Introduction to civil commitment
In the US, 20 states and the Federal Government have what are called Sexually Violent/Dangerous Predator/Person (SVP) laws. These laws permit the "civil commitment" of certain sex offenders AFTER completing their sentences. Basically, people are convicted of a crime, sentenced to a certain number of years in prison. They serve their sentence, and then, instead of releasing them, they're locked up again--possibly for the rest of their lives.
Now, extending their sentences would be entirely unconstitutional--it would violate the double jeopardy clause of the 5th amendment, and (in many cases) the ex post facto clause as well, which requires that punishment be based on what was illegal (and what the sentence for it was) at the time the crime was committed.
To get around these constitutional protections on liberty, a process called "civil commitment" is used. This power is predicated on the police powers and parens patriae powers of the government. W. Lawrence Fitch explains:
Every state has a law for the civil commitment (involuntary hospitalization) of people with a mental illness. Generally reserved for people with serious psychiatric disorders, like schizophrenia or bipolar disorder, these laws are used in most states only when an individual's symptoms become acute and place the individual at risk of serious harm. Once the committed person's symptoms begin to remit (and the risks abate), he or she ordinarily is discharged, typically with refer for "aftercare" services in the community. Hospital stays for such patients rarely exceeds 30 days, although some require rehospitalization periodically.
Also, the power of the state to civilly commit people is what is used when people are declared not guilty by reason of insanity--in such cases, people are typically placed in prison-like psychiatric hospitals rather than in prison. Now, the insanity defense is often misunderstood by the general public (see this post about sensationalism in coverage of insanity defense for a good discussion.)
Because locking someone up without convicting them of anything is a prima facia violation of the 5th amendment's due process clause and has rather obvious potential for abuse, it is necessary to have safeguards to prevent it from being used to lock up just anybody(say, for instance, locking someone up because some important people in the government don't like them.)
Thomsas K. Zander explains that, historically, civil commitment has generally been restricted to people with psychoses (i.e. serious mental illness), but that there has been one exception very relevant to the SVP laws: Beginning in the 1930's, a number of states adopted Sex Psychopath laws:
An exception to the general rule that civil commitment was limited to persons with psychoses took place in the late 1930s and 1940s, when many states enacted laws to authorize the civil commitment of sex offenders. “These laws were viewed as alternatives to criminal processing and imprisonment for this group of offenders” (Brakel, 1985, p. 740). These laws were intended to “benefit sex offenders by curing them in perhaps a shorter time than they would serve as convicted criminals ... [and to] protect society against premature release of dangerous offenders who had not been cured within the maximum period of incarceration available under a predicate criminal statute” (American Bar Association, 1989).
By the 60's half of the states in the US had adopted such laws. Eventually, they came to be repealed after it was found that treatment simply did not work. Also, there were some high profile cases of people being released earlier than they would have been had they received a prison sentence rather than be civilly committed, which caused some states to revoke these laws.
The Group for the Advancement of Psychiatry, in 1977, issued an influential report on these laws, and their position was clear: "[S]ex psychopath and sex offender statutes can best be described as approaches that have failed."
A second major historical antecedent to the SVP laws involves a change from indeterminate to determinate sentencing. A Task Force of the American Psychiatric Association studying the SVP laws has a very good explanation of the historical background of these laws. Much much of the 20th Century, sentencing in the US was "indeterminate." People would receive long sentences, but usually not spend all (or even most) of these in prison. Because the system was based on a rehabilitative model, the idea was that when people seemed safe, they would be released on parole. However, people who seemed especially dangerous could be kept in prison for the whole sentence. However,
[b]y the early 1980's...the philosophy of the criminal justice system in America had begun to change. Faced with high recidivism rates among paroled offenders, a growing disillusionment with rehabilitation, and concerns about disparity in treatment among offenders, states began to abandon indeterminate sentencing and special commitment laws in favor of laws that prescribed a fixed or presumptive penalty in every case--one that the offender would be required to serve in its entirely regardless of his or her behavior while incarcerated or prospects of success upon release.
The consequence was that the people who would have been released early would spend more time in prison, but those who would be kept for the entire sentence under indeterminate sentence would be released much earlier.
Beginning in the 1990's, several states have passed SVP laws. Unlike the Sex Psychopath laws, however, in these laws people were civilly committed AFTER completing a prison sentence, rather than INSTEAD of it. That is, the individual was considered mentally healthy enough to be held criminally accountable for the action in question, but then are considered mentally disordered enough to be civilly committed, with much of the evidence for this being that they committed a crime. Hypothetically, one purpose of these laws is to provide treatment, but it is clear to many commentators that this is just a sham. If the goal was to provide treatment, it is difficult to account for the fact that some of the very same states who were passing SVP laws had just a decade or two previously repealed sex psychopath laws because treatment did not work. The article Locked in Limbo gives a very revealing look at Minnesota's Sexually Violent Person program. Written in 2008, the article's opening states make the matter clear:
In the 14 years since Minnesota's Sexually Dangerous Persons Act cleared the way for the state to detain hundreds of paroled sex offenders in prison-like treatment centers, just 24 men have met what has proved to be the only acceptable standard for release.
"We would say, 'Another one completed treatment,'" said Andrew Babcock, a former guard and counselor in the Minnesota Sex Offender Program (MSOP).
In order to be committed under one of these laws, generally, it is necessary that a) the person has been convicted of a sex offense b) they are found to have a "mental abnormality or personality disorder" and c) they are found to be "dangerous."
The "mental abnormality" involved is usually a paraphilia, and sometimes "antisocial personality disorder." In the Fitch article quoted above, he found that most commonly, to qualify, people are diagnosed with a paraphilia. One of the more common diagnoses is "Paraphilia NOS." (NOS means "not otherwise specified" and most classes of diagnoses in the DSM have one of these as a kind of misc. disorder.) Typically, this is "Paraphilia NOS: nonconsent." That is, "paraphilic coercive disorder" is already being used to civilly commit people under these laws. This is extremely controversial (see Thomas K. Zander's article Commentary: Inventing Diagnosis for Civil Commitment of Rapists for reasons against using this diagnosis.)
Arguments against SVP laws
The way that the US deals with sexual crimes is, to many observers, extremely disturbing. Often, what happens is that some really atrocious crime will be committed by a released sex-offender, there is (understandably) public outrage; however, often this outrage is aimed at why the government and why they had not prevented this. The result is that laws get passed--with little thinking about whether they are good ideas, whether they will be a cost effective way of reducing sexual violence, or whether they are even within the bounds of the constitution--that appear "tough" on sexual-violence.
As Richard Krueger explain in an aptly titled op-ed The New American Witchhunt:
INCREASINGLY, legislation dealing with sex offenders is being passed that is punitive, untested, expensive and, in many cases, counterproductive -- demonizing people who commit sexual offenses without offering any empirical information that the new laws will reduce sexually violent crime.
A major problem is that in retrospect it seems obvious that the person who committed this horrible crime should have been stopped, but predicting these things in advance proves to be extremely difficult. The SVP laws have been criticized on a number of accounts. For a brilliant, insightful and extremely informative discussion of these laws and thoughts on more effective ways of combating public policy, I strong recommend the book Failure to Protect: America's Sexual Predator Laws and the Rise of the Preventive State. To summarize some of his main arguments:
-They are extremely expensive, but only address a very small part of the problem of sexual violence (and money spent on these is money not spent on other programs).
-They fly in the face of decades of feminist work on sexual violence--they are premised on the myth that the prototypical perpetrator of sexual violence are scary people hiding in bushes and parking lots. As a result, they reinforce myths about rape and are premised on myths about rape. Sensible means of fighting sexual violence needs to be based on evidence about the real nature of sexual violence.
-From a civil liberties perspective, they are very troubling--while they supposedly are only for the "worst of the worst," actual practice shows that this simply isn't true.
Janus powerfully contrasts the situation in criminal cases with those in SVP hearings. It is a long quote, and I wish I could quote more (Go read the book!):
In essential detail, the Constitution dictates the shape of the criminal procedure. Criminal prosecutions focus sharply on a well-defined question: Did the defendant commit the specific crime alleged, at the time and place specified, with criminal intent. Testimony is, for the most part, about facts in the real world. It is given by witnesses who personally observed those facts and who are in court, properly sworn, and available for cross-examination. Defendants have a right to silence; the secrets they revel during psychiatric or medial treatment generally have no place in criminal trials. Criminal cases punish a person for an act freely chooses. With few exceptions, these cases exclude evidence about who a person is and what his character is like, both because that kind of evidence is considered irrelevant to determining whether he committed the crime and because the Constitution prohibits punishing a "status." We are supposed to punish people for what they have done in the past, not because of who they are.
In almost every way, predator commitment cases inhabit an alternate universe, an Alice-in-Wonderland world in which these normal rules are turned on their heads. Most fundamentally, they take away a person's liberty not as punishment for a past act but to protect against a feared, but uncertain, future act. While criminal prosecution requires specific allegation of a particular act that violates a specific law, predator cases allege vague future harm, at some unspecified place, under unstated circumstances, and at indefinite times. Predator cases are unambiguously about "who" a person is--what his character is, what his "propensities" are, what "risk" hi poses. Predator cases incarcerate people for the status of being a dangerous mentally disordered person, so the relevant "facts" are psychological constructs, whose only reality in the the expert judgment of mental health professionals."
Much of the Key information is based on the unworn handwritten notes of institutional guards and attendants, who propensity for accurate and unbiased observations is unknown, and whose absence from the courtroom shields them from cross-examination. Much of the rest of the information comes from the mouth of the person subject to loss of liberty, because in predator commitment, the Fifth Amendment right of silence and the confidentiality of psychological treatment are nullified.
The APA's historic response
Two cases have come before the US Supreme Court regarding the Kansas SVP laws. Kansas v. Hendricks was decided in 1997 and Kansas v. Crane was decided in 2002. In both, the Court upheld these laws. The first was a 5-4 decision, written by Clarence Thomas, in which it was held that the purpose of the civil commitment was non-punative with the purpose being to protect the public, and therefore the ex-post facto clause and double jeopardy clause do not apply. In my own view, believing that this commitment is "non-punative" makes about as much sense as trusting someone who is trying to sell you a bridge. In Justice Bryer's dissent, he observed that the facts of that individual case--and in arguments given in the Kansas legislature when considering this law--it was quite clear that the intent was punitive.
In Hendricks, the American Psychiatric Association filed an Amicus Brief arguing that the law was unconstitutional. In Crane, the issue was a little more complicated, but, essentially, Kansas was trying to use a much expanded understanding of their act to civilly commit someone--the facts of the case strongly suggested, as the APA note in an Amicus Brief they submitted in that cases, that Kansas was unhappy with not being able to get as long a sentence as they would like when they had to be all constitutional about things, so they tried to use the SVP law to lengthen the guy's sentence.) In this Amicus Brief, the APA argued that Kansas interpretation of the law was unconstitutional. (The Court's decision is sort of hard to explain and seems to confuse those working in this area as well. Also, a third SVP case has come before the Court--US v. Comstock dealing with the Federal Government's SVP law. It is yet to be decided.)
In addition, report of the Task Force created by the American Psychiatric Association to study SVP laws was was unambiguous:
In the opinion of the Task Force, sexual predator commitment laws represent a serious assault on the integrity of psychiatry.... [B]y bending civil commitment to serve essentially non-medical purposes, sexual predator commitment statutes threaten to undermine the legitimacy of the medical model of commitment.... [P]sychiatry must vigorously oppose these statutes, to preserve the moral authority of the profession and to ensure continuing societal confidence in the medical model of civil commitment.” (p. 173)
Paraphilic Coercive Disorder Reconsidered
It is against this backdrop that the proposal of Coercive Paraphilic Disorder must be understood. What it would do is further legitimate the use of this "disorder" in the "civil commitment" of people convicted of rape (at least, in the jurisdictions that have SVP laws.) It is against this backdrop that Allen Frances' comments must be understood:
Paraphilic Coercive Disorder would expand the pool of sex offenders who are eligible for indefinite civil commitment because they have a “mental disorder” to include cases of sexual coercion. Paraphilic Coercive Disorder was initially considered for inclusion in DSM-III-R (under the name Paraphilic Rapism) but was rejected because it was impossible to reliably and validly differentiate those rapists whose actions are the result of a paraphilia from the large majority of rapists who are motivated by other factors (such as power). Given the facts (acknowledged in the rationale section) that most rapists are savvy enough to deny sexual fantasies and the unreliability (and unavailability) of laboratory testing, the diagnosis will inevitably be based only on the person’s behavior, leading to a potentially alarming rate of false positives with consequent wrongful indefinite commitment. (link)And again:
But it seems abundantly clear that these proposals from the Sexual Disorders Work Group have no place in DSM5. They offer little gain and would create significant problems. The construct “paraphilic coercion” has already contributed significantly to a grave misuse of psychiatry by the legal system in the handling of sexually violent predators—a misuse much opposed by the APA in a task force report and amicus brief to the Supreme Court. (link)And again
PARAPHILIC COERCIVE DISORDER is based on the idea that some (probably a small proportion of) rapists qualify for a diagnosis of mental disorder. They rape not opportunistically, or as an exercise in power, or under the influence of substances or peer pressure-but specifically because it is their preferred form of sexual excitement. This proposal was explicitly rejected for DSM-IIIR and was given no serious consideration for DSM IV. The problem is the impossibility of reliably distinguishing between the small group of hypothesized "paraphilic" rapists (who would be given a mental disorder diagnosis) and the much larger group of rapists who are simple criminals.
The distinction has taken on huge significance because of an aberration in the way the criminal justice system handles rapists. Twenty states have passed SVP statutes mandating indefinite (usually in practice lifelong) inpatient civil psychiatric commitment for individuals who have completed their prison sentence for a sexually violent crime;have a diagnosed mental disorder, and are deemed likely to repeat. The statutes are a well meaning effort to reduce the threat to public safety posed by those recidivist sexual offenders who have received prison sentences that are judged to be too short. Although the SVP statutes have twice passed Supreme Court tests, they rest on questionable constitutional grounds and may sometimes result in a misuse of psychiatry.
Most disturbingly, an ad hoc and idiosyncratic suggested diagnosis -- Paraphilia Not Otherwise Specified -- has become a frequent justification for the psychiatric commitment of rapists who are really no more than simple criminals. Raising this diagnosis to official status would greatly compound this misuse of civil psychiatric commitment. (link)
To summarize my own position on the matter: What he said.
This "mental disorder" has no place in the DSM, and those writing DSM-5 should make explicit that "Paraphilia NOS: Nonconsent" is not a legitimate diagnosis.