The current DSM-V draft, as many people have already noted, greatly expands the scope of paraphilias. For example, paraphilic coercion disorder is added and pedophilia is expanded to include pubescent teens. Most people whose commentary I have read, are not pleased with these changes, because, as they say, they will lead to an increasing number of sex offenders claiming an insanity defense.
This fear is, at least in the Dutch legal system, quite legitimate. Unlike in the United Kingdom and the United States, we do not have a specific definition of insanity, like the McNaughton test. Anyone whose mental illness significantly impacted their crime, can be declared partially or completely insane. Partial insanity seems like something pretty specific to the Dutch situation. In this case, you will still be held partially accountable for your crime, and will get a reduced prison sentence along with forced mental treatment. Complete insanity defenses, in which case a criminal will be sent directly to a mental hospital without prison time, are reserved for extremely rare cases. This is not a decision made by forensic psychiatrists, since “insanity” is not a psychiatric term; it was the High Court that decided complete insantiy should be exceptional.
In the Dutch system, the fields of forensic psychiatry and criminal justice are more interconnected than they should be. For example, a forensic psychiatric diagnosis is always made in the context of the crime the person is being accused of. This would seem logical, but it leads to some interesting circular arguments. For example, assume that someone is charged with child sexual abuse. This person is sent to the Pieter Baan Center (our national forensic assessment center) for psychiatric evaluation. There, the crime is taken as the starting point for the psychiatric assessment, so it is hypothetized that the person actually did abuse one or more children. The Pieter Baan Center is not known for its state-of-the-science evaluations, so it is quite possible that any behavior could be interpreted as an indication for pedophilic fantasies. Thus, the person is diagnosed with pedophilia rather easily, regardless of whether they actually admit to pedophilic thoughts. However, even if the person confesses to sexual fantasies involving children, this by itself should not lead to a diagnosis of pedophilia unless the person has acted upon these fantasies (or unless the fantasies caused significant impairment or distress), which can be deduced from the person’s child abuse charge. So, a person is diagnosed with a mental illness on the grounds that they perpetrated a crime. By definition, that mental illness impacts the person’s crime, so almost by definition, they will be declared (partially) insane.
However, let’s be clear here that, when a suspect is being assessed at the Pieter Baan Center, they haven’t yet been convicted. Because the Pieter Baan Center psychiatrists take the charges as the starting point for their diagnosis, they could theoretically be fabricating evidence through their psychiatric report. According to a recent work by W.A. Wagenaar and others, this is in fact not merely theoretical: they report extensively on a case in which a person, claiming to be innocent, was convicted of horrific child sexual abuse for the most part because a psychiatrist had diagnosed him with pedophilia, on the grounds of the (very dubious) evidence for his sex crimes. The person was convicted of the crime, declared insane, sent to a mental hospital, and will possibly stay there for life, because the first step in treatment is confession to the crime. This is of course a circular argument: you are insane because you allegedly committed a crime, and you have committed the crime because the psychiatrist declared you insane for it. Will this risk be extended if more sex crimes are being pathologized?
But even in the vast majority of cases, where the suspect actually committed the crime, is it desirable that this crime be increasingly pathologized? Even though insanity is, at least in the Dutch legal system, by no means an easy way out, the general public does have an opinion that sex offenders should be punished and not treated like victims of a mental illness. Of course, in terms of risk to the public, it may be easier to pathologize and institutionalize all sex offenders, because in that case one can be sure that they won’t be released into the community until they have been treated. This could mean that sex offenders who deny their crime will be locked up for life rather than released after a certain sentence. Also, forensic psychiatric hospitals are not the sort of hotels people think of: in some respects, you have it worse there than in prison. However, that does not do away with the connotation of sex offenders as victims of mental illness rather than personally responsible for their crimes, and this is actually a legitimate complaint against the pathologization of criminal behavior: we assume that criminals are responsible for their behavior unless a mental illness diminishes this responsibility. Why should something inherent in the crime, rather than something inherent in the perpetrator, annihilate this personal responsibility?
Wagenaar WA, Israels H, and Van Koppen PJ (2009), De slapende rechter: waarom het veroordelen van burgers niet alleen aan de rechter kan worden overgelaten, Chapter 8: De zaak-Tamboer. Amsterdam, Netherlands: Bakker.