THE DOCTRINE OF INFORMED CONSENT RELATED TO THE TREATMENT OF SEX OFFENDERS ...... 875

840 Sex psychopath legislation

psychopath statutes were created in the 1930s; (2) to examine the types of statutes enacted specifically to deal with classes of individuals described by special terms, such as "sex offenders" or "sexual psychopaths"; (3) to explore the conceptual framework of the "sexual psychopath," as well as the confusio� attendant upon the use of such categories; (4) to appraise �he current status of the treatments that are being used with sex offenders. An examination of the problems attendant upon the use of technologies that have been available as treatments and that involve problems of informed consent is needed, and lastly, (5) to investigate the role of the psychiatrist as an evaluator of these individuals and as a clinician who participates in the legal system. In retrospect, we view the sex psychopath statutes as social experiments that have failed and that lack redeeming social valu� . . Th�se experiments have been carried out by the joint part1upat1on of the psychiatric and legal professions with varying degrees of acquiescence by the general public. The reasons for our position advocating repeal are discussed in this report. The need to clarify terminology There is an immediate need for clarification of terms. Sexual psychopathy is not a psychiatric diagnosis. It is a term used w _ ith a variety of confusing meanings and applications but wtth no precise clinical meaning. Also, since sex psychopaths are defined in statutes, the term is therefore an established legal concept. Definitions of statutes of sex psychopaths which arose in the l 930s were taken from a confluen:e c�f sources . . Legislative bodies drew on an amalgam of psychiatn� a�d -

social concepts to encompass a heterogeneous group of md1v1duals seen as dangerous with respect to cOiitrol �)Ver their sexual behavior but not seen as legally insane. Their actual psychiatric status a�d diagnoses varied widely then and now. (For examples of definitions promulgated by

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legislative bodies see Chapter 4.) The pervasive theme in the enactment of such sex statutes was the belief that certain individuals would fail to control their sexual behavior or idiosyncrasies and that they could consequently be identified and segregated. In this sense, the grouping was analogous to that of individuals classified as possessing a certain propensity, such as drug addiction or alcoholism. They were to be dealt with even though they were not at present violating any law. Although women could be processed under these special sex statutes, the nature of the sexual behavior encompassed under sexual psychopathy involved few women other than as victims or accomplices. It is important to keep in mind two confusing usages of the term "sexual psychopath." It is used one way when an individual is before a court and a decision must be made to exclude or include him within the legal definition of sexual psychopath. He need not necessarily have even committed a sex crime, depending on the state in question and its statutes. A second usage, based on a clinical or epidemiological notion, refers to those persons within a community who would meet a given definition if spme type of case-finding were instituted. This latter meaning would cover persons not yet brought to the attention of a court, as well as a subset of individuals who have been brought into court for sexual behavior that has violated the law. In contrast, a sex offender is a person who has been charged and found guilty of a particular sex crime. Some states hav _ e provided for special handling and disposition of t�ese individuals. As such, the number and types of sex cnmes that come under the special sentencing provisions vary from state to state. It is further confusing when some states have one statute to deal with sex psychopaths and a separate statute for sex offenders; other states have one or the other. Some have none but simply list certain sex crimes as part of the general criminal code. Straight conviction and sentencing was the