Osborn v. Psychiatric Security Review Board

15 P.3d 80, 171 Or. App. 248, 2000 Ore. App. LEXIS 2003
CourtCourt of Appeals of Oregon
DecidedDecember 6, 2000
Docket89-1033; CA A104726
StatusPublished
Cited by3 cases

This text of 15 P.3d 80 (Osborn v. Psychiatric Security Review Board) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Osborn v. Psychiatric Security Review Board, 15 P.3d 80, 171 Or. App. 248, 2000 Ore. App. LEXIS 2003 (Or. Ct. App. 2000).

Opinion

EDMONDS, P. J.

Petitioner seeks review of an order of the Psychiatric Security Review Board (PSRB) that continued his commitment to the Oregon State Hospital, based on the trial court’s finding that he was guilty except for insanity of sodomy in the first degree and sexual abuse in the first degree. Petitioner argues that the PSRB’s finding that he is presently affected by the mental disease or defect of pedophilia is not supported by substantial evidence. We agree and therefore reverse.

Petitioner’s commitment arose from two incidents in 1989 that involved the same 10-year-old boy. At the time of the offenses, petitioner was 21 years old. After finding him guilty except for insanity, the court committed him to PSRB’s jurisdiction for 25 years. Shortly after his arrival at the Oregon State Hospital, he received an Axis I diagnosis of organic brain syndrome, pedophilia, and borderline intellectual functioning and an Axis II diagnosis of mixed personality disorder.1 Those and subsequent diagnoses were based on the criteria described in the American Psychiatric Association’s Diagnostic and Statistical Manual, edition III-R (DSM III-R).

In June 1994, the PSRB conducted a hearing under ORS 161.341(4),2 at which petitioner sought discharge from [251]*251PSRB jurisdiction on the ground that he was no longer affected by a mental disease or defect. Based on the evidence admitted at that hearing, PSRB, again relying on the criteria of DSM III-R, found that petitioner was affected by the mental disease or disorder of pedophilia and ordered that he remain committed. It did not find that he continued to have an organic brain disorder. On judicial review, the Supreme Court held that, because PSRB adopted the relevant rule before the issuance of DSM III-R, an earlier edition, DSM III, applied to petitioner. It noted that the criteria for pedophilia were different in the two editions and therefore remanded the case to the PSRB to apply the criteria of DSM III. Osborn v. PSRB, 325 Or 135, 143-47, 934 P2d 391 (1997). On remand, the PSRB again found that petitioner is affected by pedophilia and ordered his commitment continued.

Under DSM III, the diagnostic criteria for pedophilia are:

“A. The act or fantasy of engaging in sexual activity with prepubertal children is a repeatedly preferred or exclusive method of achieving sexual excitement.
“B. If the individual is an adult, the prepubertal children are at least ten years younger than the individual. If the individual is a late adolescent, no precise age difference is required, and clinical judgment must take into account the age difference as well as the sexual maturity of the child.”3

On remand, the PSRB made the following findings to support its ultimate finding that petitioner continues to be affected by pedophilia:4

“Exhibit 5 notes that Mr. Osborn indicated during a psychological evaluation performed by Alice Shannon, M.D., that [252]*252all his prior sexually deviant behavior has involved children around the age of 13. He claimed that he set things up so that he can be close to these children. Exhibit 10 indicates that Mr. Osborn was involved in an incident of Attempted Sodomy and Harassment toward a 14-year old boy when he was 19 years of age. Further, the Board found that at the time of the offenses of Sodomy I and Sex Abuse I for which he was placed under the jurisdiction of the Board, Mr. Osborn was 21 years old and the victim of his crimes was at least 10 years younger in that he was a 10-year boy as noted in Exhibit 3. The Board further noted that Dr. Meyer testified that Mr. Osborn has been in the state hospital continuously since his commitment in July of 1989 and thus has had no access to children since that date. However, Exhibit 42 references an incident on the ward during Mr. Osborn’s hospitalization where Mr. Osborn made rude, sarcastic sexual remarks about children. Finally, in his own testimony at the hearing, Mr. Osborn admitted that he was a sex offender of children.”

Substantial evidence exists to support an agency’s findings when “the record, viewed as a whole, would permit a reasonable person to make that finding.” ORS 183.482(8)(c). That standard requires us to consider evidence that detracts from PSRB’s finding as well as evidence that supports it in determining whether the supporting evidence is substantial. Norden v. Water Resources Dept., 329 Or 641, 647-48, 996 P2d 958 (2000); Younger v. City of Portland, 305 Or 346, 356, 752 P2d 262 (1988). As applied to this case, substantial evidence to support the ultimate conclusion that petitioner is presently affected by pedophilia under the criteria of DSM III requires evidence from which it can reasonably be inferred that petitioner was involved with children under circumstances that continue to satisfy the criteria of DSM III. See Drew v. PSRB, 322 Or 491, 499-500, 909 P2d 1211 (1996).

A diagnosis of pedophilia under DSM III, if the person is an adult, requires that the children be both prepubertal and at least ten years younger than the person being diagnosed. DSM III does not expressly define the age of adulthood. However, petitioner points out that the section of DSM III that deals with personality disorders in children and adolescents treats “adult life” as beginning at age 18, which suggests that that age might apply to other references to [253]*253adulthood. In addition, treating age 18 as the beginning of adulthood is consistent with Oregon law, under which the age of majority for an unmarried person is 18. ORS 109.510. See also ORS 419B.005(2) (“child” for purpose of child abuse reporting statutes mean, an unmarried person under 18 years of age); ORS 653.010(5) (“minor” for purposes of the minimum wage laws is a person under the age of 18). Thus, although DSM III could be more specific, the relevant suggestion in it leads to the same result as general Oregon law. We therefore conclude that an “adult” for purposes of a diagnosis of pedophilia is a person 18 years or older. We examine the substantiality of the evidence supporting PSRB’s findings in that light.

According to the record, petitioner first came to the attention of the police as a possible sex offender because of his involvement with a 14-year-old boy in late 1986, when he was 19. Although there are references in the record to other involvements with 13 year olds, the record does not indicate petitioner’s age at the time or whether the children were prepubertal.

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Bluebook (online)
15 P.3d 80, 171 Or. App. 248, 2000 Ore. App. LEXIS 2003, Counsel Stack Legal Research, https://law.counselstack.com/opinion/osborn-v-psychiatric-security-review-board-orctapp-2000.