The primary question in this case is whether a diagnosis of unspecified paraphilic disorder may constitutionally support a finding of mental abnormality under Mental Hygiene Law (MHL) article 10.
MHL article 10 is New York’s sex offender civil management statute. In relevant part, it permits the State to require inmates convicted of certain crimes to undergo psychiatric treatment after their term of incarceration if the inmate has a “mental abnormality.” A mental abnormality is defined as (i) a condition, disease, or disorder that (ii) predisposes the inmate to commit acts that constitute a sex offense and (iii) causes the inmate to have serious difficulty controlling his conduct.
The mental abnormality finding in this case was premised partly on a psychiatric opinion that respondent Luis S. suffers from a condition called unspecified paraphilic disorder, which is a type of paraphilic disorder contained in the American Psychiatric Association’s Diagnostic & Statistical Manual – Fifth Edition (DSM-5). Basically, the DSM-5 states that a patient has a paraphilic disorder if two criteria are present: (i) the patient experiences arousal to non-normal sex for a period of six months or longer, and (ii) the arousal causes impairment in the patient’s functioning. The DSM-5 lists eight common paraphilic disorders based on the nature of the paraphilic arousal–e.g., pedophilic disorder (arousal to prepubescent children) or sexual sadism disorder (arousal to pain and suffering of a victim).
The DSM-5 also contains two catch-all diagnostic categories for paraphilic disorders: other specified paraphilic disorder (OSPD), and unspecified paraphilic disorder (USPD). OSPD covers paraphilic disorders where the patient’s paraphilic arousal is not specifically enumerated in the DSM-5; this covers less common arousals, such as coprophilia (arousal to feces) or necrophilia (arousal to corpses). USPD covers paraphilic disorders where the diagnostician chooses not to specify a paraphilic arousal, typically because more information is required. This could occur if circumstances indicate two possible paraphilic foci–for instance, where a patient’s history demonstrates repeated acts of having sex in elevators using wooden sex toys but more information is required to determine whether the patient is aroused by sex in elevators, sex with wooden sex toys, or both at once.
The briefing in article 10 cases is confidential, but the Fourth Department’s decision discloses that respondent challenged the mental abnormality finding in this case in part on constitutional grounds. From the court’s decision, respondent’s argument appears to be that the diagnostic criteria for USPD are too vague to satisfy due process. The court rejected this argument, citing Court of Appeals precedent holding the constitution satisfied by similar diagnoses in earlier versions of the DSM.
Respondent appealed to the Court of Appeals as a matter of right.
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