Response to Crane Ruling

Ralph Underwager, Ph.D.,
& Hollida Wakefield, M.A.

The recent U.S. Supreme Court ruling in the Crane case, January 22, 2002, is thought by many to alter the way in which sexual predator civil commitment laws are to be applied in specific cases.  The issue which appears to be changed is the degree of voluntariness or control required in order for an individual to be deemed to be appropriate for a civil commitment proceeding.  This ruling does not define "inability to control behavior" in an absolute or precise manner.  Rather, it is held to be enough to to say there must be proof of serious difficulty in controlling behavior.  This response is our current thinking after reading the ruling and as we continue to work with it and get additional information, we may choose to add additional comments.

First, we will briefly summarize the basic concepts and assumptions in the way the legal system and the science of psychology deal with the issue of volition and individual control of behavior.  They are different and, as the Crane ruling states "psychiatry [science of psychology] is an ever advancing science, whose distinctions do not seek precisely to mirror those of the law."  This is also stated in the Introduction to DSM-IV, pp. XXXII-XXXIII ()().

The law is based almost entirely on the assumption that human beings are practical reasoning rule-following persons whose actions must be understood in terms of beliefs and desires.  In the law's actions toward the insanity defense a mental disorder is believed to be a causal variable.  If it is the mental disorder that causes the criminal behavior, then the person may not be held responsible for the behavior.  However, it is also assumed that the person's mental disorder rendered the individual unable to appreciate the wrongfulness or the nature of the act.  This is also adducing reasoning rather than a deterministic and reductionist stance.

The assumption is that moral responsibility, criminal liability, and state of mind are negated if behavior is caused by some abnormal variable such as a mental disorder, mental illness, or mental abnormality.  In this instance, some have claimed that this is based on data of some sort that disprove free will or voluntariness.  However, causation is not compulsion. [For a discussion of this see Morse, S. J. (1977-1978). Crazy behavior, morals, and science: An analysis of mental health law. Southern Law Review, 51, 527-654.]  The issue of internal voluntariness remains as this ruling recognizes.   It is accurately stated that an absolute, specific assessment of internal voluntariness cannot be made.

The science of psychology has shifted the view of determinism and voluntary choice since the 1950s.  It used to be held that behavior was determined and there was little or no choice for the individual.  At the present, there is considerable research and data showing that agentry or a free will concept is compatible with the science of psychology.  Conscious choice and volitional control can be operationalized and can be studied scientifically.  [See White, P. A. (1990) Ideas about causation in philosophy and psychology. Psychological Bulletin, 108(1), 3-18.; Howard, G. S., & Myers, P. R. (1990). Predicting human behavior: Comparing ideographic, nomothetic, and agentic methodologies. Journal of Counseling Psychology, 37(2),227-233; and Bargh, J. A., & Chartrand, T. L. (1999). The unbearable automaticity of being. American Psychologist, 54(7), 462-479.]

The understanding of serious mental illness has also been shifting away from a single etiological variable that is viewed as the cause of abnormality to the recognition that human behavior is multi-causal.  There is no single, unidimensional cause of any serious mental illness and the behavior associated with a given diagnosis.  Instead, serious mental illness must be seen as a system of biological and psychosocial dimensions and a complex network of interactions and mutually influencing variables.  [See Coursey, R. D., Safarjan, B., & Alford, J. (1997). Significant advances in understanding and treating serious mental illness. Professional Psychology: Research and Practice, 28(3), 205-216.]

Although the Crane ruling apparently leaves the question about how much lack of control there must be to the states and to future development of the law, it does provide guidance on how to resolve the lack of precision on the level of involuntariness there must be in order to allow a person to be committed in the civil process and distinguished from the applicability of the criminal system.  This distinction is necessary "lest 'civil commitment' become a 'mechanism for retribution or general deterrence' ."

On page 5 the Supreme Court gives this guidance in the requirement that the sexual predator must be distinguished from the criminal population:

It is enough to say that there must be proof of serious difficulty in controlling behavior.  And this, when viewed in light of such features of the case as the nature of the psychiatric diagnosis and the severity of the mental abnormality itself, must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case.

This limiting guideline means that it must be demonstrated that a given individual must be shown to have a lack of control powerful enough to distinguish that individual from the "... typical recidivist convicted in an ordinary criminal case."  This is an operational definition and it is possible to discover empirical and factual information to make that a usable guideline.  That is the data on the overall recidivism rate of those in the criminal population.

There are four Bureau of Justice Statistics studies that are relevant.  The first is based on data from 1979, Examining Recidivism, (NCJ-96501, 1983.  Then Recidivism of Prisoners Released in 1983, (NCJ-116161, 1989.  A 1992 report, Recidivism of felons on probation, 1986-89, (NCJ-134177, 1992) follows.  Finally there is a 1995 report, Probation and parole violators in state prison, 1991, (NCJ-149076, 1995).  These are four independent studies done by different researchers using different data sets and spread out over a decade.  All provide the same information.  The recidivism rate for all sexual offenses, the population of persons convicted of any sexual offense, is not as high as the recidivism rate of the "dangerous but typical recidivist convicted in an ordinary criminal case."  Thus it is shown by hard facts from the Justice Department that a person convicted of a sexual offense cannot be distinguished from recidivists in the ordinary criminal population.  For violent criminals the BJS studies show a recidivism rate of 25% or greater.  For sexual offenders the recidivism rate overall was found in a major review study to be about 13%.  [See Hanson, R. K., & Bussière, M. T. (1998).  Predicting relapse: A meta-analysis of sexual offender recidivism studies. Journal of Consulting and Clinical Psychology, 66(2), 348-362.]  The recidivism rate for the Iowa population of sexual offenders is under 5%. [See Iowa Department of Human Rights (2000, December), The Iowa Sex Offender Registry and Recidivism, and Iowa Department of Human Rights (2000), The Iowa Sex Offender Registry and Recidivism.]

Another consideration is that the concept of the sexual offender as a specialist who can be distinguished from the general population of criminals is not supported by any empirical evidence.  The facts show that sexual offenders are as versatile in their commission of crimes as is the general criminal population.  There is no empirical support for the myth that sexual offenders commit only or even primarily sexual offenses.  As a whole, they are criminals who happen to commit sexual crimes as well as a wide range of other crimes.  [See Simon, L. M. J. (1997). The myth of sex offender specialization. New England Journal on Criminal and Civil Confinement, 23(2), 387-403; and Simon, L. M. J. (2000). An examination of the assumptions of specialization, mental disorder, and dangerousness in sex offenders. Behavioral Sciences and the Law, 18(2-3), 275-308.]  The inability to distinguish sexual offenders from criminals on the basis of any empirical fact also means that the requirement of the Supreme Court that they must be distinguished from the typical ordinary criminal is an not possible.

This appears to make the required task of distinguishing a dangerous sexual predator from the typical criminal recidivist an impossibility.  This would further appear on the face of it to render it unconstitutional to civilly commit anyone under the current sexual predator laws.

It could be argued that there are sex offenders who are distinguished by a very high interest in sex along with a deviant sexual arousal pattern.  Sex offenders of this type may masturbate frequently to deviant sexual fantasies and may be unable to become aroused to consenting adults.  If they have offended against children, such individuals are likely to have been diagnosed as pedophilia.  If their crimes consist of repeated violent rapes, they are apt to be diagnosed as sexual sadism.  If they also have other problems that may affect their ability to control their impulses, such as antisocial personality disorder and substance abuse, this would predispose the individual to committing sexually violent acts.

But not all sex offenders are of this type.  Many do not meet the criteria for pedophilia.  Not all are preoccupied with deviant sexual fantasies.  Many fit Lenore Simon's description of the typical sex offender who cannot be differentiated from other antisocial sex offenders.  [Simon estimates that between 40% and 60% of incarcerated criminals meet the criteria for antisocial personality disorder.]  In such offenders, their sexual crimes have occurred along with a lifelong history of antisocial and criminal behaviors.

In addition, the diagnosis of a paraphilia (including pedophilia) in itself does not mean that the individual lacks emotional or volitional capacity.  Clearly, persons who reach the point of being referred for civil commitment have made some extremely poor choices about their behaviors.  But this does not mean that they lack the ability to control their behavior.