The most disturbing turbulence at the boundary between psychiatry and the law is the misuse of a makeshift psychiatric diagnosis (“Paraphilia Not Otherwise Specified, nonconsent”) to justify the involuntary, indefinite psychiatric commitment of rapists. This is a disguised form of preventive detention (often for life), a violation of due process, and an abuse of psychiatry. The mental health professions have been placed in the position of providing a dangerous fig leaf to cover an unfortunate correctional gap created by fixed sentencing.

First, a brief, sad history and then a promising, new wrinkle. Twenty states and the federal government have passed statutes for the continued incarceration in psychiatric settings of sexually violent predators (SVPs) who are deemed to be a continuing danger. The commitment is meant to protect public safety by keeping the offender in a secure psychiatric facility after his prison sentence has already been completed. SVP statutes were a fix to a problem created when fixed sentencing replaced judiciary discretion and resulted in prison terms that were far too short for the worst offenders. Extremely dangerous rapists who would have gotten long prison terms under indeterminate sentencing were given much shorter fixed sentences. The outrage occasioned by their consequent unsurprising recidivism led to the SVP statutes. Short fixed sentencing is now generally disappearing prospectively, but the SVP statutes are applied to offenders who would have to be released because they were sentenced under the old system.

The Supreme Court has 3 times accepted the constitutionality of SVP statutes—but narrowly and with the essential requirement that a mental disorder be the cause of the dangerousness. Absent a mental disorder, the psychiatric “commitment” of however dangerous an offender would clearly be an unconstitutional violation of due process and a double jeopardy abandonment of guaranteed civil liberties. The constitution requires the prison system to release criminals once their time is served, even if they are still clearly dangerous.

The rub is that the Supreme Court has chosen to dance around the legal definition of a qualifying mental disorder. It has left this critical question up to the inconsistent and largely uninformed discretion of each lower court. This has led to huge confusion and very questionable practice. Many evaluators in SVP hearings have been led astray by a complete misunderstanding of the intent of the DSM-IV. They have applied the essentially made-up diagnosis, “Paraphilia NOS, nonconsent,” to justify the psychiatric commitment of rapists who without this “diagnosis” would be regarded as no more than common, if particularly heinous, criminals.

We don’t have space to go into all the details of how this misunderstanding occurred, and I will be writing on this more comprehensively and technically elsewhere. But the point now is that “Paraphilia NOS, nonconsent” was never intended to be a DSM-IV disorder, was created largely to cover the problem created by fixed sentencing, and cannot be diagnosed reliably. Paraphilia NOS should very rarely (if ever) be used in forensic proceedings.

Now, the new and promising wrinkle. There is a recent petition for a Writ of Certiorari filed in the Wisconsin case of McGee v. Bartow. Again, without going into all the complicated details, the question presented by McGee is stated thus: “Whether Due Process permits the indefinite civil confinement of a convicted sex offender based on any purported psychiatric diagnosis that is not ‘patently lacking in credibility or validity,’ ‘empty of scientific pedigree,’ or ‘near universal in its rejection by the mental health profession.’ The best (and really only appropriate) thing to save the SVP field from hopeless confusion and inequity would be for the Supreme Court to review this perfect test case and finally to meet its responsibility to clarify what is to be the definition of mental disorder.

The Court should resist the great temptation to continue to dodge this thorny, but basic, constitutional rights issue. Its obvious reluctance is understandable. “Mental disorder” is an elusive concept with no bright line definition provided either by psychiatry or by the law. But all the more reason not to allow the abuse of constitutional rights and of psychiatric diagnosis under the cover of vague, inconsistent, evasive, misinformed, and untested definitions. The Supreme Court must step up to the plate and provide clarity about what qualifies legally as a mental disorder in SVP commitments.

Lower courts have faced a peculiar difficulty in interpreting expert testimony in SVP cases. The wording used by the appeals court in the McGee case clearly illustrates the problem. I would argue (with some authority since I was responsible for writing the final version of Paraphilia section in DSM-IV) that the diagnosis “Paraphilia NOS, nonconsent” is indeed ‘patently lacking in credibility or validity’ and is ‘empty of scientific pedigree.’ But I cannot argue that it is ‘near universal in its rejection by the mental health profession’ because a sizable segment of the community of SVP evaluated have been mistrained into believing that “Paraphilia NOS, nonconsent” is a valid DSM-IV diagnosis.

This paradoxical gulf between the original intention of DSM-IV and SVP forensic evaluator misinterpretation of it leads to great confusion in the handling of expert mental health testimony in individual cases. The diagnosis “Paraphilia NOS, nonconsent” is clearly misguided—almost always incorrect and inappropriate in forensic proceedings, but it has been accepted by enough mistrained “experts” to have acquired a patina of undeserved respectability that may (in a perverse self fulfilling prophecy way) lead to its acceptance.

Clearly, the Supreme Court should accept McGee for review and dispel confusion on what constitutes a mental disorder in SVP cases. McGee is a perfect test case raising a crucial constitutional question that should not be decided haphazardly and inconsistently based a basic misunderstanding of psychiatric diagnosis.

No one wants dangerous sexual predators released prematurely to the street just because they have received too short a prison sentence. But, the “Paraphilia NOS, nonconsent” fix for this legal and correctional problem is a transparent abuse of psychiatric diagnosis that greases a perilously slippery slope loss of constitutional freedoms. Experiences in other countries (and some would argue in our own as well) have shown how, under the wrong circumstances, the mental health professions can easily become a tool of state oppression.

Let’s close with this most pertinent quote from Robert Musil’s novel, The Man Without Qualities: “The angel of medicine, if he has listened too long to lawyers’ arguments, too often forgets his own mission. He then folds his wings with a clatter and conducts himself in court like a reserve angel of the court.”