Paraphilias and Criminal Justice:
One of the L&O fandom's more eloquent commentators, Gypsum says she used "Mad Dog" as "A launching pad for a discussion on the use of civil commitment statutes to detain diagnosed sex offenders" for an abnormal psychology course. In it, she explains, "I discuss whether the NY Mental Hygiene Law is Constitutional as applied to the sex offender Jack was trying to commit in the episode. This entails a detailed exploration of that defendant's disorder, followed by an analyses of relevant court precedent and statutory law. That doesn't sound very snazzy, and it sounds like I've been reading too many court opinions. But there you go." And here you go.
Law & Order is an NBC drama series portraying New York City homicide detectives and New York County (Manhattan) prosecutors in their efforts to investigate and successfully prosecute murder cases. In most episodes, the first half-hour consists of the police investigation, and the second half hour brings the case into the courtroom. It usually ends with a jury verdict, an acquittal or a conviction, a hung jury, or a plea bargain. The show depicts the legal system with unusual accuracy, for a TV show, and it confronts a variety of the criminal justice system's more intractable problems, including legal insanity, legal incompetency, and the disjunction of the mental health system with the justice system. Many episodes have explored the complex dilemma of how society and the criminal justice system cope with the mentally ill, inevitably concluding that they don't cope very well. The prosecutors work to ameliorate the problem of a particular defendant in a particular case with the imperfect tools given to them by the legal system. The episode I have chosen to analyze, produced in the show's seventh season and titled "Mad Dog," addresses the problems associated with detaining serial rapists under involuntary civil commitment laws, the effectiveness of such restraint, and the constitutional questions raised by prosecutors who seek legal recourse in civilly committing paraphiliacs.
The episode begins with the parole hearing of a convicted serial rapist named Lewis Darnell, who has served eighteen years for six rapes at knife point and is suspected in seven more rapes. Assistant District Attorneys Jack McCoy and Jamie Ross vehemently oppose Darnell's parole, but the parole board simply notes their objections, believes Darnell's assertion that he is a "changed man," and releases him.
The scene switches to an apartment in Manhattan's West Side, where Detectives Lennie Briscoe and Reynaldo Curtis have been called to a death scene, a young girl named Teresa Perez, apparently murdered in her own bed in the middle of the day. There is evidence of sexual assault and a wound on her neck indicating that she might have been raped at knife point. The Medical Examiner confirms this and identifies the cause of death as suffocation by a garbage bag. But the detectives' investigation finds no leads until Ross suggests that this murder vaguely resembles Darnell's modus operandi -- Darnell held a pillowcase over his victim's faces and a knife to their throats -- and she adds that Darnell lives nearby. So Briscoe and Curtis direct their investigation towards Darnell, but though they find some circumstantial evidence of his guilt, they find nothing with which the DA can sustain an indictment, and a judge suppresses what evidence they do find because of a Fourth Amendment violation.
Determined to return Darnell to prison, Jack McCoy tries to civilly commit him. The judge rules against McCoy and releases Darnell. McCoy asks the police for round-the-clock surveillance of Darnell, more interviews, more investigation, and he convenes a grand jury in the matter of the Perez murder. Under the Sex Offender Registration Act, he has the police post flyers around the West Side, warning people that Darnell, a violent sexual predator, lives in their neighborhood. Finally, forty-seven subpoenas, six search warrants, three wiretap warrants, and no new evidence later, McCoy's boss, District Attorney Adam Schiff, pulls the reins on McCoy's "operation." It's costing too much and it's not working. Later, McCoy gets a phone call from Briscoe: Darnell is dead. He attacked his daughter's friend with a knife and a garbage bag and his daughter hit him in the head with a heavy statue, killing him. The episode ends there with the ADAs' last few comments to each other about the case.
"Mad Dog" tackles a question that legal and mental health professionals have struggled to resolve. Is rape a mental disorder and can the State civilly commit serial rapists pursuant to involuntary commitment statutes? McCoy observes at one point, "He rapes and murders. Isn't that a sign something's wrong with him?" Criminal behavior, including rape and murder, is not always a sign of a psychiatric illness. Current statutory law and legal precedent preclude antisocial personality disorder and other personality disorders as insanity defenses by stating that "the terms mental disease and defect do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct." (1) But Darnell's abnormality does not consist of long- term antisocial conduct. He does not manifest any of the "pervasive pattern" of behavior associated with antisocial personality disorder. There is no evidence that he fails to conform to social norms, that he is deceitful, that he suffers from impulsivity and a failure to plan ahead, that he is irritable or aggressive, shows reckless disregard for the safety of himself or others, and is irresponsible (2). He lacks remorse for his crimes and lacks empathy with his victims when the police and prosecutors repeatedly question him about it, his only display of an antisocial personality behavior pattern. Otherwise, he is hardworking, gets along with others at his job, and earned his early release with decorous conduct during his incarceration. His deviant, maladaptive behavior is specific to his compulsion to sexually assault women and inability to control his impulses.
Darnell's compulsion to rape fits into the DSM-IV's diagnostic criteria for a paraphilia: bizarre or unusual acts leading to sexual arousal that must be the person's primary means of sexual arousal. There must be repetition of the sexual activity with a nonconsenting underage partner, a non-human object, or the suffering of oneself or another, consenting or nonconsenting. The form of paraphilia afflicting Darnell appears to be sexual sadism -- sexual arousal stimulated by fantasies or actions involving dominating or beating another person. According to a recent study, 46 percent of the sadists in a sample of nonincarcerated men reported having committed rape -- the highest percentage of rape reported by any category of paraphiliac (Abel et al., 1988).
Darnell's conviction on six counts of sexual assault and his alleged involvement in eight more attest to a pattern of repeated behavior. Rape or fantasies about rape seem to be his primary method of arousal. During the civil commitment hearing, McCoy, cross-examining Darnell, asks the defendant if he has had any normal, consensual sexual encounters since his release and if so, with whom and when. "Did she help you act out your rape fantasies?" demands McCoy. "Did she charge extra for the pillowcase?" Darnell denies the prosecutor's implications that he used the services of a prostitute and asserts that he has had a normal, consensual sexual encounter, but he fails to remember who with or when, casting grave doubts on his veracity. He tells McCoy that in prison, he learned to control himself, and he went to group therapy and learned "how to express emotions in more constructive ways and change his attitudes towards women." But, as McCoy deftly points out, there were no women in prison, thus no objects of sexual arousal and no pervasive compulsions necessitating self-restraint.
When the police execute a search warrant of Darnell's apartment, they discover a library of violent pornography in his closet, evidence of Darnell's continued reliance upon violent depictions of rape in order to achieve arousal. The underlying psychopathology of Darnell's behavior is his sexual response to violent rape fantasies, and if he continues to find violent pornography sexually stimulating, he is in no way "cured" or benign, despite his protests in court that the magazines and videotapes are "just fantasies."
Dr. Elizabeth Olivet, the forensic psychiatrist, testifies in this hearing that a diathesis-stress model can explain Darnell's mental abnormality. If the individual has a predisposition towards paraphilia, stress and anxiety can aggravate the paraphilic behavior. Pressure builds until he feels the compulsion to rape. The force and fear of the rape release the anxiety, reinforcing the behavior, and the cycle repeats itself.
Psychiatrists and psychologists do not agree on what predisposes some individuals towards paraphilic behaviors, but the most popular theory with the most supporting evidence for it is a social learning and classical conditioning analyses of the causes of paraphilias, the "cognitive-behavioral model." Adolescent males engage in frequent masturbatory behavior, and when they do, they fantasize about specific stimuli. The stimuli then elicit the conditional response, sexual arousal. Positive and negative social cues play a significant role in determining the subsequent acceptance or avoidance of sexual behaviors and attitudes, either by reinforcing or discouraging certain behavioral patterns (3). Paraphilias develop when something goes amiss in this process, and the conditional response occurs when the individual is exposed to deviant or unconventional stimuli. Somehow, during the person's psychological development, the bizarre or unusual act or image was paired with masturbation, and the deviant behavior or image is now part of that individual's masturbatory fantasy.
Some paraphiliacs are treatable with covert sensitization, a form of classical conditioning. The therapist pairs the paraphilic image with some sort of aversive stimulus that limits sexual arousal in order to make the paraphilic image repugnant to the patient. Then, in a process known as orgasmic reconditioning, the therapist substitutes an appropriate image for an inappropriate one at the last minute as the patient approaches an orgasm. The third step is self-control training, an evaluation of antecedent conditions to a deviant sexual fantasy and teaching the patient how to avoid them. Next, cognitive restructuring alters distorted thinking patterns since many paraphiliacs rationalize their behavior and deny that they did anything wrong. The last step is relapse prevention training: educating patients about the likelihood of a relapse and training them in cognitive and behavioral methods to cope with cues that might trigger a paraphilic fantasy (4). There are also some drug treatments for paraphiliacs, such as the use of antiandrogen drugs, like Depo-Provera, that reduce testosterone level. Some recent studies indicate that SSRIs may also inhibit deviant sexual fantasies. (5) However, the recidivism rates for paraphiliacs is high and neither cognitive-behavioral therapy nor drug therapy boast significant success rates. During his direct-examination of Olivet, McCoy asks her whether or not these treatments, which she briefly elucidated in a prior question, are effective. She says that they work to varying degrees, but there are no guaranteed cures.
How can the legal system cope with an individual afflicted with this disorder, if the individual might not respond to treatment and is disposed towards violent behavior that he cannot control? Some states have attempted to resolve this problem by passing laws providing for the civil commitments of sex offenders. Court precedent and statutory law have always allowed the State to involuntarily confine a mentally ill person if it shows "by clear and convincing evidence that the person is mentally-ill and dangerous" (Jones v. United States, 439 US 354; Foucha v. Louisiana, 504 US 71). In 1997, the year this Law & Order episode was aired, the Supreme Court ruled upon whether the government could apply such statutes to paraphiliac sex offenders in Kansas V. Hendricks, No. 95-1649.
While New York has no statute specifically providing for the commitment of violent sex offenders, the state's involuntary commitment statutes' criteria are well within the guidelines set by the Supreme Court, demanding clear and convincing evidence that the person has a mental illness and as a result, is either gravely disabled or dangerous. Sec. 1.03(20) of New York's Mental Hygiene Law defines mental illness as "an affliction with a mental disease or mental condition which is manifested by a disorder or disturbance in behavior, feeling, thinking, or judgment to such an extent that the person afflicted requires care, treatment and rehabilitation." Sec. 33.20(c) of New York Criminal Procedure Law (CPL) establishes that a person may be committed if he constitutes a danger to himself or others because he suffers from a mental illness as defined in the Mental Hygiene Law.
His efforts to hold Darnell on the criminal charges having failed, McCoy begins the aforesaid civil commitment proceedings against the defendant, an effort to detain him on the grounds that he poses "a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious harm" (Art. 9, Sec. 9.37, NY Mental Hygiene Law). McCoy has clear and convincing evidence that the mental disorder afflicting Darnell makes him dangerous under Foucha's "dangerousness" criteria. The defendant suffers from an "irresistible impulse," namely, he is so afflicted with his paraphilia that he cannot control his urge to rape. He has been convicted of sexually violent offenses in the past and will likely commit such offenses in the future. He presents an imminent danger to the community, and therefore the court can classify him as "mentally ill" and "dangerous."
McCoy has adhered to substantive due process requirements stipulating the "nature of the commitment bear some rational relation" to the purpose for which Darnell was committed (Foucha): protecting the community from a serial rapist. The Supreme Court has repeatedly upheld that civil commitments do not violate procedural due process so long as the hearing "takes place pursuant to proper procedures and evidentiary standards" (Foucha), and the New York statute provides a proper hearing, assistance of counsel, and the "clear and convincing" evidentiary standard demanded by civil procedure law.
The judge acknowledges that McCoy has satisfied his burden of proof pursuant to New York's Mental Health Act, but nevertheless he rules against the State, citing Hendricks, still a pending decision. The judge expresses his reluctance to preempt the Supreme Court by confining the defendant to a mental institution for what could be an indefinite period time, since his condition might not respond to treatment. At the time this 1997 episode was written, the Court had not yet handed down its Hendricks ruling addressing those issues.
Ironically, the Supreme Court held in Hendricks that the involuntary commitment of sex offenders does not violate the Constitution. They deferred to the Kansas legislature's findings that it was necessary to establish a "civil commitment procedure for the care and long-term treatment of sexually violent predators." Hendricks, a convicted pedophile, argued that the Kansas law's term "mental abnormality" was too vague and violated substantive due process, and the State's alleged intent to punish him a second time, evidenced by the potential indefiniteness of the confinement, violated procedural due process. He also contended that the law violated the Fifth Amendment's double jeopardy protections and the Constitution's prohibitions against ex-post fact laws.
The Court rejected all of Hendricks' claims, reaffirming that "this Court has never required States to adopt any particular nomenclature in drafting civil commitment statutes and leaves to the States the task of defining terms of a medical nature that have legal significance." It also asserted that it has a long history of upholding civil commitment statutes and held that this statute does not violate due process because it places the burden on the State to prove beyond a reasonable doubt that the person is a sexually violent predator and affords the individual a number of other procedural safeguards such as the assistance of counsel, the right to an examination by mental health professionals, and the right to confront and cross-examine witnesses. The intent of this Act does not encompass the primary objectives of criminal punishment, retribution and deterrence. It does not "affix culpability for prior criminal conduct," but simply uses said conduct as an evidentiary base, and restraint of the mentally ill has historically been considered a non-punitive restraint (United States v. Salerno, 481 US 739). As the mentally ill are unlikely to be deterred by a statute, the Kansas law's intent cannot be deterrence.
The Court also struck down Hendricks' claim that the potential untreatability of his illness made it unconstitutional for the State to confine him. Treatment is not a precondition for civil confinement because it would be ridiculous for a State to release individuals who were not only dangerous because of their mental illness, but untreatable as well (O'Connor v. Donaldson, 422 US 563). Nor does the law violate double jeopardy or the ex-post fact clause since civil proceedings are fundamentally different from criminal proceedings, and a civil commitment is not tantamount to a second punishment and prosecution (Baxstrom v. Herold, 383 US 107, Blockburger v. United States, 284 US 299).
If the New York trial court judge in the Law & Order episode had the Hendricks decision as binding precedent, he probably would have ruled in favor of McCoy's motion. His decision to deny the prosecutor's motion rested primarily upon Darnell's argument that it was Constitutionally impermissible for the State to commit him because his disorder did not fit the "grave disability" criteria, and since both the People's expert witnesses and the defense expert witnesses agreed that certain paraphilias defy treatment, his confinement might be indefinite. The Court invalidated both these arguments in Hendricks.
However, Hendricks, Jones, and Zinermon v. Birch, 494 US 113 inquire into the government's motives and proscribe the government from using civil commitments as retribution or as alternatives to criminal proceedings. Jack McCoy's primary objectives in his zeal to civilly commit Darnell after he couldn't sustain a criminal indictment against him and then, when the civil commitment failed, to harass him under the Sex Offender Registration Act and drive him back to prison, seem retributionary and punitive. Irritated by the judge, who dismissed his indictment, McCoy expresses his frustration to Ross and Schiff and complains that "even the rights of a disturbed serial rapist are protected." And then he arrives at his brilliant idea to go across the street to the civil courthouse and involuntarily commit Darnell. If the court found any evidence of McCoy's actual agenda, it could deny him his motion to commit Darnell on the basis that he is using psychiatry to punish people (Salerno). A defense attorney could conceivably argue that McCoy began his commitment proceedings only after a judge dismissed an indictment, and his use of the Mental Hygiene Law to punish Darnell for a crime he could not charge him with under the more stringent evidentiary standards of the CPL amounts to a serious violation of Darnell's civil rights and a misuse of McCoy's prosecutorial power.
A judge could easily overlook the District Attorney's motives. The evidence of Darnell's dangerousness and the compelling state interest in keeping him off the street significantly outweigh a specific prosecutor's dubious objectives. No judge can know for sure what factors motivate the DA, but the evidence is overwhelming that, regardless of McCoy's personal agenda, his motion to involuntarily commit Darnell bears a "rational relation" to an important state objective -- protecting people within the jurisdiction from someone who suffers from a serious mental disorder that makes him dangerous to society.
The Law & Order episode effectively depicts how bleak options are for obtaining adequate dispositions for paraphiliac sex offenders. Confining violent sex offenders to state mental hospitals may not be the most efficacious solution, but most sexual assault laws do not provide for treatment of paraphilias or life imprisonment. Yet in the absence of a less restrictive, yet equally as effective alternative for protecting the community and protecting the rights of the individual, civil commitments are one of the few viable options provided by the legal and mental health systems for coping with this problem.
(1) Clark, Lee Anna, Peter E. Nathan, Daniel O'Leary, and Terence Wilson; Abnormal Psychology: Integrating Perspectives. Allyn and Bacon, 1996; Needham Heights, MA.
(3) Ibid., 262.
(4) Ibid., 261.
(5) Ibid., 262.