Normative Versus Consequential Ethics in Sexually Violent Predator Laws: An Ethics Conundrum for Psychiatry

Brief Historical Overview

In the 1930s, several states passed sexual psychopath laws that represented the first “medicalization” of sexual crimes. Hospital commitment was an alternative to, not an extension of, imprisonment. This notion was based on the overly optimistic assumption that the risks posed by sex offenders with mental disorders would be reduced dramatically if they were sent to psychiatric hospitals for treatment instead of incarcerated in prison. The belief was that some persons who engaged in sexual offenses did so because of a mental illness and should not be punished. Consequently, treatment was viewed as beneficial in “curing” them and thus protecting the public upon their release into the community. The sexual psychopath laws were repealed by the early 1980s when questions were raised about the effectiveness of treatment for this population. Various professional organizations, such as the Group for the Advancement of Psychiatry, the President's Commission on Mental Health, and the American Bar Association Committee on Criminal Justice Mental Health Standards urged that these laws be repealed.²⁵ As a result, the criminal justice system handled offenders who committed sexual crimes no differently than offenders who committed other crimes. That is, both were punished.

Civil commitment statutes again emerged in the 1990s for a subpopulation of dangerous sex offenders. The statutes filled a hole caused in the 1980s when the civil rights movement succeeded in promoting a switch from indeterminate to fixed sentencing. Fixed sentencing had the virtuous goal of bringing uniformity and fairness to defendants in the criminal justice system. However, it had the disastrous, unintended consequence of early release of some dangerous individuals who received much less prison time than they would have under indeterminate terms. The sentences were shorter because the fixed sentences for each crime were determined by averaging what had been widely variable, indeterminate sentences and handing them down without regard to context. This meant that obviously dangerous offenders with long histories of recidivism had to be released from prison much sooner than would have previously been the case under indeterminate sentencing. The result was predictable: several egregiously horrid and widely publicized sex crimes were committed by recently released beneficiaries of the short, fixed sentences.

Normative Versus Consequential Ethics

Philosophical ethics offer conceptual approaches to understanding ethics-related problems and their solutions.²⁶ The normative approach assumes that there is a universal, intuitive, abstract, right answer to a given question. The justification for the “norm” may be based on natural law, God's will, tradition, a social contract, or human psychology. Normative ethics work fairly well with some questions (e.g., murder, infanticide, cannibalism, incest, and rape) and are applicable to questions that lend themselves to universal answers or clear-cut conclusions of right and wrong, allowing for the fewest situational exceptions.

The questions of ethics that stimulate the most controversy and debate are those that do not have simple normative answers or that have numerous situational exceptions. A less universal approach, consequential ethics, becomes necessary when abstract normative values conflict and lead to opposing conclusions. Consequential concepts of ethics are based on the argument that the rightness or wrongness of the action (i.e., the morality of it) may best be assessed by its outcome. Consequential decisions use utilitarian reasoning: that is, what offers the greatest good for the greatest number? Consequentialists approve acts that bring about the optimal consequence. The rightness or wrongness of an action is weighted on the basis of the consequences of the outcome. As we shall now discuss, there are persuasive normative and consequential arguments both for and against the SVP/SDP statutes.

Normative View

Applying a Consequential Template to SVP/SDP Evaluations

Generally, the consequential approach to the quandary between public safety and individual rights would assume that there is no one correct answer regarding the valence of each and the resulting balance between them. Different times, different places, different circumstances, and different risks may require flexible evaluation of the ethical use of the SVP/SDP statute. As we have said, there is no universal right way to balance the important normative ethic of protecting individual rights with the equally important normative ethic of protecting public safety. Relatively small changes in the factual circumstances of a given case may affect the weight of the sides and influence the balance between these competing values.

A derivation of this consequential approach could then be applied to federal cases and those 19 states that have enacted SVP/SDP statutes; that is, what type of individuals should be subject to such commitment? There are several opposing values, and each deserves careful consideration in what can only be a difficult case-by-case balancing of seemingly incompatible goals: to protect constitutionally guaranteed individual rights from state infringement, both in fairness to the individual and to avoid the slippery slope toward totalitarianism; to protect the integrity of the mental health profession and its practitioners so that they are not compromised inappropriately to fill a gap created by the legal system; and to protect the members of society from sexual predators, each of whom can wreak considerable harm. This is not a problem that lends itself to overarching first principles or elegant Solomonic solutions. Instead, a good-faith, case-by-case, consequential ethics approach should be used that balances the greatest good for the greatest number without trampling unduly on individual rights and each citizen's constitutionally protected liberty interests.

Consequential ethics are driven by the situational circumstance. Critics of this approach would argue that the reasoning of the clinician drives the goodness of the outcome. Moreover, an individual with flawed reasoning, such as one who cannot accurately assess the situation or does not make an effort to gather all data, would not be able to determine the best action. Therefore, adopting a consequential ethics position may also include the moral imperative that mental health professionals have a full understanding of the potential negative consequences of their opinions. The better informed clinicians are, the more likely that consequences will be favorable.

Consequential ethics provides both a method of understanding the need for SVP/SDP civil commitment in certain cases and for the trier of fact to comprehend easily and readily why a specific individual, with his unique case factors, represents a risk to public safety. To discharge the consequential ethics goal, the moral imperative is that the evaluating psychiatrist or psychologist engage in a reasoning process that is transparent to the trier of fact as to why that particular case warrants an SVP/SDP civil commitment. This process would encompass a comprehensive evaluation that is not colored by diagnostic bias (e.g., without legal direction, automatically rejecting certain diagnoses as “SVP/SDP qualifying mental disorders,” such as schizophrenia or antisocial personality disorder); shallow analysis (e.g., over-reliance on group norms from an actuarial method in rendering risk analysis); or incomplete analysis (e.g., ignoring case-specific factors; listing risk markers present or absent in a checklist manner without discussion). The consequentialist would avoid evaluator bias. An example of such bias is where the material presented in the report is emphasized to reflect the personal views of the psychologist or psychiatrist who opposes the SVP/SDP law (such as, presenting only treatises that describe how mental health professionals cannot predict risk, or intentionally engaging in long and confusing discussions of Bayes’ theorem or statistics to the exclusion of a discussion of the individual's risk factors). Evaluator bias can also be found in the other direction; for example, a clinician who believes that the act of rape in and of itself qualifies as a mental disorder for SVP/SDP purposes. An ethical approach calls for building into the system as much quality control standardization and procedural safeguards to protect against incomplete analysis, arbitrariness, and individual bias, for both sides of the equation.

Conclusions

The SVP/SDP statutes present a puzzling ethics quandary, both for society as a whole and for the individual mental health professionals who actually conduct the evaluations. The statutes compromise society's obligation to protect constitutional rights, but in the good cause of ensuring community safety. Clinicians who perform SVP/SDP evaluations have to balance these concerns with insufficient guidance from the courts, from professional associations, and from within their own ranks.

Judicial guidance has so far provided clarity in one crucial way, but has left great confusion. The clarity comes from the fact that SVP/SDP statutes have in three separate cases been declared constitutional by the U.S. Supreme Court. This support provides an important warrant for the ethical authenticity of conducting SVP/SDP evaluations, but the Court has been deliberately vague in defining what the qualifying mental disorders are and how a risk assessment of dangerousness is to be made; thus, leaving these crucial criteria to be determined in a possibly arbitrary, case-by-case manner by the individual SVP/SDP evaluator. While state courts and statutes may be more specific in their guidelines than the U.S. Supreme Court, far too much latitude and inconsistency remain. The constitutionality of SVP/SDP laws rests completely on the requirement that a mental disorder be present, but the courts have evaded their responsibility of spelling out which mental disorders. The questions of ethics would certainly be much more easily settled if the courts would step up to the plate and fulfill their responsibility of providing the needed legal guidelines.

The two most important professional organizations differ in their positions on SVP/SDP statutes. The American Psychiatric Association Task Force report is strongly against the statutes as a threat to professional integrity and a forensic abuse of psychiatry. The American Psychological Association has no official position. Professional associations do not make law or determine legal limits of practice, but they can help organize a consensus on difficult questions. It would be highly desirable to have both associations revisit the issues fully and afresh, preferably jointly, bringing together the best expertise available from the various interested mental health and legal disciplines to see if a reasonable consensus can be forged. This crucial question requires much more research attention, debate, and consensus-building than it has received.

The task for the SVP/SDP evaluator is to find a solution to the seemingly intractable conflict between the clashing normative values of public safety and of civil rights. In those states that have SVP/SDP statutes, the consequential ethics approach would allow the clinician to perform the evaluation, but would require a higher standard in establishing the presence of mental disorder than would apply in everyday clinical practice. Diagnostic judgments must be especially cautious and well documented when there are such negative potential consequences, both to the individual offender and to the general protection of constitutional rights. In addition, employing evidence–based practices for risk assessment can contribute to making sound judgments regarding the safety of the public from potentially sexually violent offenders.

To date, there have been far too little standardization and quality control in SVP/SDP evaluations. In the absence of clear guidance from the courts and professional associations, the field itself should be developing consensus about which diagnoses meet the legal definition of a mental disorder, how a risk assessment should be conducted, and what the standards are for documentation. Presently, the opposing sides in this debate are very far apart. They must be brought together.

As they are currently performed, SVP/SDP evaluations risk vulnerability to individual preferences and possible prejudices of each evaluator.