Civil Commitment of Violent Sex Offenders
A Jurisprudence of Danger or Mental Disorder Janus (1996) describes the current legal situation as "two forces converging in litigation testing sex offender commitments". The first force, the "jurisprudence of prevention", rests primarily on social control and predictions of dangerousness. Weeks (1998) also denounce this jurisprudence as lacking “balance” since no “therapeutic principle” offsets the “danger principle”. Proponents of such jurisprudence, such as Slobogin (2003a), however show little concern with coherent or scientifically precise notions of mental disorder or even “mental abnormality”, to justify the preventive detention of “dangerous” individuals, including sex offenders. Using a consequentialist reasoning, he argues that legal actors should only determine if the individual poses a threat to the social order (Slobogin, 2005). No more and no less. Janus (1996: 158) further identifies a second type of jurisprudence, namely, the "jurisprudence of mental disorder". Proponents of this jurisprudence justify preventive detention based not on predictions of "dangerousness" but most crucially, on a finding of "mental disorder". Says Janus: Dating back some twenty years, the Court's civil commitment decisions now point squarely to "mental disorder" as the pivotal concept in ascertaining the outer bounds of the state's power to use civil commitment. The litigation generated by sex offender commitments is converging on the same issue… At their core, the sex offender commitment cases seek to define when a state may deprive a person of liberty without the constitutional safeguards of the criminal law. The role played by mental disorder in justifying civil commitment marks the fault line in the sex offender commitment litigation… The narrow issue of contention, the issue that has split the courts most clearly, is how "mental disorder" is to be defined for constitutional purposes.
These two arguments currently compete for dominance within the newly emerging legal landscape of civil commitment statutes into the 21st century, with no clear winner in sight. General Civil Commitment and Sexual Offender Civil Commitment The involuntary commitment of violent sexual offenders in the United States dates back more than 75 years (Fabian, 2003). The proliferation of sexual psychopath, sexually dangerous persons and sex offender statutes during the 1930’s, 40’s and 60’s, allowed for
ETHOS GUBERNAMENTAL
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