About this Issue
Civil commitment is a legal process that involuntarily confines individuals for purposes of medical treatment. It is not intended to punish a crime. Civil commitment has been most common for the severely mentally ill, and particularly for those who pose a danger to themselves or others. But in recent years, civil commitment has been extended to sex offenders, typically after they have already served a prison term.
Is civil commitment ever justified? If so, is it being applied fairly in our current legal system? Is it appropriate to treat sex offenders as though they were mentally ill? If it is appropriate in some cases and not in others, then how do we tell them apart?
Our lead essayist this month is Galen Baughman, a man who served nine years in prison, after which he successfully fought a civil commitment action in court. Perhaps unsurprisingly, he takes a skeptical view of what he terms “the medicalization of crime.” Responding to him will be Licensed Independent Clinical Social Worker and Director of Professional Development and Quality Improvement for the Becket Family of Services David Prescott, Professor Eric Janus of the William Mitchell College of Law, and Professor Amanda Pustilnik of the University of Maryland School of law.
There is a young man in Virginia sitting behind tall fences and razor wire, guarded by men with guns, and never allowed to leave. According to the state, he isn’t in prison, and he is not being punished for a crime. Instead, he’s being held because the government says he might commit a crime in the future.
Against a backdrop of mass incarceration in America and a growing public understanding that the land of the free locks up more people than any other nation in the world, little attention has been paid to the evolving civil mechanisms that allow the state to deprive individuals of their liberty – often forever – under the guise of treatment. These systems represent a growing medicalization of crime, where criminal behavior is supposed to be caused by a mental problem rather than the person’s free will. If we commit crime because we are sick, then it would make sense for society to help make us better. This is dangerous thinking: It opens a door to a world in which we start to punish the criminal instead of the crime; a world in which the government is justified in imprisoning people because of who they are – and what they might do in the future – instead of only punishing crimes that we can prove they have committed beyond a reasonable doubt. In many ways, that world is already here.
Civil commitment is the legal practice of detaining individuals who are suffering from acute symptoms of severe mental illness so that they can be treated, often in a secured environment. In this model, the state is providing care for individuals who are unable to care for themselves, while protecting the public from individuals who are dangerous due to their psychiatric condition. Sounds reasonable, right? Over the past 25 years, however, new laws have been created, designed to use the traditional model of civil commitment as a way to create secondary prison sentences for people who have already paid their debt to society, dramatically expanding the power of the state and blurring the lines between civil and criminal law.
Historically, the model of civil commitment (sometimes referred to as involuntary commitment) has been subject to gross abuse by the state. During the 17th century, members of the public were invited into these institutions for a penny apiece to view the ravings of the insane, chained to walls in their cells, through small windows in the doors. By one account in England 96,000 people paid their penny for the entertainment at a single institution in one year. Women were subject to commitment in insane asylums for “hysteria” during the 19th century, which was on occasion used by husbands as a way to get rid of their wives. Throughout the first half of the 20th century it was not uncommon for those suffering from Down Syndrome or persons on the autism spectrum to be institutionalized by their families, often for life. Today, the guise of treatment is being used to segregate a new category of socially undesirable people: sex offenders.
It’s important to start these discussions, as they always begin, with the “worst of the worst.” Bad laws often come from bad cases, and the worst cases are used to justify expanding the government’s power. And there is no group, class, or category more maligned and feared in our society today than those convicted of sexual offenses.
In Virginia, a nightmare began in 1973 for a 13-year-old boy named Paul Martin Andrews who was abducted by a man who lured him into his van with the offer of making a little extra money helping him move. Instead, Andrews was kidnapped, locked in a box underground, repeatedly raped over the course of a week, and left for dead. He was rescued by rabbit hunters who heard his screams from the box in the woods, and his assailant was sent to prison.
When Andrews learned that his kidnapper would soon be released from prison, he began to lobby Virginia to fund a civil commitment program that would divert the person who assaulted him into a secondary prison sentence – a legislative scheme designed to circumvent our constitutional protections against double jeopardy, allowing the person to be in effect punished twice for the same crime. Ironically, the man who brutalized Andrews would never be subject to civil commitment: He was murdered in his cell by another prisoner before his release.
A New Model
Twenty states and the federal government have laws that allow some people to be indefinitely detained based on government projections that they might commit a crime in the future, after they have completed their prison sentence. To be clear, there does not need to be any imminent intent or actionable plot to break the law – the assertion made by the government here is that these individuals are merely at risk to commit these offenses due to a psychological condition, which inhibits their ability to control their predatory behavior. Mostly these statutes require the person to have been previously convicted of a similar crime, but that is not always necessary – nor is it true that they must have established a pattern of such behavior.
These laws grew from a backlash to the truth-in-sentencing movement during the 1980s and 90s. State legislatures around the country had moved to abolish parole and create determinate sentencing structures – sentences that do not include a range, but call instead for a definite term of imprisonment and/or probation. Before this shift, the criminal justice system included mechanisms to hold those perceived to represent a greater risk to the public for longer: A person sentenced to 3-20 years for a rape might be released soon after they had completed their minimum sentence, or they might be held for the full 20-year term, depending on the judgment of the parole board.
In response to certain high profile, horrific crimes committed by persons who had been released from prison under these new sentencing models, lawmakers sought a way to impose a new term of imprisonment for those who were completing their sentences and would be released back into the community. Their answer was civil commitment.
In order to be committed after the completion of their prison sentence, the government must demonstrate three essential components about the person in order to justify their preventative detention:
- You suffer from some kind of psychological problem – often defined as a “mental abnormality or personality disorder”
- As a result, you experience difficulty controlling your predatory behavior
- And, due to that difficulty, you are likely to engage in future crimes.
Like a pyramid, these qualities must build on one another – the government cannot say that you are likely to engage in future criminal behavior unless it is caused by some difficult controlling your behavior, and that difficulty is (in turn) based on a defined psychological problem. That is a significant barrier for prosecutors to be able to reach in theory. In practice, however, these laws have begun to reach far beyond their written scope.
These new civil commitment laws differ from the traditional model of involuntary commitment in several key ways. First, traditionally the person subjected to civil commitment is not targeted after the completion of their prison sentence as a means to tack on additional incarceration to that which the court had already meted out – instead, the person who has committed an offense is either considered culpable for a crime and therefore punished in our criminal justice system or found to be in need of treatment and diverted to the civil system. The new civil-criminal hybridized version of civil commitment is designed to imprison the person again under a civil “sentence” after completing their criminal sentence.
Second, traditional civil commitment involves the medical diagnosis of a clear psychiatric illness accompanied by acute and severe symptoms, along with a finding that the individual would pose a danger to self or others – some jurisdictions require that danger to be imminent. By comparison, those targeted under these new category of civil detention laws are not individuals experiencing psychiatric distress or manifesting any inability to care for themselves. Rather, this new category focuses on individuals the state would merely prefer to segregate from society. This use harkens back to the origins of civil commitment during the middle ages when people suffering from mental illness were lumped in with all kinds of other individuals considered “undesirable” by society (beggars, the homeless, the unemployed) and institutionalized together.
Third, under traditional civil commitment as a response to an acute psychiatric emergency, it is common for patients to be hospitalized for up to 72 hours for treatment and observation; any longer period of institutionalization is subject to judicial review and due process in a court of law. But those held under these new laws are often held for years in jail after the completion of their prison sentences without a trial and before they are committed. After they have been formally committed by a court, it is almost always a de facto life sentence.
The Worst of the Worst
I opened this article by describing a young man sitting behind bars in Virginia. He isn’t a monster, and he isn’t insane. Alex is 25 now. He sits in the Virginia Center for Behavioral Rehabilitation, receiving treatment in a secured setting – a prison masquerading as a treatment facility – because when he was 14 he had sex with his girlfriend, who was 12. The state prosecuted Alex in adult court after he shared with his therapist that he had had his first sexual experience with another kid in his school, a crime under Virginia law because of the age of the younger party. Alex was in foster care at the time. He went to a prison for youth and was released 4 years later, shortly after his 18th birthday. Since he was now on the public sex offender registry and ineligible for any services because he had aged out of the foster care system, Alex found himself homeless and unable to keep a job. In Virginia, those required to register as a sex offender must also list their employers, and the address of their place of work is also displayed on the public sex offender registry, which effectively means no one would hire him. Alex’s probation officer violated him for not having suitable housing, his probation was revoked by a court, and he was sent back to prison – this time an adult prison – for 2.5 years. At the end of his sentence, the Attorney General’s office in Virginia filed a petition to civilly commit Alex as a sexually violent predator.
Alex’s story isn’t unique. At a federal district trial in Minnesota recently, Judge Donovan Frank heard testimony from four psychological experts who went into the civil commitment facilities in that state and interviewed the prisoner/patients, reviewed their files, and questioned staff. One of those court-appointed experts, Dr. Michael Miner, a clinician, forensic evaluator and researcher on human sexuality at the University of Minnesota and president-elect of the Association for the Treatment of Sexual Abusers (ATSA), testified that there were 62 individuals at the state’s civil commitment program who were committed based on behaviors that occurred while they were juveniles – that represents almost 10 percent of the population committed in that state, which has the highest per capita rate of civil commitment in the country. The experts sent a report to the judge highlighting these youth who have never been convicted of sexual crimes committed as adults, asserting that they “should never have been committed” and citing the extensive evidence that youth convicted of sexual offenses rarely reoffend as adults.
The court-appointed experts who testified also spoke of a “climate of despair” and pervasive sense of “hopelessness” at the “treatment facility.” The reason was simple: It’s very easy to be committed, and it’s almost impossible to get out. In the history of the program in Minnesota, no one has ever been fully released, and only three individuals have been allow to transfer to halfway houses where they are subjected to less restrictive conditions. In Kansas, nine times as many individuals have died while imprisoned in the treatment facility as have ever been released.
In 1997 the American Psychiatric Association (APA) concluded a 5-year study of the problem of sexually dangerous individuals. The official conclusion of the American Psychiatric Association was that there should be no such thing as the civil commitment of sex offenders. The report written by the APA’s Task Force on Sexually Dangerous Offenders found that psychiatrists should vigorously oppose these legislative schemes, “to preserve the moral authority of the profession and ensure continuing societal confidence in the medical model of civil commitment.”
Paul Appelbaum, M.D., chair of the APA’s Council for Psychiatry and the Law (of which the Task Force was a part) described the origins of the extensive study of these laws: “We were concerned that psychiatry was being used to preventively detain a class of people for whom confinement rather than treatment was the real goal. This struck many people as a misuse of psychiatry.”
The Task Force report describes the ways in which these statutes pervert the traditional model of civil commitment by defining those subject to preventative detention (the sexually violent predator) based on “a vague and circular determination that an offender has a ‘mental abnormality’ that has led to repeat criminal behavior. Thus, these statutes have the effect of defining mental illness in terms of criminal behavior. This is a misuse of psychiatry, because legislators have used psychiatric commitment to effect nonmedical societal ends.”
No one wants to allow a child to be hurt, and laws that create mechanisms to “keep bad men away” are seductive because they make us feel safer – but that safety is an illusion that comes at a great price. As a society we are not capable of predicting who will or will not reoffend, and we must not punish someone for imaginary future crimes. When we begin to define individuals as criminals for who they are or what they think, instead of holding them accountable for specific acts, we rob them of their constitutional right to due process and dangerously erode the barriers that are meant to keep the awesome power of the state, to take away our lives and our liberty, at bay.
Soon a federal judge in St. Paul will have the opportunity revisit the indefinite detention of 62 young people who should have been helped instead of warehoused in a hopeless situation. I believe he will make the right decision and, in doing so, begin to dismantle a system that has been designed to imprison people unjustly under the banner of “treatment.”
 The research for this article was supported in part through a Soros Justice Fellowship from the Open Society Foundations (OSF). The opinions expressed herein are the author’s own and do not necessarily express the views of OSF.
 While the details of his situation are accurate, the young man’s name has been changed to “Alex” to protect his identity.
Our Deeply Flawed Civil Commitment System
The inherent problems in sexual offender civil commitment should concern all citizens. Mr. Baughman’s article addresses a number of concerns worthy of exploration. There is no question that some sex offenders are truly dangerous and that the public is understandably concerned. As currently practiced, however, civil commitment rarely delivers on erstwhile promises of either public safety or rehabilitation. This is despite the often well-intentioned staff members of these facilities. The author’s position is that if society is to employ civil commitment, we need to do so in accordance with the highest scientific standards and free of political pressure. We are not there yet.
Mr. Baughman makes some important points, although there is more to the discussion. What else do we know?
First, research has illustrated how states can often overuse civil commitment. For example, a 2013 study employing an actuarial risk assessment measure by Grant Duwe of the Minnesota Department of Corrections found that only a minority of civilly committed sex offenders would be re-arrested for a sex crime were they living in the community. These findings are even more noteworthy in light of findings by Karl Hanson and his colleagues that the known rate of sexual re-offense decreased to 4.2% for those high-risk offenders who remained in the community for 10 years. In other words, a key approach to balancing the rights of the individual and community safety may actually lie in helping society’s most feared members to live safely in the community.
Second, the civil commitment of young people out of juvenile facilities may be more problematic than Mr. Baughman’s article states. While the science of risk assessment remains controversial for adults who have sexually abused, there are no scientifically supported means for accurately assessing the lifetime risk of adolescents. This leaves judges and juries having to make life-altering decisions based on invalid factors, such as personal judgments. In fact, studies of the small minority of adolescents known to re-offend have found that risk is much greater while they are still in adolescence. The shopworn axiom that “once a sex offender, always a sex offender” not only unsupported by research, it would take considerable evidence to conclude that it is true. Ultimately, what often goes forgotten is that teenagers – including their sexual interests and propensity to crime – are subject to change without notice. Indeed, throughout history and around the world, adults have a difficult time understanding and predicting the behavior of young people.
Third, civil commitment is far too often a binary proposition. That is, presumably high-risk offenders are either committed or not to an institution that, in essence, walks like a prison and talks like a prison. To the author’s knowledge, only one state employs civil commitment has a community-based treatment option for rehabilitation. This is in sharp contrast to what many who work in these institutions already know: that a significant portion of the people in their charge could easily be managed in the community.
Fourth, it is time to confront some grim realities. The number of releases from many institutions is unacceptably low for laws that purport to be rehabilitative in nature. At this writing, federal class-action lawsuits in both Missouri and Minnesota are awaiting disposition. Among other problems, there have been only a very small handful of releases from both of these programs across 15 and 20 years of operation respectively. Other states, such as Texas and Kansas, have recently been in the media spotlight for having no one complete treatment after many years in existence. In defense of anxious program administrators (I have been one), it is certainly the case that many residents frequently behave in extreme defiance of program rules, including perpetrating violence against others. At the same time, however, it can be easy to forget that the nature of institutional living can also set the stage for much of the problematic behavior observed. This fact received attention from the expert panel Mr. Baughman references in the recent Minnesota case. Ultimately, I am aware of no form of psychological treatment that takes a minimum of 15 years to complete; clearly, other factors are impinging on the purported goal of rehabilitation.
In states where residents do re-enter the community, there are often few “least restrictive alternatives.” In other words, those inside of the institution’s secured perimeter must complete specific tasks whether or not they could participate meaningfully in treatment in a less restrictive setting. In at least one state, people who complete treatment inside the program are discharged directly to the community without realistic supports. Researchers and practitioners have long known that the period of transition from an institution to the community is one in which people are more vulnerable to return to historical behavior. It makes little sense to detain someone in the name of public safety only to return them unsafely to the community.
Ultimately, a key problem in attaining the highest quality of rehabilitative standards lies in the complexities of providing treatment in an environment where hopelessness is the norm. If there is any lesson to learn from civil commitment it is the effect of providing no release date. Civil commitment becomes a paradox when residents in treatment are told that their participation in treatment will determine much of the length of their stay, even as they are aware that they have little influence on administrative decisions and the legal proceedings that will determine their release in those states where people have completed the program.
Ironically, virtually all of the research on how and why human beings change their lives points to a simple fact: People are most likely to change when the decision to do so is made of their own free will.
Our individual rights and societal interests will best be served when our policies are scientifically informed, faithfully implemented, and shown to be effective as applied. Civil commitment of any human being presents numerous ethical and constitutional problems; if we choose to do this, we need to do it right. While it may be too soon to throw the civil commitment baby out with the bath water, it is clear that much more work between stakeholders, including the residents as well as those attempting to provide treatment, needs to occur.
The Rise of the Preventive State
Galen Baughman’s essay is a cogent rebuke to the badly misguided bevy of laws claiming the mantle of sexual violence prevention. And David Prescott adds the evidence-based critique of an expert in the field of sex offender treatment. This response supplements those two arguments, focusing on the constitutional issues and broader public policy implications of this form of preventive detention.
These sexually violent predator (SVP) laws are not only un-American, violating the sacred rights we have fought to establish over two centuries; they are bad policy, distorting what should be a vigorous, evidence-based fight against sexual abuse and sexual violence.
The indictment against these laws is not simply that they smash the liberty interests and destroy the lives of kids, like Galen Baughman himself, whose adolescent libidos and developing brains fail to set the right limits. The fundamental damage these laws do is not simply a result of their overbreadth. In fact, many of the men who are confined under these laws are indeed psychopathic predators who lack the controls and conscience that characterize normal human beings. They are people who have done great damage to others, and might do so again. But these laws nonetheless deeply distort our societal project to reduce sexual violence, while returning us to a corrosive and expandable “outsider jurisprudence” that justifies the imposition of a “reduced-rights” zone on the outsider group du jour. They lay the legal groundwork for a “preventive state.” We should be very afraid of these laws.
The idea that we should take all possible steps to prevent the “next” sex crime is very seductive. In the late 1980s, recidivist sex crimes took on a special salience. The feminist movement raised awareness about violence against women and children, and the earlier demise of indeterminate sentencing had robbed correctional officials of the ability to prevent the release of offenders deemed likely to reoffend. Constitutional limits on double jeopardy prevented retroactive lengthening of prison sentences. In that context, the civil commitment model provided a ready vehicle for preventive incarceration of offenders deemed “too dangerous to release” in a legal context free of the confining constraints of the criminal justice system.
Political realities, as well as Supreme Court decisions, required cabining this preventive detention scheme. After all, our republic was founded on the notion of limited governmental power; at the core of potential tyranny is the state’s power to take our liberty. The web of constitutional constraints on that power, hard won over two centuries, would be meaningless if government could escape, at will, the strict rules of the criminal law simply by calling incarceration civil treatment.
Stripping away the legalese, the civil commitment rubric offered a framework for confining this un-American pre-crime legislation to a group of despised outsiders. The target for this preventive confinement was defined as the mentally disordered sexual predator, a “type” of individual so lacking in the normal human attributes as to be outside of the “we the people” who are entitled to the full protections of the Constitution. As further protection for the general polity, these new sexually violent predator laws were presented as an emergency stop-gap, a short-term remedy for inadequate criminal punishments of sex crimes.
The new laws thus seemed an acceptable expedient to address the rising chorus of feminist concern about violence against women. They also struck a chord in the culture wars of the early 1990s. Aspects of the feminist agenda were deeply troubling to social conservatives. Supported by new and authoritative social science research, feminists argued that violence against women was not aberrational, but systemic, allowed to flourish by widespread and deeply seated attitudes about women. By construing the paradigmatic sex offender as a deranged outsider, the SVP laws seemed to confirm the social conservative view that the problem is not within us, but outside of us, and that we could acquit ourselves of our feminist-inspired obligation to address sexual violence without the need to dismantle the set of values that feminists labeled patriarchy. SVP laws promised to identify the “worst of the worst” and banish them from our midst. Mission accomplished.
The SVP project, now 25 years old, has not been a short-term expedient. It has grown to 20 states plus the federal government. Its use has not dwindled, despite a radical (and not inappropriate) increase in penal sentences for sexual violence. It has become an attractive and irresistible tool of state control.
Yet reversing course and dismantling SVP laws is important for four key reasons:
- The SVP laws reinvigorate a dangerous “outsider jurisprudence.” The SVP laws are built on a long-standing but shameful aspect of American liberal democracy: full civil-personhood – entitlement to all of the freedom and liberty guaranteed in the constitution – is unavailable to those outside of “we the people.” Our original Constitution countenanced slavery; the Dred Scott decision explicitly excluded Americans of African-descent from civic personhood. In Buck v. Bell the Supreme Court approved forced sterilization for “imbeciles,” and the Court upheld Japanese internment as a racially based judgment about loyalty. But the moral arc of constitutional history has slowly but surely dismantled the notion that outsiders could be relegated to a reduced rights zone. The SVP laws are a serious setback to that progress.
- The SVP laws distort sexual violence policy. SVP laws strengthen policies that are counter-factual, distaining evidence-based approaches to reducing sexual violence. SVP laws legitimize the idea that the archetypal sex offender is a mentally deranged stranger. Yet the evidence shows that the great majority of sexual violence is perpetrated by individuals known to the victim, without aberrational psychological makeup. SVP laws incorrectly define the problem as recidivist sex violence. Yet most sexual violence is not recidivist sexual violence: by far the largest number of sexual offenses are committed by individuals who have not been previously convicted of a sex offense. SVP laws suck up the vast majority of sexual violence prevention resources, and (as Prescott’s essay suggests) recent research suggests that SVP laws lower recidivism rates only marginally and the incidence of sexual violence imperceptibly. Yet other proven means of sexual violence reduction are underfunded, and broad primary prevention programs lack funding for development, evaluation, and best-practices dissemination. Systemic, evidence-based policies would likely reduce sexual violence much more efficiently and effectively than SVP laws.
- In practice, SVP laws are not strictly governed by the rule of law. Instead, their implementation has been highly discretionary, influenced by the vagaries of politics. In Minnesota, commitment rates vary significantly by geography and have been radically influenced by politics. Political imperatives have trumped professional judgment, all but eliminating any possibility of even conditional discharge in most state programs. Significant proportions of the committed population are people whose only sexual offending was when they were adolescents, and, at the other end of the spectrum, elderly and infirm individuals whose risk could be managed adequately in the community. Appellate courts have abdicated their obligations to police the boundaries of pre-crime detention, hiding behind doctrines that substitute unguided discretion for transparent legal rules, and delegating important normative decisions to opaque opinions of forensic psychologists.
- SVP laws shift the focus of social control from guilt to risk. These laws allow total deprivation of liberty without the long list of constitutional limits governing criminal punishment. Guilt-based decisions treat defendants as human beings capable of free will. Risk-based decisions, on the other hand, are either guesses, or they are based on statistical profiling. To be sure, there have been scientifically based advances in risk assessment. But, at best, risk assessments are predictions based on the historical behavior of groups who share salient characteristics.
The danger of risk-based incarceration laws runs deep. Risk-based preventive detention eschews the inherent limits that protect us against government overreaching in the criminal justice system. Criminal punishment cannot be imposed without guilt, a binary condition. But risk is a continuous variable. Once the principle of risk-based incarceration is established, there is no inherent stopping point defining the limits of preventive detention. The logic of risk is expansive. Criminal justice police work is focused on crime detection and criminal apprehension. State attention is triggered by the commission of a crime, and by probable cause that an individual is connected to that crime. But in risk-based systems, the net of surveillance must expand by orders of magnitude. If the object is to find those at risk of committing a future crime, the net of the state must be cast broadly. Big data is the realm of risk-based intervention.
Perhaps some of us are reassured that the pre-crime incarceration ordered by the SVP laws is ok because these laws only incarcerate sex offenders, and only the “worst of the worst.”
But nothing in the legal theory upholding SVP laws guarantees those limits. As Justice Alan Page of the Minnesota Supreme Court said, “Today the target is people who are sexually dangerous. Which class of people, who are different from us and who we do not like, will it be tomorrow?” In the end, it is the replicability of the outsider jurisprudence, the new legitimacy it receives, and the expandability of “risk,” that constitutes the enduring danger of the SVP laws.
 Carol Steiker, “Foreword: The Limits of the Preventive State,” Journal of Criminal Law & Criminology 88 (1988): 774
Let’s Stamp Out Perversion
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 illnesses so 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.