But this misses a critical piece of the puzzle. In order for a civil commitment based on future danger to be Constitutional under Kansas v. Crane, the former sex offender must also demonstrate a serious difficulty controlling his behavior.
It's understandable that some evaluators shy away from addressing this issue of so-called "volitional control." After all, it is not easy to measure. Far easier to assume a circular tautology, in which a failure to control one's behavior is advanced as evidence of inability to exert self control. But, as the American Psychiatric Association famously noted in a 1983 statement opposing conclusory opinions on volitional control in insanity cases:
"The line between an irresistible impulse and an impulse not resisted is probably no sharper than that between twilight and dusk."
Into this breach jumps psychologist Frederick Winsmann of Boston. In an article in the current issue of Sex Offender Treatment, he proposes a model for how to assess volitional control in sexually violent predator evaluations.
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| Credit: The Bad Chemicals |
While this approach is a welcome step in the right direction, it must be recognized that tests of impulsivity and frontal lobe functioning are just indirect measures of the volitional impairment that is theorized to underlie some sexual offending.
Indeed, Winsmann stresses that these tests should be approached as part of a larger idiographic framework of understanding the person as a unique individual, and that poor test performance does not in and of itself establish volitional impairment. For example, scores may be lowered by poor cognitive abilities. (I have also seen cognitively normal people with fine self control do poorly on the Wisconsin Card Sorting Test due to high anxiety.)
The full article is available for free online (HERE).
I agree that most evaluators miss the lack of control, but defining it as "behavioral impulsivity" just begs the question and doesn't get us any further down the road. After all, what's the difference between an impulse and a sudden desire?
ReplyDeleteI think Stephen Morse identified the problem precisely:
http://psycnet.apa.org/journals/law/4/1-2/250/
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ReplyDeleteHi Steve,
ReplyDeleteI agree that this can be somewhat tautological. That's the dilemma in which we've allowed ourselves to be placed, by taking up the government's need for civil commitment evaluators in order to justify these laws.
Thanks for passing along the link to Stephen Morse's article. Unfortunately, it's not available without a subscription. Here's a link to another article by Morse, "Rationality and Responsibility," which is available free online and which touches on the problem. He writes, in part:
"[I]f those with ["deviant" sexual] desires are considered criminally responsible, as they usually are, it is difficult to justify a regime of preventive civil detention on the ground that such people cannot control themselves. I am not sure what it means to be unable to control oneself, but if this condition warrants preventive detention, it should also furnish an excuse to crime. After all, could it possibly be fair to blame and to punish those who genuinely cannot control themselves?"
http://www-bcf.usc.edu/~usclrev/pdf/074115.pdf
That would be arguing for a return to the old Sexual Psychopath laws from the 1950s, which detained select sex offenders in lieu of criminal prosecution. Of course, that system, too, fell apart after a brief time.
Karen