The mental health act 2007 and dangerous sex offenders
In several European countries the age of legal consent to engage in sexual behavior falls within the range of pathology proposed for the DSM 5. It is 13 in Spain. Thus, the carefree Italian or German adult romancing 14 year olds will not be threatened with criminal prosecution. The only punishment will be the psychiatric label of mental disorder. In non-European countries the age of consent also falls within the DSM 5 "no-go" area. For example, it is 14 in Chile, Columbia, Ecuador and Peru. In Mexico it is Some sexual activities have been both crimes and mental disorder, such as homosexuality in the US.
Some remain crimes elsewhere, such as homosexuality. A nation or jurisdiction can express its dissatisfaction with a sexual practice by making it a crime. But that is an issue for the legislature. If a society is accepting a pattern of sexual behavior, but psychiatry labels it mental disorder requiring treatment and change, psychiatry fulfils its often ascribed condemnatory designation of acting as an agent of social control.
Several studies demonstrate the relatively common attraction by adults to pubescent or younger persons. Yet another found a group of child molesters and controls to have similar arousal patterns to slides of pubescent girls Quinsey et al. There are millions of adult males in European countries where sex with 14 year olds is legal.
Extrapolating from studies of normals who have attraction to adolescents, if even a tenth of these acted on their attraction, the ranks of the mentally ill would be swelled by as many as were cured when homosexuality was dropped from the DSM. I have published a paper challenging the designation of pedophilia as a mental disorder Green My argument did not endorse the behavior, nor did it argue for decriminalization.
Rather, calling on cross-cultural practices, historical precedents, and human sexuality research, utilizing questionnaires and phallometry, it argued that pedophilia did not meet the criteria of mental disorder. With this publication history, some who disagree with that earlier writing may dismiss my arguments for not including hebephilia in DSM as merely "more of the same".
So, for this discussion I am willing to concede a period of juvenile development when sexual conduct directed to that person by an adult can constitute a mental disorder. If there must be a bright line for disorder, it could be puberty, Tanner stage 2. Designating age as the bright line ignores the substantial variability in physical development.
For a specific age, a person could be prepubertal or mid-pubertal. And age at puberty is getting younger. However, age may be a better correlate of cognitive development than physical maturation Litt Nevertheless, 12 year olds are not passive blobs: the age of criminal responsibility in England is Sexual interaction with persons at an incomplete stage of sexual development has been accepted behavior in a range of cultures.
In England the age of consent was 12 years for years. This continued to the late 19th century. When the age of consent was raised it was a by-product of child labor laws that forbade children from helping support their family. They turned to child prostitution which was frowned upon, so the age for legal sex was raised Working Party At about this time the average age of menarche was These consenting girls were well below puberty. Some research suggests that half the Pashtun tribal members in Kandahar and other southern towns are 'bacha baz', the term for an older man with a boy lover.
Literally it means 'boy player'. The men like to boast about it. Whoever wants to show off should have a boy.
Even after marriage, many men keep their boys. A favored Afghan expression goes: 'Women are for children, boys are for pleasure'. Many readers are not old enough to recall the psychiatric morbidity of masturbation, as published in the Boy Scout Handbook, warning about "abuse of the body". Critics of hebephilia as a diagnosis also point to its growing misuse in US civil commitment law in 20 states and the federal government. This permits lifetime detention after a prison sentence has run its duration.
Over Americans are detained, perhaps until death. One critic argues, "Hebephilia is being advanced as a mental disorder by a small cadre of government experts intent on legitimizing the indefinite detention of men who have committed culturally repugnant acts with minors and who do not meet the diagnostic criteria of other, more established disorders.
A federal judge held that "paraphilia NOS hebephilia" might qualify as a clinical diagnosis, but did not reach the threshold of "serious mental disorder" required for commitment US v Abregana In another case, the court held that professional literature may establish hebephilia as a "group identifier or label", but not as a generally accepted clinical diagnosis". United States v Shields If hebephilia becomes a specific DSM diagnosis this could enable courts to apply it more readily. My criticism of sexual predator law is long-standing.
In , with Brody, I attacked the pioneering Washington State law. Offenders committed under this law may spend their lives in a mental health facility under preventive detention Available treatments are not adequate to ensure future safety and the law selects poor candidates for treatment. It issued its report in Zonana et al. 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. The nature of the person's offense must be considered.
A habitual violent rapist represents a very different universe of public safety from a person who enjoys genital fondling with a compliant pubescent. Currently, the latter are being entombed along with the former by sexual predator law. The Kinsey researchers 50 years ago were hardly taken aback by men who are now labelled hebephiles. These persons' sexual activity was with persons "biologically ready for coitus".
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The men "scarcely merit ed the emotionally charged label of sex offender" Gebhard et al. Persons for whom there is compelling evidence that they pose a public risk can be sequestered without a psychiatric diagnosis. A thwarted suicide bomber can be locked away without a diagnosis of "explosive self harming disorder". The proposed diagnosis may not attach short of sexual contact with a pubescent person, even when the attraction is intense.
But, if diagnosis requires action, then psychiatry, the scientific discipline of the emotions and thought, is turned on its head. No matter how crazy the thought, according to the DSM, it is not a disorder unless acted upon. The APA is a body representing a medical profession still striving for scientific respectability. The farce of science cross-dressing as democracy made psychiatry a laughing stock 35 years ago.
It held a popular vote of its membership on whether homosexuality should remain in its list of disorders Bayer Decreeing in a few years time that a 19 year old who prefers sex with a 14 year old has a mental disorder will not enhance psychiatry's credibility. An argument for including hebephilia in DSM is that this facilitates research.
Psychiatric research does not require categorizing a sexual orientation as disorder. We can study why persons are attracted to octogenarians, the morbidly obese, or even those attracted to persons of their own sex, without labelling the attraction disorder. I propose an alternate diagnostic system. If a person has a pattern of sexuality that from that person's perspective interferes with a more desirable sexuality, and seeks help reducing the former and enhancing the latter, this can be diagnosed and treated as a sexual dysfunction. There could be subtypes of sexual dysfunction to designate the obstacle to the pattern of desirable functioning.
Thus, erectile failure could be the culprit, or insufficient arousal to legal age partners, or to partners who don't enjoy being bound, gagged, and whipped. As Moser points out, Obsessive-Compulsive Disorder may manifest as compulsive hand washing, but the diagnosis is not hand washing disorder. It is OCD.
This proposed system would avoid inevitably including persons who have some erectile failure, strong attraction to non-adults, or to trussed women in a compendium of the mentally disordered. It would be of diagnostic clinical concern only when it is of personal concern. Categorizing a person five years older than another person who is in early or mid-pubescence and who has sexual contact with the younger as psychiatrically disordered ignores evidence based understanding of psychosexual development, what should constitute psychiatric disorder, contributes to lengthy needless incarcerations, and undermines psychiatry's long journey toward professional credibility.
It will disserve human sexuality and psychiatry for decades. Many readers are too old to wait for its deletion from DSM 6. Hebephilia is a Mental Disorder? Why Diagnose Hebephilia? It is assumed to be permissible to perform highly intrusive and harmful interventions on criminal offenders without consent provided those interventions are intended at least in part for correctional purposes and are not susceptible to non-consent-based objections.
Thus, if ALIs were conceived as intended partly or wholly for correctional purposes by those who have debated the ethics of their use, it would be surprising that these authors have typically accepted the requirement for consent, and even more surprising that they have typically accepted it without argument.
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This paper argues that, contrary to this assumption, some ALIs are intended, at least in part, to realise correctional objectives. We begin, in Section II, by offering some thoughts on how examining the legal regimes under which ALIs are provided might reveal the state's intentions in imposing ALIs. Using the framework developed there, we then proceed to analyse the purpose for which ALIs are provided in two jurisdictions: California, and England and Wales. We present these two jurisdictions as counterexamples to the view that ALIs are intended solely for medical purposes, and we have chosen these jurisdictions because they exemplify two rather different ways in which ALIs may be used for correctional purposes.
Section V draws out some of the possible moral implications of the argument and relates these to an argument offered recently by Jesper Ryberg. The analysis is not intended to be a comparative legal analysis of the two jurisdictions we discuss. Rather, we seek to illustrate how two different regulatory approaches to the provision of ALIs to sex offenders both involve aims that are correctional at least in part. The argument, then, is that if ALIs are at least sometimes intended for correctional purposes, this raises the possibility that the consent requirement is inapposite, morally speaking.
The argument is not, however, that the consent requirement is certainly inappropriate, only that, where ALIs are intended for correctional purposes, the consent requirement cannot be assumed without argument as it has been. There is little agreement on the purposes of medicine, and even less on the purposes of criminal justice. However, even if the two sets of objectives are understood inclusively, they arguably remain distinct. For the purposes of this article, an intervention will be understood to have a medical purpose when it is intended to a augment the recipient's wellbeing by b.
An intervention will be understood to have a correctional purpose when it is intended to a mete out deserved suffering on the recipient retribution , or b protect the public from crime by i preventing the recipient of the intervention from offending for example, through incapacitation, rehabilitation, or specific deterrence , or ii deterring others from offending general deterrence. Note that, on this account, an intervention can have a correctional purpose without being punitive , in the sense that it is intended to mete out hardship or suffering.
Neb. Rev. Stat. § 71-919
Psychological rehabilitation programmes, for instance, are typically non-punitive, but when intended to protect the public they would, on our view, nevertheless qualify as correctional in purpose. Note also that a single intervention could be intended to realise both medical and correctional objectives; the categories are thus not mutually exclusive. Many existing psychological rehabilitation programmes used in, for instance, substance users and sex offenders appear to have precisely this set of purposes. They aim to treat a substance abuse disorder or paraphilia in order both to prevent further offending and convey a direct health benefit to the offender.
It is, of course, not always straightforward to identify the state's purposes in providing an intervention. We will use four considerations to identify the intended purpose of an ALI: the institutional framework under which it is provided, the conditions that must be met in order for it to be provided, the provisions for the termination of the intervention, and the language in which the intervention is described. We submit that the following would count in favour of ascribing a medical purpose to an ALI: The ALI is provided at the direction of healthcare institutions eg hospitals, clinics under the oversight of a jurisdiction's department of health or its equivalent.
The ALI is provided only on the condition that the recipient qualifies for a medical or psychiatric diagnosis which the ALI is likely to mitigate, and that the benefits of the intervention for the recipient are likely to outweigh the risks to him. If a repeated or temporally extended intervention, the ALI will be stopped when it is no longer of benefit to the recipient, or when he no longer suffers from the disorder or disease. The ALI is provided at the direction of correctional authorities eg prison services, parole boards, criminal courts, or probation centres under the oversight of a jurisdiction's department of justice or its equivalent.
The intervention is provided only on the condition that the recipient has committed or is likely to commit a crime or a crime of a specified kind and is provided irrespective of whether the recipient qualifies for a medical or psychiatric diagnosis. If a repeated or temporally extended intervention, the ALI will be stopped after a fixed and predetermined time has elapsed or on the individual's death consistent with a retributive or deterrent objective or when the offender's risk of re-offending falls below a given level consistent with an incapacitative or rehabilitative objective.
It is important to stress again that this is not a comparative legal analysis; the aim is not to compare the statute providing for the use of ALIs in sex offenders in California to one of the regimes they could be provided under in England and Wales. Nor is it intended as an exhaustive review of use of ALIs for correctional purposes: ALIs have been used for such purposes in other jurisdictions as well.
Rather, the aim is to present two legal frameworks under which ALIs can be provided, as counterexamples to the assumption that ALIs are intended solely for medical purposes. The particular jurisdictions have been chosen because they illustrate two rather different kinds of legal arrangement under which ALIs may be provided, both of which, we argue, represent correctional aims, at least in part. One factor suggesting that the provision of ALIs under section is intended for correctional rather than medical purposes is its placement in the penal code.
Courts sentence individuals who have been convicted of certain sex offences to undergoing ALIs. The statute does not contain any requirement for healthcare professionals to be involved, either in decisions about whether particular offenders should undergo ALIs, or in a supervisory capacity during the administration of the intervention, or in decisions about cessation of the ALI.
While legal instruments providing for the use of ALIs are not always clear about the aim of these interventions, one way to ascertain an implicit aim is to consider the criteria used to determine whether ALIs might be provided to particular offenders. In California, there are a number of factors that indicate that the use of ALIs under the statute is not intended to serve medical purposes. For example, neither section a nor b states that ALIs should only be provided to offenders who are likely to benefit from them, nor do they require that offenders are screened for clinical suitability prior to being ordered to undergo ALIs, and there is no requirement that the offender qualify for a medical or psychiatric diagnosis.
Section also does not provide for ALIs to be used in conjunction with any form of counselling, psychotherapy, or other behavioural intervention such as cognitive-behavioural psychotherapy that would have been in line with the empirical evidence regarding their therapeutic effectiveness, 40 and which is also the standard approach in many other jurisdictions where ALIs are used.
Other commentators have noted that section seems to provide for ALI use with a correctional rather than a therapeutic intent. There is, moreover, some evidence that ALIs provided under section are intended specifically to achieve retributive or general deterrent objectives rather than preventing the recipient from re-offending for example via rehabilitation, incapacitation, or specific deterrence. While the statute distinguishes between first time offenders and reoffenders, which to some extent may track likelihood of further reoffending, it fails to take into account other factors which have been found to predict risk of recidivism, and which are generally understood to be crucial in determining what kinds of interventions would be suitable, such as the offender's age, the motivation behind the offence, the presence of deviant sexual fantasies paraphilic motivations , and antisocial orientation nonparaphilic motivations.
Although victim characteristics may track effectiveness in preventing recidivism to some degree for example, to the extent that they track paraphilia , blanket use of ALIs on all offenders who commit certain sexual offences will undoubtedly result in ALIs being administered to some offenders for whom they will not reduce the risk of recidivism. A distinctive feature of interventions intended for medical purposes is that they are not legally time-limited. Rather, such interventions continue until the patient no longer qualifies for the relevant diagnosis or they no longer benefit the patient.
Moreover, the original formulation of the provision, in the bill that subsequently became section of the California Penal Code, 57 did contain correctional language. In summary, a number of features of the way in which ALIs are provided under section indicate that they are not intended solely for medical purposes.
Offenders are sentenced to undergo ALIs by criminal courts, on the basis of the type of offence they have committed, rather than being ordered to undergo ALIs on the basis of an assessment of clinical need. ALIs are administered under the direction of correctional authorities, and while it is within the court's discretion to decide whether to order first time offenders to undergo ALIs, they are mandatory upon commission of a second offence to which section applies.
The criteria according to which correctional authorities determine when the administration of ALIs should cease are not specified in the statute, but the fact that there is no requirement that medically trained staff should be involved or consulted in decisions about whether particular offenders should undergo ALIs, either at sentencing, while the intervention is ongoing, or when decisions about whether it should cease are made, suggests that the criteria used are not medical.
These considerations all indicate that ALIs provided in accordance with section are intended for correctional and not medical purposes. Our general conclusions are that the approach to the use of ALIs in sex offenders in this jurisdiction is heterogenous, varying widely with the choice of legal regime under which the ALI is provided. When administered under mental health legislation—which is the most common route in England and Wales—ALIs appear to be provided for a mixture of medical and correctional purposes.
There are currently studies underway within parts of the prison service through which offenders who consent to participation and meet the eligibility criteria might gain access to ALIs. Under the mental health regime, sex offenders will not be sentenced to undergoing ALIs. Offenders who meet the MHA admission criteria detailed below can be sentenced to detention and care under the Act by a criminal court, but the detention and any interventions provided thereunder are administered by healthcare institutions, sometimes under the direction of the Department of Health, and sometimes under the direction of the Ministry of Justice, or a combination of the two, depending on the type of sentence see Conditions of Termination below.
The institutional context within which ALIs are provided under mental health legislation in England and Wales thus does not clearly indicate that they are used either for solely medical or solely correctional purposes. It is perhaps most consistent with their having mixed objectives. Decisions regarding the imposition of ALIs on particular offenders are taken by the responsible clinician, once a decision to order detention under mental health legislation has been taken by the court.
Offenders are sentenced to detention and treatment under mental health legislation through so-called hospital orders, which are issued by criminal courts under s. However, there are also some indications of a public protection aim. The grounds for admission under section 3 2 c also indicate that detention can serve mixed aims. This, on our model, is a correctional aim. A further indication that the intent of detention is not purely therapeutic is that a treatment does not necessarily have to be likely to be effective in the particular case in order for the requirement that appropriate medical treatment is available to be met.
However, it may be legitimate to make inferences about the intended purposes of interventions provided to offenders while detained from the intended purposes of the detention itself, and therefore, if detention were motivated partly by public protection, this at least raises the possibility that any interventions provided to offenders while detained, including ALIs, might be provided partly for the purposes of crime prevention. Furthermore, there may be some more direct evidence that interventions provided to detained offenders serve a correctional public protection purpose, at least in part.
In respect of our fourth dimension, conditions of termination, the MHA offers a range of options for potentially indeterminate detention. Hospital orders , which are imposed by criminal courts, allow for offenders who have been convicted of an imprisonable offence to be detained and treated in hospital until they no longer suffer from a mental disorder that warrants treatment under the MHA Moreover, the authority to make decisions to discharge or permit leave for offenders subject to restriction orders lies with the Secretary of State for Justice, 82 who thereby holds a veto power that limits clinical discretion in respect of these offenders, 83 again suggesting a correctional aim.
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These orders allow for the combination of a hospital direction with a prison sentence 84 and require a time-limited minimum tariff of detention be served. Offenders whose mental disorder is successfully treated prior to the expiry of their prison sentence will therefore be transferred to prison to serve the remainder of their term. Offenders subject to section 45A orders are initially directed to hospital but have the legal status of prisoners, as opposed to patients.
While ALIs may not be provided directly for correctional public protection purposes, detention under the MHA can be prolonged for public protection purposes both under restriction orders and section 45A orders, provided that the offender is still suffering from a mental disorder that warrants treatment in hospital, and he is detained, interventions such as ALIs can be provided to him.
There are also, however, numerous references to public protection. The Act also contains numerous references to the measures being necessary for the health or safety of the patient, however, 95 and often the same provision refers to the measure either being necessary for the protection of others or being necessary for the health or safety of the patient himself.
In summary, ALIs provided under the mental health regime in England and Wales seem to combine medical and correctional objectives. While a number of features—for example, the requirement that the offender suffers from mental disorder, and the fact that ALIs are administered under the direction of the responsible clinician—indicate a medical objective, there are also a number of features that indicate that detention and treatment under MHA may also serve a public protection aim. The provision of ALIs under mental health law in England and Wales may therefore be most aptly described as serving mixed—medical and correctional—purposes.
Existing debate regarding the use of ALIs in sex offenders has tended to assume that valid consent must be obtained before these interventions may permissibly be administered. This suggests that the interventions have been conceived of as serving medical objectives, and not correctional ones, for if their purpose were partly correctional, there would at least be an open question whether consent is required. However, in this article, we have argued that, in some cases, ALIs are administered for correctional purposes, or to realise a mixture of medical and correctional objectives.
In England and Wales, ALIs are typically provided under mental health legislation, where they are described mostly using therapeutic language, and where they are not time-limited. In respect of conditions of provision, only offenders who qualify for a diagnosis of mental disorder are detainable, and decisions about which interventions, including ALIs, ought to be provided to them are made by healthcare professionals. In these respects, ALIs seem to serve medical objectives.
However, from the point of view of institutional setting and conditions of termination, things are more complicated. Though ALIs are administered by clinicians in hospital settings, there is, in some cases, a background role for the institutions of criminal justice. In some respects then, the use of ALIs under the mental health regime in England and Wales possesses important features of both medical treatments and correctional interventions. In California, ALIs are arguably used purely, or at least primarily, for correctional objectives.
There, ALIs may be imposed as part of criminal sentences, without the involvement of medical professionals or healthcare institutions, and with little regard as to whether they are likely to be effective at mitigating any mental disorder. Though ALIs are sometimes though not consistently described using therapeutic language, and their use is, like paradigmatic medical treatments, time-unlimited, it remains plausible to hold that, in California, the main purpose of ALIs is to achieve correctional aims, and more specifically, deterrence and retribution.
The moral implications of our argument are not straightforward. Our argument raises the question whether consent is required for the permissible imposition of ALIs. This is because, if ALIs are intended partly for correctional purposes, it is plausible to think that they should be assessed against the ethical standards of criminal justice, 98 and those standards are permissive of nonconsensual interventions.
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However, though our argument raises this question, it does not answer it. There remains scope to argue that consent is required. First, one might argue that, in cases where an ALI serves both correctional and medical purposes, we should ensure that ALIs meet the ethical standards of both medicine and criminal justice, and the standards of medicine plausibly include a requirement for valid consent.
In that case, the consent requirement could be rejected only in cases where an ALI is intended wholly for correctional purposes. Second, one might argue that what ethical standards are applicable to the assessment of ALIs depends not on the aims for which they are imposed, but on the nature of the means that they employ, and since ALIs employ characteristically medical means—viz.
Third, one might simply maintain that, where ALIs are being used partly for correctional objectives, they are for that reason being used impermissibly.
Sex Offenders: General Information and Treatment
Thus, the appropriate response is not to change the ethical standards that we used to assess these interventions, but to change the purposes for which they are being used. This view could perhaps be supported by arguing that pharmaceutical interventions are somehow inimical to or inappropriate for the realisation of correctional aims. Regardless, however, a significant change to the existing discussion will be required.
Existing discussion has accepted the consent requirement without argument, but if the purposes of ALIs are partly or wholly correctional, this assumption is illicit, for the vast majority of other interventions with a correctional purpose seem to fall under no such requirement. An argument for accepting a consent requirement in relation to ALIs would need to be offered.
This argument could perhaps follow one of the four strategies that we have just outlined. Our argument may also have implications that extend beyond the requirement for consent. Suppose that we were to conclude that in some cases we should indeed assess ALIs against the ethical standards of criminal justice, not those of clinical medicine.