Disputed paraphilia diagnoses and legal decision making: A case law survey of paraphilia NOS, nonconsent (original) (raw)
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Oklahoma Law Review (forthcoming)
In the 1997 opinion, Kansas v. Hendricks, the U.S. Supreme Court upheld a law that presented a new model of civil commitment. The targets of these new commitment laws were dubbed “Sexually Violent Predators,” and the Court upheld this form of indefinite detention on the assumption that there is a psychiatrically distinct class of individuals who, unlike typical recidivists, have a mental condition that impairs their ability to refrain from violent sexual behavior. And, more specifically, the Court assumed that the justice system could reliably identify the true “predators,” those for whom this unusual and extraordinary deprivation of liberty is appropriate and legitimate, with the aid of testimony from mental health professionals. This Article evaluates the extent to which those assumptions were correct and concludes that they were seriously flawed and, therefore, the due process rationale used to uphold the SVP laws is invalid. The category of the “Sexually Violent Predator” is a political and moral construct, not a medical classification. The implementation of the laws has resulted in dangerous distortions of both psychiatric expertise and important legal principles, and such distortions reveal an urgent need to re-examine the Supreme Court’s core rationale in upholding the SVP commitment experiment.
S P E C I A L Use of DSM Paraphilia Diagnoses in Sexually Violent Predator Commitment Cases
There is legitimate concern in the psychiatric community about the constitutionality of sexually violent predator (SVP) commitment statutes. Such constitutionality depends on the requirement that a sexual offender have a mental abnormality that makes him commit violent predatory sex offenses and reflects almost exclusively a concern for public safety, with little regard for notions of clinical sensibility or diagnostic accuracy. However, given that mental health experts' diagnostic opinions are, and will continue to be, important to the triers of fact in regard to the application of the SVP statutes, we describe valid means of making a DSM-IV-TR paraphilic diagnosis. We also provide a three-step approach for the judicious application of the diagnosis in the context of SVP commitment evaluations that emphasizes the importance of not making a paraphilia diagnosis based solely on the sexual offenses themselves. Finally, we discuss the appropriate use of a paraphilia NOS diagnosis in SVP cases.
Use of DSM paraphilia diagnoses in sexually violent predator commitment cases
The journal of the American Academy of Psychiatry and the Law, 2008
There is legitimate concern in the psychiatric community about the constitutionality of sexually violent predator (SVP) commitment statutes. Such constitutionality depends on the requirement that a sexual offender have a mental abnormality that makes him commit violent predatory sex offenses and reflects almost exclusively a concern for public safety, with little regard for notions of clinical sensibility or diagnostic accuracy. However, given that mental health experts' diagnostic opinions are, and will continue to be, important to the triers of fact in regard to the application of the SVP statutes, we describe valid means of making a DSM-IV-TR paraphilic diagnosis. We also provide a three-step approach for the judicious application of the diagnosis in the context of SVP commitment evaluations that emphasizes the importance of not making a paraphilia diagnosis based solely on the sexual offenses themselves. Finally, we discuss the appropriate use of a paraphilia NOS diagnosis i...
Sexually violent predator laws: psychiatry in service to a morally dubious enterprise
2004
Abstract This article discusses the role of psychiatrists in determining the treatment of sexually violent predators (SVP). Instead of being released at the end of their prison sentences, sex offenders in the USA who are judged mentally disordered and dangerous are being confined in secure" treatment facilities" for indeterminate terms.
Paraphilia NOS, nonconsent: not ready for the courtroom
The journal of the American Academy of Psychiatry and the Law, 2011
Sexually violent predators (SVP) constitute a serious potential risk to public safety, especially when they are released after too short a prison sentence. Twenty states and the federal government have developed a seemingly convenient way to reduce this risk. They have passed statutes that allow for the involuntary (often lifetime) psychiatric commitment of mentally disordered sexual offenders after prison time is up. In three separate cases, the Supreme Court has accepted the constitutionality of this procedure, but only if the offender's dangerousness is caused by a mental disorder and is not a manifestation of simple criminality. The idea that paraphilic rape should be an official category in the psychiatric diagnostic manual has been explicitly rejected by Diagnostic and Statistical Manual of Mental Disorders (DSM)-III, DSM-III-R, DSM-IV, and, recently, DSM-5. Despite this, paraphilia NOS, nonconsent, is still frequently used by mental health evaluators in SVP cases to provi...
Defining Mental Disorder When It Really Counts: DSM-IV-TR and SVP/SDP Statutes
Journal of the American Academy of Psychiatry and the Law Online, 2008
Civil commitment under the sexually violent predator (SVP) statutes requires the presence of a statutorily defined diagnosed mental disorder linked to sexual offending. As a consequence of broad statutory definitions and ambiguously written court decisions, a bright line separating an SVP mental disorder from ordinary criminal behavior is difficult to draw. Some forensic evaluators reject whole categories of DSM-IV-TR (Diagnostic and Statistical Manual of Mental Disorders: Text Revision) diagnoses as qualifying disorders (e.g., personality and substance abuse disorders), while others debate whether recurrent rape constitutes a paraphilic disorder. We argue that the ramifications of the SVP process, in representing both the balancing of public safety and the protection of an individual's right to liberty, demand that decisions about what is a legally defined mental disorder not be made in an arbitrary and idiosyncratic manner. Greater clarity and standardization must come from both sides: the legalists who interpret the law and the clinicians who apply and work under it.
Loathing the sinner, medicalizing the sin: Why sexually violent predator statutes are unjust
International Journal of Law and Psychiatry, 2007
In seventeen states, persons convicted of one or more sexually violent offenses may be involuntarily civilly committed at the end of their criminal terms if they suffer from a mental disorder that renders them likely to reoffend sexually. These statutes place the burden on states to show that the sex offender meets the United States Constitutional standard of dangerousness.