DSM-5 has considered—and has roundly rejected—two proposed diagnoses that are frequently misused to justify involuntary psychiatric commitment under sexually violent predator (SVP) statutes. Not only were “Coercive Paraphilia” and “Hebephilia” denied status as official diagnoses, they were not even given a face saving place in the usually inviting DSM Appendix. This constitutes a total and unequivocal American Psychiatric Association (APA) rejection of these pseudo-diagnoses and compellingly confirms that they have no credibility in courtroom testimony.
Hopefully, the APA decisions will help clarify and correct a shameful travesty at the difficult interface between psychiatry and the law.
Sex offenders who have completed their prison sentences are now often detained (usually for life) in prison-like psychiatric facilities based on the completely mistaken assumption that their having committed sexual crimes somehow means they are also mentally ill. The action taken by DSM-5 has blown this argument completely out of the water. Diagnosing rape as mental disorder is an improper use of psychiatric diagnosis and promotes the abuse of psychiatric commitment to further what would otherwise be an unconstitutional form of preventive detention.
The proposal to create a mental disorder diagnosis for rapists has been raised and unequivocally rejected 5 times in the past 35 years—in 1976 for DSM-III; in 1986 for DSM-IIIR; in the early 1990’s for DSM-1V; in 1998 for an APA Task Force report; and now for DSM-5.
These repeated repudiations haven’t prevented poorly trained psychologists testifying as alleged experts in SVP cases from inventing the fake diagnosis—“Paraphilia Not Otherwise Specified, Nonconsent”—and using it as an excuse to justify what are in fact unjustifiable psychiatric commitments in SVP cases.
Displaying a surprising ignorance of (and careless indifference to) proper diagnostic practice, these psychologists routinely and rotely misdiagnose mental disorder in rapists who are in fact clearly no more than simple criminals. They repeatedly state as misguided (in) expert testimony that committing rape is by itself an indication of psychiatric illness.
These pseudoexperts are not dissuaded by the facts: that rape as mental disorder has been rejected by all the DSM’s and is almost universally opposed by the experts in forensics and in sexual disorders; that there is almost no scientific support for their pariah diagnosis of Paraphilia NOS, nonconsent; and that NOS diagnosis is inherently unreliable and can therefore never be taken seriously as expert forensic testimony.
I have reviewed “expert” reports and testimony in 39 SVP cases. In only 3 of these cases might the rapist’s behavior conceivably suggest some sort of unspecified form of paraphilia—and this could not be diagnosed even by me with the degree of reliability required in forensic testimony. All of the other offenders were straight out simple criminals—none of these represented a close judgment call. The hundreds of sloppy reports submitted by the misguided psychologists blithely misdiagnosed “Paraphilia Not Otherwise Specified, Nonconsent” without ever providing any evidence or rationale for their casual equating of criminal behavior with mental disorder.
Fortunately, the Department of Mental Health in California has taken active and effective steps to reform this bad diagnostic practice and to require more careful diagnosis and proper documentation of evidence and rationale. This has resulted in the dropping of weaker cases and a clearer to juries. Overall, more cases are now decided on merit rather than misinformation.
But a great deal more remains to be done to ensure that psychiatric diagnosis is not misused in SVP cases. Some evaluators still cling stubbornly to their idiosyncratic and discredited diagnostic practices. Let’s hope that they are weeded out and that other states follow California’s lead toward achieving much better quality control over errant evaluators.
I have absolutely no sympathy for rapists and believe they deserve longer sentences and less opportunity for quick parole than many have received—especially in the past. But I do have great concern when fake psychiatric diagnosis and unjustified involuntary commitment are misused to violate anyone’s civil rights—even a rapist’s.
The constitution says that when criminals do their time, they have the right to be released from prison. Making up a fake diagnosis to facilitate otherwise unconstitutional preventive detention is a clear violation of the individual’s civil rights and creates a very slippery and dangerous slope for our society. Unjustified psychiatric preventive detention was a convenient tool of political repression in the former Soviet Union and is reportedly also used today to quell economic complaints in China.
Protecting the constitutional rights of rapists who have served their sentences is not just a matter of fairness to them—it is necessary to protect the integrity of the judicial system and the rights of all the rest of us.
On another note, DSM-5 has also totally rejected “Hypersexuality” and “Sex Addiction” as diagnostic concepts. They are repudiated as official diagnoses and were given no place in the DSM-5 Appendix. These fake diagnoses also have no place in courtroom proceedings.