The United States Constitution does not allow preventive detention—a much abused prerogative of royal power in Europe that was abhorrent to the founding fathers. No imprisonment on suspicion that someone might commit a crime and no keeping someone in prison beyond his allotted sentence just because someone thinks he might still be dangerous. We are meant to be a country of law, not arbitrary, idiosyncratic opinion.
Sexually violent predator (SVP) laws in 20 states are an exception. Indefinite preventive detention in a psychiatric facility (really a prison in all but name) is permitted if the individual committed a violent sexual crime and has a mental disorder that predisposes to its repetition. The US Supreme Court in a narrow 5-4 decision found this constitutional, but explicitly only if the perpetrator has a definite mental disorder that would distinguish him from the much more common run-of-the-mill, opportunistic criminal rapist. No mental disorder, no preventive detention.
In an attempt to facilitate preventive detention under SVP commitment statutes, the majority of state evaluators routinely misused the inherently unreliable paraphilia not otherwise specified (NOS) as a qualifying diagnosis in cases that were no more than typical, opportunistic rape. For many years juries bought it—unjustly committing common criminals to inappropriate psychiatric commitments.
This has now changed. DSM-5 recently confirmed that rape is not a mental disorder (the fourth DSM to reject rape in 40 years). Paraphilia NOS is now widely recognized for the fake diagnosis it always was.
Undeterred by any respect for proper diagnostic practice, state evaluators have come up with a new fake diagnosis intended to convert ineligible common criminality into SVP ready mental disorder. The same patients who before we routinely mislabeled paraphilia NOS are now being mislabled as sexual sadists.
I have no sympathy for rapists and think they deserve long sentences. But I have even less sympathy for the misuse of psychiatric testimony in the courtroom and for evaluators who play loose with proper diagnostic practice.
If a perpetrator meets criteria for sexual sadism, he definitely deserves SVP commitment. But this is a very disorder being up-diagnosed in simple criminals by inexperienced, incompetent, and/or inexpert “experts.”
Railroading people inappropriately into psychiatric hospitals is a slippery slope that can lead to grave violation of human rights and distortion of societal institutions.