Adjudicating Sex Crimes as Mental Disease

09/2012; DOI: 10.2139/ssrn.1989503

ABSTRACT The article provides evidence that the current criminal justice approach to sex crimes is based on a presumption that individuals who commit sex-based offenses are both pathological and evil and, therefore, at high risk of recidivism. This model relies on a law-psychiatry interface by drawing from psychiatry’s Diagnostic and Statistical Manual of Mental Disorders (DSM). To justify a particularly punitive approach to sex offenders, officials use the DSM’s mental disorders of sexual deviance. A diagnosis of a DSM-based mental disorder can drive various legal consequences in that they impact such issues as bail, sentencing, parole, and civil commitment. This article provides legal, empirical, and theoretical critiques of the law-psychiatry interface employed to control the sex offender population. Defendants have contended, but generally without success, the use of the DSM-based disorders of sexual deviance violates the due process clause or the Frye/Daubert evidentiary standards for the admissibility of scientific expert testimony. The article reasons that these DSM disorders lack sufficient empirical support and diagnostic integrity. Vagueness in the DSM criteria have led to forensic experts basing their diagnoses — not on evidence of any underlying pathology — but merely upon a history of sexual offending. Thus, sex crimes become conflated with mental disease. The law-psychiatry interface here appears pretextual in preferentially serving the interests of the prosecution. Various examples are offered, including the recent introduction in case law of new disorders, such as hebephilia (sexual interest in teenagers) and rape paraphilia. The article posits that the mental diseases of sexual deviance are a poor fit to answer legal questions when constitutional rights of liberty and privacy are at risk.

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