Differences in Legal and Psychiatric Criteria of Mental Illness for Sex Offenders

Facts of the Case

Patrick Caporale, age 59, had a history of sexual offenses with minors. From 1980 to 1992, he pleaded guilty to at least five charges, ranging from sexual contact with 12- to 13-year-old boys to recruiting underage individuals and filming sexual acts. He was granted supervised release in August 1998. In December 1999, Mr. Caporale was charged with parole violation for discussing masturbation with a 14-year-old boy. He returned to prison. In June 2001, he was again released under supervision. His parole was violated two years later for possession of child pornography.

He returned to prison in 2003 and remained until March 21, 2008, to complete the sentence for his 1992 conviction. On that day, the government petitioned for civil commitment under the Adam Walsh Child Protection and Safety Act of 2006, 18 U.S.C. § 4248 (2006). He remained in federal custody until a hearing on March 5, 2012.

In the months before the hearing, there was evidence that Mr. Caporale still had interest in pubescent boys. In 2008, he and other inmates used a prison computer to compose pornographic stories about teenage boys. In May 2011, suggestive photographs were seized from his cell.

At the hearing, all parties agreed that Mr. Caporale satisfied the first element of prior conduct under 18 U.S.C. § 4247(a)(5) (2006). It was the government's burden at the hearing to establish, by clear and convincing evidence, both prongs of the second element: that Mr. Caporale was impaired by a serious mental illness, abnormality, or disorder and that he would, if released, have serious difficulty in refraining from sexually violent conduct or child molestation.

A key question was whether Mr. Caporale had a qualifying illness, abnormality, or disorder under § 4247(a) (2006). The three experts each came to different diagnostic conclusions. Lela Demby, MD, felt that Mr. Caporale met the DSM-IV diagnosis of pedophilia (Diagnostic and Statistical Manual of Mental Disorders, APA, 1994; see Caporale, p 133). Pedophilia is sexual attraction to prepubescent children, as opposed to pubescent or postpubescent children. Dr. Demby noted that DSM-IV uses age 13 as the presumed ceiling for the diagnosis of pedophilia. Although she thought that Mr. Caporale was primarily attracted to prepubescent boys, she did admit that it was possible for 12-year-olds to be pubescent. Gary Zinik, MD, the other state expert, believed that Mr. Caporale in fact was interested in pubescent, rather than prepubescent, children. Instead of pedophilia, he believed that Mr. Caporale had hebephilia, a sexual interest in pubescent children. Although hebephilia is not listed as a specific DSM-IV diagnosis, Dr. Zinik testified that it would fall under the category paraphilia NOS. He noted that Mr. Caporale's recurrent, intense sexual interest in pubescent boys and related behavior pattern had lasted at least six months and had caused significant impairment and disability in Mr. Caporale's life. Thus, he felt Mr. Caporale met DSM-IV criteria for paraphilia NOS.

Joseph Plaud, MD, the expert for the defense, rejected the diagnosis of pedophilia. He noted that age is not the definitive factor, as sexual maturity occurs in a range. His opinion was that Mr. Caporale was attracted to pubescent children and therefore did not meet the DSM-IV criteria for pedophilia. Although sexual acts with pubescent boys are illegal and morally deviant, those acts are not sexually deviant. They do not meet the criteria for a named DSM-IV diagnosis. He felt that a paraphilia NOS diagnosis would not meet the statutory standard. Thus, he opined that Mr. Caporale had no qualifying illness, abnormality, or disorder under § 4247(a) (2006).

A second question was whether, Mr. Caporale would have serious difficulty in refraining from future sexually violent activity or child molestation. Dr. Zinik felt that recent acts such as the 2008 stories and the May 2011 confiscated photos showed ongoing interest in pubescent boys. Using actuarial scales, Dr. Zinik showed that Mr. Caporale's scores on one of the two scales showed him to be high risk and his score on another scale showed a moderately high risk. However, Dr. Zinik acknowledged the tools' limitations. Dr. Demby noted the same evidence and stated that ongoing sexual interest exacerbates future risk. Although she conceded that such acts, unto themselves, are not “sexually dangerous,” she opined that they could lead Mr. Caporale to future hands-on offenses.

In contrast, Dr. Plaud noted that Mr. Caporale had committed only noncontact offenses since 1992. He had further demonstrated volitional capacity because he had stopped writing stories since May 2011, almost a year before the hearing. Dr. Plaud did not trust actuarial scales in this instance, testifying that such tools more accurately serve to exclude subjects rather than predict future acts. Further, he noted that high risk on the scales corresponds to less than 25 percent risk over eight years. The risk would drop to below 10 percent once Mr. Caporale reached 60 years of age.

The district court issued a written opinion siding with the defense. The court noted that hebephilia is not an appropriate basis for civil commitment under the Walsh Act. It is a contested subject in the mental health community. The court also sided with the defense on the question of future dangerousness. They were persuaded by the defense's focus on the current condition, whereas the state's witnesses focused on past conduct. The court ordered Mr. Caporale's release. The government appealed.

Ruling and Reasoning

The Fourth Circuit Court of Appeals noted that their review must look for clear error. They further stated that the district court's findings conflicted with United States v. Carta, 592 F.3d 34 (1st Cir. 2010). In Carta, the First Circuit considered whether hebephilia met statutory requirements under the Walsh Act. In concluding that it did, they reasoned that a fact finder may assume “that the statutory concept is delimited by the consensus of the medical community, but this is not so. Further, a mental disorder or defect need not necessarily be one so identified in the DSM to meet the statutory requirement” (Carta, pp 39–40). The Carta court further found that hebephilia would fall under paraphilia NOS, a DSM disorder. Agreeing with the First Circuit's analysis in Carta, the Fourth Circuit held, as a matter of law, that the district court erred in concluding that hebephilia would not be a mental disorder under the scope of the Walsh Act.

Next, the court of appeals looked at whether the district court had erred in finding that Mr. Caporale, if released, would have serious difficulty in refraining from sexually violent conduct or child molestation. The court of appeals looked at previous rulings in cases with similar fact patterns under the Walsh Act and noted that the defense case was “by no means irrefutable.” Also, the district court's analysis could have been more comprehensive. Viewing the record as a whole, the court of appeals found no clear error in the lower court's finding.

Since the government had the burden of proving both prongs, the district court's finding that hebephilia is not a mental disorder under the Walsh Act was harmless error. The court of appeals found no clear and convincing evidence that the district court was mistaken in concluding that the government had not met its burden of proof that Mr. Caporale was sexually dangerous.