Nothing Other than Stupid (NOS): Is Being a Rapist a Mental Disorder?

This post relates to two seemingly unrelated topics that were subjects of previous posts.  First, in my post of July 24, 2010, Counting Symptoms that Don't Count, I mentioned the improper use of the "NOS" category of psychiatric disorders in the DSM, psychiatry's diagnostic manual.  NOS stand for not otherwise specified.   This designation is used for patients who just barely miss DSM criteria for a particular disorder, like someone having manic symptoms for six rather than the required seven days, but who are suffering distress and/or dysfunction from their symptoms similar to that from the real thing.  It is not supposed to be used for people who just sorta kinda somewhat resemble people with the disorder on some dimension or other.

Second, in my post of November 3, 2010, Psychiatry Bashing, I kvetched about how pressure from the public is one of the major factors that has led to the misuse of psychiatric drugs and diagnoses by psychiatrists.

Now, one of the things the public is often somewhat hysterical about, and justifiably so, is the release of violent sexual offenders such as serial rapists after they have served their prison sentences.  However, as pointed out by Allen Frances in an article in the September 2010 issue of Psychiatric Times, the length of prison sentences for these felons is partially a product of the public's own misguided pressure on politicians. 

In their zeal to deal with judges who were perceived as "soft on crime," large segments of the public demanded fixed sentences for various crimes, rather than allowing the judge any discretion in the matter.  This actually led in some cases to sentences for those who were termed Sexually Violent Predators (SVPs) that were much shorter than they would have been had judges been allowed to use discretionary sentencing. (This problem has lately been correcting itself, but those sentenced under the old guidelines still have to be released).

What to do?  Well, according to Dr. Frances, twenty states and the federal government have passed laws allowing continued incarceration of SVP's, often for life, in psychiatric settings.  This is, in effect, preventive detention, which is generally considered a violation of due process and unconstitutional in legal circles.  Nonetheless, the Supreme Court has ruled that SVP statutes are constitutional on three different occasions.  In order for SVP's to be subject to preventive detention, however, the court ruled that their dangerousness must be the result of a "mental disorder."  Trouble is, they refused to exactly define what qualifies as a "mental disorder."

This has led to extreme pressure on forensic psychiatrists to invent specious diagnoses in order to protect the public from serial rapists and other SVP's.  One way to do that is through the use of the "NOS" category.  The DSM lists several sexual perversions (paraphilias), such as exhibitionism or fetishism, as mental disorders.  The  definition of a paraphila is recurrent, intense sexually arousing fantasies, sexual urges, or behaviors generally involving nonhuman objects, the suffering or humiliation of oneself or one's partner, or  children or other nonconsenting persons.

By the general definition of a paraphilia, it would seem that a serial rapist would qualify, since rape involves non-consenting persons as well as the suffering and humiliation of the victim.  However, rape is not listed in the DSM as a mental disorder.  Most people correctly think of it merely as a crime.  So under pressure forensic psychiatrists came up with paraphilia NOS, nonconsent. This seems to me to be just a made up diagnosis used to deny criminals due process.  It sure is not in the DSM.  (Then again, why is having a foot fetish a mental disorder?  That is in there).

Psychiatry bashers would undoubtedly have the opinion that forensic psychiatrists are, once again, acting like Nazis.  This opinion does not take into account at least two essential considerations: forensic psychiatrists are under tremendous pressure from all sides to protect the public from SVP's (and who would want to be responsible for unleashing one?), and for a variety of reasons the public is loathe to make rape (or even pedophilia, for that matter), a crime punishable by life imprisonment.

If you were forced into a choice between setting a SVP loose on women everywhere, or making up a diagnosis, what would you do?  Readers?