The misdiagnosis of rape as a mental disorder has been a forensic disaster—allowing the widespread misuse of involuntary psychiatric hospitalization to facilitate a form of questionably constitutional preventive detention. Fortunately, there is now considerable hope that this sad episode will soon come to a much needed end.
Why am I so optimistic? “Paraphilia NOS, nonconsent” has recently received two devastating setbacks- two of the three strikes that will be necessary to finally knock it permanently out of the box. The first strike came with the DSM-5 decision to reject the ill-conceived proposal for a new diagnosis of “coercive paraphilia.” The next step (discussed below) has come from the California Department of Mental Hygiene (DMH), which has instructed state SVP evaluators to end their careless misuse of the paraphilia diagnosis. The third and final strike will hopefully come soon when Paraphilia NOS, nonconsent is finally ruled inadmissible as expert testimony- a move that surely makes great sense given that this diagnosis does not meet the expectable standards of competent, much less expert, psychiatric diagnosis.
The California DMH took the latest and giant step forward in ending the Paraphilia NOS fad recently. State evaluators were recently summoned to an SVP training workshop where they were explicitly instructed to adhere closely to the intent of DSM-IV and to desist from making idiosyncratic paraphilia diagnoses. The training made clear that a diagnosis “Paraphilia NOS nonconsent” would require affirmative supportive evidence that the rapist is sexually aroused specifically by raping rather than all the many very much more common situations in which rape is simply criminal.
Unfortunately, the California DMH has only limited control over its errant state SVP evaluators, who by contract are entitled to exercise their individual “clinical judgment” however mistaken and baseless it may be. “Paraphilia NOS” will likely linger longer than it should. But the tide has clearly turned in California and California is likely to be a bellweather state- its return to proper diagnostic practice undoubtedly will spread across the country. Before long, this unfortunate fad should end and the incorrect diagnosis “Paraphilia NOS, nonconsent” should disappear from expert testimony in SVP cases.