@hawkeye10,
Hawkeye, I think you have completely misinterpreted the article by Dr. Frances. If you think his point is about "sex laws", or reform of "sex laws",
you have completely misinterpreted his article.
The issue that Dr. Frances addresses has nothing to do with "sex laws". He is discussing a possible misuse of the civil commitment laws, for detention of the mentally ill. That is very clear in this paragraph which you did not post.
Quote:First, a brief, sad history and then a promising, new wrinkle. Twenty states and the federal government have passed statutes for the continued incarceration in psychiatric settings of sexually violent predators (SVPs) who are deemed to be a continuing danger. The commitment is meant to protect public safety by keeping the offender in a secure psychiatric facility after his prison sentence has already been completed. SVP statutes were a fix to a problem created when fixed sentencing replaced judiciary discretion and resulted in prison terms that were far too short for the worst offenders. Extremely dangerous rapists who would have gotten long prison terms under indeterminate sentencing were given much shorter fixed sentences. The outrage occasioned by their consequent unsurprising recidivism led to the SVP statutes. Short fixed sentencing is now generally disappearing prospectively, but the SVP statutes are applied to offenders who would have to be released because they were sentenced under the old system.
http://www.psychiatrictimes.com/blog/couchincrisis/content/article/10168/1595945
So, the real crux of the problem is that sexually violent predators (SVPs), particularly in the past, were given fixed prison sentences which were far too short for the worst offenders. This was because the fixed sentences in effect at the time gave judges no leeway to impose much longer, more appropriate sentences. When released, after the shorter sentences, these SVPs tended to again repeat their crimes, causing them to be re-incarcerated. To remedy this loophole in the incarceration process, caused by the too short fixed sentences, and to insure public safety, SVP statutes were passed in 20 states, and by the federal government, which allowed SVPs to be retained in psychiatric facilities, under indefinite civil commitments, once their prison sentences were completed. So, with these SVP statutes in place, even though these violent sexual predators had completed their prison sentences, as required under the criminal laws, they were not being released into the community. Instead, they were being transferred from prison to psychiatric facilities for an indefinite additional period of civil commitment, based on the assumption of their continued dangerousness to the community.
Psychiatric confinement was being used as a means to extend confinement for a specific group of people, SVPs, who had completed prison sentences. This, of course, raised other legal issues related to the civil commitment procedures for mental patients, as well as the constitutional rights of criminals who have completed their sentences.
Quote:The Supreme Court has 3 times accepted the constitutionality of SVP statutes—but narrowly and with the essential requirement that a mental disorder be the cause of the dangerousness. Absent a mental disorder, the psychiatric “commitment” of however dangerous an offender would clearly be an unconstitutional violation of due process and a double jeopardy abandonment of guaranteed civil liberties. The constitution requires the prison system to release criminals once their time is served, even if they are still clearly dangerous.
The rub is that the Supreme Court has chosen to dance around the legal definition of a qualifying mental disorder. It has left this critical question up to the inconsistent and largely uninformed discretion of each lower court. This has led to huge confusion and very questionable practice. Many evaluators in SVP hearings have been led astray by a complete misunderstanding of the intent of the DSM-IV. They have applied the essentially made-up diagnosis, “Paraphilia NOS, nonconsent,” to justify the psychiatric commitment of rapists who without this “diagnosis” would be regarded as no more than common, if particularly heinous, criminals.
http://www.psychiatrictimes.com/blog/couchincrisis/content/article/10168/1595945
So, according to the Supreme Court, involuntary confinement in a psychiatric facility, immediately upon completion of a prison sentence, is justifiable only when the person suffers from a
dangerous mental illness. If they don't suffer from such a
mental illness, their constitutional rights require that the person be released from prison, upon completion of their sentence, no matter how potentially dangerous they might be. But, the Supreme Court declined to define what is meant by a "qualifying mental disorder" and, instead, left it to the determination of the lower courts, and this has created confusion and, according to Dr. Frances, "very questionable practice".
Just what dangerous mental illness do sexually violent predators suffer from that justifies their indefinite commitment in a psychiatric hospital
after they have completed their prison sentences ? Well, that's the problem. They might not neatly fit into any specific valid diagnosis in the DSM-IV (the manual for classifying mental disorders in the U.S.) that also qualifies as a
dangerous mental disorder . To cover this gap, the DSM-IV included a diagnosis of “Paraphilia NOS, nonconsent”, essentially a garbage, or makeshift, diagnosis, without scientific validity, created essentially to justify the involuntary, indefinite psychiatric commitment of violent predatory rapists. And currently, that madeup diagnosis has been used, and, according to Dr Frances, misused, to justify such civil commitments to psychiatric hospitals. Without this diagnosis, these people might simply be heinous criminals, and entitled to their release after completing their prison sentences, based on their constitutional rights.
As a remedy to the psychiatric diagnostic problem, and the constitutional rights problem, Dr Frances suggests that the Supreme Court review the case of McGee and use that case as an opportunity to clarify and define what is meant by a "dangerous mental disorder" in the SVP statutes. According to Dr Frances, "The Supreme Court must step up to the plate and provide clarity about what qualifies legally as a mental disorder in SVP commitments".
Quote:
No one wants dangerous sexual predators released prematurely to the street just because they have received too short a prison sentence. But, the “Paraphilia NOS, nonconsent” fix for this legal and correctional problem is a transparent abuse of psychiatric diagnosis that greases a perilously slippery slope loss of constitutional freedoms. Experiences in other countries (and some would argue in our own as well) have shown how, under the wrong circumstances, the mental health professions can easily become a tool of state oppression.
http://www.psychiatrictimes.com/blog/couchincrisis/content/article/10168/1595945
In other words, Dr Frances does not want mental heath experts, psychiatrists and psychologists, to function as tools of the legal system, and confine violent sexual predators in psychiatric facilities, on the basis of questionably valid diagnoses, simply as a way of extending their period of incarceration/confinement once their prison sentences have been completed. And he does raise excellent points regarding the ethics of mental health professionals, and the constitutional issues involved with SVP statutes. I wholeheartedly agree with him that this issue should be addressed by the Supreme Court.
But, Hawkeye, nothing that Dr Frances addresses has anything to do with "sex laws", nor is he characterizing what is currently going on as an "abomination". He's not even calling for any kind of "reform", as you suggested. He's making very specific points about the collaboration between psychiatry and the law, particularly in the case of SVP statutes. He wants to ensure that the constitutional rights of SVPs are protected, and that, if these sexually violent predators are to be confined in psychiatric facilities, following completion of their prison sentences, that it be done on the basis of generally accepted, valid psychiatric diagnoses.
I honestly cannot see where Dr Frances' article supports your "basic argument that sex law is in need of reform". Not at all. I think you have completely misinterpreted the article. His point is that we currently have "bad law" because the law contained in SVP statutes is not clear enough and needs further definition, preferably from the Supreme Court. Nowhere does he say the SVP statutes are wrong, or should be abolished, and he is empathetic concerning the reasons for their creation. His gripe is with the use of the “Paraphilia Not Otherwise Specified, nonconsent” diagnosis to justify a disguised form of preventive detention in a psychiatric facility (often for life).
No one really wants to see sexually violent criminals, who are particularly likely to repeat their crimes again, released to the streets, but these people have constitutional rights which also must be respected and upheld. And I think most people agree with that. Psychiatric facilities cannot be used to artificially extend prison terms, unless the offender genuinely suffers from a valid dangerous mental disorder which justifies such confinement. That's mainly what Dr Frances is saying, and I agree with him.
In part, some of the problem has already been resolved. Judges are no longer as bound by fixed sentences, so they can use their discretion to impose much longer sentences to keep these sexually violent predators in prison for much greater periods of time, thereby reducing some of the need for the SVP statutes and the psychiatric commitments. So, the issues he raises pertain only to those who were given shorter sentences in the past and are now maxing out their prison terms.
In addition, the entire notion of preventive detention in psychiatric hospitals, because of alleged potential dangerousness to the community, is widely done and universally accepted in psychiatry and law, having absolutely nothing to do with sex offenders. It is a routine aspect of all involuntary psychiatric admissions, which go on all the time. It is also routine following all verdicts of Not Guilty by Reason of Insanity or Diminished Capacity (and these people can also be retained for life if they are deemed to be suffering from a dangerous mental disorder). So, sex offenders aren't exactly being singled out for such treatment.
I think you are so desperate to grasp at straws to bolster your theories about our "abominable" system of "sex laws" that you latched onto this article which really is unrelated to the issues which seem to preoccupy you. In addition, this article is unrelated to the topic of this thread, which is whether women ever "ask to be raped". It is another one of your digressions simply to espouse your own views about sex laws. If you want to go off on your own tangents, then post your own thread. The reasons you haven given for not doing that are rather insubstantial and flimsy. Post your topics and see what happens. But meanwhile, please try to stick with the thread topic most of us have been trying to discuss. This isn't about winning arguments, or scoring points, it's about having a discussion.
