Treatment of Sex Offenders

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K.N. Daly
legal significance of these semantic differences, either way it’s phrased poses
significant real-world difficulties for both legal and mental health practitioners.
“Likely to commit future acts” and “difficult or impossible to refrain from future
dangerous behavior” both invite speculation and theoretical discussions on topics
such as free will. Theoretical discussions about free will and the ability of law and
science to predict a given individual’s future conduct are all well and good in an
academic setting. Unfortunately given the Supreme Court’s lack of guidance, these
conversations will take place in courtrooms and will be the basis for decisions about
civil liberties and indefinite terms of confinement.
Mental health professionals would likely agree they can identify those people
who pose a higher than average likelihood of re-offending—those people who are
more “likely” to re-offend. Any person previously convicted of a crime is statistically
more likely to re-offend. However, commonly accepted this notion may be, it
does little to protect the civil liberties of those individuals facing civil commitment
proceedings. Using this logic there, all sex offenders are, at least in theory, similarly
situated and therein lies the fault with the law. Among the basic premises on which
all sexually violent predator statutes rest is the notion that only the most violent and
dangerous sex offenders should be subjected to a civil commitment.
Using the phrase “likely to re-offend” provides no guidance to any mental health
practitioner on how to distinguish one offender from another. This subjective standard
provides no basis for a forensic mental health practitioner to form a meaningful
comparison between offenders. While each state has its own definition of “likely,”
no definition provides meaningful guidance. California’s statute requires “likely
that he or she will engage in sexually violent behavior,” and the corresponding case
law discusses a “serious and well-founded risk.” Courts have held that it is erroneous
if the risk is defined as over 50 % (People v. Superior Court (Ghilloti), 27 Cal.
4th 888 ( 2002 )). Missouri defines “likely” as “more likely than not to engage in
predatory acts of sexual violence,” whereas states like Tennessee merely require
“likelihood of serious harm.”
The problem becomes compounded inside of a courtroom. Jurors are faced with
the untenable task of evaluating the testimony of two forensic experts: one testifying
the defendant is likely to sexually re-offend and the other testifying the same defendant
is unlikely. The typical scientific testimony includes statistical analysis, clinical
assessments, and other methodologies for assessing risk. Scientists may argue
the benefits of actuarial models versus clinical evaluations—comment on the superiority
of either method is beyond the ken of a lawyer. From a legal perspective what
is important is how and when these risk assessments are presented to the trier of
fact.
What “is likely” is difficult to define, let alone predict. Testifying experts must
take care in the presentation of their forensic conclusions. Jurors need the necessary
evidence to make informed decisions about the facts of the individual whose case
they are deciding. A debate over the merits of phallometric analysis versus
psychiatric diagnosis does little to advance the cause of justice and the preservation
of civil liberties.