Misuse of Diagnostic and Statistical Manual Diagnosis in Sexually Violent Predator Cases

Misuse of Paraphilia in SVP Cases

As Sreenivasan et al.¹ point out, there are two related concerns about the way SVP statutes have been implemented: rapists who have completed their criminal sentences are detained indefinitely (often for life) via psychiatric incarceration even though they may have no real psychiatric illness; and the broad and ambiguous definition of “mental abnormality” in SVP statutes and Supreme Court rulings permits the misuse of psychiatric terminology. The Supreme Court rulings supporting the constitutionality of SVP statutes require that evaluators determine whether the rapist has a mental disorder, which can be used to justify psychiatric commitment, versus whether the rapist is just a common criminal who cannot be preventively detained psychiatrically, however dangerous he may seem. The Supreme Court offered no definition of mental abnormality or mental disorder, nor did they offer guidelines on how to establish whether acts of rape result from a psychiatric problem rather than from common criminality.^2,3 In the absence of other guidance, expert witness evaluators on both sides of SVP cases have uniformly chosen to base their diagnoses on the DSM system of psychiatric diagnosis. Unfortunately, however, they far too often misunderstood how DSM is meant to be used and have carelessly misapplied its labels in SVP cases.

The misuse of psychiatric diagnosis in legal settings should occasion grave concern, but no great surprise. In a cautionary statement, written 40 years ago and placed prominently before the text of DSM-III, we warned about the danger that this text could be misused in legal settings. There is a substantial risk that the diagnostic information contained in the DSM will be misunderstood because of the imperfect fit between the questions of concern to the law and the information contained in a clinical diagnosis. We stated explicitly that the DSM definitions of mental disorder were developed to meet clinical and research needs, not the needs of legal professionals. DSM is written by and for clinicians (who are untrained in the level of language precision required in legal documents) and is not written for a legal audience. Every subsequent edition of the DSM manual has reaffirmed and expanded this warning, but it is routinely ignored in court proceedings.

SVP cases have brought out the very worst in the always fraught relationship between psychiatric diagnosis and the law. The wording of the paraphilia section, while precise enough for clinical purposes, has proven to be harmfully imprecise when (mis)applied to SVP cases. Until recently, the DSM definition of paraphilia has been consistently misinterpreted by state evaluators to suggest that the act of rape by itself might qualify an individual for the mental disorder diagnosis and trigger an SVP commitment. The most common misdiagnoses have been other paraphilia, nonconsent, paraphilia not otherwise specified, and nonconsent or coercive paraphilia. All of these were once widely, but inappropriately, accepted as legitimate grounds for SVP psychiatric commitment.

State evaluators have, until recently, ignored the crucial fact that rape as a mental disorder has been carefully considered and roundly rejected by DSM four times in the past 45 years. The four different task forces preparing the four different editions of DSM published since 1980 have all concluded that coercive paraphilia has no standing in psychiatric diagnosis and should not be included anywhere in the manual of mental disorders. The first proposal for a coercive paraphilia was made in 1976 as part of the deliberations that led to the publication of DSM-III, and it was rejected. A similar proposal was again made in 1986 as part of the deliberations that led to DSM-III-R, and it was again rejected. Coercive paraphilia was not included in DSM-IV, and it was again proposed and rejected for DSM-5. The repeated rejections have been so complete that coercive paraphilia has never appeared as one of the many examples used to illustrate which diagnoses might be appropriate under other specified paraphilic disorder and has never been considered worthy for inclusion in the DSM appendix listing Conditions for Further Study. The American Psychiatric Association also issued a report cautioning against the improper use of psychiatric diagnosis in SVP cases.⁴

There are many reasons why coercive paraphilia has been so roundly and so consistently rejected. For rape ever to serve as grounds for diagnosing paraphilia, the act of forcing sex would itself have to be the preferred or necessary stimulus for the rapist to achieve sexual arousal, not just a means of enforcing compliance or incidental to the context. Rape as a crime is all too common and occurs in many different contexts (opportunistic rape, date rape, gang rape, wartime rape, rape under the disinhibiting influence of substances, and rape for gain). In contrast, a stereotypically specific sexual arousal pattern, triggered only by coercion, is very rare, if it exists at all. Rape is always, or almost always, just a simple crime; it is never, or very rarely, related to a paraphilic arousal pattern.^5,–,8

There is also no research on how paraphilia, nonconsent should be defined and diagnosed. Evaluators purporting to provide expert testimony cannot possibly reliably pick out the extremely rare paraphilic rapist (assuming that such individuals exist at all) from the wide array of other, much more common factors associated with simple criminal rape. As a result, the diagnosis of coercive paraphilia cannot be, and is not, made reliably in forensic settings. Different evaluators, even those hired by the state, routinely fail to agree on the diagnosis, and it is usually made carelessly, without rationale, without differential diagnosis, and without review of the literature.⁹

State evaluators also fail to understand, and honor, the fact that the many “nonspecified” labels accompanying all the sections of DSM are provided purely for clinical purposes, not for use in forensic settings where much greater precision and reliability is required. Nonspecified labels are necessary as placeholders and for reimbursement in uncertain clinical situations that do not yet allow for an official diagnosis, but they are inherently unreliable and useless in forensic settings because they do not provide explicit defining criteria sets, as do all of the specific diagnoses included in the DSM. Diagnosing “other specified” or “nonspecified” is inherently impressionistic and idiosyncratic, and it forms no basis for reliable or accurate forensic judgments. Consequential forensic decisions, with lifelong implications, should never be made based on such subjective and biased diagnosis.

Until recently, this striking disconnect existed between proper psychiatric diagnosis and the im-proper use of the label “other specified paraphilia” that was so frequently offered as the justification for SVP commitment. The community diagnostic standard, as exemplified by DSM, has always soundly rejected the notion that rape be considered a mental disorder. But state evaluators continued to misuse paraphilia as a misguided excuse for SVP commitment. Unfortunately, many former prisoners continue in inappropriate psychiatric incarceration, victims of inexpert expert testimony. Fortunately, however, most evaluators have finally become better educated about the proper use of the DSM, and the paraphilia diagnosis is rapidly dropping out of favor in current SVP cases.

ASPD and Psychiatric Commitment

Now that paraphilia, nonconsent is rapidly losing traction as justification for committing rapists under SVP statutes, evaluators are switching their attention to the possibility that ASPD can replace it as a standard diagnosis in SVP cases. There are cogent arguments against considering ASPD to be a qualifying SVP diagnosis. The DSM-5 definition of ASPD is mostly a cataloging of criminal behaviors, making ASPD extremely common among rapists and not useful in distinguishing between rape as part of common criminality and rape arising from mental abnormality, which is a distinction clearly required by the Supreme Court in justifying the constitutionality of SVP statutes. Because ASPD does not allow an offender to avoid prison, it should not later justify his psychiatric incarceration; it is inconsistent to rule that the ASPD offender had sufficient volitional control to be held responsible for his crimes (resulting in his receiving the prison sentence), and then to rule years later that he is now no longer in volitional control (and therefore can be forced involuntarily into a hospital). Additionally, there are no other circumstances where ASPD is ever grounds for psychiatric commitment or for any other type of psychiatric hospitalization. Furthermore, many ASPD diagnoses in SVP cases are rendered inaccurately because it is often impossible to establish the history of childhood conduct disorder (as required by the DSM definitional criteria) or the diagnosis of ASPD is not still current because the offender has matured or aged out of it. Finally, ASPD has been included in DSM for historical reasons only; it is not included in International Classification of Diseases, 11th Revision, it was almost excluded from DSM-5, and it is not part of the practice of psychiatry and is not treatable.^10,–,13

My personal view is that ASPD should not have the status of an SVP diagnosis, not only for all the above reasons, but most of all because it overlaps far too much with simple criminality. The Supreme Court decisions confirming the constitutionality of SVP statutes have relied on the appropriateness of civil commitment for psychiatric disorders. The justices made clear that SVP commitment was not meant to be applied to criminals in general, but instead was to be reserved only for those rapists who have an additional mental abnormality that predisposed them to rape. As defined by DSM-5, ASPD is essentially equivalent to criminality and therefore provides no appropriate additional ground to support psychiatric commitment.