I don't understand. These statutes result in criminal punishment followed by involuntary civil commitment. The standard for civil commitment is dangerousness to self or others as a result of mental illness. The criminal convictions function (uncontroversially) as evidence of dangerousness to others, the diagnostic activity is identical to that in any other civil commitment situation, as is the mode of detention for treatment. The conditions of release are identical to those in other situations of involuntary civil commitment: proof by preponderance of the cessation of dangerousness to self or others if released. Habeas is available. What is analytically wrong with detaining for treatment someone who has been convicted of criminal offenses, if we could and do in identical circumstances detain those found to be dangerous to self or others who have been convicted of nothing?

You don't show any research; nothing in the rather extensive literature is cited. How statutes of this kind changed the prior law is undiscussed, which one would expect research to have disclosed. Discussion without the registration statutes that were enacted beginning in 1994 is incomplete.

This essay, on a topic peripheral to the course, submitted late in the term after I inquired, seems evidently intended to achieve graduation minimum. I'll clear you on it, but you should return to this effort, replacing this draft with an improved essay that would justify a better grade.

In 1990, Washington became the first state in the United States to introduce legislation for ‘Sexually Violent Predators’ (or SVPs), which authorized civil commitment of SVPs as part of the Community Protection Act. All Washington state sex offenders were required to undergo a psychiatric evaluation shortly before their scheduled release from prison. If the court (guided by the testimony of a forensic psychiatrist) concluded that the sex offender met the legal criteria for being an SVP, then the sex offender would be relocated from prison to a psychiatric facility for involuntary ‘treatment’. The SVP’s release from the psychiatric treatment facility would then be contingent on his mental health recovery. In other words, the only way that an SVP could be released from involuntary treatment would be if a judge believed that he no longer satisfied the criteria for being an SVP (i.e., that he no longer suffered from the mental disorder in question, or that if he did, it no longer made him dangerous).

As there is no known psychiatric cure for sexual disorders such as pedophilia, it is difficult for any court to recommend the release of a sex offender who is declared an SVP. In this way, the SVP legislation in Washington achieved its proponents’ desired outcome—the most dangerous sex offenders were kept off the streets, where they would have otherwise been likely to re-offend. Washington was the first of 20 states to implement SVP legislation and there are proposals in several other states to put similar laws into effect.

A philosophical analysis of the SVP statutes reveals a major problem. The definition of an SVP includes a problematic requirement: that pedophilia (or a similar mental disorder) ‘makes’ a person dangerous, or that the dangerousness of the sex offender is ‘due to’ the mental disorder.

California law defines a Sexually Violent Predator as follows: [1] a person [2] who has been convicted of a sexually violent offense against two or more victims [3] and who has a diagnosed mental disorder [4] that makes him or her a danger to the health and safety of others…[in that] it is likely that he or she will engage in sexually violent criminal behavior.

SVP commitments typically involve the category of mental disorders known as sexual disorders. This category of disorders in the DSM-IV, which includes not only pedophilia, but also exhibitionism, voyeurism, and frotteurism, is defined by sexual desires for “unusual objects, activities, or situations [that] cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.” Whether or not a person acts on these desires is not required for the diagnosis of any sexual disorder.

The implication of the fourth criterion of the SVP law is that the individual’s mental disorder causes him to suffer a lack of volitional capacity (in the language of psychiatry), or to have his free will undermined (in the language of philosophy). However, as discussed above, the sexual disorders in the DSM-IV need not involve sexual actions, but merely certain sexual urges or desires. To suggest that the mere presence of a desire makes one dangerous implies that one cannot help but act on that desire. In other words, I interpret this part of the law to suggest that an SVP lacks volitional control. This interpretation is supported by the fact that once a criminal is declared an SVP, he is shifted from a punishment facility (a prison) to a treatment facility (a hospital). The law’s implicit message appears to be that as a society, we do not punish people who are mentally ill and have no control over their actions; rather, we try to help them. As we all know, our legal system requires that criminal responsibility involve both a voluntary act (as part of actus reus) and that the act in question be performed with the requisite mens rea. In the case of the SVP statute, the voluntary act component of actus reus is apparently violated, insofar as the SVP’s mental disorder (which is presumably involuntary) precludes his volitional control. In other words, the SVP statute rids the SVP of criminal responsibility by suggesting that his mental disorder (characterized by certain sexual desires) deprives him of the choice of resisting these desires. In short, the law implies that the SVP lacks free will when it comes to acting on his sexual desires. This implication, in my view, is not justified and inconsistent with the rest of our legal framework.

If, as a society, we dislike the idea of releasing sexually violent offenders, it seems preferable to instead achieve this outcome through less problematic means. As it currently stands, the SVP statute puts the psychiatrists who perform psychiatric evaluations of these criminals in an uncomfortable position. On the one hand, the forensic psychiatrist might tell the truth according to the diagnostic standard of her profession (that the mental disorder in question does not in itself make the person a danger). In this case, the person would not be an SVP according to the definition and would be released from confinement (where even the psychiatrist knows he will probably re-offend). On the other hand, the psychiatrist might perjure herself insofar as she pretends that the criminal’s mental disorder does make him dangerous. In this case, the person fulfills the criteria of being an SVP under state law and is kept off the streets, where there is no chance of re-offense. Both of these alternatives are problematic. There are at least two alternatives that would avoid this dilemma. If legislators were to increase prison sentencing for criminal convictions for sex offenders, there would not be the need for civil commitments to keep them off the streets. Alternatively, legislators could change the definition in SVP statues to remove the causal connection between the SVP’s mental disorder and their subsequent actions. Either of these options achieve the same desirable outcome that the SVP legislation has, but without forcing the psychiatrist to indulge in legal or philosophical fictions.

-- OmarHaroun - 29 Apr 2012

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