THE SEXUAL PSYCHOPATH
The gradual shift over the past century from the concept of punishment to that of rehabilitation has resulted in the development of innovations such as probation, parole, indeterminate sentence, juvenile courts, clinicians working in prisons, and sexual psychopathy laws. Some of these and other recent developments stem largely from the concept of the lawbreaker as mentally ill or at least as having emotional problems, and in either case having a diminished responsibility for his behavior.
The purpose of the sexual psychopath laws is to diagnose persons with dangerous sexual propensities, to remove them from society, and to treat them so that they become no longer dangerous. The first sexual psychopath law was passed in Michigan in 1935, but was subsequently declared unconstitutional; consequently Illinois has the distinction of being the first state whose sexual psychopath law (adopted in 1938) has survived a higher court test. Since then sexual psychopath laws have been enacted by 28 states, ranging from the Eastern seaboard to Hawaii.
The legal concept of sexual psychopathy is based on two assumptions about which considerable doubts have been expressed. The first assumption is that there is a clinical entity or syndrome of psychopathy or of a psychopathic personality. The concept originated with an English psychiatrist, J. C. Prichard.1 He described patients who were “morally insane” because, although their intellect was unimpaired, they were “incapable of conducting themselves with decency and propriety in the business of life.” Later in the nineteenth century the hypothesis was advanced that these persons had some hereditary weakness of the nervous system, and the label “constitutional psychopathic inferior” was attached to them. Still later, when the vogue of explaining the foibles of the human personality on constitutional or hereditary grounds had passed, the concept of psychopathic personality remained to plague the psychiatric nosology and theoreticians.
Hakeem points out that psychiatrists have conflicting opinions. It appears that workers in this area have quite different ideas about whether there is such an entity as the psychopathic personality, and, if so, what constitutes it. There is also a disagreement as to whether psychopaths are more criminal than others and, if they are, whether their criminality is of a serious or minor nature. Despite the protestations of Cleck-ley and others, it seems as certain now as it did when the term originated that this is a wastebasket classification which is used for persons whose actions are disapproved of or not understood by clinicians and the lay public. Still later the term “sociopath” or “sociopathic personality” was originated and is in use today. It implies that the difficulty lies in an individual’s interaction with and adjustment to society rather than within his own personality. Although much can be said for changing the emphasis to this newer concept, it seems that essentially the same sorts of people with the same sorts of maladjustments are being described.
Even if one were to grant the existence of such a syndrome as psychopathy, a second assumption that there is a special brand called “sexual psychopathy” is seriously open to question. Cleckley (who has written more on the psychopath than anyone else and who must be regarded as the leading exponent of the psychopath as a clinical reality) lists 16 different criteria which compose this syndrome.4 In only one of these does he mention sex, and then it is only to point out that the psychopath’s sex life is impersonal, trivial, and poorly integrated. Definitions by various clinicians attribute to the psychopath habitual and purposeless lying, purposeless stealing, and inability to feel close, emotional attachments to others, and mention little or nothing about his sexual behavior.
Because the term “sexual psychopath” is a legal, rather than a medical, term, it has been defined differently from legislature to legislature throughout the country, and interpreted differently from court to court. This is in contradistinction to laws dealing with a medical entity, such as laws requiring persons with a venereal disease to take medical treatment. A smear or a blood test can determine whether a person has a venereal disease, without a legal definition of venereal disease being necessary. The sexual psychopath laws are in this respect some what analogous to the legal definition of insanity in criminal proceedings, where the M’Naghten rule criterion of criminal responsibility in insanity is considerably different from the medical definition of insanity.
In determining whether or not a person is a sexual psychopath the examining clinicians must perforce define sexual psychopathy regardless of their own opinions as to whether such an entity exists outside the law books. The important criteria appear to be the compulsiveness, repetitiveness, and/or bizarreness of the sexual behavior. While the law frequently insists that the person must be dangerous or, as in California law, “a menace to the health or safety of others,” this proviso is often loosely interpreted. Consequently, a man who repeatedly exposes his genitalia publicly stands a better chance of being adjudged a sexual psychopath than a man convicted once, or even twice, of the rape of an adult woman. The exhibitionist is regarded as mentally ill, whereas the rapist seems to be regarded as a person with normal impulses, but poor control.
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