Josh Powell last week suffered a setback in his quest to regain custody of his two children from his in-laws, Chuck and Judy Cox.
A Washington state judge ruled the husband of missing West Valley City woman Susan Cox Powell must undergo a psychosexual evaluation by a court-appointed examiner in light of explicit images found on a computer taken from the Powells’ West Valley City home during a 2009 police search.
Pierce County Superior Court Judge Kathryn J. Nelson ruled Charlie, 7, and Braden, 5, should remain with their maternal grandparents until at least the end of July. But what is a psychosexual evaluation and how could its results shape Josh Powell’s future?
"It’s kind of like a sexual profile of the individual. It’s a risk-assessment tool," explained Mary Fan, a law professor at the University of Washington. "In Washington state, you see it in a number of decision points in the court process."
While more commonly used in criminal proceedings where judges must assess how likely a defendant is to reoffend or determine housing and treatment, the evaluations can also be ordered in civil matters.
In Washington, licensed evaluators may examine police reports, child protective services information, criminal correctional history, interviews with the client and his family, and other data. At a minimum, they must address a description of the allegations against a person; a person’s sexual history and preferences; previous attempts to remediate problem behavior; and risk factors that may lead them to repeat problem behavior.
Risk factors can include a person’s stress level, alcohol and drug use, mood, sexual patterns, use of pornography, social and environmental influences, medical history, relationships, employment, education and family history.
Besides undergoing a paper-and-pencil evaluation, Josh Powell may possibly be subjected to a penile plethysmograph — which measures the bloodflow to a penis. The plethysmograph is administered with a strain gauge, which measures an erection response while a person is shown slides and tapes of normal sexual behavior as well as deviant acts.
In the U.S., 58 percent of psychosexual evaluation programs include administering a penile plethysmograph, according to a 2009 survey from the Vermont-based Safer Society titled "Current Practices and Emerging Trends in Sexual Abuser Management." In Washington, penile plethysmographs are a standard part of an evaluation, but not required, said Rebecca Roe, a Seattle attorney whose expertise includes personal injury cases for victims of violent crime and sexual assault.
"It certainly would be in the norm for people to use it. It would be a tool in the toolbox," said Roe.
A polygraph is also part of the psychosexual evaluation in order to determine that a person is being truthful about his or her experiences.
In Josh Powell’s case, he may be questioned about the images found on his computer in West Valley City as well as child pornography police say they found on the computer of his father, Steve. Evaluators can ask questions about other topics to determine whether Josh Powell is fit to care for his children, and that may include his relationship with his wife.
"It may be some providers ask about sexual events in the individual’s life — may ask about use of pornography. Some evaluations may involve questions about potential victims in other cases that have gone unreported," Fan said.
A psychologist who recently evaluated Josh Powell as part of the custody case has recommended the psychosexual evaluation because of the images found at the West Valley City home, which a prosecutor declined to comment on other than saying the images are "not something you would soon forget." Josh Powell’s attorney, Jeff Bassett, has questioned the necessity of the evaluation and said his client denies looking at "kiddie porn." On Friday, Bassett told The Salt Lake Tribune psycho-sexual evaluations are controversial because of how they are conducted.
"I deemed psychosexual evaluations invasive because they lay bare one’s complete sexual history and delve into very intimate issues," Bassett said. "The invasive nature of these evaluations has even been discussed by Washington’s appellate courts, most recently in the case of In the Interest of D.C.-M. For this reason, I urged the court to take a more moderate approach via a polygraph, which was denied."
One Washington Court of Appeals case Bassett referred to examines whether juvenile courts can order a psycho-sexual evaluation in custody proceedings when working at reuniting families. The mother of four daughters argued the evaluation during dependency proceedings violated her due process and privacy rights.
The appeals court sent the mother’s case back to a lower court after deciding that the facts of her case didn’t make it clear as to whether the evaluation was necessary. The court’s opinion makes clear evaluations can be ordered and are warranted in some cases.
Child welfare authorities took custody of the boys on Sept. 22 — the same day Steve Powell was arrested on charges of voyeurism and possession of child pornography. Josh Powell and his sons had been living in Steve Powell’s Puyallup, Wash., home since shortly after their mother’s December 2009 disappearance. After five days in a foster home, the state placed the boys in the Puyallup home of the Coxes.
Attorneys representing the state have argued the removal was warranted because an investigation is ongoing into what, if anything, Josh Powell knew of his father’s activities. They have also cited Josh Powell’s identification by West Valley City detectives as a person of interest in his missing wife’s case.
Josh Powell has denied any role in his wife’s disappearance. Susan Powell was reported missing Dec. 7, 2009. Her husband told police he last saw his wife around midnight, when he put their sons in the family’s minivan and took them on a late-night camping trip in Utah’s west desert.
Bassett said that Powell will continue, as he has from the start, to do whatever is needed to remain in "total compliance and making progress" toward having his children returned.
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