Treatment of Sex Offenders

11 The Best Intentions: Flaws in Sexually Violent Predator Laws
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The above example is almost certain to never occur given the current state of
sexually violent predator proceedings. SVP proceedings are initiated while
individuals are completing their criminal sentences—not attending night clubs. The
example underscores the fluid nature of what society considers deviant and the dangers
of using paraphilias involving consensual adult conduct in sexually violent
predator proceedings.
The constitutional concerns involving paraphilias as the basis for sexually violent
predator proceedings are properly raised by lawyers. Mental health professionals
face difficult ethical choices in determining whether to offer testimony in such
cases. The potential for misuse of paraphilias within the legal system is significant.
Commentators and courts alike have commented on the potential for abuse of the
civil commitment system in general and the sexually violent predator system in
particular. In his concurrence in Hendricks , Justice Kennedy wrote:
If, however, civil confinement were to become a mechanism for retribution or general deterrence,
or if it were showed that mental abnormality is too imprecise a category to offer a
solid basis for concluding that civil detention is justified, our precedents would not suffice
to validate it. (Kansas v. Hendricks, 521 U.S. 346, 373 ( 1997 ))
Many paraphilias fall squarely into Justice Kennedy’s warnings about imprecise
categories that offer potential mechanisms for social retribution. In addition to being
prepared to readily acknowledge the controversy surrounding paraphilias to the trier
of fact, mental health professionals have to diligently guard against the legal profession’s
pressure to confine potentially dangerous individuals when those individuals
may not accurately fit specific diagnoses.
Expert Opinions About “Likely to Commit” and “Serious
Difficulty”
Mental health professionals are often the star witnesses in sexually violent predator
trials. Trials are often nothing more than a battle of the experts. While the law
struggles to compensate for sentencing changes from the 1980s to 1990s, mental
health professionals are asked to express opinions that will lead to determinations
about whether a person is indefinitely detained.
When You’re Likely to Testify About the Meaning of “Likely”
All state SVP statutes contain the requirement that an individual be likely to commit
future acts of sexual violence. The requirements of the federal statute are slightly
different—that is, the statute requires that an individual’s mental abnormality or
disorder make it difficult, if not impossible, for the offender to refrain from future
“dangerous behavior.” While lawyers and judges will likely spend years arguing the