Adolfo Fortier Díaz Court's decision on the question of whether treatability and the provision of treatment should be deemed constitutional requirements for civil commitment?...The sexually violent predator law represents a new model for dealing with sex offenders, and because it was endorsed in [Hendricks], it may emerge as a model applied by many of the states. The wisdom of this new approach can be questioned on a number of grounds…[A] "therapeutic jurisprudence analysis of this new statutory approach…assess[es] the impact of this new model on the potential for successful treatment of the offenders labeled as sexually violent predators. I also analyze the therapeutic effects of this new approach for clinicians charged with the responsibility of providing sex offender treatment and for patients subjected to civil commitment based on more traditional forms of mental illness.
As crucial aspect of the decision, Hendricks (1997) emphasized that not all offenders qualify for commitment after completion of their sentences. It made a distinction between commitment-eligible offenders, and other sex offenders in that the former had an “inability to control behavior”. The Court considered the notion of volitional impairment or lack of control as part of a mental disorder, and a substantive limiting principle for civil commitment. Yet Hendricks (1997) left unclear, and unexplained, the specific composition of “volitional impairment”. Kansas vs. Crane (2002) In Kansas v. Crane (2002) the Court sought to clarify Hendricks (1997). The decision adds the notion of degrees of volitional impairment. The Court nevertheless failed to expand on this reasoning, and to provide a better definition of mental disorder and of “volitional impairment” itself. Crane (2002) left all legal actors, and forensic clinicians especially, without guidance as to how to make a principled determination in violent sex offender commitment cases. The Crane Court limited itself to repeating that commitment-eligible sex offenders have a mental disorder with a “pronounced inability to control behavior”. Unlike Hendricks (1997), the Crane (2002) Court did not base its decision on the defendant’s self-reporting. Crane relied on the defendant's past criminal history in order to establish the presence of a mental disorder with a volitional impairment. As Hendricks (1997), Crane (2002) gave no further explanation of what would constitute a mental disorder with a volitional impairment and how 288
2008-2009