Some excellent researchers affiliated with with the Williams Institute at UCLA recently released a report about civil commitment in the United States as applied to those convicted of a sex offense.1 The report highlights racial and sexual orientation disparities in application, and it brings to light concerns with the way civil commitment is applied.
Usually I include a full transcript in the notes, but because I’m citing a lot of statistics and other information I thought an outline format might be more readable. Let me know if you like this format.
What is civil commitment?
- This is not prison or jail, although often it looks like it.
- It is not directly related to a criminal conviction.
- Legally it is not classified as a punishment (it is “civil”).
- Courts claim that it is acceptable for states to confine people against their will without a criminal conviction out of public safety concerns.
- Individuals are confined for their own safety and for the safety of the public.
- This has some logic with some mental disorders where an individual might be violent, suicidal, etc.
- In the case of so-called “sexually violent predators,” definitions are very vague and medical diagnoses are not based on science or nonexistent.
- One court suggested that the Constitutional due process right to be free from arbitrary governmental restraint is not an absolute right.2
- This kind of detention without a crime is effectively incarcerating someone for crimes they might commit in the future.
- To what extent is it acceptable to take away someone’s liberty to protect against a theoretical harm?
- Is this actually making anyone safer, or is it theater?
- How can we even know if someone might commit a crime in the future?
Who is in civil commitment?
- In the past a person could be “diagnosed” as a “sexual psychopath” without committing a crime, or after committing a crime that was not sexual.
- In the 1960s, psychiatric state hospitals began to go out of style in general. The population of people committed against their will declined, and rules became more strict. However, those seen to have mental health issues related to sex are seen as a special case.
- Under current laws, one must be convicted of a sex offense before the state can petition for civil commitment after their incarceration.
- Over the past few years, there have been over 6000 individuals involuntarily detained under sex offense civil commitment laws nationwide.
- To the extent that data are available, the report shows that Black residents are held at a rate well over twice the rate of White residents.1
- The report suggests that this disparity mirrors the racial disparity within the criminal justice system as a whole, although there may be reasons that the problem is particularly strong in the area of sex offenses and civil commitment.
- While sexual orientation of individuals in the system is not usually tracked, the report estimates that men who have sex with men are 2.5-6.3 times more likely to experience civil commitment after a sex offense conviction than are men who have sex only with women (p. 15).
- The rate varies from state to state and by race.
- Men with male victims are automatically presumed to be more dangerous.
- This normalizes violence against women and pathologizes homosexuality.
Civil commitment for mental health, substance abuse, those found not guilty of a crime by reason of insanity, and sex offender civil commitment all have different rules. It is worth comparing them, because validation of one is often used for justification of another. Here, I am interested in civil commitment of so-called “sexually violent predators” because of its bearing on how we think about sex, sexual identity, and difference.
Arizona, California, Florida, Illinois, Iowa, Kansas, Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New York, North Dakota, Pennsylvania, South Carolina, Texas, Virginia, Washington, Wisconsin, the District of Columbia, and the Federal system.
A state must prove that an individual has a “mental disorder” or “abnormality” and they are likely to commit sexually violent acts in the future. Unfortunately, these definitions can be quite vague and arbitrary. For example, the fact of a previous offense is often used as evidence of likelihood of a future offense without any risk-based evidence.
This is possibly the most concerning part of the system. While civil commitment facilities are nominally mental health treatment facilities, there is usually no clear path through treatment to release.
What are the consequences of using civil commitment for people deemed sexually violent?
- What freedoms are we losing?
- What is the cost?
- Are people any safer?
- Trevor Hoppe et al. 2020. “Civil Commitment of People Convicted of Sex Offenses in the United States.” Williams Institute, UCLA School of Law.
- Kansas v. Hendricks, 521 U.S. 346, 356 (1997).
- Substance Abuse and Mental Health Services Administration. 2019. Civil Commitment and the Mental Health Care Continuum: Historical Trends and Principles for Law and Practice. Rockville, MD.