Confining sexually violent persons in the mental health system

Sexual crimes are an unspeakable tragedy and among the most serious forms of violence imaginable. This is especially true when the victims are children. In response, at least twenty states and the Federal government have enacted “sexually violent persons” legislation.¹ These laws provide for indefinite commitment of persons who have committed sex offenses after they have completed prison terms for these same crimes.² We currently confine more than 6,300 people as sexually violent persons.³

Mental Health America supports using the criminal justice system to convict persons who have committed sex offenses and lengthy sentences when these are needed to protect the public. However, Mental Health America opposes using the mental health system to confine sex offenders because sex offenses are generally not the result of mental illnesses.⁴ These laws are not an effective or cost- effective way to reduce sex offenses and committing sex offenders to mental hospitals often threatens the safety of persons who do have treatable mental illnesses that require inpatient psychiatric care.  Addressing sex offenders within the mental health system is also a misallocation of resources that would be better spent on community and victim support, primary prevention and holding sex offenders accountable through the criminal justice system.⁵

The enactment of sexually violent persons laws has not reduced sexual violence.⁶ The rate of sex offenses is not lower in the twenty states that have enacted such laws than in the thirty that have not.⁷ Mental Health America believes that states should devote their resources to prevention and to the appropriate use of the criminal justice system to hold accountable those who have committed sex offenses. When lengthy confinement is a necessary and appropriate sanction for persons who have committed sex offenses, we should use the criminal justice system and its sentencing laws to impose such confinement, not the mental health system.

• We should reserve mental health commitment for people who have diagnosable and treatable mental illnesses. States enacted special laws for sexually violent persons rather than using existing commitment laws because the mental conditions that are the basis for sexual predator laws were not included in the definition of mental illnesses in existing commitment laws.⁸ Because the conditions which lead to commitment under sexually violent persons law are difficult to diagnose and treat, it is difficult to determine when someone has recovery and should be released. This either results in inappropriate releases, which endanger the community, or unnecessary and lengthy confinements, which are quite expensive and are unjust deprivations of liberty.
• The implementation of sexually violent persons laws demonstrate that they use mental health commitments when punishment is the intent. Only convicted sex offenders are eligible for these commitments. Other people who may be as likely or more likely to commit sex offenses are not. Those committed are often confined in prison-like environments⁹ and expressly denied the rights afforded to other persons committed based upon a mental illness.¹⁰ The lack of effective treatment further highlights the punitive nature of these laws. Mental Health America opposes the use of mental health commitments as punishment. Punishment should remain solely within the realm of the criminal justice system.
• Sexually violent persons laws are incoherent and contradictory. Only a person who is completing a criminal court sentence for a sex offense is eligible for commitment as a sexual predator.  It is appropriate to punish sex offenders because a court determined that they are responsible for a serious crime and the punishment also deters others from committing these crimes.  However, one cannot be committed as a sexual predator without a finding that the defendant could not control himself.¹¹ This finding contradicts the criminal court’s finding holding them responsible.
• Confining sexually violent persons in the same facilities where we place persons with mental illnesses puts the persons with mental illnesses at substantial risk of victimization. It also stigmatizes persons with mental illnesses as criminals.
• The methods used to determine whether to confine or release sexually violent persons discriminate against African Americans and gay men.¹²

• States should repeal laws that use the mental health system to inappropriately confine people convicted under sexually violent persons laws for indefinite periods of time at the end of their prison terms.
• If sex offenders deserve more punishment for their offenses than is currently authorized, states should modify their sentencing laws to reflect this goal. Commitment to a mental hospital should never be used in lieu of or as an extension of criminal punishment.
• To the extent that confining sex offenders indefinitely is necessary, states should adopt laws that require prosecutors to choose whether to pursue a criminal conviction or an indefinite commitment, but not permit both options to be used on any individual.¹³
• So long as sexually violent persons laws remain, they should include detailed provisions to uphold civil liberties and individual rights including insuring that these laws do not discriminate.¹⁴
• States should provide comprehensive diagnostic and treatment services in juvenile corrections systems and all other child-serving systems to identify potential sex offenders as early as possible. There is substantial evidence that sex offenders quite frequently were themselves victims of sexual violence in childhood or adolescence.¹⁵¹ Prevention is preferable to after-the-fact punishment or involuntary treatment.

1. Hoppe, et al., “Civil Commitment of People Convicted of Sex Offenses in the United States” UCLA School of Law, Williams Institute (Oct., 2020) https://williamsinstitute.law.ucla.edu/wp-content/uploads/SVP-Civil-Commitments-Oct-2020.pdf

2. See, Kansas v. Hendricks, 521 U.S. 346 1997; Illinois Sexually Dangerous Persons Act.  725 ILCS 207/5(f).

3. Hoppe, et al.

4. Kansas v. Hendricks, 521 U.S. at 359 (1997); Both the American Psychiatric Association and the American Psychological Association filed briefs in Hendricks arguing that Kansas law required the commitment of people who did not have a mental illness. Id., at footnote 3. A typical statute defines a “sexually violent person” as “a person who has been convicted of a sexually violent offense… and who is dangerous because he or she suffers from a mental disorder that makes it substantial probability that the person will engage in acts of sexual violence.”  725 ILCS 207/5(f). “Mental disorder” defined as a “congenital or acquired condition affecting the emotional or volitional capacity that predisposes a person to engage in acts of sexual violence.” 725 ILCS 207/5(b). Thus, the definition is entirely circular.

5. “Sex Offense Civil Commitment:  Minnesota’s Failed Investment and the $100 Million Opportunity to Stop Sexual Violence,” Mitchell Hamline Sex Offense Litigation and Policy Center Resource Center (April, 2024) https://mitchellhamline.edu/sex-offense-litigation-policy/wp-content/uploads/sites/61/2024/04/Sex-Offense-Civil-Commitment-Report_final.pdf

6. Tamara Rice Lave & Justin McCrary, “Do Sexually Violent Predator Laws Violate Double Jeopardy or Substantive Due Process? An Empirical Inquiry,” 78 Brook. L. Rev. 4, 1396, (Summer 2013) https://brooklynworks.brooklaw.edu/blr/vol78/iss4/5/

7. Id.

8. Kansas v. Hendricks, 521 U.S. at 359 (1997);  See note 2 above.

9. See, e.g., 725 ILCS 207/50(b). Requires sexual predators be housed in a facility owned by the Department of Corrections, which runs state prisons.

10. Id. Provides that the rights and procedural protections that apply to ordinary civil committee are not available to sexually violent persons.

11. Kansas v. Crane. 534 U.S. 407 (2002).

12. “Sex Offense Civil Commitment” supra, pp. 11-17.

13. See, for example, the Sexually Dangerous Person Act, 725 ILCS 205/0.01, 205/9(e).

14. See Mental Health America’s position statement on “Involuntary Mental Health Treatment.”

15. Dhawan & Marshall, “Sexual Abuse Histories of Sexual Offenders,”  8 Sexual Abuse: A Journal of Research and Treatment 7-15 (Jan. 1996) https://www.ojp.gov/ncjrs/virtual-library/abstracts/sexual-abuse-histories-sexual-offenders