians and other related examiners
offer dangerousness predictions where one is often not requested and, further,
fail to respond to issues of competency and responsibility which are the
presenting legal issue at hand. Clearly, it is preferable not to undertake the
task unless it is specified.
Prior to proceeding on a specific request, the
clinician must then pursue an introspective analysis pertaining to his/her own
competency and ethics. Not only must the clinician be confident of his/her
understanding of relevant literature, he/she must consider whether a prediction
would tend to promote social policy better left to the judiciary or
legislature.
A clinician must thoroughly investigate the
circumstances bringing to issue an individual's potential violent behavior.
All parties to the incident should be questioned so as to eliminate possible
inconsistencies. Such factors as provocation, for instance, might tend to dissuade
against future violence.
As discussed earlier, obtaining an individual's
complete history of previous violent behavior is crucial in determining
dangerousness. Monahan advises that, in particular,
one should note the frequency as well as whether the pattern seems to be
escalating or decreasing in nature. Violence may be further analyzed according to type and
location (i.e., domestic abuse, school or bar fights, arson, etc.).
Demographic Variables and Base Rate Behavior
"Statistically, the greatest accuracy is achieved
by designating the smallest
number of persons as likely to commit future
violence" (Roth,
1974). Demographics provide a reliable and generally accessible
guide for determining dangerousness based on statistical data, allowing the
clinician to include or exclude a person from the confines of a group.
Demographic characteristics to be considered are age, sex, I.Q., social class,
education, race, residential and/or employment stability, and history of
substance abuse. A clinician who understands the data will know that age, for
instance, will affect one's determination. Data shows that violence peaks in
the late teens and early 20’s; if the person being evaluated is 40, 50, or 60, this
part of the analysis (in itself) would argue against future violence.
Comparing the base rate of violence of
individuals in the same circumstance as the subject is another crucial device. In
many cases the base rate may be obtained from published, material (i.e.,
hospital records, police reports, etc.). When base rate information is not
available, "we must use our heads" (Monahan, 1985).
It is often necessary to extrapolate by asking why the base rate of violence of
a group similar to the subject should be higher than that of the population at
large (Davis, Siota and Stewart, 1999).
Stress may be defined as an individual's responses and
coping mechanisms relative to the demands of his/her environment. More stress
occurs as the demands ratio increases. Monahan utilizes Dr.
Raymond Novaco's two‑prong approach to further define stress
(i.e., appraisal and expectations). Appraisal refers to cognitive
interpretation of an event. Violent‑prone persons will often view a
seemingly innocuous event as provocative or intentional. Similarly,
expectations of such an individual may result in anger or other inappropriate
emotional arousal when an outcome does not meet those expectations.
Three
primary categories which should concern the clinician are family stressors, peer group stressors,
and employment stressors. The clinician should
carefully investigate appraisal and expectation patterns evolving from these
areas, such as relationship frustrations, friendship disruptions, unemployment,
and the like. One reason for working with a complete history of the person to
be assessed is so that the clinician may compare prior events in which the
subject has reacted violently to the event precipitating the evaluation. A complete history should
include the primary areas of possible stressing contexts (Davis et al, 1999).
When assessing a person’s future violent inclination,
it is important to consider the potential victim pool. Typically, vulnerable
groups such as the elderly or children may be potential targets in many violent
crimes. Women are likely targets for crimes such as rape or other forms of
sexual assault. A review of the subject's history may suggest a narrower group
or, perhaps, identifiable targeted persons who are at risk.
The clinician needs to be aware of
warning signs in the form of fantasy, threats or anger directed at a named
person. An assessment of dangerousness coupled with foreseeability
poses a genuine area of concern for the clinician.
Whether the subject may, in fact, carry out a threat
or act upon the violent impetus depends upon the means available to facilitate
the deed. Survivalist or martial arts training, military
background, including expertise with guns, knives or bombs should be carefully
noted.
Given the guide by Monahan (1985) as a reasonable approach to assessing dangerousness, the clinician having accepted this responsibility must thoroughly review the relevant background material for accuracy. See Table 1.
[Table 1]
Screening Questions for the Threat Assessment Evaluator
1. What events
precipitated the question of the person's potential for violence being raised,
and in what context did these events take place?
2. What are the
person's relevant demographic characteristics?
3. What is the
person's history of violent behavior?
4. What is the
base rate of violent behavior among individuals of this person's
background?
5. What are the
sources of perceived stress in the person's background and current situation?
6. What
cognitive and affective factors indicate that the person may be predisposed to
maladaptively cope with stress in threatening, violent acting out manner?
7. What
cognitive and affective person may be predisposed to nonviolent manner?
8. How
similar are the contexts violent coping mechanisms in which the person likely
will factors indicate that the cope with stress in a in which the person has
used the past to the contexts In function in the future?
9. In particular, who are the likely
(targeted) victims of the person's violent behavior? How available are they?
10. What means
does the person possess to commit acts of violence?
11. Am I giving a
balanced consideration to the factors indicating the absence of violent
behaviors, as well as to the factors indicating its occurrence?
12. Am I giving
adequate attention to what I estimate as the base rate of violent behavior
among persons similarly situated to the person being examined?
13. Other
significant clinical or forensic variables involved in this case?
SOURCE:
Excerpted from Monahan, J. (1985) as published in Ewing, C. P. (ed.) (1985), Forensic Psychology, Psychiatry and the Law, Professional Resources, Florida.
Primarily an approach to
predicting dangerousness in those persons with mental
disorders, risk assessment is an effort to more
effectively balance individual and societal rights. Since the public has
long viewed the mentally disordered as unpredictable and violent prone,
clinicians using the broad criteria of imminence, seriousness and frequency
have been able to commit on those grounds. With those numbers constantly
increasing (nationally, over 300,000 in 1980), mental and public health
professionals seek a more effective means of balancing the rights of all
involved.
This is seen as a step away from the legal concept of
dangerousness to the decision‑making concept of risk. It is a shift from
the one‑time prediction to a focus on the continuing management and
treatment of the mentally ill. In theory, risk assessment is an approach whereby
minimum standards of restriction of the patient will be based on a more
reliable statistical foundation.
In 1989, the John D. and Catherine
T. MacArthur Foundation's Research
Network on Mental Health and the Law comprised of 12 people from the
areas of law, psychiatry, criminology, psychology and sociology studied and
recommended the risk assessment method. Recognizing Monahan's
conclusion that his and other previous methods were inadequate due to marginally
available demographics, overly
restrictive patient samples and lack of research coordination, the MacArthur
Research Network sought to develop markers of risk based on focused research of
a broader sampling.
Five important factors to be tested are as follows:
amount and type of social support available; impulsiveness; reactions to
provocation; empathy; and nature of delusions and hallucinations, if any. The
Network relied on existing tests to assess certain responses, such as anger.
Other research results deemed to be reliable were incorporated (e.g., those
measuring impulsivity). The continuum aspect of the risk assessment
approach considers the changeable nature of risk levels and the importance of
risk management as an integral feature.
As alluded to earlier, a clinician might decline
participating in the determination process on issues which lend themselves to
policy making. Cases requiring the clinician to recommend length of retention,
for instance, should be relegated to decision makers where possible. Similarly,
since dangerousness cannot be measured objectively, requests for the clinician
to establish levels of violence necessary for commitment should be declined or
such aspects severed from the assessment.
Another area of potential ethical conflict for the
clinician lies in matters of confidentiality. The duty of confidentiality is
expressed as an ethical mandate that requires the professional, i.e.,
physician, etc., to hold as sacrosanct all secrets divulged to him/her by the
patient.
There are occasions in which the clinician is compelled to breach confidences in order to protect the
patient or others. The American Psychiatric Association (APA) provides for an
expected and condoned breach in the following situations: without intervention
the individual will probably commit murder or suicide; the individual who is
responsible for many others (such as an airline pilot) shows serious judgment
impairment; in cases of dangerous or contagious disease; and firearm or knife
wounds.
Naturally, arbitrary breaches would discourage
confidences from being divulged and defeat the entire therapy process. "It
is clearly recognized that the very practice of psychiatry vitally depends upon
the reputation in the community that the psychiatrist will not tell" (Slovenko,
1960). However, in predicting dangerousness the conflict suggests, and perhaps
dictates, resolution as set forth in Tarasoff v. Regents of University of California (1976)
131 Cal. Rptr. 14.
This action revolves around the murder of a girl by an
individual who had previously informed his therapist of his intention to kill
her. Mr. Podar had been an outpatient at Cowell Memorial
Hospital at the University of California at Berkeley when he
informed Dr. Moore of his intentions toward an
unnamed but identifiable girl, that being, Tatiana Tarasoff.
Tarasoff’s parents filed suit in the Superior Court of
Alameda
(California) alleging wrongful death due to negligence on the part of Dr. Moore and Cowell Memorial Hospital for failing
to warn their daughter in advance of Mr. Podar’s malicious intentions. The
police who had temporarily detained the man were also named defendants, but the
case against them was later dismissed.
The complaint stated that when a therapist determines
that a patient poses a potential violent threat to a known person or persons, a
professional duty arises to use reasonable care in protecting the
potential victim from the perpetrator. Liability was predicated on two grounds:
failure to warn plaintiffs of the impending danger, and defendant's failure to
effect Mr. Podar's confinement.
Numerous government and civil code sections (e.g.,
Healing Arts and Institutions §46, Negligence §9, Law
Enforcement Officers §17, etc.) contain language imposing a duty of law
enforcement professionals and medical practitioners to warn a foreseeable
victim of impending harm or danger. The concept of reasonable care is a
basic principle upon which standards of professional conduct may be measured.
It derived from a common law duty to act according to the standards imposed by
one's profession, specifically, a duty to warn someone with whom a special
relationship existed. That common law precept has continuously been regenerated
through considerable case law.
In Tarasoff case, that relationship was
clearly established as between Mr. Podar and Dr. Moore. However, the duty was not
limited when only the therapist/patient relationship exists.
In fact,
“there now seems to be sufficient authority to support the conclusion that by entering into a doctor-patient relationship the therapist becomes sufficiently involved to assume some responsibility for the safety, not only of the patient himself, but also of any third person whom the doctor knows to be threatened by the patient” (Fleming & Maximov, 1974).
Physicians, hospitals, and
all those in the medical sciences or healing arts, as are other public
institutions and professionals, are charged with a public interest. More often than not, these moral duties are perceived
as legal duties as well.
Beyond
Tarasoff on
Dangerousness Prediction and Public Policy
The Supreme Court reversed the lower
court's ruling in favor of defendants and ruled
instead that: When a therapist determines, or
pursuant to the standards of his profession should determine, that his patient
presents a serious danger of violence to another, he incurs an obligation to use reasonable care to
protect the intended victim against such danger" (Tarasoff, 1976).
This case illustrates the trend to impose the
additional duty of controlling the conduct of the potentially violent person.
This is, as well, an extension of the common law concept. Courts are
increasingly inclined to expand the definition of special relationship so that
the two‑part duty prevails. This development, of course, greatly
increases the responsibility when predicting dangerousness in that the
clinician may have to consider the affirmative duty to warn and, ultimately, to
control the conduct of another.
Finally,
the clinician must assess the serious consequences of predicting dangerousness
as it may impact the deprivation of an individual's liberty. As mental health
professionals become aware of the ever‑increasing responsibility of
predicting dangerousness, including the expanded duties attached thereto, the
risk of greater numbers being civilly committed is genuine. "Treatment in
exchange for liberty is the logic" (Goldman, 1984).
During
therapy, patients are urged to verbalize their inner feelings and frustrations.
"Since a frequent goal of treatment is to encourage the patient to
discharge suppressed feelings, including aggression and even anger, therapy
often involves a period of increased instability immediately preceding a
breakthrough" (Fleming & Maximov,
1974). Thus, it is the very nature of privilege and confidentiality that may
serve to support a finding of dangerousness, resulting in a person's
involuntary confinement. Rights of the one in most cases do not prevail against
rights of the many. "The protective privilege ends where the public peril
begins" (Tarasoff, 1976). However,
clinicians must carefully consider the effects of long‑term confinement
versus the right to liberty before effecting an indeterminate deprivation.
In light of the landmark Tarasoff decision,
the pursuit of refining the research methods and accuracy in predicting
dangerousness may become a double-edged sword. As a result of
the term, dangerous, left deliberately undefined in statutes, "...
psychiatric judgments are read into law, the psychotherapist's determinations
rarely being challenged in court" (Dershowitz,
1968). In the same vein, it is evident that criminologists, psychologists and
psychiatrists are increasingly heeding society's expectations of duty to the
detriment of client interests.
Conclusion
As the essence of therapists evaluations become more
and more aligned with law enforcement goals and objectives, the tendency to
“over predict” results in a significant threat to a client’s or
patient's constitutional rights. In this sense treatment is synonymous with
punishment, and those patients hoping for a cure or crying for help may be
unduly compromised.
It is, obviously, a much simpler task to identify
conflicting interests than to resolve those interests equitably. It is
resolution, however, that must be attempted. Some theories have emerged in
recent years.
The concept of informed consent arose in the
1972 landmark case of Cobbs v. Grant. This case
involved a doctor/patient relationship, the reference to therapist/patient
included as a logical expansion. Such informed consent would mandate
evidentiary exclusions similar to Miranda
warnings. Applying the concept to the dangerousness issue, clinicians could
implement some countervailing safeguards to the
confidential nature of therapy (i.e., if informed consent is not given by the
patient, the confidences cannot be divulged).
Insofar
as accuracy of prediction, it is abundantly clear that more comprehensive
empirical studies must be undertaken to insure that
statistical data is complete and current. Further safeguards might suggest that
a second clinical impression be obtained prior to recommending confinement. It
is imperative that the courts and legislature assume more responsibility by
framing less vague standards by which the therapist may assess future violent behavior.
"Deference [to therapists] .
. . should not be tolerated, for upon these predictions turn the interests,
even the constitutional rights, of the patient, as well as the interests of the
victim. Perhaps including life itself" (Flaming & Maximov,
1974).
Conversely, therapists should be
well acquainted with prevailing and developing law in the area of dangerousness
prediction and, as well, become attuned to well‑founded dogma in related
fields for possible analogy and practical application. Only if all components
in the dangerousness issue join forces to effect a fair and standardized
structure can protection for the competing and equally important rights and
interests be attained.
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