Treatment of Sex Offenders

11 The Best Intentions: Flaws in Sexually Violent Predator Laws
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1. An individual must have some mental disease, disorder, or abnormality that
causes or is associated with risk of future sexual dangerousness.
2. The commitment of such an individual must be for the purpose of treatment.
These common features pose significant problems for mental health professionals
who are called on to testify about the likelihood of future dangerousness, as well
as for lawyers and judges who often have little familiarity with mental diseases,
disorders, and abnormalities. The causation requirement, the requirement that the
mental disorder be the cause of future dangerousness, invites speculation among
both the legal and mental health professions. SVP laws have made the opinions and
the testimony of mental health professionals of paramount importance in these proceedings.
The findings of these evaluators are often the main evidence on which a
finding of “sexually violent predator” rests. The American Psychiatric Association
has vigorously opposed sexually violent predator statutes (Dangerous Sex Offenders:
A Task Force Report of the American Psychiatric Association ( 1999 )).
Among the reasons for the association’s opposition is the argument that offenders
have already served prison terms for their offenses and further civil detention is
nothing more than preventative detention. The Association has also argued that civil
commitments violate the constitutional prohibition against double jeopardy, that
such detentions may lead to the future detention of other members of groups deemed
to have mental disorders, like political dissenters, and that this is an abuse of
psychiatry.
The United States Supreme Court has heard three cases on modern SVP laws. In
those decisions the Supreme Court rejected the APA’s concerns about the ethics or
the constitutionality of SVP laws and instead rested their decision. The high court’s
decisions hinged on the fact that civil commitments were motivated by a regulatory
as opposed to punitive intent. If the laws were found to have a punitive intent, they
would necessarily violate the double jeopardy clause of the United States
Constitution, the prohibition against prosecuting and punishing the same individual
for the same crime on more than one occasion. Only criminal or punitive laws are
subject to a double jeopardy analysis, so by finding the laws—had a regulatory
instead the Court avoided a double jeopardy analysis—an analysis SVP laws could
not have survived.
The United States Supreme Court’s Validation of Sexually
Violent Predator Laws
Facial and As-Applied Constitutional Challenges
Statutes can be challenged on constitutional grounds using two different theories:
facial invalidity or as-applied invalidity. An individual arguing facial invalidity
claims the statute cannot pass constitutional muster under any circumstance and is
therefore always constitutionally void. A successful challenge based on facial invalidity
results in a court striking down a statute.