Treatment of Sex Offenders

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K.N. Daly
SVP laws were passed in large part to fill the gap for recidivists. These laws
contain requirements that invite psychologists and psychiatrists to opine about the
mental health diagnosis of individuals and speculate about whether their mental
health is likely to cause future criminality. Judges and juries are then required to
weigh this speculation in trying to decide whether or not a civil commitment is warranted
under the law. There is no empirical evidence supporting an argument that
SVP laws have made society safer. In the meantime the jurisprudence in this area
has allowed increasingly vague diagnoses to form the basis for civil commitments.
On two occasions, the United States Supreme Court has considered the constitutionality
of sexually violent predator laws. In both of those instances, the Court has
upheld the constitutionality of these laws and, in so doing, fundamentally lowered
the burden for prosecutors. This chapter will consider the two Supreme Court cases
holding sexually violent predator laws constitutional: Kansas v. Hendricks (1999)
521 U.S. 346 and Kansas v. Crane (2003) 534 U.S. 407. These cases allow future
courts and juries to assume anyone suffering from a paraphilia by definition suffers
from a serious mental disorder notwithstanding the fact that there is disagreement
among the scientific community that paraphilia is a serious mental disorder.
In light of this disagreement and the concerns among some in the legal community,
this chapter concludes by recommending, from a legal perspective, the best
practices that would lend credibility to both the legal and scientific processes. More
specifically, mental health professionals are going to have to be increasingly diligent
in regulating their profession. The temptation to make the wrong diagnosis for
the right reason, to testify someone meets the criteria for a sexually violent predator
to prevent a future harm when the individual does not fit the diagnoses, must be
avoided.
History of Laws Targeting Sexual Offenders
In a 30-year period, between 1937 and 1967, more than half of the states passed
laws calling for the indeterminate civil commitment of “sexual psychopaths.” The
cries for such legislation arose in response to a few highly publicized cases that led
to a national fervor over a perceived sex crime wave.
The Social Backdrop Preceding Early Civil Commitment Laws
During a period of approximately 6 months in 1937, three cases involving child victims
dominated the headlines. In each of those cases, girls, between the ages of 4 and
9, were sexually assaulted and murdered. Literally hundreds of magazine and newspaper
articles discussing these three cases were published across the country. Estelle
B. Friedman, “Uncontrolled Desires: The Response To The Sexual Psychopath”,
74 J. Am. Hist. 83, 88 ( 1987 ). By July 1947, J. Edgar Hoover published an article in