Tuesday, November 9, 2010

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?


  1. Before even getting into anything else: gender assumptions in last paragraph...?

  2. Anonymous,

    Of course women can be predators, and men can prey on men & boys and women on women & girls, but the SVP's are serial rapists, which are mostly male with female victims by far.

    What's the old joke? All generalizations are false, including the one I just made.

  3. I find it hard to believe that a serial rapist can't be pinned down as having at least one diagnosable condition. Wouldn't the hostility and/or violence factor exhibited by the very commission of rape qualify as a symptom of sociopathy/psychopathy?

  4. Your stereotyping of forensic psychiatrists probably has little validity. The more clinical work a psychiatrist does, the more credibility they will have as expert witnesses. What is your definition of a forensic psychiatrist anyway? Regardless of how you define them (us?) you would be hard pressed to find any two who would agree on almost any case. Besides, experts only proffer opinions. Judges and laws determine the length of a sentence, and parole boards (I think) decide when to release convicts.

    I believe you overemphasize diagnosis in this rapist debacle. My understanding is that decisions to delay release are based more on whether treatment can render them less likely to re-offend, and the extent to which anyone can predict re-offense.

    Anna may be right about the prevalence of Antisocial Personality Disorder among serial rapists, but hostility and violence rarely relate to most axis I disorders, and most agree that you cannot treat ASPD. Last I heard rape was supposed to be more about power than hostility, and neither word appears in the diagnostic criteria. Few mentally ill people are serial rapists, and most violence has little to do with mental illness. Even if the rapist has a mental illness, successful treatment may not reduce the likelihood of re-offense.

  5. Anna, you bring up an interesting question about the vagaries of psychiatric diagnosis. The concept of anti-social personality disorder used to mean that the person had to have no loyalty to anyone and no remorse or guilt. That has no longer been the case since the DSM-IV.

    Now, any habitual criminal has an antisocial personality disorder.

    Personality disorders generally fall outside of the concept of "danger to self or others on the basis of a mental illness," which is the legal grounds for involuntary commitment in most states. Personality disorders are not considered mental illnesses for this purpose, though this idea may be up for grabs in the DSM-V.

    On the other hand, anyone who is suicidal can be committed regardless of whether they really have a mental illness - except for adult Jehovah's Witnesses who refuse a life-saving blood transfusion or any adult who refuses life saving medical treatment.

  6. Moviedoc,

    I was using information in this post that Allen Frances wrote about in the Psychiatric Times, so I can't absolutely vouch for its total accuracy.

    I'm sure there are many forensic psychiatrists who would not participate in this sort of charade, but I fear many of those risk becoming unemployed.

    It is true that the psychiatrists do not have the last word on sentencing, but the courts will often rely on their expert opinion in making decisions. Of course, sometimes the psychiatrist is completely ignored.

    My definition of a forensic psychiatrist is any psychiatrist who is used by the legal system for any purpose, by plaintiff's attorneys, defendents' attorneys, judges, etc. Some states like California have panels and require Board Certifcation in Forensic Psychiatry, but in other states any psychiatrist can do forensic work. There are fellowship training programs for Board Certification.

  7. To answer your question: psychiatry should never be used to solve a social or political problem as in China: