Electronic copy available at: http://ssrn.com/abstract=1989503
THE LAW AND PARAPHILIAS:
SEX CRIMES (RE)CONSTRUCTED AS MENTAL DISORDERS
INTRODUCTION ........................................................................................................... 1
II. LAW-PSYCHIATRY INTERFACE .................................................................................. 5
III. THE LAW & PARAPHILIA DIVIDE ............................................................................ 13
A. An Introduction to Various Paraphilias ...................................................... 15
B. Normophilia ................................................................................................ 20
C. Conflating Mental Disorder with Sexual Offending .................................... 28
D. Ethical Considerations ................................................................................ 33
IV. CASELAW ON PARAPHILIAS ..................................................................................... 36
A. Pedophilia ................................................................................................... 40
1. Diagnostic Issues with Pedophilia ....................................................... 40
2. Sentencing Considerations of Pedophilia ............................................ 43
B. Paraphilia Not Otherwise Specified ............................................................ 47
1. Exploiting Paraphilia NOS .................................................................. 49
2. Due Process Challenges to Paraphilia NOS ........................................ 51
C. Hebephilia ................................................................................................... 55
1. The Future of Hebephilia ..................................................................... 57
2. Hebephilia in Legal Proceedings ......................................................... 60
V. CONCLUSIONS .......................................................................................................... 68
Sexual deviance is a topic of virtually infinite allure, captivating the media’s
attention and causing widespread apprehension both inside the criminal justice
apparatus and with the public-at-large.1 With the recent foment of fear about sexually
violent predators, lawmakers have sought ways to reduce the perceived risk to public
safety and to calm their constituents’ concerns. The prevailing strategy is a
medicalization of social control in which officials employ the psychiatric disorders
* Visiting Assistant Professor of Law, University of South Carolina; J.D., The University of
Texas School of Law; Ph.D, Sociology, The University of Texas at Austin.
1 Richard L. Lippke, Why Sex (Offending) is Different, 30 CRIM. JUST. ETHICS 151, 151 (2011)
(“[T]he public has some kind of peculiar hang-up about crimes involving sex.”).
Electronic copy available at: http://ssrn.com/abstract=1989503
regarding sexual deviance to justify a host of civil and criminal laws to manage the
sex offender population. In psychiatry’s nosology—the Diagnostic and Statistical
Manual (“DSM”)2—mental disorders of sexual deviance are called paraphilias.
Paraphilias are particularly salient in being considered relatively synonymous
with sex-based crimes.3 In slang, paraphilias are bizarre, kinky, pervy, or weird sex,4
while in legal terms they are generally considered sexual perversions or deviances.5
In clinical DSM terms, paraphilias are characterized by sexual fantasies or behaviors
that involve unusual objects, activities, or situations and are usually accompanied by
significant distress or impairment in social functioning.6 The current DSM
paraphilias include pedophilia, sexual sadism, sexual masochism, frotteurism,
exhibitionism, voyeurism, fetishism, and the polymorphous category of paraphilia
not otherwise specified.
The attribution of a paraphilia disorder can have significant consequences in
providing the state a justification to infringe upon a defendant’s interests in liberty,
privacy, and autonomy. For example, studies of factors leading to forensic
recommendations in favor of sexual predator civil commitment consistently show
that paraphilia diagnoses are significant predictors of outcomes in favor of
commitment.7 In criminal cases, a paraphilia diagnosis has been employed for
2 AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL (2000) [hereinafter
3 ANIL AGGRAWAL, FORENSIC AND MEDICO-LEGAL ASPECTS OF SEXUAL CRIMES AND
UNUSUAL SEXUAL PRACTICES 1 (2009) (suggesting paraphilias are uniquely attractive as they are
4 AGGRAWAL, supra note 3, at 3.
5 Fabian M. Saleh et al., The Management of Sex Offenders: Perspectives for Psychiatry, 18
HARV. REV. PSYCHIATRY 359, 366 (2010).
6 DSM-IV-TR, supra note 2, § 302.
7 See infra notes 109–115 and accompanying text.
THE LAW AND PARAPHILIAS 3
various purposes. Diagnoses of paraphilias are cited to deny bail pending trial.8
There may be sentencing repercussions of the diagnosis of a paraphilia to justify a
prison sentence as opposed to community supervision9 and as an aggravating factor
to support a longer term of imprisonment.10 For example, judges in several cases
have ruled that a pedophilia diagnosis warranted longer sentences, as it was relevant
for a need to protect society.11 Paraphilias have been consequential in death penalty
sentencing hearings, as well, offered by the prosecution as an aggravating factor
suggesting the need for complete incapacitation.12 Parole decisions can be impacted,
too. A paraphilia diagnosis has encouraged officials to mandate mental health
treatment as a condition of parole,13 postpone parole release date,14 or entirely deny
On the other hand, defense counsel have cited paraphilias as benefiting their
clients’ legal positions. They have offered paraphilia diagnoses in an attempt to
8 United States v. Blauvelt, No. WDQ-08-0269, 2008 U.S. Dist. LEXIS 87060, at *15–19 (D.
Md. Oct. 28, 2008); United States v. Colin, No. 1:07-CR-512, 2007 U.S. Dist. LEXIS 91409, at *12
(N.D. N.Y. Dec. 12, 2007); United States v. Coffey, No. 5:01–CR-268, 2001 U.S. Dist. LEXIS
10452, at *20 (N.D. N.Y. July 24, 2001).
9 State v. Lottie, No. 93050, 2010 WL 2333052, at *2 (Ohio Ct. App. June 10, 2010).
10 United States v. Mantanes, 632 F.3d 372, 375 (7th Cir. 2011); People v. Myers, No.
A114474, 2006 Cal. App. Unpub. LEXIS 11484, at *3 (Dec. 21, 2006).
11 United States v. Garnette, 474 F.3d 1057, 1061 (8th Cir. 2007); Wisconsin v. Roders, 373
N.W.2d 85, at *14 (Wisc. Ct. App. 1985). See also United States v. Hewelt, 295 F. App’x 69, 74
(7th Cir. 2008) (denying downward variance).
12 Lynch v. Hudson, No. 2:07-cv-948, 2009 U.S. Dist. LEXIS 14565, at *76 (S.D. Ohio Feb.
25, 2009) (noting prosecutor argued defendant deserved death for his status as a pedophile); State v.
Kleypas, 40 P.3d 139, 274 (Kan. 2001) (noting defendant offered evidence of a paraphilia as a
mitigating factor, prosecutor countered, arguing defendant would pose a risk in prison to weaker
13 People v. Holmgren, No. B205684, 2008 Cal. App. Unpub. LEXIS 9559, at *3–4 (Nov. 25,
2008) (pedophilia); People v. Johnson, No. B196843, 2008 Cal. App. Unpub. LEXIS 817, at *2
(Jan. 30, 2008) (paraphilia not otherwise specified).
14 E.g., Hess v. Bd. of Parole & Post-Prison Supervision, 514 F.3d 909, 915 (9th Cir. 2008)
(pedophilia); McClure v. Bd. of Parole & Post-Prison Supervision, 237 P.3d 879, 881 (Or. Ct. App.
2010) (rape paraphilia); Davis v. Lampert, 25 P.2d 408, 411 (Or. Ct. App. 2001) (exhibitionism and
15 E.g., Ehler v. Nooth, 384 F. App’x 609, at *3 (9th Cir. 2010); In re Cody, No. D058970,
2011 Cal. App. Unpub. LEXIS 7308 (Sept. 28, 2011); McGowan v. N.J. State Parole Bd., 790 A.2d
974 (N.J. Super. Ct. 2002).
support an insanity defense16 and, in capital cases, to challenge the condemned
defendant’s competency to waive post-sentencing appeals.17 Contending that the
existence of a paraphilia should be considered a mitigating factor in reducing
responsibility, defense counsel have argued that a lesser sentence is justified18 or that
a death sentence is undeserved in capital cases.19 In a few instances, these arguments
have achieved some success.20
In sum, paraphilias have become entrenched in the law in recent years in
decisions concerning culpability and desert. Though, as the foregoing cases suggest,
it is a tough balancing act, considering the existence of a psychiatric mental disorder
suggests less responsibility while at the same time implying greater future
dangerousness.21 To better navigate this conundrum, the law has drawn on the
psychiatric sciences, which, in the end, is a detriment to both professions. Part II of
this Article outlines the basic desire for law and science at times to serve each other
even though they may not have shared objectives. With respect to the advent of new
laws to control sexual predators, a law-psychiatry interface is utilized, whereby
16 E.g., Moorman v. Schriro, 426 F.3d 1044, 1052 (9th Cir. 2005) (pedophilia); United States
v. Polizzi, 549 F. Supp. 2d 308, 337 (E.D. N.Y. 2008) (pedophilia); see also Cowley v. Stricklin,
929 F.2d 640, 643 (11th Cir. 1991) (finding constitutional error in not providing court-appointed
experts to assist an insanity defense based on sexual sadism).
17 State v. Ross, 873 A.2d 131, 146 (Conn. 2005) (sexual sadism); State v. Bordelon, 33 So.2d
841, 855 (La. 2009) (sexual sadism).
18 United States v. Williams, 2004 CCA LEXIS 269, at *9–10 (Air Force Ct. Crim. App. Nov.
30, 2004) (exhibitionism, frotteurism); United States v. Freeman, 194 F. App’x 777, 779 (11th Cir.
2006) (paraphilia involving sexual interest in children).
19 Many cases involve sexual sadism. E.g., Schwab v. Crosby, 451 F.3d 1308, 1316 (11th Cir.
2006); State v. Smith, 159 P.3d 531, 542 (Ariz. 2007); Brant v. Florida, 21 So.3d 1276, 1283 (Fla.
2009); see also People v. Runge, 917 N.E.2d 940, 986 (Ill. 2009) (ruling sexual sadism does not
render death sentence cruel and unusual punishment).
20 United States v. Roderick, 2011 U.S. Dist. LEXIS 81086, at *2 (D.S.C. July 25, 2011)
(justifying large downward variance based, in part, on defendant’s diagnosis of paraphilia); Ault v.
Florida, 53 So. 3d 175 (Fla. 2010) (ruling defendant’s pedophilia a mitigating factor in compelling
the defendant to abduct the victims); Crain v. Florida, 894 So. 2d 59, 67 n.9 (Fla. 2004) (viewing
pedophilia as mitigating factor in capital case).
21 See Rose v. Lee, 252 F.3d 676, 695 (4th Cir. 2001) (denying ineffective assistance claim for
failing to offer evidence of sexual sadism, noting despite the “alleged mitigation value” the disorder
is a “repellent” instead it likely have had a detrimental effect).
THE LAW AND PARAPHILIAS 5
sexual offenders diagnosed with paraphilic disorders can face important legal
consequences. Part III, though, outlines reasons why the mutually reinforcing nature
of the professional combination ignores substantial evidence that paraphilias are a
poor fit to answer legal queries about whether infringement upon substantial personal
interests is lawfully appropriate. In addition, Part III introduces the paraphilias relied
upon by mental health professionals. Part IV explores the categories of paraphilias
that are most controversial in forensic literature and law. Judicial conflicts about the
legal status and scientific validity of paraphilias are discussed, with important federal
appellate decisions recently issued underscoring the controversies. Finally, Part V
provides concluding remarks, including a warning that this model can be exploited to
apply to virtually any criminal deviance by linking it to mental disorders justifying
II. LAW-PSYCHIATRY INTERFACE
The law often seeks input from the sciences.22 This inquiry can be mutually
beneficial: legal practitioners seek information from scientists to address relevant
legal issues, while scientists gain tangible and practical benefits when their services
and research are so sought. Yet the law-science interface can be problematic
considering that their epistemological foundations and pragmatic goals differ.23 From
the epistemic perspective, “[l]aw is a discipline of the humanities, based upon
22 Saleh et al., supra note 5, at 366 (noting legal theory must evolve and be informed by
discoveries in science and medicine).
23 Steven K. Erickson, The Myth of Mental Disorder: Transsubstantive Behavior and
Taxometric Psychiatry, 41 AKRON L. REV. 67, 78 (2008) (“The goals of each discipline [law and
science] are inconsistent even when they appear identical because of their different approaches to
understanding the problem to begin with.”); Robert A. Prentky et al., Sexually Violent Predators in
the Courtroom: Science on Trial, 12 PSYCHOL. PUB. POL’Y & L. 357, 359–60 (2008) (“In any
context, the science-law interface must negotiate the potential for breakdown in three basic areas:
translation, boundaries, and evaluation.”).
beliefs, arguments, and deduction. Truth, in law, is derived  by persuasion and
argument.”24 Science, though, seeks truth through observable phenomena, utilizing
empiricism, observation, and experimentation.25 Both disciplines, in some sense,
seek consensus. For law, that consensus often is in the form of a normative inquiry
with an ontological assumption that a definitive answer can be ascertained.26 For
science, it is the collaborative establishment of testable theories to explain or predict
the phenomenon at issue.27 But the goals of the disciplines are often incongruous.
The law’s normative inquiry is inherently value-laden and targeted toward a
subjectively derived notion of achieving justice.28 Science’s heuristic method seeks a
more objectively derived knowledge.29 These disciplinary differences are so
structurally fundamental that it appears unnecessary to recognize these corollaries:
science cannot commandeer the law’s normative inquiry and the law should not
undermine the integrity of science.30 Yet both rules are severely tested in the high
profile area of sex-based crimes, which has evolved to a dependence on the
intersection between law and the science of psychiatry.
Sex crimes remain a prominent legal and public issue as we continue to be in the
grip of a moral panic about sexual offenders.31 The media and lawmakers have, more
particularly, reified the specter of the sexually violent predator (the “SVP”).32 But
this image is mostly mythical and the SVP is, in reality, merely a socio-legal
24 Erickson, supra note 23, at 71.
25 Lee Epstein & Gary King, Empirical Research and the Goals of Legal Scholarship, 69 U.
CHI. L. REV. 1, 1 (2002).
26 Erickson, supra note 23, at 78.
27 See generally Michael Friedman, Explanation and Scientific Understanding, 71 J. PHIL. 4
28 Prentky et al., supra note 23, at 359–60.
29 Id. at 360; Erickson, supra note 23, at 78.
30 Erickson, supra note 23, at 78.
31 Melissa Hamilton, Public Safety, Individual liberty, and Suspect Science: Future
Dangerousness Assessments and Sex Offender Laws, 83 TEMPLE L. REV. 697, 700–01 (2011).
THE LAW AND PARAPHILIAS 7
construct.33 The result of the hype, though, has been a plethora of new laws, as well
as strengthening existing legal frameworks, specifically for sexual offenses which
employ a penological mixture of punishment, incapacitation, and treatment. The
consequences of these unique laws targeting sex-based offenses and sexual offenders
include the denial of pretrial bail, addition of conditions for supervised release,
lengthening sentences, restrictions on parole, imposition of sex offender registry
requirements and residency restrictions, and seeking of sex offender civil
commitments (generally referred to herein as “SVP laws”). The foregoing
necessarily entails substantial civil deprivations involving liberty and privacy
interests,34 and thereby renders SVP laws a human rights issue deserving attention
Policy analysts have offered explanations for the unique reaction to sex
offenders. There are concerns about the connection between particularly harmful
behaviors against vulnerable groups—here being women and children—and the
assumption of long-term propensity for sexual reoffending.36 Together, these fears
have fostered an idiosyncratic model of criminal justice that trades the normal
foundation of proportionality of punishment with a risk-based model.37 This is true
despite the fact that risk-based assessments for sexual offenders are inherently faulty
in being simultaneously subjective and unreliable.38
33 Michael Petrunik et al., American and Canadian Approaches to Sex Offenders: A Study of
the Politics of Dangerousness, 21 FED. SENT’G REP. 111 (2008).
34 Hamilton, supra note 31, at 702–07.
35 Charles Moser & Peggy J. Kleinplatz, DSM-IV-TR and the Paraphilias: An Argument for
Removal, 17 J. PSYCHOL. & HUM. SEXUALITY 91, 93 (2005).
36 Petrunik et al., supra note 33.
37 Erickson, supra note 23, at 115.
38 Id. at 115; Hamilton, supra note 31, at 720–34.
The special treatment of dangerous sex offenders often is based on a moralistic
philosophy that is inherently confused by whether they are mad or bad.39 Thus, the
risk model has become a disease model through the conflation of pathology and
evil.40 As a result, the SVP law model is entrenched with a law and psychiatry
interface in which the modern treatment of sex offenders operates via a modal logic
that presumes them a dangerous people due to mental disease. A commentator has
referred to such a model as a form of
‘desert-disease jurisprudence’ in the way the law reacts to dangerous
people. One who commits a criminal offense normally bears responsibility
unless he is not competent in which he would not thereby deserve
punishment. But those with a severe mental disorder are treated differently
in the disease model since they were not acting rationally or
More specifically, the SVP law model represents gap-filling between desert and
disease in which normal responsibility rules for criminal or civil control are
blurred.42 Yet, the desert-disease model for sexual transgression does not operate to
conceptualize offenders as sympathetic or less culpable. The special laws regard
sexual deviance as caused by some degree of volitional, rather than cognitive,
disorder, such that the existence of the mental disorder is typically conceived as not a
mitigating factor; rather, it is usually considered aggravating in nature.43 The
volitional impairment substantiates a presumption of future dangerousness and, in
turn, justifies segregation and containment.44 But the SVP laws’ model of
39 Petrunik et al., supra note 33.
41 Stephen J. Morse, Mental Disorder and Criminal Law, 101 J. CRIM. L. & CRIMINOLOGY
885, 892 (2011).
42 Id. at 952–53.
43 Peggy Heil & Dominique Simons, Multiple Paraphilias: Prevalence, Etiology, Assessment,
and Treatment, in SEXUAL DEVIANCE: THEORY, ASSESSMENT, AND TREATMENT 527, 559 (D.
Richard Laws & William T. O’Donohue eds., 2d ed. 2008).
44 Saleh et al., supra note 5, at 365
THE LAW AND PARAPHILIAS 9
medicalizing social control here assumes a homogeneous class of sexual predators in
which sexual deviance derives from a mental disorder—i.e., the disease aspect.45
Indeed, this “’one size fits all’ mentality seems to have pervaded most legislative
efforts” regarding the control of sexual offenders.46
SVP laws and the accompanying law-psychiatry fusion have been influenced by
the fact mental health professionals recognized sexual deviance as a form of mental
disorder for the last century.47 Today, disorders of sexual appetite are included in the
authoritative treatise of the DSM, currently under its rubric of paraphilias. The DSM,
a categorical classification system for mental disorders, is the product of the highly
regarded American Psychiatric Association (“APA”).
As a general matter, the APA has found a powerful tool in its diagnostic manual.
The DSM is known as the bible of psychiatry and is widely influential across
disciplines. Through the acculturation of the DSM, the APA virtually appropriated
the field of mental health.48 While it is purported to be based on scientific principles,
the DSM is also, at its core, a political document; and the APA is a professional
organization that clearly came to understand its ability to assert its power in the
broader world.49 This is true even for matters otherwise reserved to legal
45 Heil & Simons, supra note 43, at 558.
46 Saleh et al., supra note 5, at 361. The authors also suggest the plethora of sex offense-based
legislation “appears to have been premised on the false assumption that those regularly or habitually
deviating from sexual norms belong to a relatively homogeneous offender class, that all members of
the class are potentially dangerous, and that they all need the same sort of legal control.” Id. at 365.
47 Heil & Simons, supra note 43, at 533.
48 Owen Whooley, Diagnostic Ambivalence: Psychiatric Workarounds and the Diagnostic and
Statistical Manual of Mental Disorders, 32 SOC. MENTAL ILLNESS 452, 453 (2010); see also
Warren A. Kinghorn, Whose Disorder?: A Constructive MacIntyrean Critique of Psychiatric
Nosology, 36 J. MED. & PHIL. 187, 194 (2011) (“the DSM project cloaks the will to power in
49 See generally Christopher Cotton & John W. Ridings, Getting Out/Getting In: The DSM,
Political Activism, and the Social Construction of Mental Disorders, 9 SOCIAL WORK IN MENTAL
HEALTH 181, 181-192 (2011) (reviewing political pressure causing the APA to remove
homosexuality from paraphilias in 1973).
professionals. A particularly relevant strategy was employed when the institution
adopted the nomenclature of “mental disorder,” which allowed the APA to broaden
the DSM’s coverage and the institution’s influence in the law enormously.
When psychiatry turned away from the term “mental illness” to the
expansive “mental disorder,” it opened a Pandora’s Box whereby almost
any behavior can be deemed an affliction of the mind—and used by law to
meet its own political ends. If law is a vehicle in which political ideas are
executed , psychiatry has unwittingly given law the means to achieve
politically efficient ends for dealing with many socially and politically
With respect to criminal justice issues, the APA has asserted its dominion in
adjudging deviance as a mental health issue. In propagating and monopolizing its
classification system for psychiatry, the APA discovered that “any behavior that
produced discomfort or socially undesirable behavior could be asserted as
representing a disordered psyche irrespective of biological evidence.”51 Regarding
sexual deviance and paraphilias, for instance, the DSM categorizes pedophilia as “a
mental disorder not because of some mental degeneration of the brain but because
such behavior is socially construed to be a process of a sick mind.”52
The APA has continued to expand its coverage and conceivably can attempt to
encompass virtually any mental phenomenon within the DSM’s taxonomy. The
DSM originally listed 106 mental disorders in its first edition in 1952. The most
current edition, the DSM-IV-TR lists over 250 disorders. With its creation and
maintenance of the DSM, the APA now wields enormous power over any person or
institution, including the law, willing to be governed by its epistemology and its
50 Erickson, supra note 23, at 73.
51 Id. at 99.
52 Id. at 114.
53 Id. at 98.
THE LAW AND PARAPHILIAS 11
The desert-disease model, and the APA’s influence via the DSM, is especially
evident in the sexual predator civil commitment regime.54 Twenty states and the
federal government statutorily permit the indefinite commitment of sexually violent
offenders to secure facilities, purportedly for treatment and potential cure.55 This
detention, though extreme in nature, is external to the normal criminal adjudication
and sentencing system for criminal offenses.56 The typical sexual offender civil
commitment statute requires three elements: (1) a sexually violent offense
conviction; (2) a mental disorder or disability; and (3) significant difficulty in
controlling recidivism due to the disorder.57 The second element is the most relevant
to paraphilias. Critics contend that the United States Supreme Court has been
“deliberately vague” in defining mental disorder and that lower courts have allowed
“far too much latitude and inconsistency.”58 The Supreme Court considered the
second element for purposes of sex offender civil commitment in the case of Kansas
v. Hendricks. The state sought to commit Hendricks, who had a long history of
54 Saleh et al., supra note 5, at 361 (“The growth of sexually violent person commitment laws
seems premised on the idea that by forcing a connection between the individual defendant and the
treatment facility and by then supervising that connection for a reasonable time period, the criminal
justice system can promote treatment.”).
55 Corey Rayburn Yung, Sex Offender Exceptionalism and Preventive Detention, 101 J. CRIM.
L. & CRIMINOLOGY 969, 975 (2011).
57 See also Allen Frances et al., Defining Mental Disorder When it Really Counts: DSM-IV-TR
and SVP/SDP Statutes, 36 J. AM. ACAD. PSYCHIATRY & L. 375, 377 (2008); Saleh et al., supra note
5, at 365.
58 Shoba Sreenivasan et al., Normative Versus Consequential Ethics in Sexually Violent
Predator Laws: An Ethics Conundrum for Psychiatry, 38 J. AM. ACAD. PSYCHIATRY & L. 386, 390
(2010); see also Frances et al., supra note 57, at 376–77 (noting legal definition of mental disorder
“is remarkably vague and difficult to apply in specific cases” and criticizing case law as being
“ambiguous” in defining it); Prentky et al., supra note 23, at 360 (“The problem of translation is
amplified in the SVP context because the legal categories and thresholds are themselves poorly
defined, in large measure because of the lack of clarity about the normative values underlying these
laws.”); Saleh et al., supra note 5, at 365 (“That these statutes used inconsistent definitions of
proscribed sexual behaviors is hardly surprising since the public, mental health professionals, and
the legal profession holds such widely divergent views as to what defined a sexually dangerous
sexually abusing children and had been diagnosed with pedophilia.59 A lower court
ruled that the state’s commitment statute, which used the terminology “mental
abnormality” for the second element, was insufficiently vague for due process
purposes. The Supreme Court reversed, ruling that even though the Court’s previous
discussion of a qualifying disorder for civil commitment referred to it as a “mental
illness,” such terminology was not intended as having any “talismanic significance”
and the Court had “never required State legislatures to adopt any particular
nomenclature in drafting civil commitment statutes.”60 Instead, legislatures have
much freedom in crafting terms that have legal meaning.61 Likely as a result of the
ruling, the federal sex offender commitment statute enacted with the Adam Walsh
Child Protection Act of 2006 delineates the second element in a manner potentially
to cover all bases: “mental illness, abnormality, or disorder.”62 In any event, the
Hendricks Court expressly recognized that a diagnosis of pedophilia was a sufficient
diagnosis for the purpose of sex offender civil commitment,63 thereby opening the
door to the acceptance of other paraphilias as qualifying disorders.
Despite its seeming utility to courts, inherent drawbacks exist with the gap-
filling desert-disease model of SVP laws. The law-psychiatry interface and the
translation between scientific and legal terms are critical yet potentially hazardous
feats considering the substantial infringement on liberty and autonomy that the laws
inflict.64 Putting it bluntly, commentators writing about the “most critical problems
that occur at the intersection of law and science in the [SVP] context,” note two
59 521 U.S. 346 , 354 (1997).
60 Id. at 359.
62 18 U.S.C. § 4248(a) (2006).
63 521 U.S. at 360.
64 Prentky et al., supra note 23, at 359–60.
THE LAW AND PARAPHILIAS 13
general concerns, those being that “‘good science’” will be unrecognized or
misunderstood by the law and that the pressures of the law will not only use but
encourage “bad science.” Both concerns are potential sources of injustice and
threaten the integrity of science and the law.”65 The question of whether paraphilias
fulfill either the scientific principles of psychiatry or are sufficient for imposing the
legal impediments of SVP laws is considered next.
III. THE LAW & PARAPHILIA DIVIDE
Significant issues have emerged from the law-psychiatry interface underlying
the enforcement of SVP laws. The legal and forensic psychiatry disciplines have
certainly allied in using the paraphilias to control sexually deviant offenders—but
have done so decidedly in favor of prosecutorial interests. Professionals engaged in
the cross-disciplinary interface appear to have adopted a phenomenological approach
that has devolved into what social scientists refer to as groupthink—that is, when a
group’s desire for consensus supersedes any realistic consideration of alternative
theories or a reevaluation of potential faults in its ideology.66 To explain this
proposition, an exploration of some of the problems in the paradigm of paraphilias is
The term paraphilias was first introduced to American psychiatry by the
Austrian sexologist Richard von Krafft-Ebing, who in 1886 penned Psychopathia
Sexualis (Sexual Psychopathy), a work that continues to be a primary treatise in the
sex offender treatment field.67 The term paraphilia derives from the Greek words of
65 Id. at 357–58.
66 See generally IRVING L. JANIS, VICTIMS OF GROUPTHINK: A PSYCHOLOGICAL STUDY OF
FOREIGN-POLICY DECISIONS AND FIASCOES (1972).
67 Saleh et al., supra note 5, at 361.
para meaning “beyond, amiss, altered” and philia meaning love.68 It has also been
translated as “interest in perversion,” “love of the perverse,” and “love of something
beyond normal.”69 The core of a paraphilia is an abnormal sexual interest.70 The
antonym is normophilia.71
The APA incorporated this label in the third edition of its taxonomy (DSM-III)
in 1984.72 Before 1984, DSM-I, first published in 1952, considered sexual deviation
a type of sociopathic personality disturbance, while DSM-II in 1968 referred to
sexual deviations.73 The DSM’s change from sexual deviation to paraphilia in DSM-
III in 1984 was purported to signify an “atheoretical, non-perjorative descriptor” to
disassociate the mental health concept from the legalistic signifiers of deviance and
perversion.74 Notwithstanding that intent, in the law paraphilias appear to have
retained a vituperative connotation. For example, recent case law often represents
paraphilias in terms of sexual “deviance”75 and “perversion.”76
68 Joel S. Milner et al., Paraphilia Not Otherwise Specified, in SEXUAL DEVIANCE: THEORY,
ASSESSMENT, AND TREATMENT, supra note 43, at 384. Another asserts para is Greek for deviation
and philia means attraction. Jerome C. Wakefield, DSM-5 Proposed Diagnostic Criteria for Sexual
Paraphilias: Tensions between Diagnostic Validity and Forensic Utility, 34 INT’L J. L. &
PSYCHIATRY 195, 195 (2011).
69 AGGRAWAL, supra note 3, at 3.
70 David Thornton, Evidence Regarding the Need for a Diagnostic Category for a Coercive
Paraphilia, 39 ARCHIVES SEXUAL BEHAV. 411, 411 (2010).
71 AGGRAWAL, supra note 3, at 1.
72 The American psychiatric profession first adopted the term of paraphilia in the 1930s.
Milner et al., supra note 68, at 384.
73 AGGRAWAL, supra note 3, at 8.
74 Milner et al., supra note 68, at 384; Moser & Kleinplatz, supra note 35, at 93.
75 E.g., Yancy v. Voss, No. SACV 06-356-JFW(CW), 2011 U.S. Dist. LEXIS 43880, at *4–5
(C.D. Cal. Mar. 21, 2011) (synthesizing expert’s interpretation as a “psychosexual disorder that
causes a person to obtain sexual pleasure from ‘deviant’ sexual acts”); United States v. Graham, 683
F. Supp. 2d 129, 135 (D. Mass. 2010) (“mental disorders characterized by deviant sexual arousal”);
Orozco v. Ahlin, No. CV08-5504AHM, 2008 U.S. Dist. LEXIS 108797, at *18 (C.D. Cal. Dec. 3,
2008) (“generally sexual deviance”); In re Johnson, No. A11-792, 2011 Minn. App. Unpub. LEXIS
902, at *12 (Sept. 26, 2011) (sexual deviance); .In re Brady, No. 09-09-00360-CV, 2011 Tex. App.
LEXIS 4502, at *5 (June 16, 2011) (“condition of sexual deviance”); People v. Williams, No.
D046925, 2006 Cal. App. Unpub. LEXIS 4240, at *3 (May 16, 2006) (deviant sexual urges); In re
E.S.T., 854 A.2d 936, 939 n.2 (N.J. Super. Ct. 2004) (quoting American Heritage Dictionary).
76 E.g., United States v. Harris, 339 F. App’x 533, 535 (6th Cir. 2009) (quoting Oxford English
Dictionary); People v. Hill, 2011 Cal. App. Unpub. LEXIS 1621, at *12 (Mar. 4, 2011) (noting
THE LAW AND PARAPHILIAS 15
The DSM lists paraphilias among a broader grouping of sexual disorders, which
also include sexual dysfunctions (referred to as a “disturbance in the processes that
characterize the sexual response cycle or by pain associated with sexual intercourse”)
and gender identity disorders (“cross-gender identification accompanied by
persistent discomfort with one’s assigned sex”).
There are two general criteria for paraphilias. The first, Criterion A, requires
“recurrent, intense sexually arousing fantasies, sexual urges, or behaviors generally
involving 1) nonhuman objects, 2) the suffering or humiliation of oneself or one’s
partner, or 3) children or other nonconsenting persons that occur over a period of at
least 6 months.”77 Criterion B is met “if the behavior, sexual urges, or fantasies cause
clinically significant distress or impairment in social, occupational, or other
important areas of functioning.”78 For those paraphilias involving nonconsenting
persons (i.e., pedophilia, sexual sadism, voyeurism, exhibitionism, and frotteurism),
Criterion B can alternatively be met if the person has acted on the urges.79 Per the
DSM’s modal logic, paraphilias generally appear in early adolescence, are relatively
stable, and are considered rather immutable.80
A. An Introduction to Various Paraphilias
The DSM includes eight specific paraphilias and a residual category. Comments
in the DSM indicate that it is entirely appropriate for mental health professionals to
diagnose an individual with more than one paraphilia. In the brief introductions of
defense expert’s reference of “basically a sexual deviancy or a sexual perversion”); In re G.R.H.,
758 N.W.2d 719, 721 (N.D. 2008) (referring to diagnosis of sexual perversion).
77 DSM-IV-TR, supra note 2, at 566.
79 Id. A slight variation exists for sexual sadism requiring the person act on the urges with a
80 Lippke, supra note 1, at 152.
the individual paraphilias that follow, it becomes evident why the paraphilias are
considered commensurate with sex-based crimes.
Pedophilia is the most commonly studied and discussed paraphilia in clinical
and forensic literature.81 The etymology of pedophile is lover of children.82 The
appellation derives from the Greek words pedeiktos for child and philia for love.83
The DSM criterion specific for pedophilia refers to “intense sexually arousing
fantasies, sexual urges, or behaviors involving sexual activity with a prepubescent
child or children (generally age 13 years or younger).”84 The criterion has generated
much controversy as to whether either the characteristic of prebuescence or the
characteristic of age 13 prevails, considering that in recent times many children
younger than 13 reach puberty. The issue has become more complicated and
contested considering the APA is strongly considering that it formally expand
paraphilias to include sexual attraction to pubescent children with a suggestion of
ages 11-14, in a category commonly referred to as hebephilia.85 While discussed in
more detail later in this Article, hebephilia as a term is constructed from the Greek
word ephebos, meaning “one arrived at puberty.”86
81 AGGRAWAL, supra note 3, at 46; Michael C. Seto, Pedophilia: Psychopathology and
Theory, in SEXUAL DEVIANCE: THEORY, ASSESSMENT, AND TREATMENT, supra note 43, at 164.
82 STEPHEN T. HOLMES & RONALD M. HOLMES, SEX CRIMES: PATTERNS AND BEHAVIORS
110 (3d ed. 2009).
83 AGGRAWAL, supra note 3, at 45.
84 DSM-IV-TR, supra note 2, § 302.2. The DSM pedophilia has another age specifier in which
the individual diagnosed be at least 16 years and more than five years older than the child of
85 Ray Blanchard et al., Pedophilia, Hebephilia, and the DSM-V, 38 ARCHIVES SEXUAL
BEHAV. 335, 348 (2009).
86 AGGRAWAL, supra note 3, at 45. Alternative names are hebophilia, ephebophilia,
phebophilia, and Lolita Syndrome. Id.
THE LAW AND PARAPHILIAS 17
Frotteurism derives from the French verb frotter, which does not have a sexual
connotation per se but means the act of rubbing.87 In the DSM, it is described as
sexually arousing fantasies or behaviors involving “touching and rubbing against a
nonconsenting person.”88 Frotteurism is a more recent addition to paraphilias,
introduced first in the DSM-III in 1984.89 The DSM’s commentary posits this
common scenario: “He rubs his genitals against the victim’s thighs and buttocks or
fondles her genitalia or breasts with his hands.”
Exhibitionism involves “exposing one’s genitals to an unsuspecting stranger,”90
while voyeurism regards the “act of observing an unsuspecting person who is naked,
in the process of disrobing, or engaging in sexual activity.”91 Another paraphilia is
fetishism, which is derived from the Portugese feitiço, meaning artificial.92 In the
DSM it includes sexual arousal to “nonliving objects.”93 Studies show that the most
common objects for fetishists are female underwear, objects connected to feet (such
as boots, shoes, and socks), and leather items.94 The DSM has a separate category for
transvestic fetishism, more specifically referring to cross-dressing, which the
commentary limits to applying only to heterosexual males.95
87 Patrick Lussier & Lyne Piché, Frotteurism: Psychopathology and Theory, in SEXUAL
DEVIANCE: THEORY, ASSESSMENT, AND TREATMENT, supra note 43, at 145.
88 DSM-IV-TR, supra note 2, § 302.89.
89 Niklas Langström, The DSM Diagnostic Criteria for Exhibitionism, Voyeurism, and
Frotteurism, 39 ARCHIVES SEXUAL BEHAV. 317, 320–21 (2010).
90 DSM-IV-TR, supra note 2, § 302.4.
91 Id. § 302.82.
92 Jean-Luc Nancy, The Two Secrets of the Fetish, 31 DIACRITICS 3, 4 (2001).
93 DSM-IV-TR, supra note 2, § 302.81.
94 Martin P. Kafka, The DSM Diagnostic Criteria for Fetishism, 39 ARCHIVES SEXUAL
BEHAV. 357, 360 (2010).
95 DSM-IV-TR, supra note 2, § 302.3.
Sexual sadism was coined by the same Austrian psychiatrist responsible for
introducing the ideology of paraphilia to the American profession.96 Krafft-Ebing
based the term on the licentious sexual behaviors of the Marquis de Sade.97 The
DSM describes the sexual sadistic disorder as “acts (real, not simulated) in which the
psychological or physical suffering (including humiliation) of the victim is sexually
exciting to the person.”98 The sadist’s desired responses are obedience, submission,
humiliation, fear, and terror.99 Practitioners note, too, that for sexual sadists, it is the
suffering that is sexually arousing, not the infliction of pain.100 The DSM offers
Sadistic fantasies or acts may involve activities that indicate the dominance
of the person over the victim (e.g., forcing the victim to crawl or keeping
the victim in a cage). They may also involve restraint, blindfolding,
paddling, spanking, whipping, pinching, beating, burning, electrical shocks,
rape, cutting, stabbing, strangulation, torture, mutilation, or killing.
Krafft-Ebing also created the term masochism, naming it after the author
Leopold von Sacher-Masoch who wrote erotic novels in the late 1800s, such as the
celebrated Venus in Furs about a domineering women torturing and subjugating the
male hero.101 In the DSM, sexual masochism includes the “act (real, not simulated)
of being humiliated, beaten, bound, or otherwise made to suffer.”102
Finally, there is a residual category. Paraphilia not otherwise specified (often
referred to as “paraphilia NOS”) is a diagnosis reserved for what would qualify as a
paraphilia by virtue of the general criteria but does not sufficiently meet the
96 Pamela M. Yates et al., Sexual Sadism: Psychopathology and Theory, in SEXUAL
DEVIANCE: THEORY, ASSESSMENT, AND TREATMENT, supra note 43, at 213.
97 AGGRAWAL, supra note 3, at 169.
98 DSM-IV-TR, supra note 2, § 302.84.
99 AGGRAWAL, supra note 3, at 167.
101 Mary Jane Heron & William J. Herron, Meanings of Sadism and Masochism, 50 PSYCHOL.
REP. 199, 199 (1982).
102 DSM-IV-TR, supra note 2, § 302.83.
THE LAW AND PARAPHILIAS 19
standards for any of the specific categories. The DSM expresses that “[e]xamples
include, but are not limited to, telephone scatologia (obscene phone calls),
necrophilia (corpses), partialism (exclusive focus on part of body), zoophilia
(animals), coprophilia (feces), klismaphilia (enemas), and urophilia (urine).”103 This
residual category of paraphilia NOS was first introduced to the DSM in 1987.
Professionals refer to paraphilia NOS as a wastebasket104 or a catchall category.105
Some sex offender treatment experts have identified more than 50 paraphilias in the
NOS category in the literature,106 while others allege hundreds.107
While the paraphilias matter for a host of issues in criminal law,108 they
predominate in legal decisions to civilly commit sex offenders.109 Studies of those
committed or detained in sexual offender commitment facilities indicate that the
diagnosis of any paraphilia ranges from 46%–98%.110 Pedophilia and paraphilia
NOS are the most common disorders cited in civil commitment proceedings,111 with
103 Id. § 302.9.
104 Wakefield, supra note 68, at 195.
105 Orozco v. Ahlin, No. CV08-5504AHM, 2008 U.S. Dist. LEXIS 108797, at *26 (C.D. Cal.
Dec. 3, 2008); Prentky et al., supra note 23, at 366.
106 Saleh et al., supra note 5, at 362 (mentioning, too, there are likely many others).
107 E.g., In re Williams, 257 P.3d 671, 674 n.5 (Wash. Ct. App. 2011) (referencing hundreds of
paraphilias); Milner et al., supra note 68, at 390 (noting some are subtypes of existing paraphilias);
J. Paul Federoff, Forensic and Diagnostic Concerns Arising from the Proposed DSM-V Criteria for
Sexual Paraphilic Disorder, 39 J. AM. ACAD. PSYCHIATRY & L. 238, 240 (2011); Michael B. First
& Robert L. Halon, Use of DSM Paraphilia Diagnoses in Sexually Violent Predator Commitment
Cases, 36 J. AM. ACAD. PSYCHIATRY & L. 443 (2008) (indicating famous sexologist John Money
identified 100 types of sexual interests being deviations).
108 Supra notes 8-20 and accompanying text.
109 Studies have shown around 5% of sexual offenders about to be released upon serving their
sentences are civilly committed in states with sexually violent offender commitment states. Richard
W. Elwood et al., Diagnostic and Risk Profiles of Men Detained under Wisconsin’s Sexually Violent
Person Law, 54 INT’L J. OFFENDER THERAPY & COMP. CRIMINOLOGY 187, 188 (2010) (citing
figure of about 4% being referred to commitment for Wisconsin); Jennifer E. Schneider, A Review
of Research Findings Related to the Civil Commitment of Sex Offenders, 36 J. PSYCHIATRY & L.
463, 465 (2008) (noting 3.3%–6.4% depending on the year in Minnesota from 1991-1999).
110 Schneider, supra note 109, at 465 (Minnesota, Arizona, and Washington).
111 Rebecca L. Jackson & Derek T. Hess, Evaluation for Civil Commitment of Sex Offenders: A
Survey of Experts, 19 SEXUAL ABUSE 425, 427 (2007).
roughly half of those committed or detained being diagnosed with one or the other.112
Researchers have also shown the salience of a paraphilia diagnosis for positive
decisions to civilly commit. In a study of 450 individuals evaluated for commitment,
bivariate results showed the factor with the highest correlation to a recommendation
of commitment was a paraphilia NOS diagnosis, greater even than antisocial
personality disorder.113 Pedophilia was also highly correlated and had a statistical
effect (i.e., positive impact) greater than the number of previous victims or the
individuals’ statement of intent to commit a new sex crime.114 A logistic analysis
also found a significant impact on the likelihood of the assessor to recommend
commitment. In a logistic model (holding constant other variables of interest), a
paraphilia NOS diagnosis raised the odds of being recommended for commitment by
over 10,500% while a pedophilia diagnosis raised the odds over 4,500%.115 These
studies provide clear evidence of the role diagnoses of sexual deviance play in
warranting preventive detention. Still, the next question is whether the paraphilias
are necessarily deviant.
All societies attempt to control the sexual behavior of their members.116 The
definition of what is erotically normative and who decides is, therefore, pivotal. In
Western culture, the definitional role evolved in the nineteenth century from a
112 Shan Jumper et al., Diagnostic Profiles of Civilly Committed Sexual Offenders in Illinois
and Other Reporting Jurisdictions, 54 INT’L J. OFFENDER THERAPY & COMP. CRIMINOLOGY 187
113 Jill S. Levenson & John W. Morin, Factors Predicting Selection of Sexually Violent
Predators for Civil Commitment, 50 INT’L J. OFFENDER THERAPY & COMP. CRIMINOLOGY 609,
114 Id. A diagnosis of sexual sadism raised the odds of commitment recommendation by over
85,500% but it was not statistically significant because of the few cases with the diagnosis. Id.
115 Id. at 621.
116 Saleh et al., supra note 5, at 365.
THE LAW AND PARAPHILIAS 21
religious model of sin to one of pathological criminality.117 The particular strategy of
control over the next century involved defining a specific sexual interest as
pathognomonic, and hence symptomatic, of mental disorder.118 American psychiatry
as an institution was complicit in encouraging SVP laws with its “relentless and
extensive campaign to extend the scope and power of their influence in the
administration of justice, in the disposition of offenders, and in the policies and
practices of correctional institutions and agencies.”119 As a result, “[t]he equating of
unusual sexual interests with psychiatric diagnoses has been used to justify the
oppression of sexual minorities and to serve political agendas.”120 This explains the
relevance of paraphilias to modern law. In anthropological terms, paraphilias provide
an emic (culturally-bound) categorization for a Westernized method of situating
normality and inflicting societal pressures causing individuals who vary sexually
from the norm to experience distress.121 But there are fundamental problems with
this disease-based model. “Historically, it has been difficult for psychiatrists to
define paraphilias in a consistent manner or to distinguish paraphilias from non-
paraphilic or normophilic sexual interests.”122 What are considered deviant sexual
interests vary cross-culturally and, within any culture, vacillate.123 As normative sex
117 Moser & Kleinplatz, supra note 35, at 94.
118 Id. at 92.
119 Michael Hakeem, A Critique of the Psychiatric Approach to Crime and Correction, 23
LAW & CONTEMP. PROBS. 650, 651 (1958).
120 Moser & Kleinplatz, supra note 35, at 93.
121 D.L. Davis & R.G. Witten, The Cross-Cultural Study of Human Sexuality, 16 ANN. REV.
ANTHROPOLOGY 69, 76 (1987).
122 Charles Moser, Yet Another Paraphilia Definition Fails, 40 ARCHIVES SEXUAL BEHAV.
483, 483 (2011).
123 Dinesh Bhugra et al., Paraphilias Across Cultures: Contexts and Controversies, 47 J. SEX
RES. 242, 242 (2010) (“Humans are sexual animals, but vary across culture in their propensity to
use sex as a non-procreative and pleasurable activity. Sexual behaviors in the non-procreative
tradition differ across partners; depend on the availability of partners, fantasies, and opportunities;
and are influenced by cultural norms, mores or morals, religion, religious taboos, types of societies,
and expectations of its members.”).
practices change, “some paraphilias based upon a specific erotic interest may come
and go as a function of historical realities.”124
Even within any time frame or cultural base, there are thorny issues in
differentiating what is normal as compared to abnormal; or, what is abnormal and
also deviant.125 Often the basis for defining normality is related to procreative sex.
Krafft-Ebing, on whose work the American psychiatric profession’s initial embrace
of paraphilias was based, considered any non-procreative activity as perverse. In his
view, bestiality, fellation, cunnilingus, and homosexuality were perversions, while
rape was not because it could result in pregnancy.126 In a similar vein, the DSM-II
offered the following description for its diagnostic category of sexual deviations:
This category is for individuals whose sexual interests are directed
primarily toward objects other than people of the opposite sex, toward
sexual acts not usually associated with coitus, or toward coitus performed
under bizarre circumstances, as in necrophilia, pedophilia, sexual sadism,
These indicate a vestige in religiosity, though other measures could be used to
determine normalcy, such as statistical, cultural, or subjective measures.127 Overall,
the focus on normality means that paraphilias are really more of a value-laden social
construct than a medical or scientific concept.128
Because of the value judgment underlying normality and the uncertainty of
human sexuality, paraphilias are perhaps the most contested group in the DSM.129
Some general grievances have been made. A critic notes that “[t]he DSM’s vision of
124 Saleh et al., supra note 5, at 362.
125 D. Richard Laws & William T. O’Donohue, Introduction, in SEXUAL DEVIANCE: THEORY,
ASSESSMENT, AND TREATMENT, supra note 43, at 2 (noting such decisions are value judgments).
126 AGGRAWAL, supra note 3, at 2.
127 STEPHEN T. HOLMES & RONALD M. HOLMES, SEX CRIMES: PATTERNS AND BEHAVIORS
13–18 (3d ed. 2009); AGGRAWAL, supra note 3, at 8.
128 AGGRAWAL, supra note 3, at 4.
129 Wakefield, supra note 68, at 195.
THE LAW AND PARAPHILIAS 23
sexual normality is too simplistic and pathologizes what have been common
behaviors or fantasies throughout history.”130 Paraphilias appear to be based on an
assumption that normal sex is about intimate bonding, yet throughout history, much
sex is about coercive themes and indulging power imbalances.131 For instance,
sadistic and masochistic behaviors are fairly common in the community132 and are
ubiquitous themes in pornography materials.133 Empirical studies similarly show that
interests and behaviors that are considered abnormal in the DSM paraphilias are
prevalent among the public at large.134 For example, a survey of undergraduate men
showed that 95% of them reported having at least one deviant fantasy and that 63%
130 Andrew C. Hinderliter, Defining Paraphilia: Excluding Exclusion, 2 OPEN ACCESS J.
FORENSIC PSYCHOL. 241, 253 (2010), http://forensicpsychologyunbound.ws/; see also Lippke,
supra note 1, at 152 (“many paraphilias  are just about ordinary and acceptable kinds of sexual
preferences”). Surveys of male college students have found indications many would rape a woman
if assured of not being caught. See generally Mary P. Koss et al., The Scope of Rape: Incidence and
Prevalence of Sexual Aggression in a National Sample of Higher Education Students, 55 J.
CONSULTING & CLINICAL PSYCHOL. 162 (1987); Neil M. Malamuth, Rape Proclivity among Males,
37 J. SOC. ISSUES 138 (1981); Neil M. Malamuth et al., Sexual Responsiveness of College Students
to Rape Depictions: Inhibitory and Disinhibitory Effects, 38 J. PERSONALITY & SOC. PSYCHOL. 399
131 Hinderliter, supra note 130, at 255; AGGRAWAL, supra note 3, at 170 (observing
sadomasochistic activities occur in “normal” lovemaking since dominance and aggression have
132 Richard B. Krueger, The DSM Diagnostic Criteria for Sexual Sadism, 39 ARCHIVES
SEXUAL BEHAV. 325, 326 (2010) [hereinafter Krueger, Sexual Sadism]; Richard B. Krueger, The
DSM Diagnostic Criteria for Sexual Masochism, 39 ARCHIVES SEXUAL BEHAV. 346, 351 (2010)
(indicating 1-5% of Americans engage in sexually masochistic or sadomasochistic behavior).
133 Pamela M. Yates et al., Sexual Sadism: Psychopathology and Theory, in SEXUAL
DEVIANCE: THEORY, ASSESSMENT, AND TREATMENT, supra note 43, at 215; Ana J. Bridges et al.,
Aggression and Sexual Behavior in Best-selling Pornography Videos: A Content Analysis Update,
16 VIOLENCE AGAINST WOMEN 1065, 1075 (2010) (finding 88% of scenes in popular pornography
videos include physical aggression--primarily spanking, gagging, slapping).
134 Studies indicate significant percentages of men in the community fantasize about coercive
sexual encounters. Virginia Greendlinger & Donn Byrne, Sexual Fantasies of College Men as
Predictors of Self-Reported Likelihood of Rape and Overt Sexual Aggression, 23 J. SEX RES. 11
(1987) (finding 54% of college men so fantasizing); WILLIAM H. MASTERS & VIRGINIA E.
JOHNSON, HOMOSEXUALITY IN PERSPECTIVE (1979) (finding reported fantasies of forced sexual
encounters were one of the most reported types of sexual fantasies across gender/sexualities); Neil
M. Malamuth & James V. Check, Sexual Arousal to Rape Depictions: Individual Differences, 92 J.
ABNORMAL PSYCHOL. 55 (1983) (reporting on fantasies involving pain on the part of the victim);
Alfred B. Heilbrum & David T. Leif, Autoerotic Value of Female Distress in Sexually Explicit
Photographs, 24 J. SEX RES. 47 (1988) (reporting fantasies depicting women bound and in distress).
had engaged in at least one deviant behavior.135 Similarly, in a community sample of
men age 40–79, the researchers found that 62% reported some degree of sexual
arousal from at least one paraphilia-related stimulus while 44% had engaged in at
least one paraphilia-related sexual behavior.136 Extrapolating to the prevalence in the
general population, the authors of the latter study concluded that “[i]n view of this
number, both mental and real-life sexual experiences that are currently commonly
regarded as peculiar and exotic should lose their status as ‘rarities.’”137
At the same time, fantasy and sexual interest are not always linked to actual
sexual activity.138 A recent comparison of samples of undergraduate males and
convicted child molesters showed the former having more fantasies overall and more
with sadomasochistic themes, even after adjusting for the potential for the molester
group to underreport.139 Reviewing empirical literature generally, other authors
realistically conclude the following:
The idea that unusual or deviant sexual interests automatically lead to
sexual offending or that all sexual offending refers directly to the presence
of sexual deviant preferences is untenable (however invariably popular with
(screen) writers). Numerous unusual sexual interests do not lead to
135 Kevin M. Williams et al., Inferring Sexually Deviant Behavior from Corresponding
Fantasies, 36 CRIM. JUST. & BEHAV. 198, 205 (2009) (the prevalence of fantasies were 62%
sadism, 83% voyeurism, 72% frotteurism, 13% pedophilia, 68% sexual assault, while the
percentages for sexually deviant behaviors were 22%, 18%, 44%, 5%, and 25%, respectively).
136 Christopher Joseph Ahlers et al., How Unusual are the Contents of Paraphilias?, 8 J.
SEXUAL MED. 1362, 1366, 1369 (2011) (breaking down for the paraphilic-stimulus as 24.5%
fetishistic, 18.% masochistic, 24.8% sadistic, 38.7% voyeuristic, 15.0% frotteuristic, and 10.4%
137 Id. The percentages of those engaging in paraphilic activities included those related to
fetishism (24.5%), masochistic (2.3%), sadistic (15.5%), voyeuristic (18.0%), frotteuristic (6.4%),
and pedophilic (3.8%). Id.
138 A Finnish study of men age 33–43 found the mean of the minimum age of preferred targets
of sexual interest and fantasy was 24 years while the mean of minimum age of actual sexual
partners was around 34 years. Pekka Santtila et al., Child Sexual Interactions with other Children
are Associated with Lower Preferred Age of Sexual Partners Including Sexual Interest in Children
in Adulthood, 175 PSYCHIATRY RES. 154, 156 (2010) (acknowledging results may not be
generalizable considering it was a study of twins with a low survey response rate).
139 Georgianna Brain, A Comparison of the Nature and Prevalence of Sexual Fantasies
Between Sex Offenders and Non-Offenders 43 (Aug. 2011) (unpublished M.S. thesis, Texas State
University) (on file with Texas State University).
THE LAW AND PARAPHILIAS 25
offending behavior because they are directed towards objects (e.g.
fetishism) or because people find other consenting adults to sexually
interact with (e.g. sadomasochism). Interest in illegal sexual interactions
(children or nonconsenting persons) can be found in a substantial part of the
(male) population. The majority of them, however, never seem to act on
Notably, the conceptualization of sexual arousal or behaviors involving youth
age 11–14 under the rubric of paraphilia NOS, and the APA’s consideration for
formal adoption in DSM-5 as hebephilia, further discussed herein, is considered an
extreme example of overpathologizing common occurrences.141 Others surmise that
the paraphilias currently embodied in the DSM indicate that the authors have not
considered the evolution of sexual mores.142 Plus, with the modal assumption of
chronicity, the paraphilias ignore that an individual’s sexuality is malleable.143
Interestingly, while paraphilias presume that individuals with the particular sexual
interests therein covered are deviant, those who lack sexual desire are also
pathologized in the DSM, just within other categories, including Sexual Arousal
Disorder or Hypoactive Sexual Desire Disorder. In sum, there appears no logical
explanation for why certain paraphilias have been specifically recognized while
140 Wineke Smid et al., Proxy Measures of Sexual Deviancy, in INTERNATIONAL
PERSPECTIVES ON THE ASSESSMENT AND TREATMENT OF SEXUAL OFFENDERS 172, 180 (Douglas
Peter Boer et al. eds., 2011); see also Jerome V. Baumgartner et al., Assessment of the Wilson Sex
Fantasy Questionnaire among Child Molesters and Nonsexual Forensic Offenders, 14 SEXUAL
ABUSE 19, 25 (2002) (finding hospitalized child molesters did not score significantly different on
scales of sexually deviant fantasies than college males and samples of those sexually deviant but not
141 Karen Franklin, Hebephilia: Quintessence of Diagnostic Pretextuality, 28 BEHAV. SCI. & L.
751, 761 (2010). For a rebuke, see generally James M. Cantor, The Errors of Karen Franklin’s
Pretextuality, INT’L J. FORENSIC MENTAL HEALTH (2011).
142 Saleh et al., supra note 5, at 362; see also Langström, supra note 89, at 320–21 (reporting
the Swedish National Board of Health and Welfare in 2009 deleted the paraphilias of fetishism,
sadomasochism, and transvestism from the Swedish version of the World Health Organization’s
143 Wakefield, supra note 68, at 195.
others have not.144 Consider these examples: Why is fetishism, involving nonliving
objects listed when it may be a solitary activity? With the large market for
pornography materials, is voyeurism necessarily deviant?
Diagnostic vagueness in the paraphilia classification is another important issue.
The frequency of comorbid diagnoses indicates the overlapping nature of them145
and signifies vast heterogeneity within DSM disorders.146 As will be developed in
the next section, the paraphilia disorders have no clear boundaries and therefore do
not adequately distinguish those with a disorder and those without.147 In an effort to
explain, a psychiatrist with experience as a member of the working groups that
developed DSM-III-R and DSM-IV observes that
there is a natural tendency . . . to focus on making changes aimed at
broadening the diagnostic umbrella of their assigned categories with the
goal of increasing diagnostic coverage, i.e., covering what they consider to
be false negatives, an effort which inevitably comes at the cost of increasing
Whether the paraphilias should even be in the DSM is itself controversial.149 A
valid question, left conspicuously unanswered by the APA, is: When does sexual
pleasure become a mental disorder?150 The APA has not made clear how the
paraphilias included are inherently dysfunctional to the individual other than what
144 Moser & Kleinplatz, supra note 35, at 96; J. Paul Federoff, Forensic and Diagnostic
Concerns Arising from the Proposed DSM-V Criteria for Sexual Paraphilic Disorder, 39 J. AM.
ACAD. PSYCHIATRY & L. 238, 240 (2011).
145 Graham Mellsop & Shailesh Kumar, Classification and Diagnosis in Psychiatry: The
Emperor’s Clothes Provide Illusory Court Comfort, 14 PSYCHIATRY, PSYCHOL. & L. 95, 97 (2007).
146 Stephen J. Morse, Mental Disorder and Criminal Law, 101 J. CRIM. L. & CRIMINOLOGY
885, 889 (2011).
147 Moser & Kleinplatz, supra note 35, at 96.
148 Michael B. First, DSM-5 Proposals for Paraphilias: Suggestions for Reducing False
Positives Related to Use of Behavioral Manifestations, 39 ARCHIVES SEXUAL BEHAV. 1239, 1239
149 Hinderliter, supra note 130, at 241.
150 Wakefield, supra note 68, at 195.
THE LAW AND PARAPHILIAS 27
may be imposed by societal or legal reactions.151 There is scant empirical evidence of
any disease process that can explain the existence of the paraphilias listed in the
DSM.152 The British Psychological Society recently issued a statement critiquing the
inclusion of paraphilias in the DSM: “We believe that classifying these problems as
‘illnesses’ misses the relational context of problems and the undeniable social
causation of many such problems.”153 In addition, “of particular concern are the
subjective and socially normative aspects of sexual behavior.”154
Indeed, the DSM-IV paraphilias were not based on objective or empirical
evidence of disorder.155 To the contrary, critics note that there were studies to
contradict any pathology or dysfunction that are deemed necessary to qualify as
mental disorders.156 Even with the impending newest edition, the APA has especially
chosen not to field test the paraphilia group.157 Notably, there are no validated or
standardized diagnostic instruments which are available for paraphilias.158 These
issues help explain why studies of interrater reliability (degree of agreement among
different raters) show alarmingly poor statistics for paraphilias.159 It seems obvious,
then, that paraphilias are a psychological construct meant for diagnostic leverage.
151 Laws & O’Donohue, supra note 125, at 2.
152 Erickson, supra note 23, at 114.
153 British Psychological Society, Response to the American Psychiatric Association: DSM-5
Development 25 (2011), http://apps.bps.org.uk/_publicationfiles/consultation-responses/DSM-
155 Moser & Kleinplatz, supra note 35, at 94.
157 Federoff, supra note 144, at 238.
158 Jackson & Hess, supra note 111, at 427; Richard B. Krueger, Sexual and Other Axis I
Diagnoses of 60 Males Arrested for Crimes Against Children Involving the Internet, 14 PRIMARY
PSYCHIATRY 623 (2009), available at . http://www.primarypsychiatry.com/aspx/article_pf.
159 The relevant statistic is the kappa coefficient. When the diagnosis can lead to significant
infringement on the liberty of the individual involved, a suggested kappa of at least .9 (i.e., 90%
rater agreement) should be expected. W.L. Marshall, Diagnostic Issues, Multiple Paraphilias, and
Comorbid Disorders in Sexual Offenders: Their Incidence and Treatment, 12 AGGRESSION &
VIOLENT BEHAV. 16, 18 (2007) (reporting studies with kappas of .65 pedophilia, .30 sexual sadism,
The law-psychiatry interface here has become so entangled that bad science is
going unrecognized. A prominent critic of the DSM’s (assertedly) unscientific
paraphilias observes: “For reasons that were unanticipated just a few decades ago,
the precise definitions of the paraphilias have become entwined with the attempt to
prevent such harm to the public from the individuals illegally acting out certain
paraphilic desires” via SVP laws.160 Despite significant flaws in the science
underlying the designation of paraphilic disorders, two constituencies, at least, are
incented to maintain their integrity: criminal justice officials and mental health
practitioners in the sexual offender treatment field.
C. Conflating Mental Disorder with Sexual Offending
The desert-disease model underlying SVP laws has in some ways benefited the
mental health field where it has resulted in a “cottage industry and generated two
partisan advocacy expert camps” in providing forensic evaluations.161 The
partisanship is related not only to the adversarial nature of the law but also to the
vagary in applying the DSM’s criteria for paraphilias. Skeptics of paraphilias in the
law have charged that the “tolerance of the legal system for nonstandard and
nonauthoritative diagnoses suggests strongly that the legal system’s reliance on
diagnostic testimony is largely pretextual.”162 It also serves their mutual interests by
labeling sexual offenders as mentally ill and also dangerous, therefore deserving
.47 exhibitionism, .36 paraphilia NOS); Jill S. Levenson, Reliability of Sexually Violent Predator
Civil Commitment Criteria in Florida, 28 LAW & HUMAN BEHAV. 357, 363–64 (2004) (considering
kappa of .75 good and citing prior studies with kappas of .30 sexual sadism, .36 paraphilia NOS, .47
exhibitionism, .65 pedophilia).
160 Wakefield, supra note 68, at 196.
161 John Matthew Fabian, Paraphilias and Predators: The Ethical Application of Psychiatric
Diagnoses in Partisan Sexually Violent Predator Civil Commitment Proceedings, 11 J. FORENSIC
PSYCHOL. PRAC. 82, 82 (2011).
162 Robert A. Prentky et al., Commentary: Muddy Diagnostic Waters in the SVP Courtroom,
36 J. AM. ACAD. PSYCHIATRY & L. 455, 457 (2008).
THE LAW AND PARAPHILIAS 29
preventive detention. It could be that the DSM’s categorization provides clinicians
and legal actors comfort by acknowledging that the diagnoses exist.163 Yet, as
explored in this Article, it is a false comfort, and even treacherous, considering the
negative consequences to the defendants involved and the potential waste of
governmental and treatment resources in the process. Instead, psychiatry is used as a
“prop of legitimacy” for SVP laws.164
In any event, much diagnostic flexibility, perhaps even chicanery, has been
employed with the DSM criteria to service the desert-disease model for controlling
sexual offenders. Many forensic evaluators exploit language issues in paraphilias’
criteria to substantiate diagnoses. One loophole in Criterion A concerns “fantasies,
sexual urges, or behaviors.” Because behaviors are detached with the “or”
designation, many assessors have decoupled behaviors from the sexually arousing
fantasies and sexual urges. It has been observed that “enterprising forensic
evaluators”165 are making a DSM paraphilia diagnosis without
providing valid evidence to justify the diagnosis. Instead, they infer from
the criminal sexual behavior the existence in the offender of the requisite
“deviant sexual arousal pattern” (i.e., recurrent, intense, sexually arousing
fantasies and urges) that is the defining feature of a paraphilia.166
The fact that one can sexually function during a rape, for example, “provides no
specific information about what is going on in his mind vis-à-vis the focus of his
sexual arousal pattern during the act.”167 Thus, the likelihood of false positives is
high if the forensic examiner predicates the diagnosis on the mere commission of a
163 Mellsop & Kumar, supra note 145, at 96.
164 Eric S. Janus, Sexually Violent Predator Laws: Psychiatry in Service of a Morally Dubious
Enterprise, 364 LANCET 50, 50 (2004).
165 First, supra note 148, at 1240.
166 First & Halon, supra note 107, at 446.
criminal sexual offense without also establishing a causal link between the behavior
and a paraphilic arousal pattern.168
Evaluators also compound their errors by not considering the possibility that the
sex crimes had some cause other than a sexual fantasy or mental disorder.169 False
positives can occur by failing to consider and factor individual circumstances and
experiences or cultural and social factors that may affect individuals’ behaviors.170
For example, the offender may be acting for other reasons, such as antisociality,
alcohol-induced disinhibition, opportunity,171 or a medical condition (such as
Mental health examiners have manipulated another wording glitch in Criterion B
for those paraphilias specifically involving nonconsenting persons. For them, the
DSM indicates that Criterion B can be met if either the behavior, urges, or fantasies
cause significant impairment, or, alternatively, if the person acted on the urges. This
has the unfortunate consequence of appearing to permit a diagnosis based on
behavior alone without requiring that the urges cause significant dysfunction or
impairment. The Chair and Editor responsible for wording changes in the DSM-IV
edition publicly acknowledge the problematic wording as simply errors that, in
169 Id. at 445.
170 Alexander Tsesis, Due Process in Civil Commitments, 68 WASH. & LEE L. REV. 253, 294–
171 First & Halon, supra note 107, at 446; First, supra note 148, at 1240; see also Smid et al.,
supra note 140, at 180 (concluding from various studies “the majority of sex offenders do not seem
to have an explicit preference for illegal sexual interactions”); Vernon L. Quinsey, Pragmatic and
Darwinian Views of the Paraphilias, ARCHIVES SEXUAL BEHAV. (Nov. 29, 2011), at
http://www.springerlink.com/content/l83v288g1v53wj03/fulltext.pdf (pedophilia should not apply if
the sexual contact with a child resulted from a “long-term strategy for obtaining an adult partner or
 misapprehension of age”).
172 Wakefield, supra note 68, at 202; see also Drew A. Kingston et al., Comparing Indicators
of Sexual Sadism as Predictors of Recidivism Among Adult Male Sexual Offenders, 78 J.
CONSULTING & CLINICAL PSYCHOL. 574, 581 (2010) (regarding sexual sadism, the important
element is whether “violence is intended to cause physical suffering that is sexually arousing to the
offender, as opposed to other possible motivations (e.g., gratuitous violence because the offender is
angry at the victim)”).
THE LAW AND PARAPHILIAS 31
retrospect, they have come to appreciate have contributed to misuse of the paraphilia
section.173 Instead, there is a more simple explanation behind the wording in
Criterion B and it relates specifically to pedophilia. When the DSM-IV initially
issued it did not include the alternative for the nonconsenting type paraphilias. Thus,
Criterion B required that the behavior, sexual urges, or fantasies cause significant
distress or impairment. This quickly turned into public relations disaster for the APA
because an individual could not be diagnosed with pedophilia unless the person was
also distressed about it.174 The concern had been that some ego-syntonic individuals
who act upon their pedophilic urges are not distressed.175 Thus, in the text revision
(DSM-IV-TR) for pedophilia (as well as for sexual sadism, voyeurism,
exhibitionism, and frotteurism), the authors modified the wording so that acting upon
the sexual urges would be sufficient for Criterion B. In their own defense, the Chair
and Editor of DSM-IV contend that they had not anticipated the development of SVP
laws, the role paraphilias would play in legal proceedings, or the significant harm
resulting to many so diagnosed.176
Thus, for those enterprising forensic evaluators, criminally offensive sexual
behavior itself can fulfill both Criterions A and B.177 In many case law opinions,
indeed, it often appears that the diagnosis for paraphilia was based on criminal
sexual behaviors alone.178
173 Allen Frances & Michael B. First, Hebephilia is not a Mental Disorder in DSM-IV-TR and
Should not Become One in DSM-5, 39 J. AM. ACAD. PSYCHIATRY & L. 78, 80 (2011).
174 Hinderliter, supra note 130, at 251.
175 Id.; Krueger, Sexual Sadism, supra note 132, at 326; Wakefield, supra note 68, at 202
(“Some constituencies were outraged that these criteria seemed to give the ego-syntonic well-
functioning paraphilic a free pass as far as disorder goes, even in such cases as the compulsive
176 Frances & First, supra note 173, at 80.
177 Wakefield, supra note 68, at 202.
178 E.g., People v. Torres, 71 Cal. App. 4th 704, 711 (1999) (“[d]efendant’s criminal history,
according to both experts, demonstrates his paraphilia”); People v. Seja, 2011 Cal. App. Unpub.
These diagnostic loopholes inappropriately lead to the assignment of mental
illness based primarily (or even solely) on repeated sexual offenses considering
many paraphilic-type acts are crimes.179 Multiple problems result from this
conflation. In psychological terms, this represents the “logical fallacy of affirming
the consequent”: using the sexual offense to assume the paraphilia (the
antecedent).180 It seems illogical, too, that when a diagnosis is based on behavior, the
behavior indicates a disorder even if it benefits the individual.181 Thus, the diagnosis
may not represent any underlying pathology.182 This misuse of the DSM, thereby,
transforms immoral conduct into mental disease.183 Yet this has served the disease
model, in that repeated or even the threat of repeated behavior becomes the disease
component incorporated into SVP laws.184
Even diagnosticians who utilize the significant impairment element often
conflate its existence with the criminal justice consequences that the defendant
suffered, such as arrest or incarceration, as a result of committing sexual offenses.185
LEXIS 5474, at *35 (July 22, 2011) (noting expert’s diagnosis supported by defendant’s prior
crimes); In re Conley, No. 09-10-00383CV, 2011 Tex. App. LEXIS 7877, at *4 (Sept. 29, 2011)
(state expert basing paraphilia NOS on defendants’ sexual offenses against non-consenting adults);
In re Hardin, 932 N.E.2d 1016, 1026 (Ill. 2010) (relying on 3 sex offenses with nonconsenting
persons (teenagers) over 5 years); In re Sugden, 795 N.W.2d 456, 461 (Wisc. Ct. App. 2010)
(relying on details of defendant’s rapes and sexual treatment of wife during the same period);
People v. Runge, 917 N.E.2d 940, 949 (Ill. 2009) (basing sexual sadism on defendant’s documented
history of sexual transgressions).
179 Krueger, Sexual Sadism, supra note 132, at 341; Moser & Kleinplatz, supra note 35, at 98.
180 First & Halon, supra note 107, at 446.
181 Moser & Kleinplatz, supra note 35, at 94.
182 Holly A. Miller et al., Sexually Violent Predator Evaluations: Empirical Evidence,
Strategies for Professionals, and Research Directions, 29 LAW & HUM. BEHAV. 29, 39 (2005).
183 Erickson, supra note 23, at 92–109.
184 Saleh et al., supra note 5, at 366.
185 This is evident in case law. E.g., Sigman v. Rogers, No. 07-1383(DMC), 2008 U.S. Dist.
LEXIS 71127, at *22 (D. N.J. Sept. 3, 2008) (finding social impairment since imprisoned twice);
United States v. Abregana, 574 F. Supp. 2d 1145, 1152 (D. Hawaii 2008) (noting impairment by
being incarcerated thrice); In re Hardin, 932 N.E.2d 1016, 1026 (Ill. 2010) (finding impairment
based on prior convictions); People v. Willmes, No. H034656, 2010 Cal. App. Unpub. LEXIS 9444,
at *11 (Nov. 30, 2010) (indicating repeated incarcerations caused impairment by keeping defendant
from leading a normal life).
THE LAW AND PARAPHILIAS 33
The DSM itself suggests this connection. At first, the DSM expresses that a
“[p]araphilia must be distinguished from the nonpathological use of sexual fantasies,
behaviors, or objects as a stimulus for sexual excitement in individuals without a
[p]araphilia.”186 But then, it explores what may cause dysfunctions: “Fantasies,
behaviors, or objects are paraphilic only when they lead to clinically significant
distress or impairment (e.g., are obligatory, result in sexual dysfunction, require
participation of nonconsenting individuals, lead to legal complications, interfere with
social relationships).”187 Yet, it is again too close to medicalizing crime, to the extent
they are made to be mental disorders simply because of the interpersonal disturbance
related to arrest.188 “The fact that specific sexual behaviors are socially unacceptable
or illegal is, and should be, irrelevant to the diagnostic process.”189
Diagnostic criteria that does not permit the paraphilia to be in remission
compounds the problems.190 Again, the diagnosis may not represent an underlying
pathology but may be simply a descriptor of past behavior and, importantly,
necessarily unchanging.191 A history of sex offenses, thereby, is transformed into
mental illness and assumed to be lifelong. This universal assumption is implausible,
as well as raises ethical concerns.
D. Ethical Considerations
The law-psychiatry interface here has done a disservice to the independence and
ethical values of both professions. Together, the significant harm that sexual
186 DSM-IV-TR, supra note 2, at 568.
187 Id. (emphasis added).
188 Hinderliter, supra note 130, at 252; see also Moser & Kleinplatz, supra note 35, at 101
(recognizing distress may result not from the sexual interest but from societal discrimination and
189 Moser & Kleinplatz, supra note 35, at 95.
190 Miller et al., supra note 182, at 39.
victimization causes, the monolithic fear of the sexual predator, and the political
clout behind SVP laws has significantly debilitated the assessment process.192 It is a
system where a concern for false negatives overrides that of false positives.193 Even
those performing the evaluations operate more from pessimism than optimism by
being more concerned with being wrong, and the potential harms if wrong, rather
than focusing on the likelihood of being accurate.194
To be fair, assessors are not likely acting on their own, as observers note the
“increasing tendency  for experts to stretch or distort the science—to introduce bad
science—in response to the strong advocacy pressures inherent in SVP
proceedings.”195 The nature of the advocacy process of the law itself invites bias,
including forensic bias and confirmatory bias. Forensic bias can occur through
financial incentive, a desire to please, empathizing with a litigant or retaining
attorney, or becoming involved in the adversarial process by steadfastly defending
one’s position in face of the cross examination.196 Confirmatory bias is possible
where one’s initial hypothesis or diagnosis is not reevaluated but confirmed through
the selective collection of supporting evidence.197 Another avenue for bias is when
the evaluator fails to independently assess the individual. A survey of evaluators in
192 Prentky et al., supra note 23, at 360.
194 Richard Wollert & Elliot Cramer, Sampling Extreme Groups Invalidates Research on the
Paraphilias: Implications for DSM-5 and Sex Offender Risk Assessments, 29 BEHAV. SCI. & L. 554,
195 Prentky et al., supra note 23, at 360.
196 Fabian, supra note 161, at 88. Forensic identification leads to bias where influenced
through inquiry by the retaining expert. Forensic identification occurs through primacy and
anchoring bias. Primacy occurs with the initial case conceptualized by the potentially retaining
attorney who provides a theory which develops into the expert’s working hypothesis and expected
outcome. Anchoring bias occurs when the expert refuses to reverse initial impression despite new or
alternative information. Id. at 89.
197 Fabian, supra note 161, at 90; see also Robert A. Prentky et al., supra note 162, at 456
(contending clinicians in SVP proceedings arrive at conclusions and then gather data to justify a
THE LAW AND PARAPHILIAS 35
sex offender civil commitment proceedings uncovered occurrences suggesting that
many evaluators rotely relied on a documented history of paraphilia without
independently assessing it.198 As a commentator has befittingly warned, mental
health evaluators are on an ethical tightrope with
the pulling forces of forensic identification and bias, personal and moral
beliefs about SVP legislation, and financial, personal, and reputation
demands to be allegiant to their retaining lawyers inherently may cause a
nasty fall, and ultimately they may have to choose one side or the other.199
With respect to SVP determinations, the law’s utilization of the disease model,
with its referential use of mental disorders and the need for psychiatric experts to
provide such diagnoses, displeases a few mental health practitioners.200 The
differences between psychiatry and law alarm some, in that shoehorning diagnoses to
serve legal interests impedes a focus on best practices in treating sex offenders and
preventing relapse.201 “Psychiatry, unlike the law, does not regard these patients as a
homogeneous group of individuals who have simply violated ‘bright-line’
boundaries dividing proscribed from permitted sexual behaviors.”202 SVP laws were
largely created with little attention to these realities.203 To confuse legal and
scientific categories is to commit what some philosophers call the naturalistic
198 Jackson & Hess, supra note 111, at 440; see, e.g., State v. Ross, 863 A.2d 654, 661 (Conn.
2005) (diagnosis of sexual sadism based on other psychiatrists’ reports).
199 Fabian, supra note 161, at 95.
200 Richard Kramer, APA Guidelines Ignored in Development of Diagnostic Criteria for
Pedohebephilia, 40 ARCHIVES SEXUAL BEHAV. 233, 234 (2011) (“Psychiatry is not a helping
profession when it takes an adversarial stance toward such patients and exacerbates rather than
relieves psychiatric symptoms.”).
201 Saleh et al., supra note 5, at 366.
202 Id. at 361.
203 Id. at 361; see also Fabian, supra note 161, at 83 (noting DSM not created for the
“application of behaviorally driven symptomatology to answer legal questions”).
fallacy—i.e., thoughtlessly equating what is with what ought to be.204 However,
paraphilias resonate in caselaw.
IV. CASELAW ON PARAPHILIAS
Juridical curiosity in understanding the meaning of paraphilias is evident in the
frequent exercise in judicial opinions of describing them in layman’s terms. As
mentioned previously, often their portrayals have been in terms of deviance and
perversion.205 In addition, judicial opinions have used normative descriptions such as
abnormal arousal206 or abnormal sexual preference.207 As a specific example, a state
expert in one case referred to paraphilia as “odd sexual behavior in general. Any
oddity, any peculiarity of a sexual object, [or any] sexual activity with that object
could lead to a diagnosis of paraphilia. [It is] love of the different.”208 Another
opinion indicated that an expert had testified that a paraphilia included “an interest in
activities  different than normal relations.”209 Consonantly, in a case challenging a
criminal conviction, a psychiatrist explained a paraphilia as the preferred way of
204 Prentky et al., supra note 23, at 359–60; see also Gregory DeClue, Paraphilia NOS
(Nonconsenting) and Antisocial Personality Disorder, 34 J. PSYCHIATRY & L. 495, 498 (2006)
(“psychiatric disorders do not engage in acts of sexual violence; people do”).
205 See supra notes 75–76 and cases cited therein.
206 In re Williams, No. 39785-4-II, 2011 Wash. App. LEXIS 1920, at *6 (Aug. 9, 2011).
207 United States v. Pritchard, 392 F. App’x 433, 435 n.2 (6th Cir. 2010) (taking judicial notice
of this general meaning from psychology and psychiatry); see also Commonwealth v. Rossmeisl,
No. 192-05, 2006 Pa. Dist. & Cnty. Dec. LEXIS 285, at *12 (Aug. 16, 2006) (disorder of sexual
208 People v. Seja, 2011 Cal. App. Unpub. LEXIS 5474, at *4 (July 22, 2011); see also United
States v. Graham, 683 F. Supp. 2d 129, 135 (D. Mass. 2010) (noting expert characterized paraphilia
in terms of sexual behaviors “that go beyond the bounds of normal human experiences that are not
within the realm of what are considered and defined as normal or appropriate sexual behavior”).
209 People v. Hill, 2011 Cal. App. Unpub. LEXIS 1621, at *8 (Mar. 4, 2011). The court also
noted another expert describing a paraphilia in terms of “unusual” sexual interest. Id. at *12.
THE LAW AND PARAPHILIAS 37
sexual gratification that is different from the “normal male/male, female/female,
male/female sexual interacting or courting kind of behavior.”210
The DSM’s conceptualization of paraphilias as a systemic issue to the individual
often appears in caselaw, with opinions citing experts as referring to the chronic
nature of paraphilias.211 One expert made it redundantly clear, noting paraphilia as
“chronic, unremitting life-long deviant sexual behavior.”212 An expert in another case
justified a current paraphilia diagnosis despite the defendant’s last sexual offense
occurring 16 years earlier, based, in part, on his history of offending prior to that
conviction, analogizing the situation to “once an alcoholic, always an alcoholic.”213
Case opinions similarly contained descriptions of paraphilias in terms of addiction,
such as an expert characterizing paraphilia as an addictive disorder,214 and in another,
the witness indicated that pedophilia is “lifelong problem, like an addiction.”215
Other cases noted, too, that testifying experts denoted a paraphilic condition as
evidently incurable,216 such as assuring that the disorder is one that “would not go
210 Id. at *8–9 (finding evidence relevant to defendant’s mental state in committing the charged
211 E.g., Orozco v. Ahlin, No. CV08-5504AHM, 2008 U.S. Dist. LEXIS 108797, at *18 (C.D.
Cal. Dec. 3, 2008); People v. Seymour, No. A115509, 2009 Cal. App. Unpub. LEXIS 757, at *52
(Jan. 28, 2009); United States v. Shields, 597 F. Supp. 2d 224, 234 (2009); In re Day, 342 S.W.3d
193, 205 (Tex. Ct. App. 2011) (paraphilia is chronic and will not dissipate unless addressed); In re
Brady, No. 09-09-00360-CV, 2011 Tex. App. LEXIS 4502, at *5 (June 16, 2011) (paraphilia “tends
to recur”); In re Williams, No. 39785-4-II, 2011 Wash. App. LEXIS 1920, at *6 (Aug. 9, 2011)
(noting paraphilia “continues over time”).
212 People v. Meyers, No. c042511, 2005 WL 1303553, at *6 (Cal. Ct. App. June 2, 2005).
213 Felix v. Hennessey, No. C01-3138WHA(PR), 2010 U.S. Dist. LEXIS 91926, at *4 (N.D.
Ca. Aug. 11, 2010); see also In re Dunivan, 247 S.W.3d 77, 78 (Mo. Ct. App. 2008) (indicating
most psychologists believe past behavior is best predictor of future behavior).
214 Litmon v. Flores, No. C03-03996RMW, 2008 U.S. Dist. LEXIS 58545, at *17 (N.D. Cal.
July 11, 2008).
215 In re Brian J., 150 Cal. App. 4th 97, 113 (2007).
216 In re Sugden, 795 N.W.2d 456, 472 (Wisc. Ct. App. 2010); (paraphilia nonconsent does not
remit over time); United States v. Irey, 612 F.3d 1160, 1200 (11th Cir. 2010) (pedophilia is
incurable); People v. Scott, No. F060923, 2011 Cal. App. Unpub. LEXIS 7648, at *7 (Oct. 6, 2011)
(paraphilia NOS-nonconsent conditions are chronic, “in other words, they do not disappear”);
People v. Schmidt, 2002 Cal. App. Unpub. LEXIS 9490, at *25, 93 (Oct. 11, 2002) (one expert
away with time.”217 At the same time, some experts are noted as indicating that a
paraphilic disorder can be treated and possibly controlled over the long term.218
The remainder of this Section focuses on three paraphilic categories that appear
to be the most commonly referenced, as well as the most controversial, in the law.
Significantly, the three have recently been the subject of high profile federal
appellate decisions because of caselaw conflicts on the relevant issues. Still, it should
be confirmed that many of the other paraphilias are cited in caselaw. For example,
cases mentioned diagnoses of sexual sadism,219 while others used the phraseology of
atypical paraphilia with sadistic features220 or paraphilia with sadistic features.221
Cases include diagnoses of sexual masochism,222 frotteurism,223 exhibitionism,224 and
indicating pedophilia and sexual sadism “have low rates of cure” and another that sexual sadism is
217 In re Dunivan, 247 S.W.3d at 77; see also People v. Meyers, No. c042511, 2005 WL
1303553, at *6 (Cal. Ct. App. June 2, 2005) (indicating while rapes occurred years before and no
evidence of sexual activity with nonconsenting persons while confined, paraphilia is “an extremely
deep-seated medical disorder that is life-long”).
218 Yancy v. Voss, No. SACV 06-356-JFW(CW), 2011 U.S. Dist. LEXIS 43880, at *11, 14
(C.D. Cal. Mar. 21, 2011) (noting one expert referring to it as “chronic and lifelong, but possibly
controllable condition” and another expert that the condition “though incurable, is controllable over
time under certain circumstances”); In re Day, 342 S.W.3d 193, 203 (Tex. Ct. App. 2011) (expert
confirming its chronic nature that would not remit unless addressed); People v. Seymour, No.
A115509, 2009 Cal. App. Unpub. LEXIS 757, at *53 (Jan. 28, 2009) (expert indicating it does not
disappear quickly and typically don’t go away without treatment).
219 Litmon v. Flores, No. C03-03996RMW, 2008 U.S. Dist. LEXIS 58545, at *19 (N.D. Cal.
July 11, 2008); In re Sugden, 795 N.W.2d 456, 461 (Wisc. Ct. App. 2010).
220 Maimon v. Belleque, No. 06-1100-PA, 2007 U.S. Dist. LEXIS 44064, at *4 (D. Ore. June
221 In re Day, 342 S.W.3d at 205; Ehler v. Or. Bd. of Parole, No. 08-483-KI, 2009 U.S. Dist.
LEXIS 63751, at *1–2 (D. Ore. July 24, 2009).
222 Paulos v. Ludeman, 2011 Minn. App. Unpub. LEXIS 185, at *4 (Mar. 1, 2011); In re Brian
J., 150 Cal. App. 4th 97, 113 (2007); Medley v. Ludeman, 2007 Minn. App. Unpub. LEXIS 705, at
*5 (July 10, 2007); In re Kapprelian, 168 S.W.3d 708, 712 (Mo. Ct. App. 2005); State v.
Armstrong, 789 N.E.2d 657, 666 (Ohio Ct. App. 2003).
223 Bonier v. Conerly, 416 F. App’x 475, at *1 (6th Cir. 2010); People v. Towne, No.
H033465, 2011 Cal. App. Unpub. LEXIS 1602, at *5 (Mar. 4, 2011); In re Hanenberg, 777 N.W.2d
62, 63 (N.D. 2010).
224 Laxton v. Bartow, 421 F.3d 565, 567 (7th Cir. 2005); People v. Towne, No. H033465, 2011
Cal. App. Unpub. LEXIS 1602, at *5 (Mar. 4, 2011); People v. Calderon, No. B206734, 2009 Cal.
App. Unpub. LEXIS 1427, at *8 (Feb. 23, 2009); In re O.S., 763 N.W.2d 723, 727 (Neb. 2009).
THE LAW AND PARAPHILIAS 39
voyeurism.225 References existed, also, to fetishism,226 including specific references
to foot fetishism227 and to fetishism involving female underwear.228 Although
infrequent, opinions mention diagnoses of some of the other paraphilias within the
NOS genre, including telephone scatalogia,229 zoophilia,230 urophilia,231
klismaphilia,232 and partialism.233
Consistent with the DSM’s express approval of comorbid diagnoses, experts
appeared willing to testify in court that defendants suffered from multiple
paraphilias.234 For example, a state expert in one case diagnosed the defendant
simultaneously with paraphilia NOS-nonconsent, hebephilia, voyeurism, fetishism,
frotteurism, and zoophilia.235 In another case, a practitioner noted the comorbid
diagnoses of pedophilia, frotteurism, zoophilia, exhibitionism, voyeurism, and
fetishism (specifically noting female panties).236
225 Laxton, 421 F.3d at 567.
226 In re R.L.C., No. A-0941-07T2, 2009 N.J. Super. Unpub. LEXIS 2451, at *6 (Sept. 30,
2009); In re M.V.V., No. 25888-9-II, 2001 Wash. App. LEXIS 1161, at *4 (June 1, 2001).
227 In re R.L.C., 2009 N.J. Super. Unpub. LEXIS 2451, at *6 (inferring from defendant’s
robbing women and stealing their shoes); In re Prust, 677 N.W.2d 732, at *2 (Wisc. Ct. App. 2004)
(involving defendant’s asking four children to his garage and offering them money to allow him to
rub their feet with his penis).
228 In re A.M., 787 N.W.2d 752, 754 (N.D. 2010).
229 In re Henson, 97 S.W.3d 67, 69 (Mo. Ct. App. 2002); State v. Maybrey, NO. 01C01-9703-
CC-00117, 1998 Tenn. Ct. Crim. App. LEXIS 436, at *3 (April 7, 1998); State v. George, 01C01-
9512-CC-00407, 1997 Tenn. Crim. App. LEXIS 250, at *7 (May 13, 1997).
230 In re Hanenberg, 777 N.W.2d 62, 63 (N.D. 2010); In re Grinstead, No. 09-07-00412-cv,
2008 WL 5501164 (Tex. Ct. App. Jan. 15, 2009); People v. Grant, 2002 Cal. App. Unpub. LEXIS
3417, at *11 (Mar. 5, 2002).
231 In re Fair, 161 P.3d 466, 468 (Wash. Ct. App. 2007).
232 People v. Hubbart, 88 Cal. App. 4th 1202, 1214 (2001).
233 People v. Martinez, No. D055776, 2011 Cal. App. Unpub. LEXIS 2887, at *7 (Apr. 19,
2011); People v. Wright, No. 057457, 2009 Cal. App. Unpub. LEXIS 2325, at *3 (Mar. 29, 2009)
234 E.g., In re R.M.T., 2010 N.J. Super. Unpub. LEXIS 3128, at *2 (Dec. 29, 2010)
(pedophilia, paraphilia [not otherwise specified], zoophilia, rule-out transvestic fetishism,
exhibitionism, voyeurism and frottuerism); In re Pederson, No. 43031-9-I, 2000 Wash. App. LEXIS
629, at *8 (Apr. 17, 2000) (pedophilia, voyeurism, exhibitionism, fetishism, telephone scatologia,
urophilia, paraphilia NOS (rape), and hemophilia (sexual arousal to blood)).
235 In re Hanenberg, 777 N.W. 2d 62, 65 (N.D. 2010).
236 People v. Grant, No. 092910, 2002 WL 343165, at *4 (Cal. Ct. App. Mar. 5, 2002).
Pedophilia is perhaps the most commonly known paraphilia in general and the
one most likely to be recognized outside the mental health field. But this also makes
the paraphilia of pedophilia an area where law, science, and common parlance cause
confusion. Often, the term pedophile and child molester are used interchangeably,237
as are pedophilia and the behavior of child molestation.238 This conflation of terms is
problematic for various reasons. It makes the pedophilic disorder intrinsically
indistinguishable from the crime.239 It has also led many to believe that virtually any
layperson can make the forensic diagnosis, even when there are negative legal
consequences: “Some legal experts have suggested that ‘pedophilia’ is so
behaviorally explicit that anyone could arrive at the diagnosis with an adequate
record and a command of the English language.”240 The simplification of the
conflation has led to further breakdowns in diagnostic integrity.
1. Diagnostic Issues with Pedophilia
Merging behavior with a diagnosis of pedophilia has contributed to diagnostic
flaws by ignoring the recurrent and intense sexual fantasies or urges required by the
DSM’s criteria. Fundamentally, the disorder of pedophilia technically differs from
child molestation in having a psychological propensity—that is, a sexuo-erotic
237 HOLMES & HOLMES, supra note 127, at 110.
238 Seto, supra note 81, at 164; Melissa Hamilton, The Child Pornography Crusade and its Net
Widening Effect, 33 CARDOZO L. REV. (forthcoming 2012).
239 Howard Zonana, Sexual Disorders: New and Expanded Proposals for the DSM-5—Do We
Need Them?, 39 J. AM. ACAD. PSYCHIATRY & L. 245, 246 (2011). Indeed, criminal statutes
expressly use the terminology of pedophilia. DEL. CODE ANN. tit. 11, § 4205A (imposing additional
penalties for pedophile offenders); S.D. CODIFIED LAWS § 22-22-30.1 (codifying crime of “criminal
240 Miller et al., supra note 182, at 47; see United States v. Colin, No. 1:07-CR-512, 2007 U.S.
Dist. LEXIS 91409, at *11–12 (N.D. N.Y. Dec. 12, 2007) (judge acknowledging the absence of a
clinical diagnosis, but concluding anyway defendant is a pedophile based on defendant’s sexually-
charged interactions with 12-year-old girls).
THE LAW AND PARAPHILIAS 41
preference for prepubescent children, whether acted upon or not.241 Hence, it is
critical to reinforce the difference based on the sexual interest: those with pedophilia
have the sexual fantasies involving sexually immature youth but may not molest
them, while those who do sexually assault young children may not have such a
preference and are thereby not paraphilic.242 In simple terms, (diagnostically-
confirmed) pedophiles and (behaviorally-substantiated) child molesters are not
synonymous.243 Unfortunately, it is common practice in forensic settings to fail to
distinguish ordinary criminals from those with pedophilia because the state is not
proving the element of a pattern of arousal to children.244 Another empirical issue is
that cause and effect are clouded by conflating pedophilia and child molestation.245
From a perspective of logic, it is circular reasoning. One who molests a child has
pedophilia and vice versa. There is no way to empirically confirm or test such an
Again, it is asserted that the psychiatric and legal communities are complicit in
obfuscating the difference. A Professor of Psychiatry at Yale ruefully challenges his
colleagues as forensic specialists: “Our culture has initiated a ‘war on sex offenders
and the legal system has geared up to wage it. Since we have made the diagnosis
241 AGGRAWAL, supra note 3, at 47; Jennifer Jason, Beyond No-Man’s Land: Psychiatry’s
Imprecision Revealed by its Critique of SVP Statutes as Applied to Pedophilia, 83 S. CAL. L. REV.
1319, 1340 (2010) (observing experts improperly focus on behavior, which is already criminalized,
and not assessing for sexual fantasies of pubescent children).
242 Marshall, supra note 159, at 20; Joseph A. Camilleri & Vernon L. Quinsey, Pedophilia:
Assessment and Treatment, in SEXUAL DEVIANCE: THEORY, ASSESSMENT, AND TREATMENT, supra
note 43, at 184.
243 See Kerry Sheldon & Dennis Howitt, Sexual Fantasy in Paedophile Offenders, 13 LEGAL &
CRIMINOLOGICAL PSYCHOL. 139, 153 (2008) (finding in a small sample no association between
fantasies with children and child molestation).
244 Jason, supra note 241, at 1332.
245 Camilleri & Quinsey, supra note 242, at 184.
almost completely overlap with the crime, we have become overly enmeshed with
It is contended, too, that while child molestation is an immoral act, there is no
evidence of it deriving from a mental deficiency; rather it is a social construction that
pedophilia is linked to a sick mind.247 Nonetheless, numerous mental health experts
criticize the DSM’s diagnostic criteria for pedophilia. Many challenge the conflict
between the specifier of prepubescence and the parenthetical age limit of 13
considering they were not meant to be independent alternatives. The prepubescent
nature of the child of interest is at the heart of it being a disorder of sexual
preference. This is another area in which the DSM has been resistant to societal
change. Today, the age of 13 does not truly represent the body shape—the degree of
secondary sex characteristics—of prepubescence.248 Statistics show that pubescence
generally occurs much earlier.249 For this reason, commentators criticize the DSM’s
vision of pedophilia as “using 1990s diagnostic criteria without employing additional
knowledge derived from 21st-century science and specialized practice.”250
These grievances may help explain why there is evidence that a DSM diagnosis
of paraphilia does not adequately measure a deviant arousal pattern to pubescent
children. Studies have shown that a DSM-based pedophilia diagnosis is not
246 Zonana, supra note 239, at 248.
247 Erickson, supra note 23, at 114; Fred S. Berlin, Commentary on Pedophilia Criteria in
DSM-5, 39 J. AM. ACAD. PSYCHIATRY & L. 242, 243 (2011) (conceding it to be disingenuous to
suggest the pedophilia diagnosis in the DSM is not based in part on value judgment); HOLMES &
HOLMES, supra note 127, at 30–45 (offering social learning, psychological, and sociobiological
explanations for pedophilia). “From a Darwinian perspective, sexually preferring nonfertile,
prepubescent children over fertile, sexually mature partners would have been maladaptive in the
past (because sexual behavior with prepubescent children could not have led to successful
reproduction) and probably continues to be maladaptive now, regardless of place or time.” Seto,
supra note 81, at 165.
248 Robin J. Wilson et al., Pedophilia: An Evaluation of Diagnostic and Risk Prediction
Methods, 23 SEXUAL ABUSE 260, 271 (2011).
249 Wakefield, supra note 68, at 205.
250 Wilson et al., supra note 248, at 271.
THE LAW AND PARAPHILIAS 43
correlated with phallometric indications of deviant arousal to pubescent children.251
Nor is a DSM diagnosis of pedophilia correlated with sexual recidivism.252 Actually,
some research indicates that a DSM diagnosis of pedophilia is not even a significant
predictor in a regression analysis for sexual recidivism.253 These results undermine
the prevailing risk-based model presumption that a paraphilia diagnosis, here being
pedophilia, is an appropriate proxy for risk assessment. Experts likewise note that
multiple studies show such low statistics for the reliability and validity of DSM
diagnoses of pedophilia that it should be seriously questioned and construed to hold
limited utility for practitioners,254 and even more inappropriate for legal
2. Sentencing Considerations of Pedophilia
A recently contested issue regarding pedophilia is found in sentencing decisions.
Courts are in conflict as to whether the presence of pedophilia is an aggravating or
mitigating factor in determining a reasonable sentence in criminal cases.
Interestingly, in several cases of sentencing for crimes related to child enticement
and child pornography, judges have issued lesser sentences based on the defendant’s
251 Wilson et al., supra note 248, at 268 (studying 130 convicted sex offenders against children
assessed at a sexual behavior clinic in Ontario). The authors note the lack of a correlation “is
puzzling, given that these would appear to be the two most common means of diagnosing this
condition.” Id. at 270.
252 Wilson et al., supra note 248, at 268; Heather M. Moulden et al., Recidivism in Pedophiles:
An Investigation Using Different Diagnostic Methods, 20 J. FORENSIC PSYCHIATRY & PSYCHOL.
680, 695 (2009) (finding no difference in violent, sexual or general recidivism rates for extrafamilial
child molesters diagnosed with pedophilia or not).
253 Wilson et al., supra note 248, at 270; see also Moulden et al., supra note 252, at 693
(finding DSM diagnosis of pedophilia was negatively correlated with recidivism).
254 Kingston et al., supra note 172, at 434; Moulden et al., supra note 252, at 698 (suggesting
results mean prudence calls for reevaluating DSM diagnostic criteria for pedophilia); Wilson et al.,
supra note 248, at 270 (contending, instead, DSM’s pedophilia classification clouds assessment of
255 Marshall, supra note 159, at 16.
lack of a pedophilia diagnosis.256 Other judges, though, have expressly rejected this
argument that no pedophilia diagnosis deserved mitigating status.257 Courts likewise
have disagreed on the sentencing consequence based on a finding that the defendant
has pedophilia. Numerous courts have linked a pedophilia diagnosis to a need to
protect the public and, thereby, have found a reason for imposing a lengthy
sentence.258 Conversely, the contention that a lesser sentence is justified based on the
disease nature of pedophilia has been considered possible by some federal courts.259
Two federal appellate courts, however, have strongly rejected the idea. In 2008, the
Eight Circuit declined the defense’s explanation that his taking photos of nude boys
was merely a “manifestation of the disease of pedophilia.”260
In a more robust rejection, in 2010 the Eleventh Circuit in United States v. Irey
issued a harsh rebuke of a district judge’s purported consideration of pedophilia as an
illness meriting the defendant a significant downward departure from sentencing
guidelines.261 The underlying facts are appalling. Over a 4-5 year period, Irey
produced more than 1,200 pornographic images of himself sexually abusing dozens
256 United States v. Goossens, 84 F.3d 697, 700 (4th Cir. 1996); United States v. Grinberg,
2008 U.S. Dist. LEXIS 91712, at *31 (D. Neb. Sept. 8, 2008); see also United States v. Pritchard,
392 F. App’x 433, 441 (6th Cir. 2010) (reversing for resentencing as sentencing court failed to
consider lack of pedophilia diagnosis reduced risk for potential lesser sentence).
257 United States v. Garthus, 2011 U.S. App. LEXIS 14332, at *2–3 (7th Cir. July 14, 2011)
(rejecting defendant’s argument his diagnosis of pedophilia, in part, justified sentence reduction for
diminished capacity); United States v. Farley, 607 F.3d 1294, 1316 (11th Cir. 2010) (reversing
sentence below the mandatory minimum by rejecting claim defendant’s lack of a pedophilia
diagnosis justified a lesser sentence); United States v. Scalise, 398 F. App’x 736, 739 (3d Cir. 2010)
(finding expert’s indication defendant did not meet the DSM-IV criteria for pedophilia not a ground
for downward departure in child pornography case).
258 E.g., United States v. Mantanes, 632 F.3d 372, 375 (7th Cir. 2011); United States v.
Hewelt, 295 F. App’x 69, 74 (7th Cir. 2008); United States v. Garnette, 474 F.3d 1057, 1061 (8th
Cir. 2007); State v. Pfeil, 720 A.2d 573, 578 (Me. 1998).
259 United States v. Stevens, 29 F. Supp. 2d 592, 609 n.23 (D. Alaska 1998) (surmising
paraphilia could qualify as a downward, diminished capacity departure but noting insufficient facts
of a diagnosis in case at hand); United States v. Black, 116 F.3d 198, 201–02 (7th Cir. 1997) (noting
sentencing judge considered whether pedophilia could qualify as a diminished capacity reduction
but declined to do so);.
260 United States v. Paton, 535 F.3d 829, 838 (8th Cir. 2008).
261 United States v. Irey, 612 F.3d 1160 (11th Cir. 2010).
THE LAW AND PARAPHILIAS 45
of underage girls, some as young as four, whom he had purchased from brothels in
Cambodia.262 While the actual sexual contact occurred overseas, Irey was identified
by American authorities after he e-mailed an offer to an illegal child pornography
website to trade his photos for free access to the website’s online trove.263 Agents
searched Irey’s computers and found the collection.264 Federal prosecutors charged
Irey with a single count of inducing “minors to engage in sexually explicit conduct
outside the United States, for the purpose of producing visual depictions of such
conduct.”265 Despite an advisory sentence of 30 years, the district judge imposed a
sentence of 17½ years—a 42-percent downward variance.266 An appellate panel
initially affirmed the sentence as not unreasonable,267 but in a lengthy 65-page
majority opinion, an en banc Eleventh Circuit reversed. In a controversial twist, the
circuit court did not just reverse the sentence, it took the unusual step of assuming its
own power by directly sentencing Irey to the maximum 30 years.
The en banc court delineated several philosophical disagreements with the
district judge’s reasoning. The majority appellate opinion in Irey noted, with clear
disdain, psychiatric expert testimony that “pedophilia does not develop as a
consequence of a volitional decision” and that “Irey’s paraphilias clearly drove his
behaviors.”268 The majority also took issue with the sentencing judge’s references to
Irey himself being a victim of the internet’s fueling an epidemic of pedophilia
262 Id. at 1167.
263 Id. at 1168.
264 Id. Irey’s self-produced collection was already infamously known to numerous police
agencies who investigate child pornography. It was nicknamed the “pink wall series” for the pink
background in many of the photos and videos. Id.
265 Id. The defendant’s summary on pleading guilty is cogent: “Went to—overseas, visited
numerous brothels where they had underage children and photographed them, had sex with them,
and had them on my laptop when I entered the United States.” Id. at 1169.
268 Id. at 1172.
through the availability of child pornography and rejected the argument that Irey’s
actions were not purely volitional but “due in substantial part to a recognized
illness.”269 The original sentencing judge had commented at the hearing that “people
accuse me of not knowing what I’m talking about when I say it’s an illness.”270
Responding to those characterizations, the en banc majority rhetorically downplayed
the illness perspective by placing the term in quotes (the “illness” of pedophilia),
rejected the lower court’s “pedophiles-can’t-much-help-it theory,” and ruled that the
“record does not support the district court’s finding that because he is a pedophile
Irey could not much help raping, sodomizing, and sexually torturing little children,
posing them as trophies, and smiling while he did it.”271 In terms of the sentencing
consideration of general deterrence, the district judge had indicated that “when we’re
dealing with an illness like this, I’m not sure that that rationally follows,” which the
appellate majority described as the judge’s “idiosyncratic doubts about whether
pedophiles could be deterred.”272 The majority opinion, after discussing in great
detail the substantial deference that district judges enjoy in federal sentencing,
concluded that the 17½ year sentence was substantively unreasonable. The majority
took a further step ruling—seemingly both as a matter of law and fact—that no
downward variance would be reasonable under the circumstances. As a result, the
Eleventh Circuit’s decision ordered that on remand the district judge impose nothing
but a 30-year sentence.273
269 Id. at 1173
270 Id. at 1174.
271 Id. at 1199–1200. The prosecutor countered: “[a]s an alcoholic does not have to drive a car,
a pedophile doesn’t have to put themselves in a brothel in Cambodia.” Id. at 1176.
272 Id. at 1210.
273 A dissenting judge on the en banc court took issue with what he referred to as the
majority’s “unpredecented step” in directly sentencing a defendant, a procedural misstep he warned
does “immense and immeasurable institutional damage” and meaning the “decision sends the
THE LAW AND PARAPHILIAS 47
B. Paraphilia Not Otherwise Specified
The residual category of Paraphilia NOS causes much angst. Its vagary is
evident in many case opinions. In a notably oblique summary, an expert testified that
“paraphilia is a sexual disorder. Not otherwise specified means that I’m not able to
be more specific.”274 In another case, the opinion described the expert as indicating
that “NOS was a type of paraphilia that was nonspecific and was a term that was
used to describe general inappropriate sexual impulsivity.”275 Rather defensively,
another testifying expert averred that the “DSM can’t possibly list all of the different
potential  paraphilic diagnoses that are present out there, there’s a multitude.”276
Conversely, the defense expert in another case represented the NOS residual in
political ideology, asserting that it was “a way for the [DSM] authors to cover
themselves in case a new sexual appetite develops.”277 Several experts indicated that
paraphilia NOS was a residual category for less frequently occurring paraphilias,278 a
unmistakable message that the district court is nothing but a tryout on the road.” In his own defense,
the federal district judge called the en banc’s decision an “extraordinary and unprecedented result,”
one that “effectively usurped [his] sentencing discretion” and “opens a Pandora’s box of new
sentencing issues. United States v. Irey, 746 F. Supp. 2d 1232, 1245 (M.D. Fla. 2010) (granting
motion to continue resentencing for defendant to petition for writ of certiorari to the United States
Supreme Court). Still, the United States Supreme Court denied Irey’s writ. 2011 U.S. LEXIS 2703
(Apr. 4, 2011).
274 In re Grinstead, No. 09-07-00412-cv, 2008 WL 5501164, at *3 (Tex. Ct. App. Jan. 15,
2009); see also People v. Pederson, No. A115239, 2007 Cal. App. Unpub. LEXIS 9962, at *17
(Dec. 11, 2007) (noting expert testified NOS means no specific diagnosis exists within the DSM
275 People v. Bailey, 937 N.E.2d 731, 737 (Ill. App. Ct. 2010).
276 In re A.M., 787 N.W.2d 752 (N.D. 2010) (expert explaining DSM’s failure to include
277 Commonwealth v. Rossmeisl, No. 192-05, 2006 Pa. Dist. & Cnty. Dec. LEXIS 285, at *9,
12 (Aug. 16, 2006); see also People v. Hughes, No. H0022186, 2003 Cal. App. Unpub. LEXIS
6761, at *79 (July 11, 2003) (noting expert described NOS as any paraphilia that does not fit the
278 E.g., United States v. Carta, 620 F. Supp. 2d 210, 224 (D. Mass. 2009); Orozco v. Ahlin,
No. CV08-5504AHM, 2008 U.S. Dist. LEXIS 108797, at *25 (C.D. Cal. Dec. 3, 2008); In re Dahl,
No. 96728, 2007 Kan. App. Unpub. LEXIS 72, at *4 (Sept. 21, 2007); Rossmeisl, 2006 Pa. Dist. &
Cnty. Dec. LEXIS 285, at *9, 12.
concept recognized in the DSM.279 The chimera of such a diagnosis did not seem to
trouble many judges considering many case opinions mentioned a diagnosis of
paraphilias NOS generally, without further specifying any type or providing a more
The uses of paraphilia NOS which have garnered the most debate in the sexual
offender treatment community and in the courts involve what is commonly referred
to as “paraphilia NOS-nonconsent” in two forms. One is commonly described in
terms of rape paraphilia, and the other is hebephilia. To understand the diagnostic
foundation for these two, it is necessary to recall that paraphilias NOS is a residual
category with no criteria of its own. Thus, the natural reference point is the general
criteria of the paraphilias as a nosological category. Criterion A is the relevant one,
which includes a subcategory involving children or nonconsenting persons.281 Both
rape paraphilia and hebephilia utilize the “nonconsenting persons” language from
Criterion A. A rape victim virtually by definition was not consenting and, in
hebephilia, a youth in the age range of 11-14 cannot legally consent even if
otherwise voluntarily engaging in sexual conduct. For hebephilia, the reference to
children in Criterion A is also relevant.282 Clinical and legal issues with hebephilia
will be addressed after perusing issues regarding paraphilia NOS-nonconsent
generally and with respect to rape paraphilia.
279 But this view makes the use of paraphilia NOS for hebephilia problematic. See infra
280 E.g., United States v. Roderick, No. 2:10-CR-741-DCN, 2011 U.S. Dist. LEXIS 81086, at
*2 (D. S.C. July 25, 2011); Jennings v. Rogers, No. 06-5025(JLL), 2008 U.S. Dist. LEXIS 36787, at
*9 (D. N.J. May 2, 2008); In re Brady, No. 09-09-00360-CV, 2011 Tex. App. LEXIS 4502, at *8,
13 (June 16, 2011); In re Grinstead, No. 09-07-00412-cv, 2008 WL 5501164, at *3 (Tex. Ct. App.
Jan. 15, 2009); People v. O’Shell, 172 Cal. App. 4th 1296, 1302 (2009); In re Allison, 690 N.W.2d
884, at *5 (Wisc. Ct. App. 2004).
281 Criterion A requires “sexually arousing fantasies, sexual urges, or behaviors generally
involving 1) nonhuman objects, 2) the suffering or humiliation of oneself or one’s partner, or 3)
children or other nonconsenting persons.”
282 See infra Part IV.B.
THE LAW AND PARAPHILIAS 49
1. Exploiting Paraphilia NOS
Overall, observers deplore the enigma of the diagnostically-challenged
paraphilia NOS residual. The “ambiguity has led to the distressing situation of the
defining of paraphilia NOS by the idiosyncratic, unreliable, and untrustworthy
standard of ‘you know it when you see it.’”283 Because of the lack of standards,
interested observers have witnessed the unparsimonious lumping of unequal
behaviors into a single diagnosis.
Most professionals in this field have seen evaluators connect separate types
of offenses (one rape and one report of targeted masturbation in prison) to
establish a single paraphilia diagnosis, or an act and an inferred fantasy (one
rape and past bondage games with a consenting girlfriend) to establish a
paraphilia. If, however, even under the most rigorous scrutiny there is no
paraphilia, this implies there is no basis to infer sexually deviant fantasies,
thoughts, or behaviors in the offender’s criminal or personal history.
Instead, what is in the offender’s history is general criminality with a sexual
crime contained within it. 284
The following is offered as another example:
[E]valuators will take a Lewd and Lascivious act in the presence of a minor
and a sexual assault on an adult many years later; connect the two and
diagnose Paraphilia NOS (non-consent). Therefore under the current
conditions of sex offender screening, the acts don’t even need to be
necessarily similar in nature, but must merely have a non-consenting
This type of aggregation was equally representative in at least one case opinion. The
state expert described a “plethora of sexual deviancy that comes together” for the
diagnosis of paraphilia-NOS, citing to sexual interactions with prepubescent children
283 Frances & First, supra note 173, at 80.
284 Dean R. Cauley, The Diagnostic Issue of Antisocial Personality Disorder in Civil
Commitment Proceedings: A Response to DeClue, 35 J. PSYCHIATRY & L. 475, 493-94 (2007).
and animals, an aggressive sexual act with a 19-year-old, and acts involving
masochism, frotteurism, and exhibitionism.286
So—and yet again—there is a concern that repeated sexual crimes are
considered sufficient for a diagnosis. This represents a broader conflation of crime
and mental disorder than previously mentioned. Instead, it amalgamates various sex
crimes and infers a generic, wastebasket diagnosis. The slippery slope potential is
problematic. Assuming all victims of sexual crimes are nonconsenting, all
individuals who commit more than one sex-based offense over 6 months apart, no
matter how disparate the behaviors, can be diagnosed with paraphilia NOS-
In practice, clinicians worryingly overuse paraphilia NOS.288 The reason is not
as much clinical concern as to serve the interests of prosecutors.
[P]araphilia NOS, nonconsenting partners, is an inherently weak construct,
given the lack of a set of defined criteria. There is a danger of misusing
DSM mental disorders by applying an idiosyncratic interpretation of case
facts to shoehorn individuals, so as to justify [sexually violent offender]
commitment. Paraphilia NOS has the potential to be a catch-all diagnosis
for persons accused of sexual offenses and for which the clinician cannot
identify criteria for a specific clinical diagnostic category.289
From a scientific perspective it should be obvious that “[t]o the extent that this
category becomes a waste-basket for sex offenders, it is taxonomically useless (i.e.,
it provides no discrimination).”290 In any event, there are calls for more
standardization in the clinical field, for clinicians to at least have greater
286 In re Grinstead, No. 09-07-00412-cv, 2008 WL 5501164, at *3 (Tex. Ct. App. Jan. 15,
287 Prentky et al., supra note 23, at 367.
288 Marshall, supra note 159, at 20; Cauley, supra note 284, at 493–94 (“The recent over
application of the Paraphilia NOS diagnosis in this field has reached the level where any two sexual
offenses in the offender’s history, no matter what the nature of the individual acts, will result in an
289 Frances et al., supra note 57, at 383.
290 Prentky et al., supra note 23, at 367.