Amanda Pustilnik draws a sharp contrast between civil commitment as it is practiced for the severely mentally ill — and the utterly different system that has been imposed on sex offenders. The latter system she terms “a perversion,” one that both destroys civil liberties and stigmatizes the treatment of genuinely mentally ill individuals. Genuine civil commitment for the mentally ill does exist, but it is used only in emergencies, it is of very limited duration, and its judicial process puts the patient’s best interests first. Meanwhile, sexual violence remains a genuine and pressing social problem, but it does not take the form that most people imagine: Serial sexually violent criminals like Ted Bundy are vanishingly rare, while acquaintances, authority figures, and others who are notmentally ill are the most common perpetrators of such crimes. As a result, merely putting the bad people away isn’t a viable solution.
The civil commitment of sexually violent predators (SVPs) is designed to protect society’s vulnerable from a group of perverts and monsters. What could be wrong with this? Only everything.
The current SVP civil commitment regime is itself a perversion – of facts, of medical ethics, and of justice. Cato Unbound usually curates excellent debates, representing a range of opinions. But in this case, we contributors, from a spectrum of backgrounds and ideological commitments, all agree: This regime is abominable.
This comment will focus on two further problems with the SVP regime not yet highlighted in the important and thought-provoking contributions of Galen Baughman, David Prescott, and Eric Janus. First, the SVP regime distorts the meaning of “civil commitment” in harmful and important ways. The SVP regime is preventative detention, not civil commitment. Calling it “civil commitment” is an affront to medical ethics and damages the public’s understanding of a limited but important way of helping the people with severe and acute mental health issues. Second, the SVP regime perpetuates a myth that sexual violence is committed by a few incorrigibly bad people, rather than it being an unfortunately pervasive feature of our society that affects most women’s and some men’s lives. It may seem counterintuitive that I am critiquing the SVP regime for failing to protect victims of sexual violence and for potentially harming the mentally ill. But bear with me.
SVP detention is not civil commitment
Civil commitment is an important and strictly limited way of treating the acutely and seriously mentally ill. It exists to respond to cases where a person needs to be treated but cannot consent because of his or her impairment. Civil commitment takes place for the best interests of the patient and is limited in duration (usually 72 hours). Longer commitment requires the supervision and consent of a court, after a proceeding where the patient is represented by an attorney. The attorneys who represent patients often are passionate in their opposition to commitment and secure their clients’ release, even when doctors unanimously agree that the patient needs and will benefit from treatment. This last part is crucial: The commitment is only lawful if the patient both needs it and can medically benefit from it. If a judge is not persuaded that the patient will benefit – even if there is no doubt that he or she is very ill – then the commitment cannot be approved. The judicial process around civil commitment is no kangaroo court; and if it is tilted, it is tilted in favor of the patient’s liberty.
In summary, genuine civil commitment:
- is a form of emergency medical treatment;
- that is strictly limited in duration; and
- must be for the patient’s benefit.
SVP detention turns real civil commitment on its head. Perpetrating a sexual offense is not a mental illness and may not be a sign of mental illness. There is no psychiatric diagnosis of “sex offender.” Certainly, some people who commit sexual offenses, just like some people who break into houses, may be mentally ill. The rate of mental illnesses among people who commit crimes is higher than among the general population. But it is still the case that most people who commit crimes are not suffering from any mental illness. The reverse is also true: Most mentally ill people will never commit a crime.
A small minority of people who commit sex offenses may be severely mentally ill or do so as an expression of a severe mental illness; these are the outliers. In these rare cases, the appropriate disposition might be acquittal pursuant to a plea of not guilty by reason of insanity, followed by commitment to a psychiatric treatment facility. Given the rates of successful insanity defenses in the United States, civil commitment would or should be the disposition in around 1% of all cases involving sex offenses – not 100%, as in states with SVP detention. There are some sex offenders who are extremely violent and dangerous, yet not mentally ill. The appropriate disposition for such offenders is life in prison without parole; states do not need a post-carceral SVP detention regime to accomplish this.
The other great perversion in calling SVP detention “civil commitment” is the issue of treatment. Civil commitment is authorized when the patient can benefit from treatment. But there is no well-validated treatment for people who commit sex offenses. In part, this is because sex offenses are a remarkably varied category. That umbrella term covers everyone and everything from Ted Bundy, a psychopath who raped and murdered at least thirty women, to people who engage in non-contact, non-violent offenses such as repeatedly exposing themselves (a nuisance, surely, but no more) or possessing child pornography (a serious crime, which, somewhat surprisingly, does not actually correlate with a future risk of violence). The SVP detention laws do state that the offender must also be separately diagnosed with a psychiatric illness or personality disorder before he or she may be further detained after completing a criminal sentence. However, that additional criterion does little or no work here: No other category of offenders, if found to suffer from a psychiatric illness or personality disorder, may be civilly confined indefinitely at the conclusion of their criminal sentence.
I care about SVP detention regimes of course for the risk they pose to liberty. But I also care about the violence they do to the very idea of civil commitment. Treatment for the most severely mentally ill is continually challenged by those who believe that psychiatry is a “racket” and that mental illnesses have been invented by that modern demon, Big Pharma. But the human brain is a physical organ that can be affected by illness and disease. Sometimes these diseases are severe and prevent sufferers from realizing that they are affected – rather as most dreamers are unaware that they are asleep. Psychiatric illnesses, like other diseases, are easiest to treat when they are caught early. And, without treatment, they progress over time. Willing, active participation in treatment is the ideal and the goal, but it is not always possible. And where it is not possible, short-term civil commitment can literally be a lifesaver.
It already is difficult enough to commit a severely ill person without the abuse of “civil commitment” in the SVP arena raising additional challenges to this already embattled practice. Indeed, the biggest challenge that people with severe mental illnesses face is not how to get out of hospitals – it is how to get into them. I have said before in this forum: If one truly cares about liberty, then advocate for early and available treatment of psychiatric illnessesso that people with these illnesses do not later wind up in civil commitment – or prison.
SVP Regimes Perpetuate a Harmful Myth
Sexual violence is a serious problem – but it often doesn’t look like what we imagine. Real sexual violence is more intractable to deal with than the (largely) fictitious predator narrative of our culture. Most unwanted and forced sexual contact happens between people who know each other. Often, it is perpetrated by people in positions of trust in respect in their communities, like coaches or religious leaders, who otherwise lead law-abiding lives. This does not make the problem less serious or the experience less traumatic for victims; it may be all the more so because of the double violation of safety and trust. But it is a problem that does not at all lend itself to the seductive idea that, “if we just lock up all the bad people, only good people will be left – and then we’ll all be safe.”
Sexual violence arises in context; it is a problem of social values, as well as of individual and deliberate wrongdoing. The fullness of this topic is beyond this blog post; my comments here are brief and partial. But here are a few points: Social norms and legal practices strongly discourage victims from reporting offenses, which encourages perpetrators. The vast majority of sex offenses go unreported. Ideals about what it means to be a “real man” can encourage otherwise non-predatory, non-mentally ill men to cross lines because they have been raised to believe that “real men” can always score, or that no doesn’t really mean no, or that they occupy an entitled position relative to the person they are with, or any one of numerous scripts that damage men and women in their relationships with each other and in same-sex relationships. Unwanted sexual contact and actual sexual violence is more a norm than an exception in women’s lives, and it affects many men and children of both sexes as well. This is not, by and large, because of monsters and perverts. The important point is that these norms are, well, the norm. The SVP idea sets up the view that sexual violence, and that people who engage in it, are extreme outliers who need unusual treatment. Ironically, the law’s focus on “predators,” rather than on the pervasiveness of sexual violence and its causes, winds up both excessively stigmatizing and criminalizing some people – as featured in Galen Baughman’s essay – and allowing us to avoid some important but uncomfortable issues about why sexual violence is so common.
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