I have been practicing criminal law for more than 17 years now.  I was a Special Victims Prosecutor for the Navy and received substantial training for that job.  This was the height of the military’s war on sexual assault.  I have also defended countless military members accused of sex crimes.  Since 2015 I have been practicing criminal defense in private practice.  As a civilian defense attorney, I have handled sex crimes in military, state, and federal courts.

A psycho-sexual evaluation can be a very good defense tool both on the merits (the “guilt phase”) and for sentencing.  In plain language, the goal of psycho-sexual evaluation is to determine whether charges are “this guy’s thing” or whether it was an isolated mistake and whether the individual would be amenable to treatment if there are identified issues.  In other words, does this person have a psychological problem that makes them likely commit a sex offense and thereby increase their chance of recidivism, thus increasing the danger to society and creating a need to protect the community through prison time or supervision?

A psycho-sexual evaluation culminates in a report done by a psychologist with specialized training and experience in sexual behavior.  The evaluation itself is a structured interview and a battery of psychological assessments designed to evaluate sexual interests and sexual behavior.  This includes assessing attraction to minors, family members, and nonconsensual sex.  Sometimes the evaluation is followed by a polygraph to establish that the individual was truthful with the psychologist.

A psycho-sexual evaluation is not helpful where the individual is denying that he ever engaged in the underlying conduct.  For example, in a case of alleged online solicitation of a minor, a psycho-sexual evaluation may be helpful to demonstrate that the defendant never intended to engage in a sexual act with an actual minor.  This may support a defense that the defendant believed that he was communicating with an undercover law enforcement officer the whole time, thereby negating an element of the charged offense.  However, if the individual denies they ever sent the messages to begin with, the psycho-sexual evaluation is not relevant because the defendant’s state of mind is not relevant to the issue of whether the prosecutor has the right person.

A psycho-sexual evaluation can be extremely helpful during pretrial negotiations in a sex crime case.  As explained above, the evaluation can opine as to whether the allegation is likely to recur or whether it would be considered an isolated incident or outlier behavior.  A defense lawyer can use the psycho-sexual evaluation to argue to the prosecutor that the defendant should not be convicted of a sex offense because the requirement to register as a sex offender is not necessary.  If the evaluation determines that the individual is at risk for reoffending, the psychologist normally opines on the individual’s amenability to treatment to minimize this risk.  This can be powerful mitigation evidence during a sentencing hearing to demonstrate that treatment – not prison – is in the best interests of the defendant and the community.

A psycho-sexual evaluation is normally several hours long during a single day.  The individual should be prepared to discuss their sexual history and other private matters openly and honestly.  Any deception can render the evaluation invalid.

In most cases, the evaluation is protected by the attorney-client privilege and will only be disclosed to the prosecution or the court by the defense lawyer in support of plea negotiations or where it will be used at trial or during sentencing proceedings.  If the evaluation is not helpful, it will not be disclosed and there is no obligation by the lawyer or the individual to inform anyone of the evaluation or its findings.

There are certain reasons why an individual should not take a psycho-sexual evaluation.  The primary reason an individual should not take a psycho-sexual evaluation is where there is criminal conduct that could come up during the interview that would result in mandatory reporting by the psychologist to law enforcement.  The common example is where there are unreported instances of child abuse, child sexual abuse, or other nonconsensual sexual misconduct.

If you have been charged with a sex crime such as online solicitation of a minor, sexual abuse of a child, or possession of child pornography, a psycho-sexual evaluation may be an effective defense tool to negotiate a plea agreement to a non-sex offense crime, to rebut the intent necessary for the charged offense, or to mitigate the behavior for sentencing.

Attorney Patrick Korody is an experienced sex crimes attorney.  If you are charged with a military sex crime or a state or federal sex crime in or around Jacksonville, Florida, call Attorney Patrick Korody for a free case evaluation.