The Logic of Sexually Violent Predator Status in the United States of America

2007

Abstract
Sexually Violent Predator (SVP) laws have placed great legal weight on psychosexual evaluations of sex offenders by mental health experts. The conclusions of these evaluations are used to civilly commit hundreds of offenders throughout the United States after the completion of their criminal sentences, possibly for life. This paper examines the reasoning used by evaluators and attorneys for the state to justify the claim that someone is SVP. I discuss serious flaws in this reasoning and show how argument for SVP status must proceed if the case for civil commitment is to be logically coherent and consistent with constitutional values.


This paper examines the logic of Sexually Violent Predator (SVP) status as articulated by the U. S. Supreme Court in Kansas v. Hendricks, 521 U.S. 347 (1997), and Kansas v. Crane, 534 U.S. 407 (2002).1 I argue that the Court sets out a sensible principle of parsimony to guide SVP reasoning but obscures the importance of this principle by introducing an unjustified assumption about SVP-relevant mental disorders. This assumption opens the door to thinly reasoned psychosexual evaluations and professional opinions of little use to a finder of fact in an SVP case. An explanation of proper SVP reasoning is offered, as well as an introductory discussion of a clinical construct related to “volitional” forms of sexual impairment (hypersexuality).

Some readers will interpret this discussion as undermining the legitimacy of American SVP laws. Critics of SVP laws are not few and their arguments are powerful (e.g., Schopp, 2001). However, the argument presented here does not entail that sex offender civil commitment is illegitimate as such. It does restrict SVP eligibility quite sharply, such that a “narrow” category (Crane) becomes narrower still. As a society we are rightly concerned about individuals who have served their sentences yet remain sexually dangerous. But for good reason the Constitution greatly restricts state power to confine persons who have not committed (new) crimes, whatever their propensities (or our estimations thereof). Serious consideration of the alternative – history offers plenty of examples – is sobering.

Other readers might interpret this discussion as a defense of SVP laws, by way of modification. It is not. Rather, the argument takes this form: Given that SVP laws exist, there are better and worse ways to interpret their basic concepts and apply them to individual cases. If the interpretation and application of these laws is to be even minimally logical and faithful to the constitutional basis provided by the U. S. Supreme Court, then certain claims follow about how mental health experts should evaluate someone for SVP status, and how the state should argue its case in court. The discussion that follows does not accept Supreme Court judgment uncritically; indeed, the Court’s global assumption about paraphilias is rejected as a baseless throwback to 19th century stereotypes. However, the argument below does follow what is basically correct reasoning by the Court concerning SVP logic.

Genuinely useful SVP assessment and sound case presentation are possible, although they are more difficult than current practice would suggest. In a nutshell, this paper is aimed at improving the intellectual integrity of SVP work, for as long as society wants it done.

Sex offender civil commitment laws and related Supreme Court opinions are not intelligible outside of wider Constitutional considerations that give meaning to SVP concepts and dictate the direction of reasoning toward SVP conclusions. In theory – practice aside – SVP status is consistent with what our Constitution outlines with regard to proper powers of state and individual rights. However, the state must walk a line that is tightrope thin. [Some degree of incoherency is unavoidable if SVP statutes remain as they are: Civil commitment in lieu of, or after mitigated criminal sentencing, is arguable logically. Civil commitment post-sentence, barring change in an offender’s mental status in prison, is not.] Unfortunately, the logic of SVP reasoning is mostly ignored or inverted by many clinical evaluators, attorneys, and judges. ..more.. by Daniel F. Montaldi, Evaluation Team, Arizona Community Protection and Treatment Center