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.
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).