Civil Commitment and Treatment for Child Sex Offenders

Introduction: Community Fear and Policy Responses

Few crimes strike more fear into the hearts of the average citizen than sexually-based offenses. From the trauma of adult rape to the absolute horror of child predators who kill their victims, the community at large is terrified of those who commit sexually-based offenses. This terror is justified, though it may be misdirected toward stranger crimes rather than focusing on offenders who victimize their own families and friends. This revulsion is also relatively recent and is largely limited to the Western world. In many societies, sexual offense victims are still penalized; some communities continue to seek remedy for rape by forcing the victim to marry the offender. It should therefore come as no surprise that methods for protecting the community from sexual offenders are relatively new, nor that even the most innovative and promising policies can create serious problems for the various stakeholders involved.

For example, Louisiana recently attempted to make repeat child sexual offenders eligible for the death penalty. This law was an attempt to express community outrage at those who prey on children, and many believed it would be found constitutional despite an earlier Supreme Court decision holding that inflicting the death penalty as punishment for the rape of an adult female violated the prohibition against cruel and unusual punishment. However, the Supreme Court ultimately determined that imposing the death penalty for even repeated child sexual offenses also violated that prohibition. Not all unsuccessful efforts to protect children from sexual assault have been as controversial as the death penalty, but many have met with significant resistance because they are perceived to be ineffective, alarmist, or both.

Mandating treatment for sexual offenders has, surprisingly, garnered little support in the community, because of a widespread perception that nothing can rehabilitate sexual offenders. However, that perception is false. Certain treatments have proven very effective at rendering child sexual offenders safe for the surrounding community. In addition, pedophilia is a DSM-IV diagnostic category, which means that existing state law already permits the indefinite commitment of someone suffering from that condition, until such time as that person is determined to no longer be a danger to self or others. Current policy does not reflect that possibility, however, instead seeking to criminally prosecute the vast majority of people who offend against children.

Proposed Policy: Psychiatric Evaluation and Civil Commitment

First and foremost, it is important to understand that not all people who sexually offend against children are pedophiles, and not all pedophiles sexually offend against children. Treating a situational child molester for pedophilia would be an ineffective waste of resources. However, requiring a mandatory psychiatric evaluation for anyone charged with a sexual offense against a child would provide the opportunity to classify an offender appropriately and to determine whether to seek prosecution or mental commitment.

The proposed policy is therefore that all persons charged with a sexual offense against a child be placed under an emergency 72-hour psychiatric hold for evaluation for pedophilia, on the grounds that they pose a danger to self or others. If a person is determined to be a pedophile rather than a situational offender, he would be subject to a civil commitment proceeding, where he would undergo treatment until such time — if ever — as his doctors and the probate court judge determined that he was no longer a danger to self or others due to his underlying condition.

Furthermore, because pedophiles, unlike situational offenders, are primarily sexually attracted to children, the offender would be given access to a variety of treatment options, including — but not limited to — chemical and surgical castration to reduce his sex drive, if that proved necessary to render him harmless to the community. The goal of the policy is not punishment but community protection through effective, evidence-based intervention.

Policy Stakeholders

Because this policy would require the diversion of many offenders from the criminal justice system into the civil commitment system, the most significant stakeholders are judges, prosecutors, defense attorneys, mental health workers, victims, and offenders themselves. These parties are significant because they are the people whose lives would be most strongly affected by the shift to a civil commitment framework.

Prosecutors would be affected because they would be diverting many defendants out of the criminal justice system, resulting in lower conviction rates and a perception of reduced accountability. Defense attorneys would also be impacted because the burden of proof for civil commitment is considerably lower than the burden required for a criminal conviction. Mental health workers would face the greatest operational impact; treating sexual offenders would require clinicians to distinguish carefully between pedophiles and situational offenders, remain current on the full range of available treatment options, and be prepared to offer all appropriate solutions. Finally, offenders themselves would be affected, because the policy shift could mean an indefinite commitment even for first-time offenders — but it could also provide the treatment that many of them desperately need and cannot obtain while incarcerated.