854
Sex psychopath legislation
and predicting just who would behave in a deviant or dangerous manner. Intimately fused with the belief in the ability of clinicians to identify and predict sexual psychopathy for the legal system was the illusion that treat ments were available to cure and rehabilitate the individuals identified. Accordingly, administration of the sex statutes was geared to the objectives of incapacitation, treatment, and prevention. Evaluation problems persist
The complex clinical problem of evaluating myriad lines of �exual maldevelopment has persisted. Methodologic hand icaps have permeated most research, making conclusions about treatment results very tentative. Studies done with those _confined always pose special problems for evaluating behavior on release. The variety among those treated as sexual offender� has resulted in mixing disparate groups, thus compounding the complexity of validating any re search. A fluctuating zealousness associated with certain rc h�bilitative approaches that became fashionable set a pre d1Ctable pattern: \Vhatevcr treatment was fashionable at a given time would be suggested as the cure to be used for sex of�enders. Validation of the treatment modality in question relied n:io:e often than not upon short-term follow-ups with unsoph1st1cated assessment of personality. Optimistic claims for any one particular treatment of sex offenders remains highlv suspect. Humane compassion for those in stitutionalized as sex offenders often has not been distin guished from the need for valid and reliable criteria to evaluate therapeutic procedures. Conflict has arisen both on theoretical grounds and in administrative decision-making for dealing with those who a�e ju�icially .d�ssified as sex offenders. Selected problems with mixed chmcal-legal significance will be used to illustrate several key issues. Consider the supposedly simple problem
Evolution of sex offender statutes
855
of the mental examination of a sex offender. Statutes in different states vary in matters such as when the examination will be performed. Examinations may be done prior to a hearing on the alleged sexual behavior in question (if no crime has been committed) or not until just prior to sentenc ing. In addition, there is variation between optional and mandatory requirements for a mental examination to be performed. The same behavior, with the same conviction, in a different state might require an examination, but the state might not have the capability of carrying it out. Such dis crepancies are comparable to the variation in sentencing procedures. Variation also exists as to which offenses require such examinations and vvhcre and hmv they will be performed. The purpose of the "mental examination" may not be specified. In practice some are used simply to provide addi tional facts to a court prior to sentencing. However, there is usually an implication in most of the statutes that the psychia trist will tell the court whether a given defendant should be treated as a patient or sentenced as a criminal. Such examina tions are often expected to yield a recommendation as to whether some type of "specialized" treatment (the nature of which usually remains unspecified) should be ordered as an alternative to a prison sentence. This use of a psychiatrist permits courts to justify their sentences whether the sex offender is sent to a prison or is held in some type of special treatment facility. Facilities frequently carry labels such as the "hospital for the criminally insane," or "state security hospital." Some states locate their treatment facilities in sepa rate parts of state prisons while others designate a wing of a particular state hospital. Another group of problems arises from the civil rather than criminal nature of the commitment process for sex psychopaths. Opportunities can and do arise for an accused or convicted sex offender to contest the findings of a mental health examiner. Qualifications for the examiner are often
