Affidavit of Ralph C. Underwager, Ph.D.

Licensed Psychologist


Before me, the undersigned authority, on this day personally appeared Ralph C. Underwager, known to me to be the person whose name is subscribed to the following instrument, and having been duly sworn, upon his oath, deposes and states as follows:

I have prepared this affidavit at the request of _____________________, currently imprisoned at ____________________________. Mr.______ requested that I review a class action suit he has filed entitled ______ v Little, A1-91227 and give an evaluative response based upon my knowledge, training, and experience as a clinical psychologist with considerable experience in forensic psychology.

I. (Updated bibliographic information establishing expertise and base for opinion is added when needed.)

II. The class action filed by Mr. ______ appears to be concerned with a requirement that some prison inmates participate in a treatment program for sex offenders. If the inmates refuse to participate in the treatment program they appear to be exposed to various sanctions, consequences, and threats. It also appears that the treatment program requires an admission of guilt as part of the therapeutic regimen and imposes contingencies such as no visitation with a child until there is an admission of guilt.

III. There is no scientific data supporting the therapeutic efficacy of requiring an admission of guilt. This is a purely moralistic concept that imposes on the prisoner a hidden personal value choice made by the treatment staff. A review of the scientific literature dealing with this issue demonstrates a significant and broad body of professional opinion that, in fact, such imposition of the moralism of the treatment program is counter therapeutic and prevents healing and positive changes for the persons subjected to such a treatment requirement (Levine & Doherty,1991; Wakefield & Underwager, 1991).

III. There is no justification for requiring such an admission of guilt in order to benefit from therapy. No therapeutic theory requires the schizophrenics to admit they are crazy before they are given treatment. In fact, to do so, would undoubtedly result in very few schizophrenics getting therapy and a rather large number of therapists being exposed to indignation and incredulity. The studies of therapeutic programs that include such sanctions and requirements show there is very little therapeutic effect and the programs cannot be regarded as successful. The research that shows the methods of therapy that are effective and succeed in reducing recidivism are those that do not require an admission of guilt but proceed along individualized, behavioral, and cognitive directions (Laws, 1989: Wakefield & Underwager, 1991).

Requiring an admission of guilt is to require repentance. There is nothing in the training of any mental health professional that qualifies them as either capable of discerning proper repentance or capable of effective response to repentance. This is the proper province of the church, not the mental health professional nor the state. It is improper and incompetent practice for a mental health professional to require a behavior as part of a treatment regime that is outside the area of training, knowledge, and competence of the mental health professional.

Writing in the American Psychologist, the official journal of the American Psychological Association, Melton and Limber (1989) clearly and unequivocally state that it is unethical for psychologists to be involved in any such program that mixes the roles of therapist and investigator and requires self-incrimination. The American Psychological Association submitted an Amicus Curiae Brief to the Alaska Appellate Court in State v. R, H, (1984) in which the issue was the constitutional privilege against self-incrimination. The Appellate court ruled that the therapist's records were not available and could not be used in court because it would be a violation of Fifth Amendment rights.

Mental health professionals also have an ethical obligation to gain informed consent before providing any service. The ethical obligation includes informing the potential patient of the nature of the intended procedures, their validity, reliability, and possible side effects. Without a patient informed consent, it is unethical for a mental health professional to proceed with a treatment procedure (Gutheil, 1986). If an individual does not want to be in treatment and a doctor wants to give the treatment, this places doctor and patient in an adversarial position that distorts and defeats therapeutic benefit.

IV. Several state appellate and Supreme Courts have ruled that requiring an admission of guilt as a necessary part of a therapeutic program is a violation of the Fifth Amendment rights of citizens (Patton, 1990; Dickson, 1991). The Iowa Court of Appeals ruled in part ( In the interest of A. W., A child, C. W., Mother, and State of Iowa, Appellants. No. 89-1699).

First, if the father did not abuse the child, requiring the father to make an admission would be asking the father to lie and possibly commit perjury. Secondly, the father has constitutional rights against self-incrimination.

The Minnesota Appellate Court ruled that a father cannot be required to admit guilt in order to have visitation restored (Minnesota vs. Wick State of Minnesota Court of Appeals). There really is no dispute in the courts regarding the coercive nature of requiring parents to confess in court ordered or required therapy as a condition of access to a child or retaining parental rights (Patton, 1990). Levine & Doherty (1991) conclude:

The process of forcing an untrue admission violates both human dignity and the integrity of the person. The policies underlying the Fifth Amendment are of concern to psychotherapists as well as the legal profession. The difficulty exists for both therapist and client and needs to be treated sensitively with a concern for both therapeutic interests and legal consequences (p. 110).

V. There is a large body of jurisprudence regarding the right to refuse treatment. Much of this has to do with enforced or coerced treatment with drugs. Nevertheless, the jurisprudence is unanimous and clear on the fundamental right to refuse treatment of a person incarcerated either in a mental hospital or a correctional institution. One of the issues involved in this body of legal scholarship and rulings is the Eighth Amendment prohibition against cruel and unusual punishment (Alexander, 1988). Calling a practice treatment does not preclude examination to determine if it violates the Eighth Amendment prohibition against cruel and unusual punishment. It is the intent, the actual procedure, and the results that are important, not whether the state calls a practice treatment instead of punishment.

VI. There is no scientific basis for requiring either treatment or admission of guilt. There is no possible therapeutic benefit to such coerced behavior. There is a high probability that the procedure of requiring participation in the treatment program under threat of sanctions and requiring an admission of guilt are unethical behaviors for the treatment staff. There are serious questions of infringement of constitutional rights guaranteed in the Fifth and Eighth Amendments. Mr. Ehl's class action suit should be given serious consideration and careful appraisal. The issues raised are significant and of importance to the liberty interests of all citizens.

I declare the foregoing is true and correct.

Further your affiant saith not.

____________________________
Ralph Underwager, Ph.D.
Licensed Consulting Psychologist


Subscribed and sworn to before me by Ralph C. Underwager on this _____ day of ___________, 19____, to certify which witness my hand and seal of office.



_________________________________
NOTARY PUBLIC


References

Alexander, R. (1988). Mental health treatment refusal in correctional institutions: A sociological and legal analysis. Journal of Sociology and Social Welfare, 15(3), 83-99.

Dickson, J. (1991). In the Interest of H. R. K. and Due Process: Can a Juvenile Court Terminate Parental Rights Without and Adjudication? Issues in Child Abuse Accusations, V. 3, #4, pp. 204-214.
Gutheil, T. G. (1986). The right to refuse treatment: Paradox, pendulum and the quality of care. Behavioral Sciences & the Law, 4(3), 265-277.

Iowa Court of Appeals. (1990). In the interest of A. W., A child, C. W., Mother, and State of Iowa, Appellants. No. 89-1699.

Laws, D. R., (Ed.), (1989). Relapse Prevention with Sex Offenders. New York: The Guilford Press.

Levine, M., & Doherty, E. (1991). The Fifth Amendment and therapeutic requirements to admit abuse. Criminal Justice and Behavior, 18(1), 98-112.

Minnesota vs. Wick (1988, September 27). State of Minnesota Court of Appeals. Cite as, C2-88-566.

Patton, W.W. (1990). The world where parallel lines converge: The privilege against self-incrimination in concurrent civil and criminal child abuse proceedings. Georgia Law Review, 24, 473-524.

Wakefield, H., & Underwager, R. (1991). Sex offender treatment. Issues In Child Abuse Accusations, 3(1), 7-13.

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