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January 11, 2004 - Crime and Punishment: Pedophilia

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Well, here's an interesting question.  Do you punish crime but treat illness?
What to do with Michael Jackson if he is guilty.
What to do with Michael Jackson if he cannot possibly BE guilty.

Is child molesting a sickness or a crime?



This came up during the week.

See Vile, Vile Pedophile
Is child molesting a sickness or a crime?
Dahlia Lithwick, Slate Magazine, Posted Wednesday, Jan. 7, 2004, at 4:17 PM PT

Here's the problem.


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.

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.

What science has revealed about the moral/medical roots of pedophiles is, of course, ambiguous.


Well... drat!

Lithwick lays out the medical and legal issues from the nineteenth century forward.  But she adds that 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.


But as Lithwick points out, 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?

Thomas Szasz (link here) 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, Lithwick says, 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.

Lithwick finds something else.  Back in 1987, Robert Wright discussed this in relation to alcoholism in the New Republic.  Wright's 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."

Somehow I don't find that helpful.  Pragmatic, yes.  Just?  Probably not.

But punishing child molesters has its attractions.

And what good does it do?


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.


And that is where Lithwick comes down.


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.


Indeed.  But is that practical?

And it is right?


If science is proved even ten percent right and nature has some hand in creating a pedophile, lifelong imprisonment solves only one immediate problem - warehousing dangerous citizens.  But it raises a more immediate problem - we may be punishing sick people who could have been helped.


Well, I'll have to think about this.

And by the way, the whole item is even more complex than my overview here.  You might read it.