Lie Detection and the Law: Torture, Technology and Truth

My latest book, ‘Lie Detection and the Law: Torture, Technology and Truth’ is out now with Routledge (you can buy it on Routledge, on Amazon and you can preview it and buy the ebook on Google Books). It is part of Routledge’s ‘Law, Science and Society‘ series, which is worth taking a look through. 

Chapter 1 outlines an interesting example from the history of the polygraph’s use in criminal investigations, briefly reports on how the device has long suffered from contestation regarding its validity and reliability, before reviewing some key philosophical starting points in understanding lying, and taking some tentative footsteps towards a sociological approach.

Chapter 2 explores the use of torture as a form of lie detection in practices of ‘trial by ordeal’ and in the Elizabethan period before outlining the literature on the emergence of the polygraph machine and the trial by jury in the United States. Together, these threads help describe how conceptualisations of the body and its relation to truth have been invested in lie detection technologies.

Chapter 3 provides an overview of a heuristic often used to explain the legal status of the polygraph machine in US criminal courts, that it is either: inadmissible; admissible with prior-stipulation; or admissible even without prior-stipulation. It then argues that although this is useful, there is a need for greater detail, exploring the tensions and complexity involved in characterising the socio-legal status of the polygraph, which is followed-up in Chapters 4 and 5.

A contemporary polygraph kit

Chapter 4 begins to provide a more detailed picture of how the polygraph machine is challenged and managed within US State Supreme Courts, outlining the ‘exclusionary toolkit’ and how this is used to highlight uncertainties in lie detection research and application.

Chapter 5 extends this analysis by examining how ontological uncertainties in polygraph science and interrogation practices are negotiated in trial settings by reference to broader techno-political currents in the United States. It shows that the ontological connections between body, truth and lying are enacted differently over time in a case study of the Massachusetts State Supreme Court.

Peter Reilly, who was convicted of murdering his mother on the basis of a polygraph-induced confession.

Chapter 6 explains how the polygraph machine is used in police interrogations of criminal suspects and witnesses. It describes in detail the deceptive techniques used by polygraph interrogators to manipulate subjects into confession. The chapter evaluates these techniques in light of the tragic case of Peter Reilly, showing how lie detection practices can bring about false confessions.

Chapter 7 explores the use of the polygraph in the socio-legal periphery of the criminal trial, namely in probation and treatment programmes of sex offenders. It describes the emergence of sex offender polygraph testing in USA and UK, setting this against a background of moral panics in both countries, but also linking it to a longer history of socio-technical practices through which certain groups have been made into subjects of suspicion.

Chapter 8 reviews the ways in which uncertainty in lie detection has figured in its techno-legal configurations within socio-legal situations. It explores the implications of this account for developing a sociological approach to lying, drawing on key insights from Georg Simmel and others, and indicates why these need to be revised to reflect today’s biopolitical schemes of social order, and to address the complex struggles over information and truth in contemporary sociotechnical systems and ‘post-truth’ politics.

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If you’re interested in the book, you might also want to read other posts on lying and lie detection on my blog and some other papers I’ve written on the subject, which you can find on Academia.Edu.

 

Tough on Crime? Lie detector programme for sex offenders doesn’t hold all the answers.

The Coalition has decided to drop the privatisation of polygraph, or ‘lie-detector’ tests for sex offenders. But the continued use of this flawed technology within the probation service is misguided and the whole programme should be scrapped.

Since the Offender Management Act was changed in 2007 to allow for the attachment of a polygraph condition to terms of probation, trials of the device for use with post-conviction sex offenders have been taking place in the Midlands. These concluded in 2012, were reported to be a success by the government and are due to be rolled-out nationally.

However, in scientific and legal communities the polygraph’s validity (whether it can detect lies at all) and its reliability (how regularly is makes an error in categorising truths as lies and vice versa) are highly contested and have been so since its early development at the turn of the 20^th century.

Above all, it is far from clear whether the use of these measures reduce reoffending rates or improve offender rehabilitation outcomes.

The polygraph machine was first adopted in the UK at the peak of a media-provoked cycle of one-upmanship between Labour and the Conservative Party over who could be toughest on crime.

This rhetorical contest has escalated over the last two decades and has always been most vociferous when it focussed on sex offenders – particularly paedophiles.

Tony Blair’s 2005 Labour Party manifesto promised to trial the lie detector for use in the monitoring and treatment of paedophiles post-conviction and thus opened-up the UK to the official use of the device for the first time.

The political justification for their use continues to rely on the idea that parties have to be seen to be being tough, as Justice Minister Jeremy Wright has said, “Introducing lie detector tests, alongside the sex offenders register and close monitoring in the community, will give us one of the toughest approaches in the world to managing this group.”

What about the scientific justification? According to proponents the polygraph works by measuring the concurrence of certain physiological responses (e.g. pulse rate) with deceptive behaviours. The use of the device with sex offenders would be to ensure they are being truthful about their behaviour during probation. However, deception can occur in the absence of these physical responses, and the physical responses can occur in the absence of deception. Moreover, the most extensive US National Academy of Science report on the device concluded that the polygraph’s reliability was flawed as regards its real-world generalizability and that additional basic research was needed.

Scientists involved in the UK trials with sex offenders have conducted research into its efficacy. However, rather than focussing on validity and reliability the research has concentrated on the value of the polygraph as regards the elicitation of ‘clinically significant disclosures’ (CSDs).

Such CSDs are typically used to evaluate the offender’s riskiness, change their treatment strategies or alter their probation conditions.

In this context, the validity of the polygraph is seen to rest not so much whether it can detect lies but whether it can get offenders to make more disclosures about their behaviours. Even if we accept this premise, the question of reliability is still valid: how often does it make mistakes in categorising those disclosures true or false?

The report on the 2012 trial has a worrying feature in this regard. It turns out that the majority of the disclosures are not made during the actual test but in the pre-test interview. As such, the polygraph’s role appears to be less a lie detector and more a threat or method of inducing confessions from offenders.

Reportedly, the use of the test is of value to offender managers because it gives them confidence that offenders are sticking to their probation conditions, discloses risk and allows managers to challenge risk.

Given the focus on numbers of CSDs it seems distinctly unwise to rely on the polygraph as a method for helping to determine risk and of inducing confessions, particularly when many of these disclosures are being made before actually connecting up the device to the offender. As such, a significant risk in adopting the polygraph in this context may be an over-reliance on the veracity of CSDs.

Offenders are likely to be able to manipulate the examination to their own means just as much as managers and examiners are able to use the examination to elicit CSDs.

There is no research at all on strategies the offenders may use to make CSDs in relation to anticipated examinations or during pre- and post-test interviews.

If an offender knows that they have breached the terms of their probation and fear that their examination is going to result in a ‘deception indicated’ result, then they might well offer less significant CSDs in advance of the examination in order to help shape the interpretation of their results.

Furthermore, we don’t have any information on what might happen when an offender has an erroneous result of ‘deception indicated’. When false positives occur, it could be risky for offenders to maintain that they are not lying. If the polygraph is to be believed, this means they are not acting in a trustworthy manner. In line with this suspicion their treatment and probation conditions might be changed. Might offenders provide CSDs that are themselves lies in order to convince the examiner and manager that they are now telling the truth? We have to know a lot more about this technology and how it is used before we trust it to help determine the riskiness of offender behaviours.

Finally, technologies used to manage sexual offenders often leak into other areas and it is possible that polygraphs could in future find use in other contexts of treatment and rehabilitation, particularly if corporations could profit from their adoption.

However, the government’s idea to privatise the probation service has received a poor assessment from its own internal reviews and has been dropped. Instead, the Ministry of Justice plans to go ahead with the programme, but will keep this part of the probation service in-house.

But this doesn’t go far enough. Focussing on how tough the programme is on offenders and on the value of ‘clinically significant disclosures’ papers over the critical question of whether these measures reduce reoffending rates and improve offender’s rehabilitation outcomes.

Ultimately, the safety of children, communities and the offenders themselves will not be improved by increasingly punitive measures if they do not tackle the causes of sexual offending, improve rehabilitation and reduce the rates of sexual offences.

The adoption of technologies that are seen to be tough on offenders should not be an end in themselves.

Risky Bodies and Dangerous Desire [II]

This is part two of some comments on sex offenders and lie detection (part one here). It is also a bit of a promo for my recently published paper on the topic, which you can download here.

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We are in a period in which child sex offences cause moral panics and thus help further the measures we are willing to take in punishing and policing them. Laws are passed under the names of the victims to remind us of the cruel and brutal acts committed against children. The media drives up fear and anger because it sells print, and because they know we need an enemy. The paedophile is now the sexual terrorist – his actions undermine the structural organisation of Western society by explicitly challenging the notion of ‘childhood’. This notion is not simply natural consequence of our biology but an entangling of ‘social’ and ‘material’ phenomena. Amongst a number of other causes of the entrenchment of the notion of the innocent child, was the fact that once we had machines and automation in factories, on farms, etc., we no longer needed children to do hard labour.  The contemporaneous emergence of psychiatry also welcomed a whole host of ways in which adult sexuality was connected to childhood experience, and thus the fracture of innocence became connected to criminal and deviant behaviour in adulthood. This is not to say that our bodies do not change as we grow older or that our emotional ability to manage relationships both sexual and familial does not similarly develop. Instead, it is to point towards the cultural production of a relation between innocence, sex and criminality that underscores the construction of sex offenders as contemporary monsters and underpins media and moral panics.

Against this background, a number of Western strategies of governance in education, sexual health and criminal behaviour can be seen to be geared around securing healthy, happy, playful and above all innocent lives for our children. The corollary of this is the ‘adult’ – the sexually, intellectually, economically mature individual now capable of work, reproduction and decision-making. Challenging the norms of childhood and adulthood, paedophiles are thus not only coded as monstrous because of the acts in which they engage but because their symbolic function is to uphold the binary they seek to destroy. This helps explain our punitive obsession with them and with their bodies. The paedophile is at the far edge in terms of the lengths to which we go to monitor, manage and predict criminal behaviour, and unique in regards to the kinds of treatments and punishments we mete out.

Indeed, current responses to sex offenders are not entirely oriented towards their criminal and violent acts. They also evidence a fear about the offender’s desire itself. In treatment, we don’t just want them to change their behaviours; we want them to change their desires. Practices of role-play, lie detection and plethysmography are sometimes used (particularly in the USA at the moment) to help steer desires towards ‘normal’ objects, both in terms of being age appropriate (not simply above the age of consent, but rather of a ‘normal’ age for the male being treated), sexually conservative (the desires should be quite vanilla) and heteronormative (male-male desire is coded as increased risk).

Is the response to terrible acts of violence that we just accept that because of the crime any punishment, any treatment is justified? Is it a woolly (or worse, ‘suspect’) argument to claim that sex offenders have rights too and that punishing their acts is sensible but changing their desires is not? Trying to put philosophy and politics aside, a pragmatic approach alone tells us that this isn’t a sensible system. If we accept – as we should – that a great many sexual offenders have committed violent and abusive acts against children, and that these should be criminal acts, then we should think pragmatically about how to respond. Whatever notion of punishment or law we wish to adopt, we can probably all agree that we would like to see fewer instances of such abuse. The social isolation of offenders in post-probation settings (named and shamed in the community, on the register, by the media) results in a lifestyle that facilitates further offending. Training the offender’s desires to fit the norms of a sexually conservative society surely only serves to further stigmatise their non-criminal sexual behaviours and desires.

By avoiding offenders and ostracising them we don’t protect children from further suffering, we place them at continued risk, precisely because offenders have no social resources to draw upon in changing behaviours and avoiding risky situations. If the only people who will talk to them are other offenders, it isn’t hard to see how recidivism becomes connected to social factors. The conceptualisation of the offender as monstrous and incurable at the level of desire conflicts with the demands that they change these desires. Orienting treatment using these binaries and norms is an impediment to the development of non-criminal sexual behaviour.

The days of chemical castration aren’t behind us and nor is the use of the polygraph. The recent reports of the ‘success’ of the polygraph trials for use with sex offenders here in the UK are evidence that further measures are consolidating around the criminal act of paedophilia in such a way that it constitutes fundamentally deviant human monsters. Our obsession with the bodies of these offenders comes at the cost of understanding their social practices and, ultimately, at the cost of actually reducing the risk of future criminal acts. We have to stop seeing sex offenders as monstrous and stop panicking about their crimes in order to be more able to respond effectively to them.

Risky Bodies and Dangerous Desire [1]

Part one of two posts (second post here) related to my recently published paper on sex offenders and lie detection.

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We recently had the 100th anniversary of the birth of Alan Turing, mathematician, cryptanalyst, and pioneer of computer science, who was responsible for significant developments in academic spheres but is perhaps best known for his secret work at Bletchley Park. As a gay man living during a period in which homosexuality was a criminal behaviour he lived two secret lives, until he was outed and criminally prosecuted in 1952 for being gay. Forced with a choice between imprisonment and probation, Turing chose probation, the caveat being that he had to undergo chemical castration. The procedure involved injections of the female hormone, oestrogen, leading him to develop breasts and causing Turing’s depression, which ultimately led to his committing suicide using cyanide in 1954, at the age of 42. Much has been written about Turing’s prolific and creative mind, but far less about his criminal body. Recent calls at the University of Manchester and a widely-signed petition have failed to secure an official pardon. The Justice Minister, Lord McNally, commented that Turing, “Was convicted of a crime that now seems barbaric and cruel,” (BBC News 06.02.12) but that it was, nonetheless, a crime at the time. That Turing’s death might have been prevented if we had been more enlightened regarding sexual difference is lamentable, tragic and must certainly serve to remind us of the debt that we must ceaselessly try to repay in establishing universal equality of sexual freedom.

Earlier in the year, news of the results of a round of chemical castrations has been quite different in tone to our mournful celebration of Turing’s centenarian anniversary, different because it wasn’t gay men this time, but paedophiles that were being treated. A pilot experiment conducted at HMP Whatton by Don Grubin, Professor of Forensic Psychiatry at Newcastle University, used anti-androgens as a drug to suppress testosterone production in hopes of reducing sexual desire. Importantly, not all the inmates were treated with these drugs; others took selective serotonin reuptake inhibitors (SSRIs), which are used to treat depression. Also important to note is that the programme was voluntary, and that inmates could – ostensibly – stop taking the drugs at any time they wished.

What motivated the study was the contemporary logic as regards sex offender management: that they are dangerously risky because their desires are fundamentally deviant. The drug treatments therefore, were principally used as a mechanism for reducing desire. As Grubin is quoted in the Huffington Post UK: “The former [anti-androgens] can remove all sexual desire, but in some cases men can still maintain sexual relationships; the latter [SSRIs] reduce the intensity of fantasies and urges, but do not remove sexual drive. In both cases psychological treatment should be provided alongside the medication.”

Thus sex offenders have become caught somewhere between the law and medicine, somewhere between criminal and sick. They are the modern monster. In an interview with BBC News, Grubin is quoted as saying, “You are not giving these drugs to make them safe – you are giving them to lower the risk.” Indeed, because sex offenders are understood to be fundamentally deviant, and abnormal, to be inescapably monstrous, the medical profession have given up hope of a ‘cure’ for paedophilia, and instead understands these offenders in the context of risk management.

Chemical castration and medication are not the only ways that we have found to code, manage and measure the risk of sexual offender’s bodies and desires. Since around the 1980s, the infamous lie detection device, the polygraph machine, has been used in the USA to monitor offenders’ behaviour in post-conviction probation programmes. Checking up on them periodically to ask questions about whether they’ve breached the terms of their probation (Have you have any contact with…?) forms a temporal mode of surveillance, in which the polygraph exam is understood to increase the fear of future discovery. In this respect, we imagine that sex offenders make rational decisions weighing up the costs and benefits of criminal activity in the moment of deviant decision-making.

More confusingly still, the device is being used as part of their therapy, such that the polygraph machine isn’t only for surveillance but for treatment. It becomes part of the ‘containment approach’ to sex offending, in which we have to manage the offender’s risk by knowing as much as possible about his various desires and sexual proclivities. In a sexual history examination the polygraph is used to assess the offender’s habits and fantasies, so that we get information about what he likes to masturbate to, how often, what he thinks about, whether he’s into transvestism, using tools and implements in sex, and a range of other details. All of this is collected to determine his risk in an actuarial manner, coding him with a specific figure and categorising him within various risk levels.

These uses of the polygraph are sometimes supplemented with the penile plethysmograph, a device that measures the tumescence of the penis by use of a rubber ring or a volumetric chamber during exposure to various pornographic (both consensual and non-consensual, adult and under-age) materials. The changes in his penis during this exposure are used as a proxy for his desire and thus feed into determining his riskiness. These examinations, like those of the polygraph, ultimately serve to reinforce the notion that the sex offender is fundamentally different, by showing how his body responds differently and by exploring the fine detail of his sexual imagination.

This isn’t the first time such devices of lie detection and bodily arousal have been used to police sexuality. It should be no surprise that during McCarthyism homosexuals were victimised as being particularly vulnerable to blackmail and as such had to be outed and fired from government. This became known as the ‘Lavender Scare’, the homosexual hue of the communist ‘Red Scare’. Outing homosexuals involved uncovering deception, determined by the body’s responses during interviews with CIA operatives and the ominously titled Miscellaneous ‘M’ Group. In this period it was gay men and women that were the sexual danger, the monster of the times against which sexual normality was defined.

Alan Turing was only one victim of practices targeted at gay people; his suicide just one of the more visible of what must have been a great number of tragedies. As laws changed and homosexuality was de-criminalised, the medical definition of gay people as being sick was similarly removed from the diagnostic manuals and the emphasis of the abnormal category of sexuality shifted towards paedophilia. The various panics around homosexuality and the array of techniques we had developed to police it went along with the shift in target.

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In the next part coming next week I’ll discuss the relationship between these developments and the constitution of childhood. I’ll also briefly explain an alternative approach that has been trialled with sex offenders.