Foreshadowing the future of Kansas V. Hendricks: Lessons from Minnesota's sex offender commitment litigation

Northwestern University Law Review

Volumn 92, Issue 4, 1998, Pages 1279-1304

  Janus, Eric S ^a  

^a NONE

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EID: 0347172111     PISSN: 00293571     EISSN: None     Source Type: Journal    
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References (184)

1. Eric S. Janus & Paul E. Meehl, Assessing the Legal Standard for Predictions of Dangerousness in Sex Offender Commitment Proceedings, 2 PSYCHOL., PUB. POL'Y. & L. 33 (describing claims that sex offender commitment schemes incarcerate only the "most dangerous"); see Lucy Berliner, Sex Offenders: Policy and Practice, 92 NW. U. L. REV. 1203, nn.122-52 and accompanying text (1998).
2. Eric S. Janus & Paul E. Meehl, Assessing the Legal Standard for Predictions of Dangerousness in Sex Offender Commitment Proceedings, 2 PSYCHOL., PUB. POL'Y. & L. 33 (describing claims that sex offender commitment schemes incarcerate only the "most dangerous"); see Lucy Berliner, Sex Offenders: Policy and Practice, 92 NW. U. L. REV. 1203, nn.122-52 and accompanying text (1998).
3. Civil commitment laws deprive people of their liberty, but do not demand the strict procedural and substantive protections of the criminal law. Most notably, civil commitment laws are exempt from the prohibitions against ex post facto laws and double punishments, and they do not violate the constitutional restraints against punishing for a status. See Eric S. Janus, Sex Offender Commitments: Debunking the Official Narrative and Revealing the Rules-in-Use, 8 STAN. L. & POL'Y REV. 71, 71-74 (1997) (describing manner in which sex offender commitment schemes claim exemption from the constraints imposed upon the criminal law).
4. Cooper v. Oklahoma, 116 S. Ct. 1373, 1383 (1996) (quoting United States v. Chisolm, 149 F. 284, 288 (S.D. Ala. 1906)).
5. Kansas v. Hendricks, 117 S. Ct. 2072 (1997).
6. 117 S. Ct. 2072 (1997); see also Allen v. Illinois, 478 U.S. 364 (1986); Minnesota ex. rel. Pearson v. Probate Court, 309 U.S. 270 (1940).
7. Pearson, 309 U.S. 270, 274 (1940).
8. 478 U.S. 364, 373 (1986).
9. Millard v. Harris, 406 F.2d 964, 969 (D.C. Cir. 1968).
10. Hendricks, 117 S. Ct. at 2080 ("It thus cannot be said that the involuntary civil confinement of a limited subclass of dangerous persons is contrary to our understanding of ordered liberty.").
11. In concurrence, Justice Kennedy points out that the mental abnormality at issue, pedophilia, is included in the official nomenclature of psychiatry: "In this case, the mental abnormality - pedophilia - is at least described in the DSM-IV. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 524-525, 527-528 (4th ed. 1994)." Id. at 2087 (Kennedy, J., concurring). This is also a factor specifically listed by the dissent. See id. at 2088 (Breyer, J., dissenting) (listing professional classification as a "serious mental disorder" as one of three "sets of circumstances" that support constitutionality).
12. See Hendricks, 117 S. Ct. at 2084.
13. Compare Hendricks, 117 S. Ct. at 2085, with Jones v. United States, 463 U.S. 354, 363-65 (1983) (permitting minimal showing of dangerousness as a predicate for insanity-acquitee commitments).
14. The Court mentions lack of control or volitional impairment no fewer than 10 times in its opinion. See Hendricks, 117 S. Ct. 2072. The dissent focuses directly on the notion, mentioning it four times. See id. (Breyer, J., dissenting).
15. Hendricks, 117 S. Ct. at 2079.
16. Id. at 2080.
17. Id. at 2081.
18. The Minnesota Sexually Dangerous Persons Act is the only contemporary sex offender commitment scheme that explicitly claims exemption from the traditional control-impairment test of mental disorder. MINN. STAT. § 253B.02, subd. 18b(b) (1996) ("For purposes of this provision, it is not necessary to prove that the person has an inability to control the person's sexual impulses.").
19. In re Linehan (II), 557 N.W.2d 171 (Minn. 1996), vacated and remanded for reconsideration in light of Hendricks sub nom. Linehan v. Minnesota, 118 S. Ct. 596 (1997).
20. See In re Linehan (II), 557 N.W.2d 171, 196 (Minn. 1996) (concluding that there is "no principled and constitutionally significant distinction" between commitments with, and those without, the Pearson uncontrollability test).
21. See Linehan v. Minnesota, 118 S. Ct. 596 (1997).
22. Most contemporary civil commitment statutes require a cognitive impairment. See, e.g., MINN. STAT. § 253B.02, Subd. 13 (requiring "organic disorder of the brain or a substantial psychiatric disorder of thought, mood, perception, orientation, or memory which grossly impairs judgment, behavior, capacity to recognize reality, or to reason or understand," as predicate for civil commitment). However, most sex offenders do not suffer from such mental disorders, so this traditional justification is not available to justify sex offender commitment schemes.
23. See GROUP FOR THE ADVANCEMENT OF PSYCHIATRY, PUB. NO. 98, PSYCHIATRY AND SEX PSYCHOPATH LEGISLATION: THE 30S TO THE 80S (1977) [hereinafter GAP REPORT]; William D. Erickson, "Northern Lights": Minnesota's Experience with Sex Offender Legislation, AM. ACAD. PSYCHIATRY & L. NEWSL., Apr. 1995, at 3 [hereinafter Erickson, Northern Lights].
24. See GROUP FOR THE ADVANCEMENT OF PSYCHIATRY, PUB. NO. 98, PSYCHIATRY AND SEX PSYCHOPATH LEGISLATION: THE 30S TO THE 80S (1977) [hereinafter GAP REPORT]; William D. Erickson, "Northern Lights": Minnesota's Experience with Sex Offender Legislation, AM. ACAD. PSYCHIATRY & L. NEWSL., Apr. 1995, at 3 [hereinafter Erickson, Northern Lights].
25. "Psychopathic personality means the existence in any person of such conditions of emotional instability, or impulsiveness of behavior, or lack of customary standards of good judgment, or failure to appreciate the consequences of personal acts, or a combination of any of these conditions, which renders the person irresponsible for personal conduct with respect to sexual matters." 1939 Minn. Laws § 1 n.269.
26. Pearson "was a fifty-three-year-old man who had been married since 1911, and who was accused by a number of girls, ranging from thirteen to fifteen years of age, of taking liberties with them. The police said that numerous young girls had been loitering in his sheet-metal shop and that he had made a practice of taking them riding in his automobile." James E. Hughes, The Minnesota 'Sexual Irresponsibles Law', 25 MENTAL HYGIENE 76, 77. (1940); see also Erickson, Northern Lights, supra note 22, at 3.
27. Pearson "was a fifty-three-year-old man who had been married since 1911, and who was accused by a number of girls, ranging from thirteen to fifteen years of age, of taking liberties with them. The police said that numerous young girls had been loitering in his sheet-metal shop and that he had made a practice of taking them riding in his automobile." James E. Hughes, The Minnesota 'Sexual Irresponsibles Law', 25 MENTAL HYGIENE 76, 77. (1940); see also Erickson, Northern Lights, supra note 22, at 3.
28. Pearson challenged the law by a petition for a writ of mandamus, filed before any proceedings on the petition were undertaken. See Minnesota ex rel Pearson v. Probate Court, 287 N.W. 297, 298 (Minn. 1939), aff'd, 309 U.S. 270 (1940).
29. See Pearson, 287 N.W. at 302.
30. This theme is echoed in the Hendricks dissent. See Kansas v. Hendricks, 117 S. Ct. 2072, 2089 (1997) (Breyer, J., dissenting) (interpreting control-impairment in terms of the "irresistible impulse" test for criminal excuse).
31. See Pearson, 287 N.W. at 300.
32. See Pearson, 287 N.W. at 299; Paul A. Draper, Mental Abnormality in Relation to Crime, 2 AM. J. MED. JURISPRUDENCE, No. 3, 161, 162-63 (Mar.-Apr., 1939).
33. Leavitt v. City of Morris, 117 N.W. 393, 395 (Minn. 1980), quoted in Brief for Minnesota, Pearson, 287 N.W. 297 (emphasis added).
34. See Brief for Minnesota, Pearson, at 14 (quoting Leavitt, 117 N.W. at 395).
35. Id. at 12-14.
36. See Note, Confinement of the Sexually Irresponsible, 32 J. CRIM. L. & CRIMINOLOGY. 196, 199 (1941) ("The usual theory of these cases [upholding commitment laws] is that the courts are the 'guardians' of the mentally irresponsible . . .").
37. See Minnesota ex rel. Pearson v. Probate Court, 287 N.W. 297, 302 (Minn. 1939) (holding that courts must "give full force and effect to[ ] every enactment of the general assembly not obnoxious to constitutional prohibitions").
38. 323 N.W.2d 724, 727 (Minn. 1982).
39. See In re Blodgett, 510 N.W. 2d 910, 913 (Minn. 1994).
40. The court stated: Is it better for a person with an uncontrollable sex drive to be given an enhanced prison sentence or to be committed civilly? . . . For the legislature which must provide the necessary prison cells or hospital beds, there are no easy answers. Nor are there easy answers for society which, ultimately, must decide to what extent criminal blame is to be assigned to people who are what they are. Id. at 913.
41. The court simultaneously reversed a sex psychopath commitment in In re Rickmyer, 519 N.W.2d 188 (Minn. 1994). The Minnesota Court of Appeals had previously reversed two sex psychopath commitments. See In re Rodriguez, 506 N.W.2d 660 (Minn. Ct. App. 1993); In re Stilinovich, 479 N.W.2d 731 (Minn. Ct. App. 1992). In all three of these cases, the ground for reversal was an inadequate showing of dangerousness.
42. See In re Linehan (II), 557 N.W.2d 171, 201 (Minn. 1996).
43. House of Representatives, State of Minnesota, Special Session of the Seventy-Eighth Legislature, 7 JOURNAL OF THE HOUSE OF REPRESENTATIVES 8821, 8823 (1994); Senate, State of Minnesota, Special Session of the Seventy-Eighth Legislature, 5 JOURNAL OF THE SENATE 1, 8 (1994).
44. House of Representatives, State of Minnesota, Special Session of the Seventy-Eighth Legislature, 7 JOURNAL OF THE HOUSE OF REPRESENTATIVES 8821, 8823 (1994); Senate, State of Minnesota, Special Session of the Seventy-Eighth Legislature, 5 JOURNAL OF THE SENATE 1, 8 (1994).
45. The sex psychopath Act remained on the books, but was recodified. In addition, the legislature codified the Pearson "utter lack of power to control" language. MINN. STAT. ANN. § 253B.02, subd. 18b (West Supp. 1998).
46. MINN. STAT. ANN. § 253B.02, subd. 18c(b) (West Supp. 1998).
47. The SDP Act requires "clear and convincing" proof of four elements: 1.The person "has engaged in a course of harmful sexual conduct." MINN. STAT. ANN. § 253B.02, subd. 18c (West Supp. 1998). "Harmful sexual conduct" means "sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another." MINN. STAT. ANN. § 253B.02, subd. 7a(a) (West Supp. 1998). The Act creates a "rebuttable presumption" that criminal sexual conduct, violative of enumerated sections of the law, satisfies the harm requirement. Id. at subd. 7a(b). The individual "has manifested a sexual, personality, or other mental disorder or dysfunction." MINN. STAT. ANN. § 253B, subd. 18c (West Supp. 1998). "As a result" of (1) and (2), The individual "is likely to engage in acts of harmful sexual conduct." Id.
48. The SDP Act requires "clear and convincing" proof of four elements: 1.The person "has engaged in a course of harmful sexual conduct." MINN. STAT. ANN. § 253B.02, subd. 18c (West Supp. 1998). "Harmful sexual conduct" means "sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another." MINN. STAT. ANN. § 253B.02, subd. 7a(a) (West Supp. 1998). The Act creates a "rebuttable presumption" that criminal sexual conduct, violative of enumerated sections of the law, satisfies the harm requirement. Id. at subd. 7a(b). The individual "has manifested a sexual, personality, or other mental disorder or dysfunction." MINN. STAT. ANN. § 253B, subd. 18c (West Supp. 1998). "As a result" of (1) and (2), The individual "is likely to engage in acts of harmful sexual conduct." Id.
49. The SDP Act requires "clear and convincing" proof of four elements: 1.The person "has engaged in a course of harmful sexual conduct." MINN. STAT. ANN. § 253B.02, subd. 18c (West Supp. 1998). "Harmful sexual conduct" means "sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another." MINN. STAT. ANN. § 253B.02, subd. 7a(a) (West Supp. 1998). The Act creates a "rebuttable presumption" that criminal sexual conduct, violative of enumerated sections of the law, satisfies the harm requirement. Id. at subd. 7a(b). The individual "has manifested a sexual, personality, or other mental disorder or dysfunction." MINN. STAT. ANN. § 253B, subd. 18c (West Supp. 1998). "As a result" of (1) and (2), The individual "is likely to engage in acts of harmful sexual conduct." Id.
50. The SDP Act requires "clear and convincing" proof of four elements: 1.The person "has engaged in a course of harmful sexual conduct." MINN. STAT. ANN. § 253B.02, subd. 18c (West Supp. 1998). "Harmful sexual conduct" means "sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another." MINN. STAT. ANN. § 253B.02, subd. 7a(a) (West Supp. 1998). The Act creates a "rebuttable presumption" that criminal sexual conduct, violative of enumerated sections of the law, satisfies the harm requirement. Id. at subd. 7a(b). The individual "has manifested a sexual, personality, or other mental disorder or dysfunction." MINN. STAT. ANN. § 253B, subd. 18c (West Supp. 1998). "As a result" of (1) and (2), The individual "is likely to engage in acts of harmful sexual conduct." Id.
51. The SDP Act requires "clear and convincing" proof of four elements: 1.The person "has engaged in a course of harmful sexual conduct." MINN. STAT. ANN. § 253B.02, subd. 18c (West Supp. 1998). "Harmful sexual conduct" means "sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another." MINN. STAT. ANN. § 253B.02, subd. 7a(a) (West Supp. 1998). The Act creates a "rebuttable presumption" that criminal sexual conduct, violative of enumerated sections of the law, satisfies the harm requirement. Id. at subd. 7a(b). The individual "has manifested a sexual, personality, or other mental disorder or dysfunction." MINN. STAT. ANN. § 253B, subd. 18c (West Supp. 1998). "As a result" of (1) and (2), The individual "is likely to engage in acts of harmful sexual conduct." Id.
52. See In re Linehan, No. P8-94-0382 (Ramsey County District Court, 1995).
53. Litigation challenging sex offender commitment statutes has raised four constitutional theories. The substantive due process theory asserts that sex offender commitments are not a legitimate exercise of the state's power. Equal protection theories argue that it is improper to select mentally disordered sex offenders for civil commitment when other mentally disordered criminals, or non-disordered sex offenders, are not similarly at risk. The double jeopardy and ex post facto arguments assert that sex offender commitments are in reality punishments. Committing sex offenders after they have served criminal sentences constitutes a retroactive increase in punishment and a successive punishment, thus violating these provisions. See, e.g., Brief for the National Association of Criminal Defense Lawyers and the Kansas Association of Criminal Defense Lawyers as Amicus Curiae in support of Leroy Hendricks at 25, 26-27, Kansas v. Hendricks, 117 S. Ct. 2072 (1997) (Nos. 95-1649, 95-9075). Though each of these theories brings a slightly different focus, all tend to be bottomed on the constitutional adequacy of the states' mental disorder predicate. This is, essentially, the substantive due process question. Thus, the equal protection theory asks whether it is permissible to distinguish between those dangerous individuals who do, and those who do not, have the requisite mental disorder. This translates directly into the substantive due process question. Similarly, the ex post facto and double jeopardy analyses establish that the incarceration imposed by sex offender commitment statutes has many of the characteristics of punishment. But the key issue is whether the state has a proper "alternative purpose" for the confinement. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963). This, too, is another way of asking whether the state's "mental health" power can be stretched constitutionally to fit the sex offender commitment schemes. The Supreme Court's analysis in Hendricks confirms the centrality of the substantive due process question. Justice Thomas' majority opinion states, "[i]f an individual otherwise meets the requirements for involuntary civil commitment, the State is under no obligation to release that individual simply because the detention would follow a period of incarceration," suggesting that the central question in the double jeopardy and ex post facto analyses is the legitimacy of the civil commitment. Hendricks, 117 S. Ct. at 2086. Similarly, Justice Breyer's dissent says that "the basic substantive due process treatment question" is also "at the heart of the ex post facto discussion. Id. at 2090.
54. See In re Young, 857 P.2d 989, 1020 (Wash. 1993) (Johnson, J., dissenting) ("For the statute to be constitutional, it must further a compelling state interest and must be narrowly tailored to achieve that interest."); State v. Post, 541 N.W.2d 115, 122 (Wis. 1995) ("In order to pass strict scrutiny, the challenged statute must further a compelling state interest and be narrowly tailored to serve that interest."); see also In re Linehan (II), 557 N.W.2d at 181 ("Under strict scrutiny, challenged legislation must be narrowly tailored to serve a compelling state interest.").
55. I develop this theme at greater length in Eric S. Janus, Preventing Sexual Violence: Setting Principled Constitutional Boundaries on Sex Offender Commitments, 72 IND. L.J. 157 (1996).
56. See Brief for Appellant at 13, In re Linehan (II), 557 N.W.2d 171 (Minn. 1996) (No. C1-95-2022); see also Janus, supra note 2, at 79-81 (describing principle of criminal interstitiality); Janus, supra note 47, at 208-14 (tracing application of this principle in Minnesota cases).
57. In re Linehan (II), 557 N.W.2d at 183. The Hendricks Court acknowledges this principle as well, suggesting that at least part of the role of mental disorder is to provide a constitutionally adequate boundary around the use of civil confinement to accomplish social control goals: This admitted lack of volitional control, coupled with a prediction of future dangerousness, adequately distinguishes Hendricks from other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings. Hendricks' diagnosis as a pedophile, which qualifies as a "mental abnormality" under the Act, thus plainly suffices for due process purposes. Hendricks, 117 S. Ct. at 2081.
58. See Janus, supra note 47, at 208-14.
59. See id.; see also Janus, supra note 2, at 75.
60. The court suggested that this "substantive due process theory might avoid difficult constitutional issues," because it would eliminate the need for the judiciary to determine "whether a particular mental disorder, dysfunction, or illness is acceptable under substantive due process." In re Linehan (II), 557 N.W.2d at 183.
61. Id. I discuss the issue of overlap in Eric S. Janus, Toward a Conceptual Framework for Assessing Police Power Commitment Legislation: A Critique of Schopp's and Winick's Explications of Legal Mental Illness, 76 NEB. L. REV. 1, 9 (1997).
62. See In re Linehan (II), 557 N.W.2d at 182 (quoting In re Linehan (II), 544 N.W.2d 308, 318 (Minn. Ct. App. 1996)): In fact, the SDP Act is an attempt to protect the public by treating sexual predators even more dangerous than those reached by the [sex psychopath] Act - the mentally disordered who retain enough control to "plan, wait, and delay the indulgence of their maladies until presented with a higher probability of success."
63. See Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270, 275 (1940) (rejecting equal protection challenge to the "utter lack of power to control" test, on ground that the state "may confine its restrictions to those classes of cases where the need is deemed to be clearest"). The Minnesota Supreme Court quoted this passage verbatim in Blodgett, In re Blodgett, 510 N.W.2d 910, 913 917 (Minn. 1994), referring to those identified by the "utter lack of power to control" test as posing "a danger that is unlike any other." The Wisconsin Supreme Court points to the "lack of control" of those with mental disorders as the source of their "distinctive" dangerousness. State v. Post, 541 N.W.2d 115, 130, 131 (Wis. 1995) (characterizing class as "distinctively dangerous" and identifying "lack of control over their violent behavior" as "exactly what makes [predators] so dangerous . . .").
64. See Marnie E. Rice & Grant T. Harris, Cross-validation of Actuarial Predictions, 12 RES. REP., No. 2, at 18 (Mental Health Centre, Penetanguishene, Ontario 1995) (identifying "lack of self-control" as a risk factor for rapists).
65. See Janice K. Marques et al., Findings and Recommendations from California's Experimental Treatment Program, in SEXUAL AGGRESSION, 197, 209 (Gordon C. Nagayama Hall et al. eds., 1993) (commenting that rapists who "are impulsive and have problems with affect management" may move very quickly to "full-blown relapse"); William D. Pithers, Treatment of Rapists: Reinterpretation of Early Outcome Data and Exploratory Constructs to Enhance Therapeutic Efficacy, in SEXUAL AGGRESSION, supra, at 167, 176-77 (reporting on study by Prentky finding that high impulsivity rapists were "approximately three times more likely than low impulsivity rapists to have been convicted of new sex offenses" during a 25 year follow-up period); Robert A. Prentky et al., Predictive Validity of Lifestyle Impulsivity for Rapists, 22 CRIM. JUST. & BEHAV. 106, 124-25 (1995) ("It is reasonable to speculate that the high impulsive subgroup among treated rapist samples constitutes a large proportion of treatment failures in the follow-up studies.").
66. See Janice K. Marques et al., Findings and Recommendations from California's Experimental Treatment Program, in SEXUAL AGGRESSION, 197, 209 (Gordon C. Nagayama Hall et al. eds., 1993) (commenting that rapists who "are impulsive and have problems with affect management" may move very quickly to "full-blown relapse"); William D. Pithers, Treatment of Rapists: Reinterpretation of Early Outcome Data and Exploratory Constructs to Enhance Therapeutic Efficacy, in SEXUAL AGGRESSION, supra, at 167, 176-77 (reporting on study by Prentky finding that high impulsivity rapists were "approximately three times more likely than low impulsivity rapists to have been convicted of new sex offenses" during a 25 year follow-up period); Robert A. Prentky et al., Predictive Validity of Lifestyle Impulsivity for Rapists, 22 CRIM. JUST. & BEHAV. 106, 124-25 (1995) ("It is reasonable to speculate that the high impulsive subgroup among treated rapist samples constitutes a large proportion of treatment failures in the follow-up studies.").
67. See Janice K. Marques et al., Findings and Recommendations from California's Experimental Treatment Program, in SEXUAL AGGRESSION, 197, 209 (Gordon C. Nagayama Hall et al. eds., 1993) (commenting that rapists who "are impulsive and have problems with affect management" may move very quickly to "full-blown relapse"); William D. Pithers, Treatment of Rapists: Reinterpretation of Early Outcome Data and Exploratory Constructs to Enhance Therapeutic Efficacy, in SEXUAL AGGRESSION, supra, at 167, 176-77 (reporting on study by Prentky finding that high impulsivity rapists were "approximately three times more likely than low impulsivity rapists to have been convicted of new sex offenses" during a 25 year follow-up period); Robert A. Prentky et al., Predictive Validity of Lifestyle Impulsivity for Rapists, 22 CRIM. JUST. & BEHAV. 106, 124-25 (1995) ("It is reasonable to speculate that the high impulsive subgroup among treated rapist samples constitutes a large proportion of treatment failures in the follow-up studies.").
68. W.L. Marshall et al., A Three-Tiered Approach to the Rehabilitation of Incarcerated Sex Offenders, 11 BEHAV. SCI. & L. 441, 442 (1993) ("Child molesters and rapists typically carefully plan their offenses to maximize the probability that they can enact their desired behavior while minimizing the possibility of detection, apprehension and punishment." The "majority" of sex offenders "fantasize" about their plans, and "many make explicit plans to offend.").
69. See Samuel B. Guze et al., Psychiatric Disorders and Criminality, 227 JAMA 641-42 (1974); Stephen D. Hart et al., The Psychopathy Checklist: An Overview for Researchers and Clinicians 103, 105, in 8 ADVANCES IN PSYCHOLOGICAL ASSESSMENT (J. Rosen & P. McReynolds eds., 1991) (75- 80%); Rosalie Wells, A Fresh Look at the Muddy Waters of Psychopathy, 63 PSYCHOL. REP. 843, 846 (1988) (80%); James S. Wulach, Diagnosing the DSM-III Antisocial Personality Disorder, 14 PROF. PSYCHOL.: RES. & PRAC. 330, 331 (1983) (75-80%)
70. See Samuel B. Guze et al., Psychiatric Disorders and Criminality, 227 JAMA 641-42 (1974); Stephen D. Hart et al., The Psychopathy Checklist: An Overview for Researchers and Clinicians 103, 105, in 8 ADVANCES IN PSYCHOLOGICAL ASSESSMENT (J. Rosen & P. McReynolds eds., 1991) (75-80%); Rosalie Wells, A Fresh Look at the Muddy Waters of Psychopathy, 63 PSYCHOL. REP. 843, 846 (1988) (80%); James S. Wulach, Diagnosing the DSM-III Antisocial Personality Disorder, 14 PROF. PSYCHOL.: RES. & PRAC. 330, 331 (1983) (75-80%)
71. See Samuel B. Guze et al., Psychiatric Disorders and Criminality, 227 JAMA 641-42 (1974); Stephen D. Hart et al., The Psychopathy Checklist: An Overview for Researchers and Clinicians 103, 105, in 8 ADVANCES IN PSYCHOLOGICAL ASSESSMENT (J. Rosen & P. McReynolds eds., 1991) (75- 80%); Rosalie Wells, A Fresh Look at the Muddy Waters of Psychopathy, 63 PSYCHOL. REP. 843, 846 (1988) (80%); James S. Wulach, Diagnosing the DSM-III Antisocial Personality Disorder, 14 PROF. PSYCHOL.: RES. & PRAC. 330, 331 (1983) (75-80%)
72. See Samuel B. Guze et al., Psychiatric Disorders and Criminality, 227 JAMA 641-42 (1974); Stephen D. Hart et al., The Psychopathy Checklist: An Overview for Researchers and Clinicians 103, 105, in 8 ADVANCES IN PSYCHOLOGICAL ASSESSMENT (J. Rosen & P. McReynolds eds., 1991) (75- 80%); Rosalie Wells, A Fresh Look at the Muddy Waters of Psychopathy, 63 PSYCHOL. REP. 843, 846 (1988) (80%); James S. Wulach, Diagnosing the DSM-III Antisocial Personality Disorder, 14 PROF. PSYCHOL.: RES. & PRAC. 330, 331 (1983) (75-80%)
73. See R. Kunjukrishnan & J.M.W. Bradford, Interface Between the Criminal Justice System and the Mental Health System in Canada, PSYCHIATRIC J. U. OTTAWA, Mar. 1985, at 24, 25 (citing SAMUEL B. GUZE, CRIMINALITY AND PSYCHIATRIC DISORDERS (1976) (diagnosed 90% of male felons as having a psychiatric disorder, 70% of whom were described as "sociopathic").
74. See R. Kunjukrishnan & J.M.W. Bradford, Interface Between the Criminal Justice System and the Mental Health System in Canada, PSYCHIATRIC J. U. OTTAWA, Mar. 1985, at 24, 25 (citing SAMUEL B. GUZE, CRIMINALITY AND PSYCHIATRIC DISORDERS (1976) (diagnosed 90% of male felons as having a psychiatric disorder, 70% of whom were described as "sociopathic").
75. See Darrel A. Regier et al., The de Facto U.S. Mental and Addictive Disorders Service System, 50 ARCHIVES GEN. PSYCHIATRY 85 (1993) (28% of the adult US population meets diagnostic criteria for mental disorder).
76. Joseph J. Romero & Linda Meyer Williams, Recidivism Among Convicted Sex Offenders: A 10-Year Followup Study, FED. PROBATION, Mar. 1985, at 58, 58; see also Leonore M.J. Simon, The Myth of Sex Offender Specialization: An Empirical Analysis, 23 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 387, 397 (1997) (nearly 18% of incarcerated child molesters had an antisocial personality disorder diagnosis, 14% a diagnosis of pedophilia, and 28% a diagnosis of alcohol abuse).
77. Joseph J. Romero & Linda Meyer Williams, Recidivism Among Convicted Sex Offenders: A 10- Year Followup Study, FED. PROBATION, Mar. 1985, at 58, 58; see also Leonore M.J. Simon, The Myth of Sex Offender Specialization: An Empirical Analysis, 23 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 387, 397 (1997) (nearly 18% of incarcerated child molesters had an antisocial personality disorder diagnosis, 14% a diagnosis of pedophilia, and 28% a diagnosis of alcohol abuse).
78. In re Linehan (II), 557 N.W. 2d 171, 187 (Minn. 1996).
79. See, e.g., Jackson v. Indiana, 406 U.S. 715, 738 (1972) ("[D]ue process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed."); State v. Post, 541 N.W.2d 115, 130 (Wis. 1995) ("[U]nique treatment needs of sexually violent persons justify distinct legislative approaches.").
80. See William D. Pithers, Relapse Prevention with Sexual Aggressors: A Method for Maintaining Therapeutic Gain and Enhancing External Supervision, in HANDBOOK OF SEXUAL ASSAULT: ISSUES, THEORIES & TREATMENT OF THE OFFENDER 343, 345 (William L. Marshall et al. eds., 1990) [hereinafter HANDBOOK] (describing the underlying medical model as a failure, outmoded and based on false assumptions).
81. Id.
82. Id. Some sex offender treatment is aimed at changing sexual arousal patterns through physical (chemical) intervention. Most of the most influential researchers are not optimistic about such interventions. See William L. Marshall & Howard E. Barbaree, Outcome of Comprehensive Cognitive-Behavioral Treatment Programs [hereinafter Marshall & Barbaree, Outcome], in HANDBOOK, supra note 65, at 363. Such chemical treatment is not a part of the Minnesota treatment program.
83. Marshall et al. state: Sexual offending is not a "sickness." We believe that a disease model, which guides far too many treatment programs, is outmoded and based on false assumptions. It is our view that sexual offenders are not suffering from any disease and their behavior is not out of their control, as such a medical model would imply. In fact, it is clear from an examination of the behavior of these men that their offending is very well controlled. William L. Marshall et al., Present Status and Future Directions, in Handbook, supra note 65, at 389, 391; cf. Eli Coleman et al., The Treatment of Adult Sex Offenders: Standards of Care, 23 J. OFFENDER REHABILITATION 5, 6 (1995) (consensus that "paraphilias are psychosexual disorders . . . . [S]ex crimes can also be the manifestations of biomedical/psychiatric/psychological illnesses for which people must be treated, rather than simply punished").
84. Marshall et al. state: Sexual offending is not a "sickness." We believe that a disease model, which guides far too many treatment programs, is outmoded and based on false assumptions. It is our view that sexual offenders are not suffering from any disease and their behavior is not out of their control, as such a medical model would imply. In fact, it is clear from an examination of the behavior of these men that their offending is very well controlled. William L. Marshall et al., Present Status and Future Directions, in Handbook, supra note 65, at 389, 391; cf. Eli Coleman et al., The Treatment of Adult Sex Offenders: Standards of Care, 23 J. OFFENDER REHABILITATION 5, 6 (1995) (consensus that "paraphilias are psychosexual disorders . . . . [S]ex crimes can also be the manifestations of biomedical/psychiatric/psychological illnesses for which people must be treated, rather than simply punished").
85. Marshall and Barbaree report that a number of sex offender treatment programs specifically exclude individuals who are psychotic or brain damaged. See Marshall & Barbaree, Outcome, supra note 67 in HANDBOOK, supra note 65; see also A.L. Brody & R. Green, Washington State's Unscientific Approach to the Problem of Repeat Sex Offenders, 22 BULL. AM. ACAD. PSYCHIATRY L. 343, 356 (1994) (criticizing the Washington state sex offender commitment law because it "selects poor candidates for treatment"); Raymond A. Knight et al., Predictive Validity of Lifestyle Impulsivity for Rapists, 22 CRIM. JUST. & BEHAV. 106, 128 (1995) (stating that "[i]t is reasonable to speculate that the high impulsive subgroup among treated rapist samples constitutes a large proportion of treatment failures in the follow- up studies"); Marshall & Barbaree, Outcomes, supra, note 67, in HANDBOOK, supra note 65, at 372, 375, 376; Saleem A. Shah, Recent Research on Crime and Mental Disorder: Some Implications for Programs and Policies [hereinafter Shah, Recent Research], in MENTAL DISORDER AND CRIME (Hodgins, ed. 1993) 303, 311 (citing "poor, even negative results" from attempts to treat "psychopaths"); T.A. Shaw et al., Examination of Treatment Completion and Predicted Outcome Among Incarcerated Sex Offenders, 23 BULL. AM. ACAD. PSYCHIATRY L. 35 (1995) (antisocial personality disorder not predictive of treatment outcome); Leonore M. J. Simon, Does Criminal Offender Treatment Work? 19 (unpublished manuscript, on file with author) (citing, but criticizing, studies that show that antisocial personality disorder is a "negative predictor of psychotherapy outcome").
86. Marshall and Barbaree report that a number of sex offender treatment programs specifically exclude individuals who are psychotic or brain damaged. See Marshall & Barbaree, Outcome, supra note 67 in HANDBOOK, supra note 65; see also A.L. Brody & R. Green, Washington State's Unscientific Approach to the Problem of Repeat Sex Offenders, 22 BULL. AM. ACAD. PSYCHIATRY L. 343, 356 (1994) (criticizing the Washington state sex offender commitment law because it "selects poor candidates for treatment"); Raymond A. Knight et al., Predictive Validity of Lifestyle Impulsivity for Rapists, 22 CRIM. JUST. & BEHAV. 106, 128 (1995) (stating that "[i]t is reasonable to speculate that the high impulsive subgroup among treated rapist samples constitutes a large proportion of treatment failures in the follow- up studies"); Marshall & Barbaree, Outcomes, supra, note 67, in HANDBOOK, supra note 65, at 372, 375, 376; Saleem A. Shah, Recent Research on Crime and Mental Disorder: Some Implications for Programs and Policies [hereinafter Shah, Recent Research], in MENTAL DISORDER AND CRIME (Hodgins, ed. 1993) 303, 311 (citing "poor, even negative results" from attempts to treat "psychopaths"); T.A. Shaw et al., Examination of Treatment Completion and Predicted Outcome Among Incarcerated Sex Offenders, 23 BULL. AM. ACAD. PSYCHIATRY L. 35 (1995) (antisocial personality disorder not predictive of treatment outcome); Leonore M. J. Simon, Does Criminal Offender Treatment Work? 19 (unpublished manuscript, on file with author) (citing, but criticizing, studies that show that antisocial personality disorder is a "negative predictor of psychotherapy outcome").
87. Marshall and Barbaree report that a number of sex offender treatment programs specifically exclude individuals who are psychotic or brain damaged. See Marshall & Barbaree, Outcome, supra note 67 in HANDBOOK, supra note 65; see also A.L. Brody & R. Green, Washington State's Unscientific Approach to the Problem of Repeat Sex Offenders, 22 BULL. AM. ACAD. PSYCHIATRY L. 343, 356 (1994) (criticizing the Washington state sex offender commitment law because it "selects poor candidates for treatment"); Raymond A. Knight et al., Predictive Validity of Lifestyle Impulsivity for Rapists, 22 CRIM. JUST. & BEHAV. 106, 128 (1995) (stating that "[i]t is reasonable to speculate that the high impulsive subgroup among treated rapist samples constitutes a large proportion of treatment failures in the follow-up studies"); Marshall & Barbaree, Outcomes, supra, note 67, in HANDBOOK, supra note 65, at 372, 375, 376; Saleem A. Shah, Recent Research on Crime and Mental Disorder: Some Implications for Programs and Policies [hereinafter Shah, Recent Research], in MENTAL DISORDER AND CRIME (Hodgins, ed. 1993) 303, 311 (citing "poor, even negative results" from attempts to treat "psychopaths"); T.A. Shaw et al., Examination of Treatment Completion and Predicted Outcome Among Incarcerated Sex Offenders, 23 BULL. AM. ACAD. PSYCHIATRY L. 35 (1995) (antisocial personality disorder not predictive of treatment outcome); Leonore M. J. Simon, Does Criminal Offender Treatment Work? 19 (unpublished manuscript, on file with author) (citing, but criticizing, studies that show that antisocial personality disorder is a "negative predictor of psychotherapy outcome").
88. Marshall and Barbaree report that a number of sex offender treatment programs specifically exclude individuals who are psychotic or brain damaged. See Marshall & Barbaree, Outcome, supra note 67 in HANDBOOK, supra note 65; see also A.L. Brody & R. Green, Washington State's Unscientific Approach to the Problem of Repeat Sex Offenders, 22 BULL. AM. ACAD. PSYCHIATRY L. 343, 356 (1994) (criticizing the Washington state sex offender commitment law because it "selects poor candidates for treatment"); Raymond A. Knight et al., Predictive Validity of Lifestyle Impulsivity for Rapists, 22 CRIM. JUST. & BEHAV. 106, 128 (1995) (stating that "[i]t is reasonable to speculate that the high impulsive subgroup among treated rapist samples constitutes a large proportion of treatment failures in the follow- up studies"); Marshall & Barbaree, Outcomes, supra, note 67, in HANDBOOK, supra note 65, at 372, 375, 376; Saleem A. Shah, Recent Research on Crime and Mental Disorder: Some Implications for Programs and Policies [hereinafter Shah, Recent Research], in MENTAL DISORDER AND CRIME (Hodgins, ed. 1993) 303, 311 (citing "poor, even negative results" from attempts to treat "psychopaths"); T.A. Shaw et al., Examination of Treatment Completion and Predicted Outcome Among Incarcerated Sex Offenders, 23 BULL. AM. ACAD. PSYCHIATRY L. 35 (1995) (antisocial personality disorder not predictive of treatment outcome); Leonore M. J. Simon, Does Criminal Offender Treatment Work? 19 (unpublished manuscript, on file with author) (citing, but criticizing, studies that show that antisocial personality disorder is a "negative predictor of psychotherapy outcome").
89. Marshall and Barbaree report that a number of sex offender treatment programs specifically exclude individuals who are psychotic or brain damaged. See Marshall & Barbaree, Outcome, supra note 67 in HANDBOOK, supra note 65; see also A.L. Brody & R. Green, Washington State's Unscientific Approach to the Problem of Repeat Sex Offenders, 22 BULL. AM. ACAD. PSYCHIATRY L. 343, 356 (1994) (criticizing the Washington state sex offender commitment law because it "selects poor candidates for treatment"); Raymond A. Knight et al., Predictive Validity of Lifestyle Impulsivity for Rapists, 22 CRIM. JUST. & BEHAV. 106, 128 (1995) (stating that "[i]t is reasonable to speculate that the high impulsive subgroup among treated rapist samples constitutes a large proportion of treatment failures in the follow- up studies"); Marshall & Barbaree, Outcomes, supra, note 67, in HANDBOOK, supra note 65, at 372, 375, 376; Saleem A. Shah, Recent Research on Crime and Mental Disorder: Some Implications for Programs and Policies [hereinafter Shah, Recent Research], in MENTAL DISORDER AND CRIME (Hodgins, ed. 1993) 303, 311 (citing "poor, even negative results" from attempts to treat "psychopaths"); T.A. Shaw et al., Examination of Treatment Completion and Predicted Outcome Among Incarcerated Sex Offenders, 23 BULL. AM. ACAD. PSYCHIATRY L. 35 (1995) (antisocial personality disorder not predictive of treatment outcome); Leonore M. J. Simon, Does Criminal Offender Treatment Work? 19 (unpublished manuscript, on file with author) (citing, but criticizing, studies that show that antisocial personality disorder is a "negative predictor of psychotherapy outcome").
90. Marshall and Barbaree report that a number of sex offender treatment programs specifically exclude individuals who are psychotic or brain damaged. See Marshall & Barbaree, Outcome, supra note 67 in HANDBOOK, supra note 65; see also A.L. Brody & R. Green, Washington State's Unscientific Approach to the Problem of Repeat Sex Offenders, 22 BULL. AM. ACAD. PSYCHIATRY L. 343, 356 (1994) (criticizing the Washington state sex offender commitment law because it "selects poor candidates for treatment"); Raymond A. Knight et al., Predictive Validity of Lifestyle Impulsivity for Rapists, 22 CRIM. JUST. & BEHAV. 106, 128 (1995) (stating that "[i]t is reasonable to speculate that the high impulsive subgroup among treated rapist samples constitutes a large proportion of treatment failures in the follow- up studies"); Marshall & Barbaree, Outcomes, supra, note 67, in HANDBOOK, supra note 65, at 372, 375, 376; Saleem A. Shah, Recent Research on Crime and Mental Disorder: Some Implications for Programs and Policies [hereinafter Shah, Recent Research], in MENTAL DISORDER AND CRIME (Hodgins, ed. 1993) 303, 311 (citing "poor, even negative results" from attempts to treat "psychopaths"); T.A. Shaw et al., Examination of Treatment Completion and Predicted Outcome Among Incarcerated Sex Offenders, 23 BULL. AM. ACAD. PSYCHIATRY L. 35 (1995) (antisocial personality disorder not predictive of treatment outcome); Leonore M. J. Simon, Does Criminal Offender Treatment Work? 19 (unpublished manuscript, on file with author) (citing, but criticizing, studies that show that antisocial personality disorder is a "negative predictor of psychotherapy outcome").
91. Marshall and Barbaree report that a number of sex offender treatment programs specifically exclude individuals who are psychotic or brain damaged. See Marshall & Barbaree, Outcome, supra note 67 in HANDBOOK, supra note 65; see also A.L. Brody & R. Green, Washington State's Unscientific Approach to the Problem of Repeat Sex Offenders, 22 BULL. AM. ACAD. PSYCHIATRY L. 343, 356 (1994) (criticizing the Washington state sex offender commitment law because it "selects poor candidates for treatment"); Raymond A. Knight et al., Predictive Validity of Lifestyle Impulsivity for Rapists, 22 CRIM. JUST. & BEHAV. 106, 128 (1995) (stating that "[i]t is reasonable to speculate that the high impulsive subgroup among treated rapist samples constitutes a large proportion of treatment failures in the follow- up studies"); Marshall & Barbaree, Outcomes, supra, note 67, in HANDBOOK, supra note 65, at 372, 375, 376; Saleem A. Shah, Recent Research on Crime and Mental Disorder: Some Implications for Programs and Policies [hereinafter Shah, Recent Research], in MENTAL DISORDER AND CRIME (Hodgins, ed. 1993) 303, 311 (citing "poor, even negative results" from attempts to treat "psychopaths"); T.A. Shaw et al., Examination of Treatment Completion and Predicted Outcome Among Incarcerated Sex Offenders, 23 BULL. AM. ACAD. PSYCHIATRY L. 35 (1995) (antisocial personality disorder not predictive of treatment outcome); Leonore M. J. Simon, Does Criminal Offender Treatment Work? 19 (unpublished manuscript, on file with author) (citing, but criticizing, studies that show that antisocial personality disorder is a "negative predictor of psychotherapy outcome").
92. William L. Marshall et al., Present Status and Future Directions, in HANDBOOK, supra note 65, at 389; see also, Lana E. Stermac et al., Social and Cultural Factors in Sexual Assault, in HANDBOOK, supra note 65, at 143, 155-56 (emphasizing the need to see sexual violence not in terms of sexual deviance or psychopathology, but rather in the context of its social and cultural etiologies. "Treatment interventions must consider the context of sexual violence as a socially constructed and socially legitimized phenomenon.").
93. William L. Marshall et al., Present Status and Future Directions, in HANDBOOK, supra note 65, at 389; see also, Lana E. Stermac et al., Social and Cultural Factors in Sexual Assault, in HANDBOOK, supra note 65, at 143, 155-56 (emphasizing the need to see sexual violence not in terms of sexual deviance or psychopathology, but rather in the context of its social and cultural etiologies. "Treatment interventions must consider the context of sexual violence as a socially constructed and socially legitimized phenomenon.").
94. See Richard M. McFall, The Enhancement of Social Skills, in HANDBOOK, supra note 65, at 311, 317, 326 ("deficits in decoding skills" for social information related to "many of the characteristics associated with sexual aggression;" noting the "widespread belief that social-skills training is an effective treatment for sex offenders"); William D. Murphy, Assessment and Modification of Cognitive Distortions in Sex Offenders, in HANDBOOK, supra note 65, at 332 (referring to "correction of thinking errors" as a "major aspect of treatment".); see also Pithers, supra note 65, at 355 (noting that sex offender treatment can target interpersonal relationships, anger management, problem solving, stress tolerance, sexual knowledge, interpersonal empty, or basic survival skills).
95. See Richard M. McFall, The Enhancement of Social Skills, in HANDBOOK, supra note 65, at 311, 317, 326 ("deficits in decoding skills" for social information related to "many of the characteristics associated with sexual aggression;" noting the "widespread belief that social-skills training is an effective treatment for sex offenders"); William D. Murphy, Assessment and Modification of Cognitive Distortions in Sex Offenders, in HANDBOOK, supra note 65, at 332 (referring to "correction of thinking errors" as a "major aspect of treatment".); see also Pithers, supra note 65, at 355 (noting that sex offender treatment can target interpersonal relationships, anger management, problem solving, stress tolerance, sexual knowledge, interpersonal empty, or basic survival skills).
96. See William L. Marshall & Howard E. Barbaree, An Integrated Theory of the Etiology of Sexual Offending, in HANDBOOK, supra note 65, at 257, 264 (particular societal attitudes, passed on to child by parents, "may facilitate sexual offending"); William D. Murphy, Assessment and Modification of Cognitive Distortions in Sex Offenders, in HANDBOOK, supra note 65, at 331, 332 (a "feminist perspective" on rape identifies attitudes supportive of rape, implies that these beliefs "have etiological significance and may be one of the causative factors in sexual aggression").
97. See William L. Marshall & Howard E. Barbaree, An Integrated Theory of the Etiology of Sexual Offending, in HANDBOOK, supra note 65, at 257, 264 (particular societal attitudes, passed on to child by parents, "may facilitate sexual offending"); William D. Murphy, Assessment and Modification of Cognitive Distortions in Sex Offenders, in HANDBOOK, supra note 65, at 331, 332 (a "feminist perspective" on rape identifies attitudes supportive of rape, implies that these beliefs "have etiological significance and may be one of the causative factors in sexual aggression").
98. See Murphy, supra, note 72, at 336 ("Therapy" consists of "corrective information and education" and "exercises to assist patients in challenging and exploring their distortions." Approach used is "Socratic.").
99. Marshall & Barbaree, Outcome, supra note 67, in HANDBOOK, supra note 65, at 370, 373 (cognitive-behavioral programming does not presuppose the existence of a "disorder;" individuals with certain disorders would be "particularly difficult to treat"); see also Robert A. Prentky et al., Predictive Validity of Lifestyle Impulsivity for Rapists, 22 CRIM. JUST. & BEHAV. 106, 128 (1995) (some forms of "mental disorder" are indicators that the individual will be a poor candidate for treatment). Some treatment in some programs is addressed to changing deviant sexual preferences. See Marshall & Barbaree, Outcome, supra note 67, at 364. However, "as a group" rapists and child molesters do not exhibit such deviance. It may make sense, where such deviance is present, to speak of treatments aimed at the deviance, which may be labeled a disorder. But, as Marshall and Barbaree note, there are no data to support the notion that treatment directed at deviant sexual preferences is necessary or efficacious. See id. at 365.
100. Marshall & Barbaree, Outcome, supra note 67, in HANDBOOK, supra note 65, at 370, 373 (cognitive-behavioral programming does not presuppose the existence of a "disorder;" individuals with certain disorders would be "particularly difficult to treat"); see also Robert A. Prentky et al., Predictive Validity of Lifestyle Impulsivity for Rapists, 22 CRIM. JUST. & BEHAV. 106, 128 (1995) (some forms of "mental disorder" are indicators that the individual will be a poor candidate for treatment). Some treatment in some programs is addressed to changing deviant sexual preferences. See Marshall & Barbaree, Outcome, supra note 67, at 364. However, "as a group" rapists and child molesters do not exhibit such deviance. It may make sense, where such deviance is present, to speak of treatments aimed at the deviance, which may be labeled a disorder. But, as Marshall and Barbaree note, there are no data to support the notion that treatment directed at deviant sexual preferences is necessary or efficacious. See id. at 365.
101. Marshall & Barbaree, Outcome, supra note 67, in HANDBOOK, supra note 65, at 370, 373 (cognitive-behavioral programming does not presuppose the existence of a "disorder;" individuals with certain disorders would be "particularly difficult to treat"); see also Robert A. Prentky et al., Predictive Validity of Lifestyle Impulsivity for Rapists, 22 CRIM. JUST. & BEHAV. 106, 128 (1995) (some forms of "mental disorder" are indicators that the individual will be a poor candidate for treatment). Some treatment in some programs is addressed to changing deviant sexual preferences. See Marshall & Barbaree, Outcome, supra note 67, at 364. However, "as a group" rapists and child molesters do not exhibit such deviance. It may make sense, where such deviance is present, to speak of treatments aimed at the deviance, which may be labeled a disorder. But, as Marshall and Barbaree note, there are no data to support the notion that treatment directed at deviant sexual preferences is necessary or efficacious. See id. at 365.
102. See generally ALLEN E. BUCHANAN & DAN. W. BROCK, DECIDING FOR OTHERS: THE ETHICS OF SURROGATE DECISION MAKING 329 (1989); Robert F. Schopp, Sexual Predators and the Structure of the Mental Health System: Expanding the Normative Focus of Therapeutic Jurisprudence, 1 PSYCHOL. PUB. POL'Y & L. 161, 173 (1995).
103. See generally ALLEN E. BUCHANAN & DAN. W. BROCK, DECIDING FOR OTHERS: THE ETHICS OF SURROGATE DECISION MAKING 329 (1989); Robert F. Schopp, Sexual Predators and the Structure of the Mental Health System: Expanding the Normative Focus of Therapeutic Jurisprudence, 1 PSYCHOL. PUB. POL'Y & L. 161, 173 (1995).
104. In re Linehan (II), 557 N.W.2d at 181.
105. See, e.g., John Kip Cornwell, Protection and Treatment: The Permissible Civil Detention of Sexual Predators, 53 WASH. & LEE L. REV. 1293, 1329 (arguing that provision of treatment provides a "legitimate basis for commitment"); Bruce J. Winick, Ambiguities in the Legal Meaning and Significance of Mental Illness, 3 PSYCHOL. PUB. POL'Y & L. 534, 585 (1995) (arguing that "therapeutic basis for . . . hospitalization might justify . . . involuntary commitment").
106. See, e.g., John Kip Cornwell, Protection and Treatment: The Permissible Civil Detention of Sexual Predators, 53 WASH. & LEE L. REV. 1293, 1329 (arguing that provision of treatment provides a "legitimate basis for commitment"); Bruce J. Winick, Ambiguities in the Legal Meaning and Significance of Mental Illness, 3 PSYCHOL. PUB. POL'Y & L. 534, 585 (1995) (arguing that "therapeutic basis for . . . hospitalization might justify . . . involuntary commitment").
107. See Janus, supra note 53, at 12.
108. "So long as civil commitment is programmed to provide treatment and periodic review, due process is provided." In re Blodgett, 510 N.W.2d at 917.
109. See id. at 922; see also Kansas v. Hendricks, 117 S. Ct. 2072, 2081 (1997).
110. See ALASKA DEPARTMENT OF CORRECTIONS OFFENDER PROGRAMS, SEX OFFENDER TREATMENT PROGRAM: INITIAL RECIDIVISM STUDY, EXECUTIVE SUMMARY (1996) [hereinafter ALASKA REPORT] (describing successful "relapse prevention" sex offender treatment offered in Alaska prisons); Arthur Gordon & Terry Nicholaichuk, Applying the Risk Principle to Sex Offender Treatment, 8 FORUM ON CORRECTIONS RES. 36 (1996) ("Many correctional jurisdictions include treatment as a component of a comprehensive risk management plan for sex offenders."); W.L. Marshall, A Revised Approach to Treatment of Men Who Sexually Assault Adult Female, in SEXUAL AGGRESSION, supra note 57, at 143 (describing three-tier treatment program in the Canadian Penitentiary Services system); Simon, supra note 62, at 403 (questioning the wisdom of separate treatment programs for sex offenders; suggesting that the public would be better served by "enhancing current treatment programs for all offenders").
111. See ALASKA DEPARTMENT OF CORRECTIONS OFFENDER PROGRAMS, SEX OFFENDER TREATMENT PROGRAM: INITIAL RECIDIVISM STUDY, EXECUTIVE SUMMARY (1996) [hereinafter ALASKA REPORT] (describing successful "relapse prevention" sex offender treatment offered in Alaska prisons); Arthur Gordon & Terry Nicholaichuk, Applying the Risk Principle to Sex Offender Treatment, 8 FORUM ON CORRECTIONS RES. 36 (1996) ("Many correctional jurisdictions include treatment as a component of a comprehensive risk management plan for sex offenders."); W.L. Marshall, A Revised Approach to Treatment of Men Who Sexually Assault Adult Female, in SEXUAL AGGRESSION, supra note 57, at 143 (describing three-tier treatment program in the Canadian Penitentiary Services system); Simon, supra note 62, at 403 (questioning the wisdom of separate treatment programs for sex offenders; suggesting that the public would be better served by "enhancing current treatment programs for all offenders").
112. See ALASKA DEPARTMENT OF CORRECTIONS OFFENDER PROGRAMS, SEX OFFENDER TREATMENT PROGRAM: INITIAL RECIDIVISM STUDY, EXECUTIVE SUMMARY (1996) [hereinafter ALASKA REPORT] (describing successful "relapse prevention" sex offender treatment offered in Alaska prisons); Arthur Gordon & Terry Nicholaichuk, Applying the Risk Principle to Sex Offender Treatment, 8 FORUM ON CORRECTIONS RES. 36 (1996) ("Many correctional jurisdictions include treatment as a component of a comprehensive risk management plan for sex offenders."); W.L. Marshall, A Revised Approach to Treatment of Men Who Sexually Assault Adult Female, in SEXUAL AGGRESSION, supra note 57, at 143 (describing three-tier treatment program in the Canadian Penitentiary Services system); Simon, supra note 62, at 403 (questioning the wisdom of separate treatment programs for sex offenders; suggesting that the public would be better served by "enhancing current treatment programs for all offenders").
113. See D.A. Andrews et al., Does Correctional Treatment Work? A Clinically Relevant and Psychologically Informed Meta-Analysis, 38 CRIMINOLOGY 369 (1990); William D. Pithers, Treatment of Rapists: Reinterpretation of Early Outcome Data and Exploratory Constructs to Enhance Therapeutic Efficacy, in SEXUAL AGGRESSION, supra note 57, at 167, 174 (speculating that some rapists "represent general criminals" rather than "sex offenders," and reflecting on the "relative ineffectiveness of treating general criminals with techniques designed specifically for individuals experiencing
114. See D.A. Andrews et al., Does Correctional Treatment Work? A Clinically Relevant and Psychologically Informed Meta-Analysis, 38 CRIMINOLOGY 369 (1990); William D. Pithers, Treatment of Rapists: Reinterpretation of Early Outcome Data and Exploratory Constructs to Enhance Therapeutic Efficacy, in SEXUAL AGGRESSION, supra note 57, at 167, 174 (speculating that some rapists "represent general criminals" rather than "sex offenders," and reflecting on the "relative ineffectiveness of treating general criminals with techniques designed specifically for individuals experiencing problems such as preponderance of abusive sexual fantasies"); id. at 181 ("sex offender" treatment not as effective where rape attributable to "career criminality" rather than sexual deviance). Most sex offenders are not "specialists." See Simon, supra note 62, at 389 ("[T]he pure sex offender is a rarity; instead, sex offenses are single or infrequent and often are embedded in an extensive criminal history of property and violent crime.").
115. See Marques et al., supra note 57, at 197, 209.
116. Id. at 208.
117. See Andrews et al., supra note 82.
118. See Marshall et al., supra note 58, at 443 ("[P]unishment (by way of prison sentence) and treatment are not incompatible so long as certain conditions are met.").
119. See ALASKA REPORT, supra note 81, at 5 (reporting on diversity of sex offender population and consequent "different levels of outcome" after treatment).
120. See Jarvis v. Levine, 418 N.W.2d 139, 147-48 (Minn. 1988); BUCHANAN & BROCK, supra note 75, at 359; Robert F. Schopp, Sexual Predators and the Structure of the Mental Health System: Expanding the Normative Focus of Therapeutic Jurisprudence, 1 PSYCHOL. PUB. POL'Y & L. 161 (1995).
121. See In re Linehan (II), 557 N.W.2d 171, 186 (Minn. 1996) ("[A]pplying civil commitment to those with mental disorders helps isolate sexually dangerous persons most likely to harm others in the future.").
122. Kansas v. Hendricks, 117 S. Ct. 2072, 2080 (1997); In re Blodgett, 510 N.W.2d 910, 921 (Minn. 1994).
123. THOMAS A. WIDIGER & TIMOTHY J. TRULL, Personality Disorders And Violence, in VIOLENCE AND MENTAL DISORDER: DEVELOPMENTS IN RISK ASSESSMENT 203, 216 (John Monahan & Henry J. Steadman eds., 1994).
124. See E. P. Mulvey, Assessing the Evidence of a Link Between Mental Illness and Violence, 45 HOSP. & COMMUNITY PSYCHIATRY, 645, 663, 665 (1994) ("Active symptoms are probably more important as a risk factor than is simply the presence of an identifiable disorder. . . . The pattern of their findings points to the importance of active symptomatology rather than simply to the presence of a mental disorder as a risk factor for violence.").
125. See Stephen J. Huot, Screening and Referral by the Department of Corrections, in MINN. INST. LEGAL EDUC., PSYCHOPATHIC PERSONALITIES AND SEXUALLY DANGEROUS PERSONS 1 (1995).
126. See Douglas Epperson et al., Predicting Risk of Recidivism for Incarcerated Sex Offenders: Updated Development on the Sex Offender Screening Tool (SOST) 3 (paper presented at the Fourteenth Annual Research and Treatment Conference of the Association for the Treatment of Sexual Abusers, 1995).
127. The item had poor reliability, and was not significantly related to subsequent sexual offending. See id. at tbls. 1-2.
128. See, e.g., Howard E. Barbaree & William L. Marshall, Deviant Sexual Arousal, Offense History, and Demographic Variables as Predictors of Reoffense among Child Molesters, 6 BEHAV. SCI. & L. 267, 275-76 (1988) (personality disorder not tested; deviant sexual arousal found to be correlated with recidivism, but two-thirds of subjects predicted to recidivate did not); R. Gauthier et al., Long-term Recidivism of Child Molesters, 61 J. CONSULTING & CLINICAL PSYCHOL. 646, 649 (1993) (identifying "several risk indicators that have long been identified as being important for child molesters . . .: previous sexual offenses . . ., never being married, and victim type." Antisocial personality disorder was not identified as a risk factor, and the study found "little relation . . . between the personality measures and recidivism."); Marques et al., supra note 57, at 205 tbl. 2 (antisocial personality disorder not among predictors listed); Robert A. Prentky et al., Risk Factors Associated with Recidivism Among Extrafamilial Child Molesters, 65 J. CONSULTING & CLINICAL PSYCHOL. 141, 142, 143 (1997) (study of "range of risk factors that the empirical and clinical literature had identified as critical to recidivism for child molesters" did not include personality disorders as factor); Vernon L. Quinsey et al., Predicting Sexual Offenses, in ASSESSING DANGEROUSNESS: VIOLENCE BY SEXUAL OFFENDERS, BATTERS, AND CHILD ABUSERS 114, 126-27, 130 (Jacquelyn C. Campbell ed., 1995) (personality disorder not listed among factors that are "reliably related to the probability of recidivism;" "psychopathy" but not antisocial personality disorder listed as having "significant correlation" with sexual reconviction).
129. See, e.g., Howard E. Barbaree & William L. Marshall, Deviant Sexual Arousal, Offense History, and Demographic Variables as Predictors of Reoffense among Child Molesters, 6 BEHAV. SCI. & L. 267, 275-76 (1988) (personality disorder not tested; deviant sexual arousal found to be correlated with recidivism, but two-thirds of subjects predicted to recidivate did not); R. Gauthier et al., Long-term Recidivism of Child Molesters, 61 J. CONSULTING & CLINICAL PSYCHOL. 646, 649 (1993) (identifying "several risk indicators that have long been identified as being important for child molesters . . .: previous sexual offenses . . ., never being married, and victim type." Antisocial personality disorder was not identified as a risk factor, and the study found "little relation . . . between the personality measures and recidivism."); Marques et al., supra note 57, at 205 tbl. 2 (antisocial personality disorder not among predictors listed); Robert A. Prentky et al., Risk Factors Associated with Recidivism Among Extrafamilial Child Molesters, 65 J. CONSULTING & CLINICAL PSYCHOL. 141, 142, 143 (1997) (study of "range of risk factors that the empirical and clinical literature had identified as critical to recidivism for child molesters" did not include personality disorders as factor); Vernon L. Quinsey et al., Predicting Sexual Offenses, in ASSESSING DANGEROUSNESS: VIOLENCE BY SEXUAL OFFENDERS, BATTERS, AND CHILD ABUSERS 114, 126-27, 130 (Jacquelyn C. Campbell ed., 1995) (personality disorder not listed among factors that are "reliably related to the probability of recidivism;" "psychopathy" but not antisocial personality disorder listed as having "significant correlation" with sexual reconviction).
130. See, e.g., Howard E. Barbaree & William L. Marshall, Deviant Sexual Arousal, Offense History, and Demographic Variables as Predictors of Reoffense among Child Molesters, 6 BEHAV. SCI. & L. 267, 275-76 (1988) (personality disorder not tested; deviant sexual arousal found to be correlated with recidivism, but two-thirds of subjects predicted to recidivate did not); R. Gauthier et al., Long-term Recidivism of Child Molesters, 61 J. CONSULTING & CLINICAL PSYCHOL. 646, 649 (1993) (identifying "several risk indicators that have long been identified as being important for child molesters . . .: previous sexual offenses . . ., never being married, and victim type." Antisocial personality disorder was not identified as a risk factor, and the study found "little relation . . . between the personality measures and recidivism."); Marques et al., supra note 57, at 205 tbl. 2 (antisocial personality disorder not among predictors listed); Robert A. Prentky et al., Risk Factors Associated with Recidivism Among Extrafamilial Child Molesters, 65 J. CONSULTING & CLINICAL PSYCHOL. 141, 142, 143 (1997) (study of "range of risk factors that the empirical and clinical literature had identified as critical to recidivism for child molesters" did not include personality disorders as factor); Vernon L. Quinsey et al., Predicting Sexual Offenses, in ASSESSING DANGEROUSNESS: VIOLENCE BY SEXUAL OFFENDERS, BATTERS, AND CHILD ABUSERS 114, 126-27, 130 (Jacquelyn C. Campbell ed., 1995) (personality disorder not listed among factors that are "reliably related to the probability of recidivism;" "psychopathy" but not antisocial personality disorder listed as having "significant correlation" with sexual reconviction).
131. See, e.g., Howard E. Barbaree & William L. Marshall, Deviant Sexual Arousal, Offense History, and Demographic Variables as Predictors of Reoffense among Child Molesters, 6 BEHAV. SCI. & L. 267, 275-76 (1988) (personality disorder not tested; deviant sexual arousal found to be correlated with recidivism, but two-thirds of subjects predicted to recidivate did not); R. Gauthier et al., Long-term Recidivism of Child Molesters, 61 J. CONSULTING & CLINICAL PSYCHOL. 646, 649 (1993) (identifying "several risk indicators that have long been identified as being important for child molesters . . .: previous sexual offenses . . ., never being married, and victim type." Antisocial personality disorder was not identified as a risk factor, and the study found "little relation . . . between the personality measures and recidivism."); Marques et al., supra note 57, at 205 tbl. 2 (antisocial personality disorder not among predictors listed); Robert A. Prentky et al., Risk Factors Associated with Recidivism Among Extrafamilial Child Molesters, 65 J. CONSULTING & CLINICAL PSYCHOL. 141, 142, 143 (1997) (study of "range of risk factors that the empirical and clinical literature had identified as critical to recidivism for child molesters" did not include personality disorders as factor); Vernon L. Quinsey et al., Predicting Sexual Offenses, in ASSESSING DANGEROUSNESS: VIOLENCE BY SEXUAL OFFENDERS, BATTERS, AND CHILD ABUSERS 114, 126-27, 130 (Jacquelyn C. Campbell ed., 1995) (personality disorder not listed among factors that are "reliably related to the probability of recidivism;" "psychopathy" but not antisocial personality disorder listed as having "significant correlation" with sexual reconviction).
132. See, e.g., R. KARL HANSON & MONIQUE BUSSIERE, PREDICTORS OF SEXUAL OFFENDER RECIDIVISM: A META-ANALYSIS, MONOGRAPH OF THE SOLICITOR GENERAL OF CANADA, MINISTRY SECRETARIAT (Cat. No. JS4-1/1996-4E 1996) ("Sexual recidivism was also associated with indices of general criminality, such as prior nonsexual offenses and antisocial personality disorder, but these correlations were weaker than the correlations with the measures of sexual deviance."); Robert A. Prentky et al., supra note 96, at 141, 142 ("weaker support for predictive efficacy of . . . diagnosis of sociopathy or psychopathy"); Vernon L. Quinsey, The Prediction and Explanation of Criminal Violence, 18 INT'L J.L. & PSYCHIATRY 117, 123-24 (1995) ("personality disorder" among the "weakest" of identified risk factors for criminal violence). Some studies have found Hare's construct of "psychopathy" to be a useful predictor of sexual violence when used in combination with clinically measured deviant sexual arousal. See Vernon L. Quinsey et al., Actuarial Prediction of Sexual Recidivism, 10 J. INTERPERSONAL VIOLENCE 85, 86-87, 94, 102 (1995) [hereinafter Quinsey et al., Actuarial Prediction]; Vernon L. Quinsey et al., Predicting Sexual Offenses, in ASSESSING DANGEROUSNESS: VIOLENCE BY SEXUAL OFFENDERS, BATTERERS, AND CHILD ABUSERS 114, 119 (Jacquelyn C. Campbell ed., 1995). However, the psychopathy construct is different from, and narrower than, the DSM IV diagnosis of "antisocial personality disorder." Stephen D. Hart et al., The Psychopathy Checklist-Revised (PCL-R). An Overview for Researchers and Clinicians, 8 ADVANCES PSYCHOL. ASSESSMENT 103, 105 (1992) (individuals diagnosed with antisocial personality disorder are heterogeneous with respect to the personality traits that define psychopathy).
133. See, e.g., R. KARL HANSON & MONIQUE BUSSIERE, PREDICTORS OF SEXUAL OFFENDER RECIDIVISM: A META-ANALYSIS, MONOGRAPH OF THE SOLICITOR GENERAL OF CANADA, MINISTRY SECRETARIAT (Cat. No. JS4-1/1996-4E 1996) ("Sexual recidivism was also associated with indices of general criminality, such as prior nonsexual offenses and antisocial personality disorder, but these correlations were weaker than the correlations with the measures of sexual deviance."); Robert A. Prentky et al., supra note 96, at 141, 142 ("weaker support for predictive efficacy of . . . diagnosis of sociopathy or psychopathy"); Vernon L. Quinsey, The Prediction and Explanation of Criminal Violence, 18 INT'L J.L. & PSYCHIATRY 117, 123-24 (1995) ("personality disorder" among the "weakest" of identified risk factors for criminal violence). Some studies have found Hare's construct of "psychopathy" to be a useful predictor of sexual violence when used in combination with clinically measured deviant sexual arousal. See Vernon L. Quinsey et al., Actuarial Prediction of Sexual Recidivism, 10 J. INTERPERSONAL VIOLENCE 85, 86-87, 94, 102 (1995) [hereinafter Quinsey et al., Actuarial Prediction]; Vernon L. Quinsey et al., Predicting Sexual Offenses, in ASSESSING DANGEROUSNESS: VIOLENCE BY SEXUAL OFFENDERS, BATTERERS, AND CHILD ABUSERS 114, 119 (Jacquelyn C. Campbell ed., 1995). However, the psychopathy construct is different from, and narrower than, the DSM IV diagnosis of "antisocial personality disorder." Stephen D. Hart et al., The Psychopathy Checklist-Revised (PCL-R). An Overview for Researchers and Clinicians, 8 ADVANCES PSYCHOL. ASSESSMENT 103, 105 (1992) (individuals diagnosed with antisocial personality disorder are heterogeneous with respect to the personality traits that define psychopathy).
134. See, e.g., R. KARL HANSON & MONIQUE BUSSIERE, PREDICTORS OF SEXUAL OFFENDER RECIDIVISM: A META-ANALYSIS, MONOGRAPH OF THE SOLICITOR GENERAL OF CANADA, MINISTRY SECRETARIAT (Cat. No. JS4-1/1996-4E 1996) ("Sexual recidivism was also associated with indices of general criminality, such as prior nonsexual offenses and antisocial personality disorder, but these correlations were weaker than the correlations with the measures of sexual deviance."); Robert A. Prentky et al., supra note 96, at 141, 142 ("weaker support for predictive efficacy of . . . diagnosis of sociopathy or psychopathy"); Vernon L. Quinsey, The Prediction and Explanation of Criminal Violence, 18 INT'L J.L. & PSYCHIATRY 117, 123-24 (1995) ("personality disorder" among the "weakest" of identified risk factors for criminal violence). Some studies have found Hare's construct of "psychopathy" to be a useful predictor of sexual violence when used in combination with clinically measured deviant sexual arousal. See Vernon L. Quinsey et al., Actuarial Prediction of Sexual Recidivism, 10 J. INTERPERSONAL VIOLENCE 85, 86-87, 94, 102 (1995) [hereinafter Quinsey et al., Actuarial Prediction]; Vernon L. Quinsey et al., Predicting Sexual Offenses, in ASSESSING DANGEROUSNESS: VIOLENCE BY SEXUAL OFFENDERS, BATTERERS, AND CHILD ABUSERS 114, 119 (Jacquelyn C. Campbell ed., 1995). However, the psychopathy construct is different from, and narrower than, the DSM IV diagnosis of "antisocial personality disorder." Stephen D. Hart et al., The Psychopathy Checklist-Revised (PCL-R). An Overview for Researchers and Clinicians, 8 ADVANCES PSYCHOL. ASSESSMENT 103, 105 (1992) (individuals diagnosed with antisocial personality disorder are heterogeneous with respect to the personality traits that define psychopathy).
135. See, e.g., R. KARL HANSON & MONIQUE BUSSIERE, PREDICTORS OF SEXUAL OFFENDER RECIDIVISM: A META-ANALYSIS, MONOGRAPH OF THE SOLICITOR GENERAL OF CANADA, MINISTRY SECRETARIAT (Cat. No. JS4-1/1996-4E 1996) ("Sexual recidivism was also associated with indices of general criminality, such as prior nonsexual offenses and antisocial personality disorder, but these correlations were weaker than the correlations with the measures of sexual deviance."); Robert A. Prentky et al., supra note 96, at 141, 142 ("weaker support for predictive efficacy of . . . diagnosis of sociopathy or psychopathy"); Vernon L. Quinsey, The Prediction and Explanation of Criminal Violence, 18 INT'L J.L. & PSYCHIATRY 117, 123-24 (1995) ("personality disorder" among the "weakest" of identified risk factors for criminal violence). Some studies have found Hare's construct of "psychopathy" to be a useful predictor of sexual violence when used in combination with clinically measured deviant sexual arousal. See Vernon L. Quinsey et al., Actuarial Prediction of Sexual Recidivism, 10 J. INTERPERSONAL VIOLENCE 85, 86-87, 94, 102 (1995) [hereinafter Quinsey et al., Actuarial Prediction]; Vernon L. Quinsey et al., Predicting Sexual Offenses, in ASSESSING DANGEROUSNESS: VIOLENCE BY SEXUAL OFFENDERS, BATTERERS, AND CHILD ABUSERS 114, 119 (Jacquelyn C. Campbell ed., 1995). However, the psychopathy construct is different from, and narrower than, the DSM IV diagnosis of "antisocial personality disorder." Stephen D. Hart et al., The Psychopathy Checklist-Revised (PCL-R). An Overview for Researchers and Clinicians, 8 ADVANCES PSYCHOL. ASSESSMENT 103, 105 (1992) (individuals diagnosed with antisocial personality disorder are heterogeneous with respect to the personality traits that define psychopathy).
136. See, e.g., R. KARL HANSON & MONIQUE BUSSIERE, PREDICTORS OF SEXUAL OFFENDER RECIDIVISM: A META-ANALYSIS, MONOGRAPH OF THE SOLICITOR GENERAL OF CANADA, MINISTRY SECRETARIAT (Cat. No. JS4-1/1996-4E 1996) ("Sexual recidivism was also associated with indices of general criminality, such as prior nonsexual offenses and antisocial personality disorder, but these correlations were weaker than the correlations with the measures of sexual deviance."); Robert A. Prentky et al., supra note 96, at 141, 142 ("weaker support for predictive efficacy of . . . diagnosis of sociopathy or psychopathy"); Vernon L. Quinsey, The Prediction and Explanation of Criminal Violence, 18 INT'L J.L. & PSYCHIATRY 117, 123-24 (1995) ("personality disorder" among the "weakest" of identified risk factors for criminal violence). Some studies have found Hare's construct of "psychopathy" to be a useful predictor of sexual violence when used in combination with clinically measured deviant sexual arousal. See Vernon L. Quinsey et al., Actuarial Prediction of Sexual Recidivism, 10 J. INTERPERSONAL VIOLENCE 85, 86-87, 94, 102 (1995) [hereinafter Quinsey et al., Actuarial Prediction]; Vernon L. Quinsey et al., Predicting Sexual Offenses, in ASSESSING DANGEROUSNESS: VIOLENCE BY SEXUAL OFFENDERS, BATTERERS, AND CHILD ABUSERS 114, 119 (Jacquelyn C. Campbell ed., 1995). However, the psychopathy construct is different from, and narrower than, the DSM IV diagnosis of "antisocial personality disorder." Stephen D. Hart et al., The Psychopathy Checklist-Revised (PCL-R). An Overview for Researchers and Clinicians, 8 ADVANCES PSYCHOL. ASSESSMENT 103, 105 (1992) (individuals diagnosed with antisocial personality disorder are heterogeneous with respect to the personality traits that define psychopathy).
137. See Marnie E. Rice & Grant T. Harris, Cross-Validation and Extension of the Violence Risk Appraisal Guide for Child Molesters and Rapists, 21 LAW & HUM. BEHAV. 231, 232 (1997) (listing personality disorder along with age, marital status, alcohol abuse, victim gender, and relationship to victim as predictors).
138. See HANSON & BUSSIERE, supra note 97. A "meta-analysis" "statistically analyze[s] the statistics reported by other researchers." Id. at 5. See also Berliner, supra note 1, at nn.39-69 and accompanying text.
139. For example, in a study by Rice and Harris, the rate of personality disorder diagnosis among the rapists in the study (76%) was about twice the rate at which the rapists engaged in sexual recidivism (approximately 35%). See Rice & Harris, supra note 98, at 234, 237.
140. The court responds to this argument by pointing out that the SDP Act limits commitments to those who are highly likely to be dangerous: "[Amicus] also asserts that the Act might be overinclusive because many sex offenders with personality disorders are not dangerous. This argument is unconvincing because the SDP Act confines its application to those who are highly likely to sexually harm others." In re Linehan (II), 557 N.W.2d 171, 186 n.12 (Minn. 1996). But this rejoinder simply proves the point. The mental disorder requirement does none of the work of insuring that commitments are "narrowly tailored" or highly limited.
141. See HANSON & BUSSIERE, supra note 97, at tbl. 1. Similarly, discussing the relationship between mental disorder and violence, Shah states that mental disorder identifies a threat of danger to the community that is much smaller than that identified by recidivistic crime, substance abuse problems, or multiple arrests for drunken driving. See Shah, Recent Research, supra note 69, at 303, 312; see also John Monahan, Mental Disorder and Violence: Another Look, in MENTAL DISORDER AND CRIME (Hodgins, ed. 1993) 287, 299 ("Compared to the magnitude of risk associated with the combination of male gender, young age, and lower socioeconomic status, for example, the risk of violence presented by mental disorder is modest.").
142. See HANSON & BUSSIERE, supra note 97, at tbl. 1. Similarly, discussing the relationship between mental disorder and violence, Shah states that mental disorder identifies a threat of danger to the community that is much smaller than that identified by recidivistic crime, substance abuse problems, or multiple arrests for drunken driving. See Shah, Recent Research, supra note 69, at 303, 312; see also John Monahan, Mental Disorder and Violence: Another Look, in MENTAL DISORDER AND CRIME (Hodgins, ed. 1993) 287, 299 ("Compared to the magnitude of risk associated with the combination of male gender, young age, and lower socioeconomic status, for example, the risk of violence presented by mental disorder is modest.").
143. In re Linehan (II), 557 N.W.2d at 182.
144. Id. at 184.
145. See Vernon L. Quinsey, The Prediction and Explanation of Criminal Violence, 18 INT'L J.L. & PSYCHIATRY 117 (1995).
146. See, e.g., State v. Post, 541 N.W.2d 115, 124 (Wis. 1995) (limiting commitment to mental disorder that "specifically causes" individual to be dangerous).
147. See Janus, supra note 2, at 71.
148. See MICHAEL BAVIDGE, MIND MATTERS-MAD OR BAD? 25 (1989) (presenting argument that "causation" is at the core of criminal excuse). If one thinks of the accused's behaviour in pathological terms, one is thinking of it as caused in him, in a way closely analogous to the way the symptoms of a physical disease are caused in the patient. The conclusion, of course, is that the accused is no more responsible for his behavior than patients are for their symptoms. Id. I do not argue that "causation" is an excusing condition, but only that it is commonly understood to be. See Stephen J. Morse, Causation, Compulsion, and Involuntariness, 22 BULL. AM. ACAD. PSYCHIATRY L. 159, 159 (1994) (identifying "the notion that if behavior is caused or a causal account can be given, then the behavior is fully or partially excused," as "the fundamental conceptual error in forensic psychiatry and psychology") .
149. See MICHAEL BAVIDGE, MIND MATTERS-MAD OR BAD? 25 (1989) (presenting argument that "causation" is at the core of criminal excuse). If one thinks of the accused's behaviour in pathological terms, one is thinking of it as caused in him, in a way closely analogous to the way the symptoms of a physical disease are caused in the patient. The conclusion, of course, is that the accused is no more responsible for his behavior than patients are for their symptoms. Id. I do not argue that "causation" is an excusing condition, but only that it is commonly understood to be. See Stephen J. Morse, Causation, Compulsion, and Involuntariness, 22 BULL. AM. ACAD. PSYCHIATRY L. 159, 159 (1994) (identifying "the notion that if behavior is caused or a causal account can be given, then the behavior is fully or partially excused," as "the fundamental conceptual error in forensic psychiatry and psychology") .
150. The trial court had made no findings regarding any causal connection between antisocial personality disorder and predicted sexual violence. The Court of Appeals explicitly rejected the notion that the state must prove a "causal" connection between the disorder and the violence, and seemed to equate "causation" with excuse. See In re Linehan (II), 544 N.W.2d 171, 315 (Minn. 1996).
151. See ROBERT F. SCHOPP, AUTOMATISM, INSANITY, AND THE PSYCHOLOGY OF CRIMINAL RESPONSIBILITY 110 (1991); Peter Halfpenny, Explanation, in THE BLACKWELL DICTIONARY OF TWENTIETH-CENTURY SOCIAL THOUGHT 217, 218 (William Outhwaite & Tom Bottomore eds., 1993) [hereinafter THE BLACKWELL DICTIONARY] (characterizing explanation in the social sciences as appealing to "intentions, reasons, motives" and so on of the actors involved).
152. See ROBERT F. SCHOPP, AUTOMATISM, INSANITY, AND THE PSYCHOLOGY OF CRIMINAL RESPONSIBILITY 110 (1991); Peter Halfpenny, Explanation, in THE BLACKWELL DICTIONARY OF TWENTIETH-CENTURY SOCIAL THOUGHT 217, 218 (William Outhwaite & Tom Bottomore eds., 1993) [hereinafter THE BLACKWELL DICTIONARY] (characterizing explanation in the social sciences as appealing to "intentions, reasons, motives" and so on of the actors involved).
153. See Marshall & Barbaree, Outcome, supra note 67, at 370: In our view offenders typically deny or minimize their responsibility for sexual abuse. They attribute responsibility for the offense(s) to other people . . . or to factors outside their control. or to the influence of current [mental] states . . . . Other cognitive-behavioral therapists agree with our claim that these denials of harm and responsibility need to be changed if treatment is to be effective." (emphasis added).
154. See infra note 125. For examples of this perspective, see Elizabeth Mertz & Kimberly A. Lonsway, The Power of Denial: Individual and Cultural Constructions of Child Sexual Abuse, 92 NW. U. L. REV. 1415 (1998); Cynthia Grant Bowman, The Manipulation of Legal Remedies to Deter Suits by Survivors of Childhood Sexual Abuse, 92 NW. U. L. REV. 1481 (1998). For the contrary perspective, see J. Michael Bailey & Aaron Greenberg, The Science and Ethics of Castration: Lessons from the Morse Case, 92 NW. U. L. REV. 1225 (1998).
155. See infra note 125. For examples of this perspective, see Elizabeth Mertz & Kimberly A. Lonsway, The Power of Denial: Individual and Cultural Constructions of Child Sexual Abuse, 92 NW. U. L. REV. 1415 (1998); Cynthia Grant Bowman, The Manipulation of Legal Remedies to Deter Suits by Survivors of Childhood Sexual Abuse, 92 NW. U. L. REV. 1481 (1998). For the contrary perspective, see J. Michael Bailey & Aaron Greenberg, The Science and Ethics of Castration: Lessons from the Morse Case, 92 NW. U. L. REV. 1225 (1998).
156. See infra note 125. For examples of this perspective, see Elizabeth Mertz & Kimberly A. Lonsway, The Power of Denial: Individual and Cultural Constructions of Child Sexual Abuse, 92 NW. U. L. REV. 1415 (1998); Cynthia Grant Bowman, The Manipulation of Legal Remedies to Deter Suits by Survivors of Childhood Sexual Abuse, 92 NW. U. L. REV. 1481 (1998). For the contrary perspective, see J. Michael Bailey & Aaron Greenberg, The Science and Ethics of Castration: Lessons from the Morse Case, 92 NW. U. L. REV. 1225 (1998).
157. See, e.g., Tom Bottomore, Sociology, in THE BLACKWELL DICTIONARY, supra note 110, at 632, 636.
158. See Lee Ellis, Rape as a Biosocial Phenomenon, in SEXUAL AGGRESSION, supra note 57, at 17, 18.
159. Id. at 20.
160. See Marshall & Barbaree, supra note 72; see also David M. Greenberg et al., A Comparison of Sexual Victimization in the Childhoods of Pedophiles and Hebephiles, 38 J. FORENSIC SCI. 432 (1993) ("Although the cause of child molestation remains undetermined these results support social learning and modeling theories.").
161. See Marshall & Barbaree, Outcome, supra note 67, at 363; Mary E. Becker, The Abuse Excuse and the Patriarchal Narratives, 92 NW. U. L. REV. 1459, 1475-80 (1998).
162. See Marshall & Barbaree, Outcome, supra note 67, at 363; Mary E. Becker, The Abuse Excuse and the Patriarchal Narratives, 92 NW. U. L. REV. 1459, 1475-80 (1998).
163. See Ellis, supra note 114, at 17, 24 (examining how rape may be "neurohormonally motivated").
164. See generally RANDY THORNHILL & NANCY WILMSEN THORNHILL, HUMAN RAPE: AN EVOLUTIONARY ANALYSIS, ETHOLOGY AND SOCIOBIOLOGY 137-73 (1983); Ellis, supra note 114, at 21.
165. See Pithers, supra note 65, at 343-44.
166. See Margit C. Henderson & Seth C. Kalichman, Sexually Deviant Behavior and Schizotypy: A Theoretical Perspective with Supportive Data, 61 PSYCHIATRIC Q. 273, 274 (1990) (describing four "motivational dynamics" for rape: "power and control," "express anger," "sadistic arousal," and "impulsivity and antisocial character").
167. See Quinsey et al., Actuarial Prediction, supra note 96, at 85, 86-87, 94, 102; Bailey & Greenberg, supra note 112, at nn.2-6 and accompanying text.
168. See Prentky et al., supra note 57, at 106.
169. See W.L. Marshall et al., Self-esteem and Its Relationship to Sexual Offending, 3 PSYCHOL., CRIME & L. 161 (1997) (proposing that self-esteem plays a role in the etiology and maintenance of sexual offending).
170. See, e.g., Park Elliot Diet 3, Sex Offenses: Behavioral Aspects, in 4 ENCYCLOPEDIA OF CRIME AND JUSTICE 1485, 1490 (Sanford H. Kadish ed., 1983) ("Failure to control or find lawful outlets for deviant sexual impulses must not be confused with incapacity to control these impulses."); Marshall et al., Present Status and Future Directions, in HANDBOOK, supra note 65, at 390-91 ("Sexual offending is not a 'sickness' . . . . [S]exual offenders are not suffering from any disease and their behavior is not out of their control. . . ."); Pithers, supra note 65, at 354-55 ("Offenders are informed that urges do not control behavior. Rather, giving in to an urge is an active decision, an intentional choice for which he is responsible.").
171. See, e.g., Park Elliot Diet 3, Sex Offenses: Behavioral Aspects, in 4 ENCYCLOPEDIA OF CRIME AND JUSTICE 1485, 1490 (Sanford H. Kadish ed., 1983) ("Failure to control or find lawful outlets for deviant sexual impulses must not be confused with incapacity to control these impulses."); Marshall et al., Present Status and Future Directions, in HANDBOOK, supra note 65, at 390-91 ("Sexual offending is not a 'sickness' . . . . [S]exual offenders are not suffering from any disease and their behavior is not out of their control. . . ."); Pithers, supra note 65, at 354-55 ("Offenders are informed that urges do not control behavior. Rather, giving in to an urge is an active decision, an intentional choice for which he is responsible.").
172. See Morse, supra note 108, at 166 (asserting that "no satisfactory and surely no uncontroversial account of [control-incapacity] exists in the psychiatric, psychological, philosophical, or legal literatures"); Lady Wootton, Book Review, 77 YALE L.J. 1019, 1026-27 (1968) (reviewing A. GOLDSTEIN, THE INSANITY DEFENSE (1967)), quoted in ABA CRIMINAL JUSTICE MENTAL HEALTH STANDARDS 341 (1989) ("In short, it is not only difficult to devise a test of volitional competence the validity of which can be objectively established: it is impossible.").
173. See Morse, supra note 108, at 166 (asserting that "no satisfactory and surely no uncontroversial account of [control-incapacity] exists in the psychiatric, psychological, philosophical, or legal literatures"); Lady Wootton, Book Review, 77 YALE L.J. 1019, 1026-27 (1968) (reviewing A. GOLDSTEIN, THE INSANITY DEFENSE (1967)), quoted in ABA CRIMINAL JUSTICE MENTAL HEALTH STANDARDS 341 (1989) ("In short, it is not only difficult to devise a test of volitional competence the validity of which can be objectively established: it is impossible.").
174. See Morse, supra note 108, at 166 (asserting that "no satisfactory and surely no uncontroversial account of [control-incapacity] exists in the psychiatric, psychological, philosophical, or legal literatures"); Lady Wootton, Book Review, 77 YALE L.J. 1019, 1026-27 (1968) (reviewing A. GOLDSTEIN, THE INSANITY DEFENSE (1967)), quoted in ABA CRIMINAL JUSTICE MENTAL HEALTH STANDARDS 341 (1989) ("In short, it is not only difficult to devise a test of volitional competence the validity of which can be objectively established: it is impossible.").
175. The Minnesota Attorney General argued for just such a position in Linehan (I): It is unnecessary to delve into the individual's state of mind to determine if he could have acted differently. Whether he chose to control the acts or not, the fact that he did not is what presents the issue of public safety and supports state intervention to prevent further harm. Amicus Brief of the Minnesota Attorney General at 7-8, In re Linehan (I), 518 N.W.2d 609 (Minn. 1994).
176. See Janus, supra note 107, at Part IV.
177. In re Blodgett 510 N.W. 2d 910, 915 (Minn. 1994).
178. See Matthew Purdy, Wave of New Laws Seeks to Confine Sexual Offenders, N.Y. TIMES, June 29, 1997, at A1 (reporting that "movement to confine those who are considered most likely to strike again is expected to spread across the country" as a result of the Hendricks decision).
179. SR131 See Estelle Freedman, Uncontrolled Desires: The Response to the Sexual Psychopath, 1920-60, 74 J. AM. HIST. 83 (showing that the first generation sex psychopath laws helped shape American attitudes towards sexuality and sexual violence). As James Wilson points out, high profile cases have a "philosophical and tutelary significance." JAMES Q. WILSON, MORAL JUDGMENT 46 (1997).
180. See Estelle Freedman, Uncontrolled Desires: The Response to the Sexual Psychopath, 1920-60, 74 J. AM. HIST. 83 (showing that the first generation sex psychopath laws helped shape American attitudes towards sexuality and sexual violence). As James Wilson points out, high profile cases have a "philosophical and tutelary significance." JAMES Q. WILSON, MORAL JUDGMENT 46 (1997).
181. Kansas v. Hendricks, 117 S. Ct. 2072, 2088 (1997).
182. See supra notes 114-125 and accompanying text.
183. See, e.g., DONALD H. J. HERMANN, THE INSANITY DEFENSE 91-93 (1983) (arguing that "the ascription of responsibility promotes ethical and legal values," encourages a "higher level of awareness, initiative, achievement, independence and complexity," and strengthens the resolve of persons to obey the law)
184. See STEPHEN JAY GOULD, THE MISMEASURE OF MAN (1993) (discussing the tension among competing theories in the explanation of criminal behavior).