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When a criminal defense lawyer speaks with human sexuality graduate students

Mar 03, 2013 When a criminal defense lawyer speaks with human sexuality graduate students

Last Friday, I returned for my nearly annual invitation to speak with graduate students at George Washington University’s Human Sexuality class. From what I can tell, the fields the students might go into include school counseling, mental hospitals, and private counseling.

I provided this handout of topics that arise in the overlap between criminal defense lawyers, their clients, and psychological professionals. Among topics that students asked to discuss were:

My assertion that America has a bipolar relationship with sex. I first heard that phrase from Adam and Eve’s Phil Harvey when he spoke several years ago at the Cato Institute.

In this bipolarism,  on the one hand, the 1960’s and 1970’s unleashed revolutionary sexual liberation, and the pendulum continues swinging in that direction on balance. On the other hand, Puritanism continues to invade sexual mores in America, including even the criminalization of publicly bared female breasts, while allowing men to bare away, whether attractive or not. . Add to the mix feminists who want to ban adult entertainment versus feminists who oppose such bans. 

The relationship among a criminal defense lawyer, the defendant, and a psychological professional. The ideal psychological professional takes an empathetic approach rather than a paternalistic approach to the client. The psychological professional should be scrupulously honest and meticulous in providing work, including writing an evaluation report and testifying. No expert should write a report until speaking orally with the lawyer, to see what items the lawyer wishes more details on (including backing up a position), and which items the lawyer deems irrelevant and potentially and unnecessarily damaging to the suspect, with the lawyer never putting words in the expert’s mouth.

Expert testimony by psychological professionals. Honor only one’s oath to testify honestly. Do not be wedded to the source that pays for your time (where plenty of psychological professionals work on behalf of the court, prosecutors, and mental hospitals, and not just for criminal defendants in criminal cases). Be fully prepared by remembering the contents of your report and analysis. Experts are not there to protect or burnish their reputations. They should not sweat, lest they wish to discount their hourly rate.

Honesty of lawyers. Lawyers should put their clients ahead of money. That approach actually helps earn more money than doing the opposite. Lawyers need to empathize with and be compassionate for their clients. If a lawyer learns s/he undercharged for a client (for instance, when jury trial covers more days than ever expected), that is a learning experience, but not a reason to give less than first-rate service.

Here are some points I added along the way:

– All defendants are presumed innocent.

– Sex crimes are not monolithic. They range from baring breasts in public, to prostitution, to peeping Tom, to child pornography, to soliciting minors for sexual relations, to having sexual relations with minors, to sexual assault.

– Psychological professionals come in varying levels of quality, with not all using reliable nor useful psychological theories on human behavior, as underlined by Ram Dass’s feeling hypocritical to have expanded his consciousness with his early 1960’s LSD experimentation, without updating the ideas he taught, accordingly.

– Sentencing: When his or her services are used (for bail reviews, negotiations, and any sentencing), the psychological professional is but one component of sentencing. I incorporate the psychological evaluation and progress report — when they are helpful — into my sentencing memorandum and oral sentencing arguments. A persuasive approach for a difficult sex crime sentencing can begin with: "This sentencing is tough for all involved. However, a lengthy sentence will do little help to the defendant, society, and future deterrence, whereby ongoing psychological treatment, a lengthy suspended incarceration sentence, and strict probation conditions will benefit society and the defendant much better in helping avert recidivism with the defendant."

– How do psychological professionals and criminal defense lawyers not go into an emotional tailspin from the many horrid human behaviors and thoughts that they learn about? We cannot just keep it bottled up inside. One approach is to work out these issues with well-done psychodrama, whether directly with our clients, or just with ourselves working with others.

Compassion and empathy are key components to reducing crime, and for lawyers and pscyhological professionals to deal with their clients.

– Here is inspiration to get on and stay on the compassionate and empathetic path:

As Publius Terence said: Homo sum: humani nil a me alienum puto./I am human: nothing human is alien to me. Thich Nhat Hanh takes Publius Terrence a step further in his poem "Please Call Me by My True Names," recognizing that but for his fortune in experience, resources, compassion and wisdom from an early age, he could have become the child raped by a pirate as well as the pirate who raped her, "my heart not yet capable of seeing and loving."

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