Sexually Violent Predator Statutes: The Clinical/Legal Interface

December 1, 2008

Since 1990, many states have instituted sexually violent predator (SVP) or sexually dangerous person (SDP) civil commitment stat­utes that seek to identify the small group of extremely dangerous incarcerated sexual offenders who would present a threat to public safety if released from custody.

Since 1990, many states have instituted sexually violent predator (SVP) or sexually dangerous person (SDP) civil commitment stat­utes that seek to identify the small group of extremely dangerous incarcerated sexual offenders who would present a threat to public safety if released from custody. Although procedures vary, states often require that 2 blind evaluators agree that the offender has a diagnosed mental disorder and that he or she likely remains a risk for committing sexually violent offenses.

SVP/SDP evaluations are probably the most challenging of forensic assessments, made in a minefield of conflicting legal, ethical, and professional values. The process is inherently adversarial and lacking in confidentiality. The fact base depends on the accuracy and comprehensiveness of police and probation reports. The inmate has no reason to be open and truthful, given that the information offered may result in a long (perhaps lifetime) psychiatric hospitalization and would be discussed in open court if the process moves to trial.

History of statutes
The need for civil commitment stat­utes arose indirectly from the substitution of fixed sentencing for indeterminate sentencing, which occurred in the 1980s. This virtuous effort to bring uniformity and fairness to sentencing had an unfortunate unintended consequence. The fixed sentence for each crime was arrived at by averaging what had been widely variable indeterminate sentences. This meant that dangerous offenders with long histories of recidivism had to be released from prison much sooner than they would have been under discretionary indeterminate sentencing. The result was predictable-a number of egregiously horrid and widely publicized crimes were committed by recently released beneficiaries of the short, fixed sentences.

State legislatures have attempted to provide protection through longer sentences for newly convicted offenders and through civil psychiatric commitment for those about to be released from prison under SVP statutes. This has created a firestorm of concern and opposition. The American Psychiatric Association (APA) Task Force report on this issue presents a blistering critique of SVP statutes; the Task Force has been concerned that psychiatric commitment is being misused to cover a sentencing loophole created by the legal system.1 That process has been viewed as a perversion of legitimate psychiatric commitment, a violation of civil rights, and a dangerous precedent for the possible misuse of psychiatry to squelch other behaviors that have been regarded falsely as psychiatric problems (e.g., homosexuality or political dissent).

Civil rights lawyers and several state courts have argued strongly that SVP statutes are an unconstitutional form of preventive detention, double jeopardy, or punishment without due process. Two cases made it to the US Supreme Court and, despite amicus briefs from the APA in opposition, the Court has twice accepted the constitutionality of the SVP statutes.

Although obvious risks are posed by the statutes, there are also compelling reasons why they were passed. There are a small number of SVPs who are capable of causing tremendous damage if not incarcerated in one way or another. This has driven the statutes, the Supreme Court’s acceptance of them, and the work of forensic clinicians trying to determine which offenders qualify based on the presence of a mental disorder and on the results of a risk evaluation.

The entire basis of the narrow majority’s acceptance of the constitutionality of SVP commitment is the presence of mental disorder in addition to the likelihood of repeating. If a prisoner has no mental disorder, he must be released when his time has been served, regardless of how dangerous he remains. The Court’s decision in the most important case was a close 5 to 4 split and is so ambiguously worded that it provides little guidance to forensic clinicians.2

No end to the controversy
Never has so much rested on such a weak concept. As we admit in the introduction to DSM-IV-TR, there is no good definition of mental disorders. The definition adopted by most states in the SVP/SDP statutes is congenital or acquired conditions that affect the “emotional” or “volitional” capacity such that they “predispose” the individual to sexually violent criminal offenses-a definition so broad that it really provides no guidance. Controversy has ensued among forensic experts as to which disorders qualify, and the trier of fact is consequently subject to the battling of experts. Most controversial is the commonly posed question of whether sexual predators with antisocial personality disorder (ASPD) fall under the statute. The Supreme Court had the opportunity to decide this question in Kansas v. Crane3 but chose to avoid it. The states do not proscribe the use of an ASPD diagnosis, and several states list “personality disorder” in their definition of the SVP statute.

Those who argue against the eligibility of ASPD assert that it is not treatable in psychiatric facilities and that it is not a specific predictor of sex crimes. Neither argument is relevant. Treatability is not a requirement of the statutes. If the expression of ASPD in an individual includes sex crimes, it should not matter if he also commits other crimes or that most people with ASPD do not commit sex crimes. It is the proclivity of the individual and not the group that matters. Also unsettled is whether the statutes apply to other mental disorders that may predispose only a small minority to commit sex crimes. If a person with substance dependence rapes repeatedly under the influence, does this count? What if the person has mental retardation or bipolar disorder?

The next area of controversy is the most commonly used diagnosis of “paraphilia not otherwise specified (NOS), nonconsent,” which is used to describe serial rapists on the presumption that the repeated acts of rape signify the presence of paraphilic recurrent sexual arousal consequent to fantasies and urges. Unfortunately, the support for the diagnostic concept of paraphilic rapism is extremely weak. Not only is this not an official DSM diagnosis, but it was explicitly rejected for inclusion. There is little research on paraphilic rapism and little indication that it can be reliably diagnosed. This is not to say that a diagnosis of paraphilia NOS should never be used, but that it should be used more sparingly and carefully. There must be documentation that the rapes are not sim­ply opportunistic but are specifically linked with the rapist’s sexual arousal.

By far the least controversial of diagnoses leading to civil commitment under SVP statutes is pedophilia. However, there is debate as to whether pedophilia can be a current diagnosis in a person who last committed sexual crimes years or perhaps even decades ago and who has since been incarcerated. This viewpoint challenges the evaluator to show the inmate’s current sexual preoccupation or urges related to children. If these are denied by the inmate, the prior behavior and expressed urges/fantasies cannot be used to substantiate the diagnosis. Others point to the DSM’s wording that pedo­philia tends to be a lifelong condition that can wax and wane with opportunity, stressors, or coexisting conditions, and that the mere lack of oportunity to offend cannot be construed as “remission” of the pedophilia.

There are no clear guidelines from the courts or from within the profession as to which diagnoses would qualify under current statutes. There is no accepted structured method of interviewing or reporting findings to show that a diagnosed mental disorder is or is not present. The next steps are clear. It is important that a variety of cases make it to the state and federal courts to determine the constitutionality of civil commitment for various diagnoses currently under consideration. In the meantime, it is crucial for the forensic professions to achieve a national consensus on how best to determine what qualifies as an SVP or SDP mental disorder. We would argue that there is no more difficult call in all of mental disorder is or is not present. The next steps are clear. It is important that a variety of cases make it to the state and federal courts to determine the constitutionality of civil commitment for various diagnoses currently under consideration. In the meantime, it is crucial for the forensic professions to achieve a national consensus on how best to determine what qualifies as an SVP or SDP mental disorder. We would argue that there is no more difficult call in all of mental health and none with greater consequence to the individual and to society. Every aspect of SVP procedure- legal and psychiatric-deserves much greater discussion and consensus than it has thus far received.

References:

1. American Psychiatric Association. Dangerous Sex Offenders: A Task Force Report. Washington, DC: American Psychiatric Publishing; 1999.
2. Kansas v Hendricks, 521 US 346 (1997).
3. Kansas v Crane, 534 US 407 (2002).