Treatment of Sex Offenders

11 The Best Intentions: Flaws in Sexually Violent Predator Laws
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Neither Hendricks nor Crane addressed whether confinement of sex offenders
based only on “emotional” impairment was unconstitutional. This opening likely
opened the door for the federal SVP statute, contained in the Adam Walsh Act,
which allows for commitment when the inability is solely volitional. In Crane the
Court decided an individual can be civilly committed as long as there is proof of
some inability to control the sexually dangerous behavior, whether that inability is
due to a volitional or emotional impairment.
Para-What?
The average lawyer operating in the criminal justice system may not have a basic
familiarity with paraphilias. The average lay person called on to sit on a jury is in no
better position. Yet triers of fact are likely to be called upon to determine whether or
not a particular paraphilia or, in some cases, paraphilia not otherwise specified,
coupled with other evidence, is sufficient to indefinitely detain an individual. Crane
in particular opened the door for SVP civil commitments based on the diagnosis of
paraphilias so long as the other criteria for an SVP commitment exist.
Any mental health professional about to testify on this issue should be mindful
of the history of paraphilias and be prepared to explain to the trier of fact the changing
social norms and controversy surrounding the definition and diagnosis of paraphilias.
Mental health professionals also need to be prepared to discuss the
distinction between paraphilic orientation and an actual paraphilic disorder.
Fifty years ago homosexuality was generally considered a paraphilia. Changing
social norms eliminated homosexuality from the list of paraphilias, and the United
States Supreme Court’s decision in Lawrence v. Texas recognized a consenting
adult’s right to engage in sexual conduct ( Lawrence v. Texas 539 U.S. 558 ( 2003 )).
Absent changing social norms constitutionally protected conduct that could have
formed the basis for a sexually violent predator classification. In a modern context
concern arises because SVP laws permit a civil commitment based on an abnormality
and do not require a disorder or a disease. Consider the following and keep in
mind that many, if not all, SVP laws do not define what a mental abnormality is: a
mental health professional concluded an individual had a paraphilic orientation
favoring exhibitionism. The mental health professional concluded the individual
had a paraphilic orientation and not a disorder specifically because the paraphilic
interest was not disturbing to the individual or others. Under the law a paraphilic
orientation can be a mental abnormality. If the same mental health professional was
called to testify at an SVP trial that the same individual has a specific paraphilic
orientation (aka mental abnormality), that opinion could satisfy one of the requirements
for an SVP finding to be made and a civil commitment ordered.
The problem is compounded with the addition of other variables. For example,
the reason the mental health professional concluded the paraphilic interest was not
disturbing to the individual or others was because the individual never engaged in
exhibitionist behavior. A civil commitment based on mere paraphilic orientation