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Is Pedophilia a Crime or an Illness?
Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=15772"><span class="small">Dahlia Lithwick, Slate </span></a>   
Tuesday, 05 March 2019 13:49

Lithwick writes: "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?"

Michael Jackson's 2003 mugshot. (photo: Robyn Beck/AFP/Getty Images)
Michael Jackson's 2003 mugshot. (photo: Robyn Beck/AFP/Getty Images)

Is Pedophilia a Crime or an Illness?

By Dahlia Lithwick, Slate

05 March 19

We’ve never quite known whether child molesters should be treated as sick people or punished as criminals.

n Sunday, HBO premieres Leaving Neverland, the new documentary that tells the stories of two men who say they were repeatedly sexually abused by Michael Jackson while they were children. The new reckoning raises the persistently tricky question: Should pedophilia be treated as a sickness or punished as a crime? After Jackson was charged with several counts of child molestation, Dahlia Lithwick looked into the research to try to answer the question. Initially published in January 2004, the original, still enlightening, is reprinted below.

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. 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 percent over 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.

The appeal of the crime-punishment model is that it can tailor the punishment to the crime. A one-time molester is as sick as a serial predator under the disease theory. But the attraction of the disease model is that it assumes both that there is a cure, and that the perpetrators wish to be cured. There is a danger to assuming the latter is true. It’s been the basis for the states who adopted mandatory civil-commitment laws, following the Supreme Court’s holding in 1997’s Kansas v. Hendricks that the most dangerous child molesters can be held involuntarily, after their sentences are served, so long as they’re receiving treatment. The problem is that often the treatment they receive is not sufficient or effective. But since this is “treatment” and not “punishment” neither the public nor the Constitution is offended, says the court. The danger of the “treatment” model is the danger posed to a society that has sedated and medicated an entire population into a law-abiding stupor. But the crime/punishment model is similarly hopeless. The promise of an ever-growing number of pedophiles either languishing in jails we cannot afford, or using jails for sleepovers between crimes is, quite possibly, a worse nightmare than the “treatment” option. Perhaps the best solution to a problem with hybrid causation is a hybrid solution: Studies generally show that treatment is better than no treatment, and it’s hardly coddling criminals to institute a program of close supervision, drug therapy, and counseling. If science is proved even 10 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.

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+6 # rl2014 2019-03-05 20:26
These people need to be kept away from children regardless of if they are sick or criminal. The cause of the impulse is less important than the result/effect, because, in large part we are talking about victims who are helpless - children and who society has a moral responsibility to protect. One sick man or woman should not be set free to victimize 150 children PERIOD. The main issue to my mind is that American prisons need to made more human for all and these molesters need to be kept locked up until there is an effective cure - either medical or psychological/b ehavioral and if not, for life.
-2 # sdraymond 2019-03-05 23:59
The same thing was said in the past about all gay people in America, Jews in Nazi Germany and all other groups that a society deems evil. The real evil is the individuals and the society that labels any group of people sick or criminal.
+5 # kyzipster 2019-03-06 11:39
It's not a good comparison at all. Homosexuality is no longer treated as a mental illness because consensual sex between adults harms no one. One of the reasons that homosexuality was criminalized for so long was because people equated it with pedophilia. Drawing no distinction. Calling pedophilia an 'orientation' is more of this negative propaganda imo. I've seen recent articles that have done this.

Someone might have a natural urge to have violent sex, if it's consensual between consenting adults, we don't necessarily outlaw it. When it's non-consensual rape, it's as serious a crime as molesting a child. It doesn't seem complicated at all to me. Pedophilia will never be acceptable because we see children as unable to give consent.

I think our laws can be very disturbing because there are grey areas. I remember a story about two teenagers having relations. I think the girl was 15 and the boy was 18. She was white and he was African American. The father of the girl found out and the boy ended up in prison, it was speculated that racism was a factor. He was treated under the law as no different than a pedophile. His life in ruins, he was about to go away to college on a scholarship. It's messed up.
+2 # rl2014 2019-03-06 15:08
How can you compare child molesters/pedop hiles to Jews, Blacks and gays, etc.? We are talking about people who force sex on children. I think that you are a more than a bit confused. The nature of Jewishness or Blackness, etc... does not lead to the rape and sexual abuse of children. Pedophiles/chil d molesters are SICK OR CRIMINAL or both. Having sex with someone who does not have the power to consent is de facto a crime. Forcing sex on children IS a crime. The question is: Are they sick? I am saying that either way the priority is to PROTECT CHILDREN who are not able to give consent. We must protect the children. PERIOD.
+1 # Thomas Martin 2019-03-06 01:48
Well said - just as we have to isolate those with communicable disease from our population, we have to segregate those having psychiatric problems that pose threats. However, how sad, not just for thee victims of these, but for those with the "disease" themselves! "There, but for the grace of God, go I."
+6 # lfeuille 2019-03-05 23:58
It may be partially genetic but the fact that those who are abused often become abusers themselves indicates that environmental influences play some part. That doesn't mean it's a totally voluntary act though. But it does mean it has to be a crime as well as a disease. Children have to be protected from a something that can warp their entire lives and the lives of the children they may encounter in the future.
+4 # IAMMe 2019-03-06 04:39
To the initial question: "Is Pedophilia a Crime or an Illness"?
Why can't it be both? If you're mentally ill and kill someone, it's still a crime.
+1 # RLF 2019-03-06 06:46
"...rational choices led to the commission of the crime, which is in doubt when one’s neurochemistry may be running the show."

Neurochemistry might be telling one to have sex but I don't think it is saying have sex with a child. Using this arguement, there is reason to concider rape and just about every other crime an illness.
+4 # ddd-rrr 2019-03-06 09:55
Ooooooph! And, "YIKES!"

This is an interesting, and surprisingly VERY thoughtful, article -- unlike many written on this very-difficult- to-deal-with subject, which are too often based on inaccurate assumptions!

The basic issue in this discussion is:

"At what point in life (considering physical age and development, mental maturity, ability to make informed decisions, and, most importantly, the ability to effectively refuse unwanted sexual approaches), in terms that are practical to apply, is consent appropriate." But, the common solution of the setting of an arbitrary age number for the establishment of a legal age of consent as the measure of appropriateness generally ignores the fact that this age may vary widely for different individuals (and somewhat, legally, for different locations). Setting the age too high for an individual may cause "rather uncomfortable mental anguish"; setting it too low risks too-frequent occurrences of what may properly be termed, "child abuse".

There is no easy or perfect solution to this question -- but it is one that is well worth thinking about and pursuing, since it affects so many people.
+2 # kyzipster 2019-03-06 11:59
I remember watching Summer of '42 when I was a teenager with my parents. It was aired prime time on television. Didn't seem the least bit controversial. The story is about a 14 yo boy losing his virginity to a 20-something, beautiful woman in mourning, her husband killed in WWII. Considered a right of passage, not child rape.

Might be a measure of how much society has changed in the last 40 years or so. This was in the 70s. The author of that story might be ostracized today, it was based on a true story about himself I read.

It's almost like that saying about pornography. We know it when we see it. Whenever a good looking, young female school teacher gets arrested for having sex with a 16 yo male student, a lot of people laugh about it. “Lucky guy!” When a 50yo trolls a shopping mall, talking to teenage girls, we want to lock him up, understandably so.
0 # ddd-rrr 2019-03-07 08:34
Yes, prejudices and hypocrisy too often prevail in external judgements when it comes
to the sexual attractions of people relative to preferences for age, gender-choice,
gender identity, power and/or wealth differences, intelligence-le vel, physical
appearance, emotional needs, etc. And, for none of these is there really
(as opposed to “the general conventions”) ANY universally
agreed upon, or necessarily correct, standard!