Illuminating Sociocultural and Ethnocultural Consciousness in Forensic Practice

Origins of the Turn

We are not suggesting that the turn in forensic work has been sudden. A progressive interconnection of social events and life course is recognizable once we pause and reflect on observations and experiences in forensic activity over time. Scholars often note that the debate between Alan Stone⁴ and Paul Appelbaum⁵ was a marker event in the developmental history of forensic psychiatry. The essence of this collegial dispute focused on the ethics contours of forensic work. Stone argued in 1984⁴ that forensic psychiatry practice had little ethics for guidance. Appelbaum⁵ countered in 1997 with the claim that keeping an eye on principles of truth-telling and respect for persons could be a solid reference point for those interested in ethics-based forensic performance. We agree that the main concern of the Stone-Appelbaum debate was focused on the ethics of forensic practice. In retrospect, however, we contend that an equally important side effect emerged: it turned out to be this movement into a broader and deeper interest in the connection between forensic work and the social world.

Much of that started after Griffith⁶ pointed out that the debate was centered on important ethics and philosophical points. The debate ignored the realities of the social world, however, especially those related to the needs of evaluees and forensic professionals from nondominant groups. Griffith emphasized that Stone’s recommendation for removal of forensic experts from the courtroom ignored their potential value for amplifying the voices of nondominant group evaluees, a prerequisite for pursuing justice in American courts. Remember that the 1960s and 1970s had seen fierce demonstrations over the Vietnam War and civil rights. So, ideas about equity, fairness, and justice were brewing, even though they were not central to forensic psychiatry. Focusing on the cultural formulation led to reconsideration of sociocultural experiences and their effects on forensic work.⁶

Candilis and colleagues⁷ joined this discussion and argued that forensic experts had an obligation to take on tasks and functions that would fit into what they called robust professionalism. This argument was the opposite of Stone’s invitation to leave the courtroom. These authors were encouraging forensic specialists to enhance their roles and create authentic narratives that reflected what Norko⁸ would later refer to as bearing witness to the suffering of others. The Candilis group, noting events in the social world, decided that forensic professionals could not be impermeable to the goings-on around them. Forensic evaluators needed to ferret out the effects of sociocultural factors on the evaluees’ lives. Candilis et al.⁷ targeted both the evaluator and evaluee in opening the discussion. We are mindful that other scholars have participated in the development of this turn in forensic practice and scholarship between the 1980s and the early 21st century.

Sociocultural Factors and Effects

Following the Stone-Appelbaum debate, Martinez and Candilis⁹ reasoned that use of narratives help forensic specialists remain self-critical and open to serving a broad spectrum of evaluees. That justified the attention to narratives generated by vulnerable individuals. These authors’ notion of robust professionalism embraced protection of vulnerable people. In a similar argument, in 2005, Norko¹⁰ turned to the use of narrative in forensic work and argued that compassion was an important tool in protecting disadvantaged evaluees. This sensitivity to evaluees became more palpable in forensic work as the 21st century began, mirroring the reawakened interest throughout the social world in diversity, equity, and inclusion. Meanwhile, themes concerning access to the welcome table and leaning in re-entered public discourse. Langston Hughes’s poem,¹¹ “I, Too,” had appeared in the 1920s and mentioned the darker brother in the household who was sent to the kitchen when company visited. Hughes wrote, seemingly with hope, that the time would come when those responsible would feel shame. Then, the darker sibling would be present when outsiders came to dine with the family. This equity of access to the table of opportunity and the concomitant sense of belonging there were themes that reappeared in Sheryl Sandberg’s feminist call in 2013. She recommended that women lean into opportunities and leave behind feelings of self-doubt.¹²

In 2018, Norko⁸ published his paper discussing the spiritual quest of forensic psychiatry. In it, he reviewed several mechanisms that would contribute to a spiritualizing of the forensic narrative and forensic work through a renewed sense of vocation. The mechanisms included presence and witnessing, compassion, empathy, humility, dignity, and centering. Preoccupied with the forensic evaluator and the evaluee in the preparation of the forensic report, Norko concluded: “The forensic professional is expected to give public witness to the individual’s pain and life circumstances, as well as to the concerns and understandings of collateral observers” (Ref. 8, p 14).

In a 2008 paper, Richard Dudley and P.B. Leonard¹³ discussed similar emphasis in advocating for the team approach, of a mitigation specialist and other forensic mental health professionals, to crafting a life history investigation. That would be a central part of the forensic narrative for capital cases. The data would help the evaluation team understand the broader environment that affects the evaluee. The information would be derived from questions about culture, class, race and ethnicity, and other matters relating to individual identity and group allegiances. These affect motivation and comprehension of one’s conduct, status, safety, and obligations (Ref. 13, p 967). They also affect understanding of what the evaluee, relatives, and community think are behavioral norms.

Empathy has been thoroughly discussed by scholars over the years, and once again by Brodsky and Wilson in 2013,¹⁴ Norko in 2018,⁸ and Glancy and colleagues in 2021.¹⁵ Given the central place of empathy in forensic evaluation, and the connection of empathy to both evaluator and evaluee, it is worth recapitulating a few relevant notions. Norko⁸ asserted that empathy has cognitive (understanding another’s inner experience) and affective (joining another’s inner experience) components. He believed that empathy has a place in forensic evaluations. It is expressed through compassion in development of the forensic narrative. Compassion guides the evaluator to engage with the humanity of the evaluee. Norko wrote that an empathic attitude toward the evaluee was essential and should not be absent from the forensic evaluation. Others, like Kenneth Appelbaum,¹⁶ have sought to sharpen the notion of empathy in the forensic context by using the term forensic empathy. This distinction was meant to highlight the possible error of misusing empathy and arriving at a deceptively formulated conclusion in the forensic report. There has also been the complaint that empathy may cloud objectivity and interfere with decision-making. Such concerns about the use of empathy have provoked commentary and alternative vocabulary: forensic empathy by Appelbaum,¹⁶ engaged curiosity by Halpern,¹⁷ and detached concern by Glancy and colleagues.¹⁵

We return to Norko’s notion of empathy having two dimensions: the cognitive and affective.⁸ The distinction between understanding and joining the evaluee’s experience is helpful as it may contribute to strengthening and observing ethics principles relevant to forensic work. The cognitive component is readily conceded as of practical use to the evaluator, facilitating the preservation of objectivity and introspection during the evaluation. This cognitive arm also protects against sliding into unconscious attitudes and implicit bias. It may be said to keep in check the affective arm of empathy, resulting in what Glancy and colleagues referred to as a sort of partial empathy, modulated empathy, or detached concern.¹⁵ Glancy’s group wanted to maintain this modulated empathy because they recognized it, in Norko’s terms, as a step toward compassion. Compassion leads to Norko’s insistence on humanistic language in the narrative. It also fueled work by other contributors, such as Adshead¹⁸ and Buchanan,¹⁹ who insisted on maintaining the dignity of participants in forensic evaluations and in the construction of forensic narratives. Norko⁸ also discussed presence and centering, both related specifically to forensic work. He noted that the “search for truth in forensic practice cannot begin without the clinician’s establishing authentic presence to the people and problems at hand” (Ref. 8, p 13). Centering refers to the phase of preparation to write the report, sitting with the data, bringing a special consciousness to feelings and biases. The task is to meet the “test of fairness to all parties, involving empathy and compassion” (Ref. 8, p 18).

There is another important element that emerges in the 21st century discourse of forensic narratology, that of humility, mentioned by Norko⁸ and Martinez and Candilis.²⁰ They saw this element as encapsulating recognition of the evaluators’ inherently imperfect knowledge and skill. Such acknowledgment of humility is necessary if evaluators are to pursue honesty and objectivity in forensic work. Tervalon and Murray-Garcia²¹ had used the term cultural humility earlier to describe a method of physician engagement with patients from various cultural origins. Practitioners would learn from another’s perspective how culture influences one’s worldview and behavior while maintaining awareness of one’s own cultural biases throughout the interactions. Tervalon and Murray-Garcia²¹ argued that cultural humility concedes that mastery of another’s culture is often difficult and commonly flawed. It emphasizes lifelong self-evaluation by the evaluator while contemplating the evaluee’s culture. It becomes clearer that the end product is greater compassion for the evaluee and enhanced understanding of the need to care for self, which Norko described as a form of self-compassion.⁸ Both humility and cultural humility emphasize a genuine interest in the evaluee’s humanity. The task is obviously more complicated when members of the evaluator/evaluee dyad have different ethnocultural backgrounds. Anton Hart²² recently suggested that the difference may be bridged by a persistent curiosity on the part of the evaluator about the evaluee. Hart cautioned, however, that this cultural curiosity is not cultural competency or cultural literacy. Hart viewed cultural curiosity as an authentic openness, a radical openness, toward the evaluee. This curiosity may lead to objectifying the evaluee and causing anxiety in the evaluator, who may in turn wish to curtail the inquiry. In persisting with the inquiry, the evaluator gradually learns to contain the anxiety and proceed with an authentic evaluation.

We always consider it useful, even in brief discussions of narratology in forensic work, to return to several reminders offered by Peter Brooks²³ about narrative in the forensic context. Brooks²³ has issued cautions about the narrative’s potential power to deceive. Brooks underlined this in repeating that much narrative is perspectival. In forensic work, the focus, therefore, must be kept on validating the perspective through use of reinforcing and supportive evidence. Further, it matters how the evaluator interprets and integrates the narrative. The forensic evaluator must be aware of the ways that the structure and narrative of the evaluation influence how the truth is revealed or obscured. Consequently, the cautionary note enunciated by Brooks should not be ignored. Nevertheless, Brooks²³ and Adshead¹⁸ have recognized narrative’s frequent use and considerable benefits in forensic work. Thus, training in the appropriately cautious use of narrative is imperative.

We have discussed, to this point, a progressive change in forensic work influenced by events within the social world. The discourse, in terms established by many scholars, has reimagined a vocation based on a spiritualized vocabulary, expanding the concept of respect for persons, and what they label as truth-telling.⁸ There is inherently a more pronounced emphasis that recognizes forensic clients as individuals, with their essential and inviolable humanity, entitled to respect, compassion, and dignity. We should emphasize that this interest in the social world surrounding evaluees has helped our discipline to become more sophisticated. This is, regarding forensic work, a revitalized praxis.

Goldenson and Brodsky²⁴ reminded us recently that individuals adapt physiologically to their environments. Thus, prolonged trauma and stress affect adolescent and young adult development. “When facing threat, such people are primed to protect themselves and survive. Sometimes this protection is with a gun; sometimes it is with gang affiliation” (Ref. 24, p 40). These authors highlighted, as did Dudley and Leonard¹³ previously, that understanding the evaluee’s developmental history, including adverse childhood experiences, and detecting evidence of trauma are important.

In the next section, we consider how ethnocultural factors, reflecting the broader society’s engagement with matters of ethnicity, have demanded the attention of numerous institutions and activist groups. The result has been novel discussions of themes such as White privilege, racialized and other forms of trauma, and notions such as othering. Work by Glancy and colleagues¹⁵ and Heilbrun and colleagues²⁵ bear witness to the influence of racial identity on forensic evaluations. As a caveat, we recognize that although an individual facing criminal sanctions may have experienced racial trauma, it does not necessarily translate into a mental health defense for the acts. Nor does recognition that social injustices exist mean that such practices in criminal justice adjudications should lead to exculpation. Moreover, we are not suggesting that the violent criminal behavior of the minoritized evaluee should be minimized. Rather, awareness of disproportionality in criminal justice practices and racial trauma only serves to enhance a deeper understanding of the evaluee. It allows the forensic evaluator to consider whether the rage or anger displayed may reflect an adaptive response to trauma and marginalization.

Ethnocultural Factors and Effects

Dr. Martin Luther King, Jr.’s injunctions in his 1967 address²⁶ to the American Psychological Association have contemporary salience for forensic practice. He observed that the evaluation of what constitutes maladjustment has a normative valence; that adaptive adjustment or good behavior is constructed by those with social power and thereby functions as a reflection of values and experiences of those who are not oppressed. Dr. King recognized that marginalized groups responded to injustice in ways that did not align with what nonmarginalized individuals, such as psychologists, may consider adaptive.^26,27 He called on psychologists for a fundamental reconceptualization of maladjustment: from viewing it as bad behavior to viewing it as creative maladjustment by marginalized groups to their situation. Recent articles related to systemic racism characterize current psychological theories about maladjustment as dominated by White people and focused on individuals rather than institutions.²⁷ The overvaluation of Whites and the favor confirmed stemming from race has been labeled White privilege. The psychoanalyst Woods² has also discussed the interconnection of maleness, Whiteness, and power. Public policy psychologists have emphasized, that across several social arenas, Whites are perceived more favorably than people of color. As an example, White criminals are perceived as less blameworthy than those of color.²⁸ The subject of White privilege has, in recent years, been a major preoccupation of psychoanalytic theorizing.^1,–,3

The experience and internalizing of racism can have malevolent effects on the psyche, provoking what the psychoanalyst Beverly Stoute refers to as Black rage.²⁹ Constant degradation and devaluation of persons of color by the dominant group drives the rage. Within African-American culture, it reflects a generational experience and reaction to oppression and injustice without recourse. Stoute²⁹ points to the long afterlife of the experience of slavery, inequity, and oppression that may lead to dehumanization accompanied by a sense of marginalization and devaluation. When the rage is not contained, it may explode in retaliatory aggression as a response to social justice inequities.^29,30 Black rage may manifest itself as a reaction to a long history of mistreatment, even assault, by law enforcement personnel, which in turn leads to defensive or retaliatory assaults on peace officers.²⁹ A Black defendant’s aggression may be attributed to antisocial personality disorder or conduct disorder in minors, without considering the influence of racial trauma and its nexus to the behavior.

Rao,³¹ the psychoanalyst, points out a factor that we believe crucial in forensic work. It is understanding the importance of othering. Rao considers othering as an act of debasing, controlling, and dehumanizing another individual. “Difference is usual, digestible, and can be celebrated” (Ref. 31, p 419). Difference becomes destructive “when it is deployed to mean inequality and inferiority” (Ref. 31, p 419), taking on a form of malignant difference or othering. Superficial allusions to injustice experienced by minoritized groups can be a subtle form of othering; it may reflect unconscious implicit biases that there may be something racially intrinsic to the group contributing to their difficulties with authority. Testimonial injustice, a term coined by Fricker,³² has relevance in forensic assessments as it describes a process where the legitimacy of the evaluee is undermined by the superior status of the evaluator. Jones observed that race and ethnicity “shape the dynamics of interpersonal encounters, often by distancing the despised other, relegating their experiences to the outside, as if far removed from what is relevant to psychoanalytic considerations” (Ref. 1, p 82).

Earlier, we mentioned the work of psychoanalyst Hart,²² who was concerned about the emphasis on diversity as a sort of shallow, geography-based concept. Hart has argued for confronting the problem of prejudice more squarely with a deeper remedy, one that helps people understand what they are doing in the process of othering. Hart espouses a stance of radical openness, in ourselves, to the unknown and the unfamiliar. Forensic professionals confront this difficulty when they try to talk with evaluees across ethnocultural and other forms of difference.

The social psychologist Janet Helms^33–35 identified the evolution of racial ego states from unawareness to a deeper recognition of the significance of race and its impact on racism. Helms described early states as characterized by the introjection and identification of the core values and beliefs of the dominant group. Later ego states involve embracing one’s racial identity and for people of color rejecting the values of the dominant group. The most evolved ego states involve the individual forming a complex racial identity. That state embraces the individual’s race but also incorporates integrative awareness, respect, and value for other groups. The concepts may be of value within the forensic context, for example, when a forensic evaluator considers the rageful aggression of a Black criminal defendant. One perspective, assuming introjection of dominant group values, is to pathologize the rage as antisocial driven anger. The other perspective, assuming a more complex racial self and other awareness, explores the impact of racial trauma and a chronic sense of social marginalization.

Ignoring the potential systemic racial biases within risk assessment methods can lead to potential misrepresentation of test results. Oppressed groups, in their challenges to systemic injustice, have made calls for incorporating the adaptive and contextual nature of racial anger into violence and sexual violence risk assessments.^36–40 Such calls have been left unanswered. Criminal justice inequities remain for minoritized groups, and particularly Black males, who continue to experience higher rates of arrest and conviction.^41–45 These factors are highly weighted in several violence and sexual violence actuarial instruments.³⁶ Hamilton³⁷ described the process as a reification of criminal history that forever tethers individuals to their pasts. The consequences of biased assessments may be substantial. The biasing influence of systemic ethnocultural inequities can result in minoritized males’ being frequently deemed as too risky for probation placement and requiring high-control parole supervision upon prison release.³⁶ Moreover, factors such as attitudes toward authority (for example, violations of prison rules and flaunting the authority of supervising agents) also remain prominent items in a number of risk scales (e.g., the Structured Assessment of Protective Factors-Sexual Offending, Stable 2007, Violence Risk Scale-Sexual Offense).³⁶ These schemes characterize such factors as proxy variables for antisociality. The risk tools do not contextualize disregard and anger, which can stem from Black rage in individuals who fail to respect dominant authority. As an example, a Black male who ignores the authority of White correctional officers will be rated as riskier than the White male who complies with rules but exhibits criminality by demonstrating entrenched sexual deviance.

Grzanka and Cole²⁷ make this important point regarding methodological flaws that can perpetuate implicit racial bias. They note that publication standards value quantitative (statistical) methodology as rigorous and scientific over qualitative (narrative) research methods, which are considered subjective or lacking rigor. Qualitative methods seek to understand others and require “humility and self-reflexivity, which includes open, mindful listening” (Ref. 27, p 8) to research subjects and to themes in the data. Grzanka and Cole write, “African American psychology begins in Black diasporic people’s experiences, rather than merely using race as a variable by which to make comparisons between White people and people of color” (Ref. 27, p 19). In quantitative methodology, race is a dichotomized variable, i.e., differences between Whites and Blacks studied to describe an outcome variable.

A critique by Grzanka and Cole²⁷ suggests that publications potentially perpetuate implicit racial bias by favoring quantitative (statistical) over qualitative (narrative) research methods. Overreliance on quantitative methods creates a gap in understanding because “humility and self-reflexivity” and “open, mindful listening” (Ref. 27, p 8) are factors often absent in quantitative studies. Qualitative methods can complement quantitative methods by giving a more holistic picture of research subjects and elucidating themes in the data. To illustrate, the common practice of relying on race as a dichotomized variable can lead to an incomplete understanding of differences among ethnocultural groups. Grzanka and Cole appear to argue for expanding this particular variable in their statement that an “African American psychology begins in Black diasporic people’s experiences” (Ref. 27, p 19) noted above.

Lee and colleagues³⁸ demonstrate the risk of dichotomous methodology. Their study examined the motivations for sexual offending between Blacks and Whites in a sample of 573 New Jersey sex offenders. The number of sexual recidivists was small, only 27 (16 of whom were Black, and 11 White); nonetheless, they concluded that the Static 99R actuarial risk instrument worked equally well for Blacks and Whites because of the similar statistical predictive values (Area Under the Curve) for sexual recidivism. The Static99R³⁸ heavily weighs criminal histories that in turn contributes to higher risk scores for Blacks, as it did in this study. Lee et al. concluded that “Blacks present as more antisocial” (Ref. 38, p 357) and “… there are real behavioral differences in antisociality between Whites and Blacks” (Ref. 38, p 335) and Blacks had “higher hostility levels than Whites” (Ref. 38, p 345). They buttressed their position through citing studies demonstrating that Blacks harbored more antisocial attitudes than Whites, were impulsive and angry, and lacked self-control because of the “lack of opportunity for conventional bonding (e.g., family, school)” (Ref. 38, p 338). Consequently, they recommended interventions for Black offenders to target their attitudes and concentrate on “anger management, cognitive restructuring, vocational training” (Ref. 38, p 358). Whites, by contrast, were suggested to have more “general mental health concerns” (Ref. 38, p 355). An implicit and unintended conclusion drawn from the Lee et al. data are that Whites’ sex offending is motivated by a mental disorder and should be treated, while Blacks’ sex offending is criminal and should be punished.