Much of what the public understands about the relationship between the law and mental illnesses has been fed to us via popular entertainment. There have been countless TV shows and movies that revolve around some aspect of this relationship. More often than not, all we see in the courtroom is the “psychopath” brought to justice, or in some cases the criminal pleads insanity although they are not insane. The latter actually touches on a piece of that relationship which is being debated today in regards to paraphilic disorders: criminal responsibility.
It is important to define criminal responsibility and differentiate paraphilic disorders from paraphilias in order to not confuse people who may believe that these terms are the same. As defined by the DSM-5 (a manual used for the assessment and diagnosis of mental disorders), paraphilic disorders are “intense sexual urges, behaviors, or fantasies which cause distress or impairment to the individual or whose satisfaction has entailed personal harm or risk of harm to others” (Paraphilic Disorders | Johns Hopkins Psychiatry Guide, 2017). On the other hand, paraphilias are described as “atypical sexual behaviors or interests,” with no mention of possible harm that may be inflicted on the self or on others (Yakeley & Wood, 2014). In regards to criminal responsibility, that refers to whether someone diagnosed with a paraphilic disorder can face criminal punishments for their unlawful actions since they are technically mentally impaired.
The fascinating thing about this whole situation is how similarly countries around the world have decided to handle such a problem. A number of researchers in Lebanon decided to look into such a matter, where they sought to determine whether the penal code and the judicial process should be altered to take into account the new definition of paraphilic disorders in the recent World Health Organization’s International Classification of Diseases Manual (similar to the DSM-5 definition that was previously stated). What was decided was that no change shall be made; instead, the diagnosis of a defendant with a paraphilic disorder will hold no legal impact (Makhlouf et al., 2020). An independent psychologist would then determine if they committed the crime with an understanding of the consequences (otherwise known as criminal responsibility).
Similarly, places in the United States have taken almost an identical approach in regards to their interpretation of the law and knowledge of paraphilic disorders. After a case (although unrelated to paraphilic disorders) where someone essentially cheated the system by being found not guilty by reason of insanity (NGRI), the US has made it extremely difficult for defendants to get off in a similar fashion (Novak et al., 2007). As a result, the percentage of patients in mental institutions who claimed NGRI is extremely small, but there is one interesting aspect in regards to those who do go to prison. Despite the US legal system making it clear that it wants people who commit sexual crimes to serve the harshest possible sentence, no matter if they are diagnosed with paraphilic disorders, the juries (in Wisconsin anyways) have shown to be more understanding. They did not feel sorry for people who committed such a crime, rather they understood that part of the reason that that person committed such a crime was because they are mentally ill. These people may not be mentally ill in terms of not being able to comprehend the possible consequences to their actions, but they do need psychiatric help. So, juries during sentencing have continued to take that into account and look to ensure that the person receives whatever psychiatric help they need (Miller et al., 1988).
The field of mental health can seem overwhelming enough by itself when you consider all the unknowns that exist to this day. It only becomes more daunting when you think about how this field interacts with other facets of our life and society. It is important we do our due diligence and ensure that mental health is correctly accounted for by the legal system, as it will allow us to see where we are letting members of society down. We want to get to a place where we are focusing more on preventive measures rather than reactive punishments, especially in the case with people that have paraphilic disorders.
Paraphilic Disorders | Johns Hopkins Psychiatry Guide. (2017). Hopkinsguides.com. https://www.hopkinsguides.com/hopkins/view/Johns_Hopkins_Psychiatry_Guide/787119/all/Paraphilic_Disorders
Yakeley, J., & Wood, H. (2014). Paraphilias and paraphilic disorders: diagnosis, assessment and management. Advances in Psychiatric Treatment, 20(3), 202–213. https://doi.org/10.1192/apt.bp.113.011197
Makhlouf, Y., Kerbage, H., Khauli, N., Ramadan, Z., & Khoury, B. (2020). Legal and Policy Considerations in Lebanon Related to Proposals for Paraphilic Disorders in World Health Organization’s International Classification of Diseases Manual, 11th Version. The Journal of Sexual Medicine, 17(3), 491–504. https://doi.org/10.1016/j.jsxm.2019.12.001
Novak, B., McDermott, B. E., Scott, C. L., & Guillory, S. (2007). Sex Offenders and Insanity: An Examination of 42 Individuals Found Not Guilty by Reason of Insanity. Journal of the American Academy of Psychiatry and the Law Online, 35(4), 444–450. http://jaapl.org/content/35/4/444
Miller, R. D., Stava, L. J., & Miller, R. K. (1988). The Insanity Defense for Sex Offenders: Jury Decisions After Repeal of Wisconsin’s Sex Crimes Law. Psychiatric Services, 39(2), 186–189. https://doi.org/10.1176/ps.39.2.186