Are pedophiles too sick for punishment?

The law, lawyers, and the court.
Jan. 7 2004 7:17 PM

Vile, Vile Pedophile

Is child molesting a sickness or a crime?

Sick or twisted?
Michael Jackson: accused

Again, and for all the wrong reasons, we can't take our eyes off Michael Jackson. Whether or not the allegations are substantiated, the question is in the air: Is pedophilia a disease to be treated, or a crime to be punished? Are people who seduce minors sick or evil? Our current legal and medical systems blur both views. We call for the most draconian punishments (life imprisonment, castration, permanent exile) precisely because we view these acts as morally heinous, yet also driven by uncontrollable biological urges.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

If sex with children is truly the product of freely made moral choices, then we should deal with it through the criminal justice system. But if it is a genetically over-determined impulse, an uncontrollable urge nestled in our DNA, then punishing pedophiles must be morally wrong. As science—and culture—increasingly medicalizes bad behavior, finding a neurological component to everything from alcoholism to youth violence, we run the parallel risks of either absolving everyone for everything, or punishing "criminals" who are no guiltier than cancer patients.

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What science has revealed about the moral/medical roots of pedophiles is, of course, ambiguous. What is clear is that the binary choice laid out above is an oversimplification. The medical community, which started to view pedophilia as a disease rather than a crime in the 19th century, has amassed evidence that at least some violent and antisocial behaviors have genetic links and signposts. But researchers have been unable to isolate a biological cause for pedophilia, or even to agree on a personality profile. Not to mention the terrific confusion within the medical community in defining what this "disease" really involves. Until a few years ago, for example, the DSM-IV—the Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders—defined pedophilia as a disease only if the sufferer's "fantasies, sexual urges, or behaviors cause clinically significant distress or impairment in social, occupational, or other important areas of functioning." In other words, a non-impaired, remorseless pedophile was apparently perfectly healthy.

Advocates of the "disease" school say pedophilia is often the product of uncontrollable impulses that seem to respond to treatment (including castration, both surgical and chemical) particularly in conjunction with monitoring and behavioral therapy. This raises at least a possibility not associated with car thieves and insider traders: That small tweaks to one's brain chemistry may neutralize the impulse to commit more crimes. And if that is the case, they contend, shouldn't we be treating rather than punishing? Can we really call ourselves a just society if we are jailing folks for their neurochemical profile? In a thoughtful essay in Reason, Thomas Szasz urges that pedophilia is ultimately still a moral failure regardless of its biological roots: "Bibliophilia means the excessive love of books. It does not mean stealing books from libraries. Pedophilia means the excessive (sexual) love of children. It does not mean having sex with them." The crime, he argues, is not the psychological impulse, but the willingness to give in to it. But this conclusion assumes an answer that science is still uncertain about: whether for some pedophiles, the impulse to molest has become a pathology. If that is the case, pedophiles can't have the criminal intent necessary to want to commit a crime, and that mens rea is the cornerstone of our criminal law.

Assume, for a moment, that we are sophisticated enough to embrace this ambiguity, to accept the likelihood that the reality is complicated, and that both chemistry and morality are at work in the creation of a sexual predator. Studies by Stanford University neuroscientist Robert Sapolsky suggest that mental illness really falls along a continuum—that criminals are not "sick" or "evil" but some intricate combination of both. What, then, is the moral and proper approach to their acts?

In 1987, Robert Wright explored this choice/illness dichotomy as it related to alcoholism in the New Republic. Wright's ultimate conclusion was that it is a mistake to label a behavior—even a behavior with some biological and genetic determinants—a "disease" because it ultimately means "giv[ing] up on the concept of volition altogether." According to Wright, since alcoholism is the product of a complicated moral soup of environmental and biological factors, since biology may play a role, but not the only, or even predominant role, in these behaviors, we are better off holding people responsible for their actions than not. Otherwise, he argues, "things fall apart."

This "things fall apart" approach has its attractions. It suggests that in a world of increasing causal complexity, morality must remain all the more unequivocal. The question, then, is whether this pragmatic solution is also the ethical one as the stakes rise. The problem is that pedophilia, unlike alcoholism, has one real and tangible victim for every incident. If alcoholics damaged another person's life with every drink, the parallel might hold. But if statistics from the National Institute of Mental Health are right, and the average molester of boys will have 150 victims before apprehension, then the social costs of a single incident are astronomical.

If the repercussions of the act argue for holding the perpetrators morally responsible, regardless of their level of agency, then the seriousness of the punishment pulls in the other direction. Holding alcoholics morally responsible for their actions has predominantly insurance and employment consequences. Holding a child molester responsible for his actions means a lifetime of incarceration or of monitoring, unemployment, and shaming. Offender registries are certainly an alternative to other forms of vigilantism, but the practical effect is a whole subclass of offenders with nowhere to live or work. If science someday proves us wrong, and pedophiles are wholly victims of their own biology, we will have victimized them twice and called it justice.

There are, it's generally agreed, four basic rationales for punishment: revenge, rehabilitation, deterrence, and incapacitation. If we accept the mixed causation theory—that pedophilia is part disease and part crime, then almost none of these rationales are served. Lifetime recidivism rates show that "rehabilitation" alone has not been very effective for sex offenders, and we know that deterrence is unlikely when most offenders are able to "get away with" multiple acts before apprehension. Revenge makes sense only where rational choices led to the commission of the crime, which is in doubt when one's neurochemistry may be running the show. Which leaves only incapacitation as the reason for punishing pedophiles.

Now, don't knock incapacitation. A lifetime of involuntary confinement was a good idea for carriers of the Black Plague, who were guilty of no moral failures at all. But this raises the practical, financial component of imposing complete moral responsibility on pedophiles. Our jails are teeming with sex offenders; and knowing what we do about recidivism rates for pedophiles (recent studies show that they are lower than previously believed in the short-term, but still hovering at 50 percentover a 25-year "career") we must choose between lifetime involuntary confinement, or the cost of ongoing monitoring. Due to prison overcrowding, child molesters are released each day into communities that no longer care whether pedophiles are sick or evil, so long as we throw away the key.

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