THE BLOG
01/26/2015 05:37 pm ET Updated Mar 28, 2015

The Latest Hypocrisy in SVP Expert Testimony

The United States Constitution does not allow 'preventive detention' -- a much abused 18th century prerogative of royal power that was abhorrent to our founding fathers. We are meant to be a country of law, not arbitrary state power. No imprisonment on suspicion that someone might commit a crime and no keeping someone in prison beyond his allotted sentence just because someone thinks he might still be dangerous

Sexually Violent Predator laws in 20 states are an exception. Indefinite preventive detention in a psychiatric facility (really a prison in all but name) is permitted if the individual has committed a violent sexual crime and has a mental disorder that predisposes to its repetition. The US Supreme Court in a narrow 5-4 decision found this to be constitutional, but explicitly only if the perpetrator has a definite mental disorder that would distinguish him from the much more common opportunistic criminal rapist. No mental disorder, no preventive detention.

In an attempt to facilitate preventive detention under SVP commitment statutes, many state evaluators blatantly misused the inherently unreliable Paraphilia Not Otherwise Specified as a qualifying diagnosis in cases that involved no more than typical, opportunistic rape. Until recently, juries bought it -- unjustly committing common criminals to inappropriate psychiatric incarcerations.

This is now changing, especially since DSM-5 confirmed once again that rape is not a mental disorder (this is the fourth time DSM has rejected rape in 40 years). Paraphilia NOS is now widely recognized for the fake diagnosis it always was.

This should be the end of a sad epoch of incompetent expert testimony in SVP cases -- but it isn't. Undeterred by any respect for proper diagnostic practice, many state evaluators have come up with a new fake diagnosis, intended to convert ineligible common criminality into SVP-ready mental disorder. The same patients who before were routinely mislabeled Paraphilia NOS are now being mislabeled as Sexual Sadists.

Unlike rape, Sexual Sadism is an official DSM-5 diagnosis and, if properly diagnosed, is a legitimate qualifying mental disorder in SVP cases. Unfortunately, incompetent evaluators are now confusing the very specialized violence of sadism from the nonspecific violence of rape. The diagnosis of Sexual Sadism applies only to a tiny minority of rapists.

Rapists and sadists both are violent toward their victims -- but with quite different motivations. The goal of the rapist's violence is to rapidly and thoroughly control the victim to ensure her compliance with the sexual acts. For the vast majority of rapists, violence and control are no more than tools to force a non-consenting person to have sex. By definition, rape is nonconsensual sex that would only occur under conditions of overt or threatened violence.

In contrast, the sadist has a much more specific motivation. His stereotyped (and often diabolical) violence and demeaning control are the main event of the sex act- fulfilling deeply held and "recurrent, intense sexually arousing fantasies and sexual urges." For the sadist, sex would not be nearly so exciting (and might not even be possible at all) if it is not accompanied by violence that elicits the victim's pain, humiliation, and suffering.

Rapists and sadists are both routinely cruel, unempathic, and show lack of concern regarding the impact of their attack on the victim -- but again for different reasons. For the sadist, the sexual excitement is enhanced by, or may exclusively reside in, being cruel in a way that elicits pain. For the rapist the pain inflicted is incidental, perhaps indifferent collateral damage, not the goal of the sex act. The rapist and the sadist both lack a conscience to inhibit hurting others, but only the sadist requires their pain as a sexual stimulant.

Rape is a always heinous, ugly, violent, and cruel. But the violence and cruelty that are part of all rapes should not be confused with the motivated violence and cruelty of Sexual Sadism that requires victim pain to generate excitement. Rape is a crime, not a mental disorder. Sexual Sadism is both.

If this distinction is not thought through, made carefully, and supported with strong confirmatory evidence, virtually all rapists could conceivably receive a mistaken mental disorder diagnosis of Sexual Sadism and would then be subject to SVP commitment on that fallacious basis. This makes no sense and flies in the face of the Supreme Court rulings, which accepted the constitutionality of SVP statutes only if the rape is the result of a predisposing mental disorder that can be reliably distinguished from common criminality. Most coercive sex is explained not by Sexual Sadism and should not be mislabeled as such.

The differences between rape and sadism are clear. In rape, the purpose of violence is instrumental -- to facilitate the victim's compliance with the sex act. In Sexual Sadism, the violence, cruelty, and gratification in the victim's suffering are all primary -- necessary preconditions for sexual arousal and for the fulfillment of the urgent, intense, and recurrent sadistic fantasies of inflicting harm and humiliation.

Of course there will be the occasional rapist who also fills criteria for Sexual Sadism and is suitable for SVP commitment, but this will be a rare finding among rapists and should require extensive supporting evidence. Sexual Sadism should not be used loosely to shoehorn common criminal rapists into a mental disorder category in order to justify a psychiatric preventative detention that would otherwise be unconstitutional.

I have no sympathy for rapists and think they deserve long prison sentences meted out by the criminal justice system. But I have even less sympathy for the misuse of psychiatric testimony in the courtroom, for evaluators who play loose with proper diagnostic practice, and with the misuse of psychiatric incarceration. Railroading people inappropriately into psychiatric hospitals is a slippery slope that can lead to grave violation of human rights and a distortion of our most precious constitutional protections.