Should Having Antisocial Personality Qualify A Rapist For SVP Commitment?

Those of you who have been following the SVP controversy know that "Paraphilia NOS, nonconsent" (PNOS) is a fake diagnosis that is losing traction as justification for committing rapists to psychiatric hospitals. PNOS was based on a fundamental misreading of DSM IV and was an egregious example of inexpert diagnosing that should never have received any credibility as expert testimony. The PNOS fad developed only as a means to expedite SVP proceedings-misusing psychiatric diagnosis and commitment to conveniently park about-to-be-released criminals.

Fortunately, everyone seems finally to be waking up to the fact that rape is a crime, not a mental disorder. The ultimate downfall of "Paraphilia NOS" was sealed recently when DSM 5 rejected "coercive paraphilia" as a diagnosis-the fourth resounding DSM rejection of this fatally flawed concept. Hopefully, before long ""Paraphilia NOS, nonconsent" will be totally discredited and disallowed in SVP hearings.

Fortunately, the tide seems to be turning fast. Last week, the California Department of Mental Health (DMH) abruptly reversed its long standing policy of encouraging the diagnosis of Paraphilia NOS. Previously, its state employed evaluators were instructed that a diagnosis of Paraphilia was necessary to qualify for SVP commitment. The Department has now recanted in a new memo giving evaluators just the exact opposite instructions-that diagnoses other than Paraphilia must now be considered in SVP commitments. This sudden about face represents a clear surrender by the DMH, an implicit admission that PNOS is a misguided concept losing its power to fool juries.

The DMH memo applies clear pressure on its evaluators to find a substitute justification for SVP commitment. They will now probably resort to the frequent use of Antisocial Personality Disorder (ASPD) as the new go-to diagnosis. ASPD is already allowed as an SVP qualifying disorder in some states, but (at least until now) it has been considered non-qualifying in California and in many others. This lack of consistency cries out for testing at the appellate level in both the state and the federal courts. The appropriateness of ASPD as an SVP diagnosis touches on fundamental constitutional questions of due process and double jeopardy and should not be settled inconsistently across states or arbitrarily by evaluators or juries not equipped to deal with the complex legal issues that must be resolved. Moreover, policy on something this important should not be arbitrary and subject to the fickle and unexplained fiat of DMH memos.

There are cogent arguments both for and also against ASPD as grounds for SVP commitment. This is a debate with no obvious or easy right answers. Three plausible arguments support accepting ASPD as an SVP statutory mental disorder: 1) Unlike "coercive paraphilia" and "hebephilia," ASPD is not a faked and ad hoc diagnosis-it is an official category that is included in DSM IV and thus has its sanction as a mental disorder; 2) ASPD can be diagnosed with reasonably good reliability- so that experts are likely to agree sufficiently on its presence or absence; and 3) ASPD is correlated with criminal behavior, including sexual offenses, and may be a predictor of future recidivism (although admittedly a weak one that accounts for only about 10% of the variance in who will and who won't offend again).

In opposition, there are four arguments against considering ASPD to be a qualifying SVP diagnosis: 1) the DSM IV definition of ASPD is mostly a cataloging of criminal behaviors, making ASPD extremely common among sex offenders and not useful in distinguishing between common criminality and mental abnormality- a distinction clearly required by the Supreme Court; 2) Since ASPD doesn't allow an offender to avoid prison, why later should it 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 him receiving the prison sentence), while years later ruling that he is now no longer in volitional control (and therefore can be forced involuntarily into a hospital); 3) there are no other circumstances where ASPD is ever grounds for psychiatric commitment (or for any other type psychiatric hospitalization); 4) 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) and/or whether the diagnosis of ASPD is still current vs whether, as often happens, the offender has matured, mellowed, or aged out of it. 

There are arguments for and against allowing ASPD based on differing interpretations of the words "predisposition" and "volitional" as these appear in the statute. The contrasting points of view cancel out and the debate about what "volition" or "predisposition" mean is essentially meaningless. These words have been routinely included in the SVP statutes without any precise definition; they are impossible to operationalize or assess reliably; and there is no scientific literature to provide any guidance in using them. Each psychologist and each jury member will inevitably be left to make up his own definition of volition, with any one person's guess being just as good as any other's. I think the "volition" portion of the statute is useless- far too vague to give any help at all in deciding whether ASPD should qualify as an SVP diagnosis. 

Taking all the above arguments into account, my personal view is that ASPD should not have the status of an SVP diagnosis for two reasons that trump all else: (1) ASPD is far too overlapping with simple criminality; and (2) if ASPD does not excuse someone from getting locked up in prison, it is inconsistent to use it as a convenient excuse to keep someone locked up in hospital once his sentence has been fairly served.

The fact that ASPD is included in DSM IV does not mean that it defines anything beyond a criminal lifestyle. Using ASPD in SVP cases may sometimes serve the cause of public safety, but it compromises the equally important cause of due process. 

The status of ASPD in SVP cases is fundamentally a legal (not a psychiatric) issue- one that should be settled by the appellate courts, not on an ad hoc and poorly informed basis, case by case, by ill equipped mental health professionals and juries. Neither psychologists nor juries are remotely qualified to evaluate the proper legal standing of ASPD under the strict conditions imposed by the Supreme Court in rulings that have only narrowly accepted the constitutionality of SVP statutes. The Court explicitly requires that the distinction be made between the mental ill and the simply criminal- SVP psychiatric commitment has been declared constitutional for the former, but would be a violation of the civil rights of the latter.

ASPD straddles this boundary in the most remarkably awkward way. Yes, ASPD has been included as a mental disorder in DSM IV, but it's DSM IV definition is really nothing more than a pattern of sustained criminality that characterizes the majority of run-of- the-mill rapists. Ultimately only the Supreme Court can resolve this unfortunate and puzzling conundrum that lies at the heart of the application of SVP statutes. We need it to provide the necessary clarification of its previous rulings by explaining whether the law regards ASPD more as a mental disorder or more as simple criminality. 

Clearly the decision about ASPD should not be made case by case by a mental health professionals or by a jury. Appellate courts are needed to decide this essentially legal, not psychiatric, issue. I fully realize that getting the question in their hands will not be easy and, once there, judges are unlikely to want to make a clear and specific stand. So we may be stuck with the chaotic current mayhem for some time.

But however difficult the ASPD question, it is a big step forward to be having this discussion since it marks the beginning of the end of the unfortunate and misguided "Paraphilia NOS" fad.