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From mental disease to mental abnormality

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Guest Post by Steven K. Erickson, J.D., LL.M., Ph.D., MIRECC Fellow, Yale University

An enduring controversy within the law is what effect a defendant’s mental illness should have in terms of culpability. While the 1980s saw a backlash against the insanity defense after the acquittal of John Hinckley, Jr., recent years have witnessed a far more perplexing situation: the elevation of the sexual predator beyond the deviant lurking in the proverbial trench coat to the online super-predator whose lascivious trap lies behind every child’s next mouse click. The evolution of the sexual offender is both remarkable and revealing. Remarkable because contrary to insanity movement post-Hinckley, the courts have readily accepted the notion that sexual offending involves some type of “mental abnormality”; revealing because the law’s skepticism of mental health professionals evaporates nearly instantaneously when science provides a means to lifetime incarceration. Yet, in some ways, the law cannot be blamed: the number of “classifiable” mental disorders has grown exponentially in the past 60 years and, so too, has society’s acceptance that most bad behavior is in some ways due to “something in the head.” Yet, the history of psychiatric nosology is colored as much by cultural fads as by science, and we should think carefully about how mental health concepts influence the law.

A Very Brief Primer on Psychiatric Nosology

Nosology is the branch of medicine that deals with classifying diseases. In mental health, this book is called the Diagnostic and Statistical Manual for Mental Disorders (DSM). There have been many versions of the DSM, with the first published in 1952. The latest version, DSM-IV-TR (4th edition, text revision) stands apart from the first one in many respects, but one difference in particular is glaring: In 1952 there were about 100 diagnosable mental illnesses; today there are nearly 300 and many more under consideration for inclusion in the next edition set for release in 2011. A novice may assume that this growth is merely due to better scientific understanding of brain, behavior, and biology. But, sadly, this is mostly not the case. While mental health has made truly extraordinary progress in understanding illnesses such as schizophrenia, bipolar disorder, and depression the growth of the DSM cannot be attributed to these marvels. Rather, the growth of the DSM has a lot to do with the inclusion of behaviors that were once thought as simply bad character or upbringing. Thus, a bad temper is now Intermittent Explosive Disorder, with millions of precious federal dollars spent ascertaining its supposed prevalence1 (while many schizophrenia research programs struggle to stay above water). Despite the decline of psychoanalysis, the current DSM has 17 different sexual disorders, few of which are based in science. Is pedophilia a mental disorder?2 The DSM says it is, and the Supreme Court has upheld the idea pedophilia as a mental abnormality. But the science is lacking that pedophilia or other deviant sexual practices (and many other diagnoses in the DSM) are anything more than immoral conduct transformed into medical diagnosis.

The Science of Mind

It would be easy to throw the baby out with the bathwater and condemn all mental health notions of illness and health. Indeed, there is much to be displeased within the current state of affairs, but mental health researchers are truly doing something that is both unique and challenging: investigating the metaphysical mind while operating in a physical world where only the brain is evident. As such, understanding why people behave the way they do means knowing biology very well and a bit about everything else. Explanations of behavior are not very satisfying to most people if one talks about autoreceptors located in the cingulate gyrus. And the law understands this. As Professor Stephen Morse has aptly said:

When we want to know why an agent intentionally behaved as she did, we do not desire a biophysical explanation, as if the person were simply biophysical flotsam and jetsam. Instead, we seek the reason she acted, the desires and beliefs that formed the practical syllogism that produced intentional conduct.3

But when law and the policymakers turn to science they expect scientific answers. The legitimate presumption of the law is that behaviors considered indicative of a “mental disorder” as classified by mental health professionals are somehow grounded in the scientific method. That is, the determination of whether a certain behavior is the result of an illness is made based upon empiricism and the tenets of experimentation and not through supposition or speculation. But the DSM and much of mental health research is not confined to mental diseases, biology, or even illnesses; rather “mental disorders” (and the legislative “mental abnormality”) are more constructions of convenience than of science.

Pedophiles and Illness

There has been much written and discussed about child predators. Indeed, it has even become entertainment in some respects, with prime time news shows strongly promoting shows where predators are “caught in the act.” Much of the scholastic debate has centered around the civil commitment and community monitoring of these offenders, but a more fundamental question has been neglected: Is pedophilia a mental illness? It is easy to fathom why some would think so; how else can we explain why someone would engage in such reprehensible conduct? But what scientific fact supports this conclusion? The answer is that there is little, if any, evidence that pedophilia is an illness in any traditional medical or scientific understanding. It is simply immoral conduct, and immoral conduct is the purview of criminal law, not medicine. Thus, the law should be free to make the criminal sanctions as heavy as constitutionally permissible but should refrain from achieving this end through the guise of civil commitment proceedings. Mental health professions should take to heart the fact that law has its own legitimate objectives (protecting society among many others) and the de facto lifetime commitment of sex offenders in psychiatric institutions has as much to do with its claim that such behaviors are mental disorders as the law’s failure to incapacitate them adequately though sufficient prison sentences.

Notes:

1. Kessler, R., et al. The Prevalence and Correlates of DSM-IV Intermittent Explosive Disorder in the National Comorbidity Survey Replication. 63 Archives of Gen. Psych 669 (2006).

2. See generally, Steven K. Erickson, "The Myth of Mental Disorder: Transsubstantive Behavior and Taxometric Psychiatry" (November 2, 2006). Yale University, School of Medicine Psychiatry Working Paper Available at SSRN: http://ssrn.com/abstract=942122.

3. Stephen J. Morse, Rationality and Responsibility, 74 S.Cal. L Rev 251, 242-43 (2000).

6 Comments

No doubt there is plenty of dirty bathwater in the field of forensic psychology. The question is whether there is a baby in that bathwater that should be saved. Bio-chemistry of the brain can be classified as a science, and its conclusions can be tested by the scientific method. A defense psychologist yammering about "Intermittent Explosive Disorder" is engaged in tea leaf reading. Given the exponential growth in DSM classifications, could there be some in the field of forensic psychology who don't give two hoots about the legitimate objective of protecting society from criminals?

Dr. Erickson also posits in his "The Myth of Mental Disorder":

“Whether through the de facto indefinite incapacitation of pedophiles or as an aggravating factor in criminal sentencing of “antisocial” people, the law openly rebukes the shortcomings of psychiatric diagnoses while readily utilizing its dubious classification scheme to achieve its own ends. (p, 8)

and...

“Free will, a fundamental component of criminal law, endures not due to some empirical finding, but out of belief and its necessity in forming culpability, which lies at the heart of criminal liability. Or to put it differently, the legal system requires a belief in free will because public opinion demands it.” (pg 8-9)

If we throw Philip Jenkins Moral Panic: Changing Concepts of the Child Molester in Modern America into the mix, we have even more confusion on what is social construction and what is empirical fact.

To confuse the issue further, why does treatment work if sex offending is merely a law enforcement issue? There are many studies that confirm this. To quote just one: Looking at Sex related recidivism, those with no treatment recidivated at a rate of 17.0%. Outpatient sex offender program participants had a 3.8% sex related recidivism rate, and residential program participants had a 10% recidivism rate. (For a recent Washington State analisys of what works and what doesn't, see: EVIDENCE-BASED ADULT CORRECTIONS PROGRAMS: WHAT WORKS AND WHAT DOES NOT.)

It is possible, maybe likely, that treatment teaches moral responsibility for the offender's thoughts and actions. Maybe this conflict between "treatment as moral or not" is socially constructed itself. It is also possible civil commitment is merely a means to circumvent the ex post facto clause of the Constitution by further incarceration after completion of sentences. Because such commitments are regulatory for public safety, rather than punishment, that little tidbit in the Constitution is nicely bypassed. Until all pedophiles are sentenced for life, if that is the goal of Dr. Erickson, civil commitments must be a necessary evil no matter the justification.

These are some interesting comments. However, I think I'll take issue with some of them.

First, the evidence is not entirely clear that sex offender treatment works. Besides the relative paucity of long-term studies, the methodology of many of these studies is problematic. I have yet to read the Washington study, but my suspicion is that who was chosen for outpatient treatment v. residential v. no treatment was not entirely random. Perhaps the lowest risk offenders were offered outpatient treatment while the highest were imprisoned? I do think that we should invest in scientific studies that better help us understand the risk factors and what can be done to attenuate them among sex offenders. But as it stands now, the science is not that good and the larger issue of whether sexual behaviors belong in the DSM at all remains unanswered.

Additionally, free will is evident in the world and is not just a socially constructed idea. But as an objective truth it is known not through some scientific experiment but through observation and discernment. As a moral issue, I believe that we all have a duty to help our fellow citizens dispose of their transgressions, and if treatment can do that, then we should encourage treatment. But calling pedophilia a disorder similar to schizophrenia is disingenuous – the scientific evidence just isn’t there. Whether lifelong incapacitation is a good thing, in my view, is a decision left to the people via their legislatures. But if we desire it so, we should achieve this end through the criminal law, not under the ruse of post-incarceration “treatment” that leads few patients to discharge or cure.

Steve, could you please respond to a couple of questions? First, is psychology a science? Second, what is the relationship between the explosive growth of DSM classifications and "Free will, a fundamental component of criminal law"?

Hello Middleamerican,

Psychology is a soft science insofar as it uses observation and measurement to understand and explain the metaphysical mind and complexity of behavior. Some aspects of psychology/psychiatry are more definitively “hard” than others. Thus, schizophrenia represents the “hard science” of these fields because the empirical evidence that something is fundamentally wrong in the brain is abundantly clear. Those who argue otherwise are either ignorant of the current state of knowledge about this disease of the brain or simply disingenuous. When we talk about sexual “disorders”, however, we are indeed in the “soft” area. What makes these behaviors mental disorder? Historically and currently the claims fall into two categories: (1) the afflicted person suffers emotional distress because of the desires or behaviors; and/or (2) they have been declared indicative of an illness because the behavior itself is somehow a symptom of illness. Yet, when we speak in terms of science, neither of these reasons are very satisfying. To most people, an illness is indicative of something abnormal in the physical world. That is, there is something diseased in the brain or body. Some may talk about disease in a broader, metaphorical sense, as in the case of a diseased soul, but that is not the purview of science.

Of course, psychology and the related mental health fields can help people with all kinds of problems; disease is not required to avail oneself of psychological help. But to call problems, however vexing, “disorders” or “illnesses” on par with biological diseases such as schizophrenia is bad science and bad policy. To allow distress, problems, and other parts of life’s struggles the designation of illnesses gives mental health professionals (like me) a lot of power.

In terms of free will, criminal law, and the DSM. Well, criminal law operates under the notion that people can choose to do right or wrong, and if one should transgress the criminal code, deserving of punishment because the behavior was freely chosen. The growth of the DSM, among many other things, has provided fodder for a growing subculture that believes all behavior is determined. Consequently, bad behavior should be excused. Ironically, however, if we were to really believe that behavior was mostly determined, we may be led down the road of strict liability for all crimes.

"Of course, psychology and the related mental health fields can help people with all kinds of problems; disease is not required to avail oneself of psychological help."

A diagnosis is required, though, to get the health insurer to pay for that help. Therein lies much of the problem, I think. There is financial pressure on the folks who decide what is a "disorder" to so classify any condition for which treatment from the mental professions would be beneficial.

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