This volume addresses a topic constantly in the news and of great concern to people everywhere. It arose from increasing national concern about sexual predators and states’ efforts to implement the remedies accepted by the United States Supreme Court in the case of Kansas v. Hendricks. This book’s initial focus was on legislative, judicial, psychological, and public efforts to continue to detain civilly in a hospital or treatment setting those convicted sex offenders whose criminal sentences of imprisonment were ending.
As work went forward, however, the sixteen case studies and the ninety-eight responses to frequently asked questions led to an expansion of focus from those narrow civil commitment issues to the broader questions addressed now. Those broader questions reflect our interest in three interconnected areas: sexual behavior, issues of consent, and the relation between psychology and law. The responses and the variety of case examples illustrate the complexity of the concept of sexual dangerousness. That complexity derives in part from how broadly or narrowly dangerousness, and even sex, should be defined. After all, many secondary school students, and even a former president, have concluded that sexual relations do not include oral sex. And many people argue that written, pictorial, or auditory representations of sexual activity do not constitute sex itself. It would seem to follow that neither can be sexually dangerous.
But some sexual behaviors are obviously extremely dangerous. These include the case examples of serial rapists who kill their victims, and of the men who abducted, killed, and then sexually molested a young boy. These cases fit any definition of sex, sexual dangerousness, and rape, however narrowly each might be defined. They also include the woman who killed the men who picked her up while she was hitchhiking. Her claim that she was defending herself against their attempts to rape her did not convince the jury. Though the behavior in other cases does not reach the same level of dangerousness, it is often defined as potentially, if not actually, dangerous. These cases involve child pornography, video voyeurism, repressed memory of sexual abuse, and child rape in a daycare center. The last two also raise questions about the validity of the charges.
Beyond clearly dangerous behaviors, debate surrounds other instances of sexual activities considered dangerous by some and not by others. Statutory rape and date or acquaintance rape demonstrate this difference of opinion. Both involve the second area of interest, the idea of consent. Statutory means the law declares that no one below an age determined by the legislature can give consent. That age may be set because of psychological research, political considerations, media-saturated individual cases, or the personal predilections of those who determine the cutoff. In setting an age of consent, society deems sexual activity with a younger person to be physically, psychologically, or morally dangerous. It terms that activity rape even if the participants consider it consensual.
Violation of the age of consent can bring legal consequences as it did in the case example of a female teacher convicted of statutory rape of her young adolescent male former student. Though she was imprisoned, they were married after he reached his majority and she was released. Some commentators argue that, even in instances of a status and power differential, case-by-case considerations of matters beyond age ought to factor in decisions about the nature of consent. And a very few universally condemned individuals have argued for the total abolition of laws governing age of sexual consent.
Sexual activities that many consider so dangerous or at least so immoral as to be impermissible, and others consider matters of individual choice among adults, also test the limits of consent. Yet interpretations of dangerousness and criminality have changed. Some of what were once thought of as criminal behaviors have become matters of individual choice and consent. The United States Supreme Court, for example, had found laws criminalizing consensual homosexual relations between adults constitutional. But more recently, the Court found such laws unconstitutional. Whether laws prohibiting consensual sadomasochistic behavior as sexually dangerous, or classifying the voluntary chemical or surgical castration of offenders as essentially non-consensual, will also change remains to be seen.
Further, the issue of consent divides the public in cases of students accused of sexual assault and acquaintance rape on college campuses. Often involving sexual relations after consumption of considerable amounts of alcohol, these cases have become labeled as he said, she said. Colleges experience conflict about how to handle such matters, even how to define them. Harvard itself conceded the difficulty in discovering the facts in these cases. Because it did not have the investigatory tools at the disposal of law enforcement, it concluded that without corroboration such a case could not occasion disciplinary action. Facing a great outcry, it then set up a commission to determine the proper procedure. Many campuses found that referring all such cases to the police provided a way to proceed.
The third area of interest involves the relation between psychology and law. This book explores the changing contributions that psychological theories and research have made to understanding the causes of and treatments for sexual dangerousness. Those contributions have followed psychology’s path from a psychoanalytic to a behavioral to a cognitive orientation, and now to a neuroscience orientation that employs brain-imaging techniques such as functional Magnetic Resonance Imaging. Through all these changes in focus, the nature versus nurture debate continues.
Yet the law has found psychological science but one source in its efforts to deal with the sexually dangerous. Politics, social policy, religious traditions, and the media play equally important roles in determining what the laws and their interpretations will be. In fact, the controversies surrounding the efforts to confine in mental institutions those individuals whose imprisonment for sexual crimes has ended demonstrate how difficult the balance between protecting the public and protecting offenders’ rights can be. While the law has accepted the civil commitment of individuals found dangerous by reason of mental illness, the fact that sexual offenders do not generally fit within the prescribed categories of mental illness has made the effort to confine them civilly more complicated. Either the categories must be reconfigured or the desire to protect the public must be so paramount as to negate the requirement for mental illness at all. In fact, mental aberration, which does not appear in the official Diagnostic and Statistical Manual of Mental Disorders, has conveniently been substituted to permit the institutionalization of sexual offenders after their criminal sentences have ended. Many commentators have contended that it would be better to sentence such individuals to longer terms of criminal confinement than to strain the notion of civil commitment.
From the original focus of this book on this narrow topic of confining the sexually dangerous to the more expansive topics now explored, this volume raises two basic questions. First, whose view of sexual dangerousness ought to prevail in a pluralistic society with varying social, religious, political, and other norms of sexual behavior? And second, how ought that view to be implemented in the law? In compiling this volume, it is the hope of the contributors that the case examples, the answers to frequently asked questions, and the extensive bibliography will expand the readers’ perspectives on the exciting world where psychology and law, morality, and political and social policy interact and will aid all in thinking more clearly about the sexually dangerous.
