Civil Commitment of Violent Sex Offenders
Janus (1996) and Winick (1995) point out that, despite its lack of clarity, Foucha (1992) establish the principle of “therapeutic appropriateness”. Winick (1995: 537) defines this principle thus: When the state attempts to deal coercively with those suffering from mental illness, this principle requires that the intervention sought by the state must at least be therapeutically appropriate. Whereas the therapeutic appropriateness of hospitalization or intrusive treatment cannot alone justify their imposition, unless these essentially medical interventions are in the therapeutic interests of the individual in question, due process should prohibit their involuntary administration.
Yet, not all the goals worthy of the legal culture remain harmonious. Some therapeutic worthy goals seem to clash with others deemed “worthier” at certain times. As La Fond (1999: 377) points out: [E]ven Winick, a strong advocate of the position that law should enhance psychological well-being of those on whom it acts, is prepared to accept antitherapeutic consequences when other social values are deemed more important. This position poses a provocative dilemma for TJ: can the antitherapeutic impact of law in a particular case be so severe that TJ must insist the law should be changed even though policy-makers have determined that other values and consequences are paramount?
In fact, La Fond (1999: 378) forcefully argues that: …sexual predator laws are having a punitive and antitherapeutic effect on individuals committed under them. These statutes are having an antitherapeutic impact on other participants in the legal system as well, including treatment staff and public officials. Finally, predator laws are adversely affecting public policy discourse. [I]n this case at least, a particular law is so destructive of the human psyche, individual and communal, that TJ must take a normative stance and assert that the law should be repealed or substantially changed regardless of competing values
Kansas vs. Hendricks (1997) Foucha (1992) establishes an explicit, constitutionally mandated need for a finding of mental disorder in order to justify the continued detention of a person acquitted by reason of insanity. The case also revealed the lack of an adequate definition of mental disorder in the law. As Pearman (1998) points out, the issue of the
ETHOS GUBERNAMENTAL
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