Wednesday, February 15, 2012
Melissa Hamilton (University of South Carolina - School of Law) has posted The Law and Paraphilias: Sex Crimes (Re)Constructed as Mental Disorders on SSRN. Here is the abstract:
The contemporary policy perspective underlying criminal and civil laws regarding sex crimes is based on a presumption of disease. The law has turned to psychiatry for evidence that sexual offenders suffer from mental disorders that can explain their offending. Thus, mental health professionals regularly testify as experts in legal cases about the existence of paraphilias. Paraphilias generally are considered mental disorders of sexual deviance that are dysfunctional, such as pedophilia, sexual sadism, exhibitionism, frotteurism, and the more amorphous category of “paraphilia not otherwise specified.” In the law, paraphilia diagnoses can have significant consequences to the liberty and privacy interests of the individuals being evaluated, particularly in relation to the application of sexual predator laws and in sentencing and parole decisions. Unfortunately, for a variety of reasons, mental health experts are commonly assessing paraphilias based almost exclusively on the individual’s history of sexual offenses. As a result, sex crimes have become conflated with diagnoses of paraphilias, and vice versa. This article examines the social, logical, and scientific bases for the diagnostic validity of paraphilias and questions whether they can legitimately assist legal decisions to justify incapacitation.