The psychiatric diseases of the paraphilias are now entrenched in the law in decisions concerning culpability, desert, and risk. Though, as the foregoing cases suggest, it is a tough balancing act, considering the existence of psychiatric illness suggests less responsibility, while at the same time implying a greater risk of future dangerousness. To better navigate this conundrum, the law has drawn on the psychiatric sciences. Part II of this Article outlines a basic need for law and science to serve each other even though they may not share objectives. With respect to the advent of new laws to control sex offenders, a law-psychiatry interface is utilized, whereby sexual offenders diagnosed with mental disorders can face negative legal consequences. Part III shows how diagnostic criteria have been interpreted to allow the use of sexual offenses as a proxy to diagnose mental disorder. The problem is that psychiatric diseases do not commit sex crimes—people do. This Part also outlines reasons why the mutually reinforcing nature of this professional combination ignores substantial evidence that the DSM-based disorders of sexual deviance suffer substantial empirical and normative flaws. Part IV argues that the conflation of sexual crimes with mental illness is largely pretextual to serve the interests of criminal justice officials in justifying preventive detention. Overall, the paraphilias are a poor fit to answer legal questions about whether infringement upon substantial personal interests is lawfully appropriate. A review of case law, though, shows that legal challenges to the use of paraphilias for case adjudications, whether using the Frye/Daubert thresholds for the admissibility of scientific evidence or due process standards, have generally been unsuccessful. Finally, Part V provides concluding remarks, including a warning that a law-psychiatry interface can in a similar manner be exploited to apply to virtually any type of deviance, simply by linking it to mental disease.
Recommended CitationMelissa Hamilton, Adjudicating Sex Crimes as Mental Disease, 33 Pace L. Rev. 536 (2013)
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