A Surprise: I Support Some SVP Commitment

March 8, 2011

In previous blogs and papers, I have done my level best to skewer the misuse of the misdiagnosis "Paraphilia NOS." I regard it as no more than a flimsy justification, concocted to allow the psychiatric incarceration of rapists who would otherwise have to be released from prison to the street.

In previous blogs and papers, I have done my level best to skewer the misuse of the misdiagnosis "Paraphilia NOS." I regard it as no more than a flimsy justification, concocted to allow the psychiatric incarceration of rapists who would otherwise have to be released from prison to the street. The mental health evaluators who further this diagnosis in sexually violent predator (SVP) proceedings have completely misunderstood DSM-IV and are collaborating in an unconstitutional abridgment of civil rights, a double jeopardy abuse of due process, and a terrible misuse of psychiatric diagnosis.

I have more confidence in the correctness of my opposition to the use of Paraphilia, NOS in SVP proceedings than I do about almost anything else in life. This is about as clear a call as I ever get to make. Not surprisingly, my critique  has received few (and remarkably weak) attempts at refutation. But my attempt to clarify the problem hasn't done much to solve it. Evaluators continue to blithely misdiagnose and the courts to blithely approve exceedingly suspect commitments based on nothing more the strange conception that rape by itself can constitute a mental disorder.

I posted a blog yesterday that elicited spirited criticism from thoughtful people who heretofore have enthusiastically supported my opposition to "Paraphilia NOS, nonconsent." They felt betrayed by my notion that other mental disorders may properly justify commitment in SVP proceedings. The possible list includes schizophrenia, substance dependence, mental retardation, dementia, bipolar disorder, delusional disorder, and antisocial personality. Of course, it would also have to be established that the given mental disorder clearly predisposes the individual to repeatedly commit the crime of rape. The SVP statutes are unfortunate--but (as affirmed by the Supreme Court), they are legitimate when the mental disorder is accurately diagnosed and is closely implicated in the commission of the crime.

It is the sloppy diagnostic practice of the evaluators that must be stopped, and one would hope this happens before much more damage is done. To continue as we have places forensic evaluators in the false position of  collaborating in a possibly unconstitutional railroading of misdiagnosed nonpatients into fake psychiatric commitments. Two changes are needed immediately to help correct the current mess:

1.Forensic diagnosis must be dramatically improved and standardized to meet minimal professional standards. The evaluators need to be retrained away from the loose diagnostic habits some have acquired. The accuracy and reliability of their diagnoses (and of the relationship between disorder and rape) must be established,  and;
2. The courts must clarify which diagnoses qualify under SVP statutes--a responsibility they have so far  nimbly avoided. This crucial question is a legal, not psychiatric, judgment--to be decided by the courts, not by the individual evaluator. 

My partial (and reluctant) support for psychiatry's participation in SVP statutes has been justly challenged by those who oppose all SVP commitment. They regard the statutes as an unfair psychiatric makeshift contrived to correct a legal blunder (fixed sentences for rape that were too short to protect public safety)-- no more than a trumped up excuse to keep potentially recidivist rapists safely behind bars. If we don't have statutes targeted for murderers, why target rapists? It seems especially ridiculous to allow psychiatric commitment for rapists based only on a diagnosis of antisocial personality disorder- since this is so common among them, so tenuous as a psychiatric diagnosis, and so untreatable.

I have considerable sympathy for this useful critique of my position, but find it to be simplification of a complex question that (unlike Paraphilia NOS) has no simple, right answer. A number of complicating contextual issues must also be factored into the equation. The states do have a responsibility for ensuring public safety that is real (and in these cases often quite pressing). The concrete damage to future victims has to be weighed against the constitutional and professional harm done by SVP statutes. Moreover, some of the about-to-be-released rapists do have a properly diagnosed mental disorder that very clearly predisposes them to rape again, with a risk of recidivism that may be obvious and high. Psychiatric commitment has a well established legal legitimacy for those with severe mental illness.
Admittedly, the analogy between SVP and standard psychiatric commitment is imperfect. Most civil commitment is relatively brief--SVP commitment may be lifelong. Most civil commitment has at least some intent to treat and benefit the patient, to protect him from risk, and to prepare for an early return to independent life. In contrast, the primary goal of SVP proceedings (however it is veiled) is to protect society, not the "patient." Incarceration trumps treatment, which most of the detainees contemptuously reject.

The need for the SVP process is an unfortunate consequence of short fixed sentences-- a problem that is gradually being corrected as rape sentences become longer and parole provisions more rigorous. These correctional fixes are far better solutions than psychiatric commitment--but they don't apply to rapists already in the system. I find psychiatric participation in SVP hearing to be a regrettable, but temporarily a necessary stopgap. These statutes are on the books and have been confirmed as  constitutional three separate times by the Supreme Court. When done appropriately, SVP hearings can meet minimal constitutional and professional standards. This certainly provides no excuse for the current shoddy diagnostic practice or for the courts failure to clearly state which diagnoses qualify. 
I am not surprised that my middle position is attacked by those who believe that any SVP commitment is inherently a constitutional abridgment and a blot on the integrity of the mental health professions who collaborate in it. I understand and respect this critique, but believe that the complexities and exigencies of the problem require a more nuanced response.

Rapists should not be subject to involuntary psychiatric commitment just because they are rapists. Whenever this happens (and it does), the constitution and professional integrity have been violated. But commitment may be justified when the rapist acted under the influence of a properly diagnosed, proper mental disorder that is clearly predisposing and has been deemed by the courts to qualify. That current practice is clearly inadequate, a shame on the profession and the courts-- but this does not mean that psychiatric commitment is inherently and always unjustifiable.

We don't live in a vacuum. The Supreme Court has had three bites at the apple and consistently finds SVP statutes to be constitutional. Boycotting SVP hearings would place future rape victims at risk. There is no perfect solution. But if we take on this regrettable (and hopefully temporary)  responsibility-- let's be damn sure we do it right.