But if a man forges a cheque or sets his house on fire, or robs with
violence from the person, or does any other such things as are criminal
in our country, he is either taken to a hospital and more carefully
tended at the public expense, or if he is in good circumstances, he
lets it be known to all his friends that he is suffering from a severe
fit of immorality, just as we do when we are ill, and they come and
visit him with great solicitude.
-- Samuel Butler, Erewhon, 1968, pages 111-112.
The dividing-line between treatment and punishment for offenders has
always been ill-defined. In his satirical dystopia, Erewhon ("Nowhere"
spelled backwards), first published in 1872, Samuel Butler depicted a
world in which crime was a sickness that deserved not moral censure but
sympathy, support, and the best possible care that the community could
offer. A century later, the irony of Butler's vision remained lost on
post-war correctional reformers who hoped that
…the formal distinction between prison and hospital will become
blurred, and, one may reasonably expect, eventually obliterated all
together. Both will simply become "places of safety" in which
offenders receive the treatment which experience suggests is most likely
to evoke the desired response (Wootton 1963:80).
The rise of retributivist models of punishment over the last three decades
has been largely influenced by the recognitions of the hypocrisy and ethical
shortcomings of the rehabilitative ideal. Butler himself foresaw these:
harsh and disproportionate punishments masquerading as "cures",
the denial of the rights of "patients", and the "therapists'"
inability to resolve their conflicting loyalties to the state and the
patient (Kittrie 1977, chapter 1). Yet, in the face of burgeoning levels
of crime, many jurisdictions continue to pour resources into rehabilitative
and treatment programs for offenders, which have expanded in terms of
both their setting (community as well as institution-based), their mandate
(not only formally convicted offenders but also those who have been diverted
from the criminal justice system) and, most importantly, their scope (offenders
who are not necessarily suffering from significant psychiatric disturbance
but who exhibit a range of other behaviours including physical violence,
inappropriate or violent sexual behaviours, substance abuse, "anger"
problems, etc.). Prominent amongst these are sex offenders, for whom treatment
programs have exponentially increased over the last twenty years (Marshall
et al. 1999:2).
All of these offender treatment programs, however, continue to pose the
same ethical dilemmas inherent in Butler's original version of inverted
morality. Resolution of such dilemmas has proved difficult. They can no
longer be ignored; rather, staff working in such programs have been encouraged
to breach traditional ethical codes of mental health practice, justifying
such breaches by pragmatic considerations (for example, the success of
a program in reducing offender recidivism rates). Some offender treatment
programs, especially many serving sex offenders, go even further than
this: they require therapeutic staff to explicitly and uncompromisingly
adopt particular vales and practices (e.g. mandatory involuntary treatment
for all offenders, regardless of the offender's preference) which cannot
be reconciled with traditional mental health ethics in any way.
This paper, after demonstrating that conventional mental health ethical
codes no longer provide guidance to professionals working in sex offender
treatment programs, gives several reasons for health professionals to
nevertheless remain involved with such programs. A therapeutic jurisprudence
approach is used to argue that the law's "healing" role in offender
treatment programs extends beyond sentencing and parole decisions to the
design of appropriate guidelines for therapy. Ultimately sex offender
treatment programs remain a form of punishment: the well-accepted principles
justifying and limiting the role of punishment in Western legal systems
may well be a better ethical guide for therapists in this area than conventional
codes of mental health practice.
TREATING THE PUNISHED AND TREATMENT AS PUNISHMENT
Punishment can be broadly defined as an authority's infliction of a penalty
on an offender, an offender being someone who has broken a rule or has
caused someone else to break a rule, whether negligently or intentionally
(Honderich 1989:19). Treatment, at least as far as offenders are concerned,
involves an intervention which is administered by, or supervised by, a
health professional, often (although not always) with at least one of
its aims being the alleviation of an offender's distress. These definitions
seem to capture the experiences of most people involved in the criminal
justice system. As we have already noted, however, the boundaries between
treatment and punishment have become increasingly blurred, with many treatment
programs having primary aims which are mainly punitive in nature, e.g.
protection of the community from the offender.
A more useful distinction, which is not often explicitly made in the literature,
is that between treatments which are administered to those already undergoing
punishment (for example, mental health care for prisoners) and treatment
which is either implicitly or explicitly a component of punishment (for
example, sex offender treatment programs which are a condition of a court
order or which are undertaken in expectation of favourable consideration
for parole). Although there is some overlap between these two types of
treatment, they represent two extremes of an ethical spectrum.
In the former (treatment for those already undergoing punishment), the
clinician may often be forced to breach ethical standards but is always
obliged to justify such breaches. For example, although confidentiality
often cannot be guaranteed in prison settings or court-ordered evaluations,
the clinician must be aware that:
Respect for the individual's right of privacy and the maintenance of
confidentiality are major concerns…the psychiatrist maintains confidentiality
to the extent possible given the legal context…(American Academy
of Psychiatry and Law, Ethical guidelines for the practice of forensic
psychiatry, Revised 1995, quoted in Gutheil, 1999:348).
Although there are many situations where confidentiality cannot be maintained
(e.g. preparing an assessment for a court, reporting an offender's escape
plans to prison authorities), such instances are always treated as exceptions
to a more general and usually overriding rule, which stresses the primary
role of confidentiality in the therapeutic relationship. Breaking confidentiality
is a necessary evil that is, at the very least, a hindrance to the development
of a therapeutic relationship and, in some cases, destructively anti-therapeutic.
By contrast, in treatment programs which form part of the punishment meted
out to offenders, the therapist may not only be allowed but is often required
to breach ethical codes of good mental health practice, the justification
being that such breaches are the only way that treatment can be made effective.
This is especially the case for sex offender treatment programs. In them,
confidentiality, for example, can never be guaranteed:
Limited confidentiality is a necessity if a child sexual abuse treatment
team is to function effectively. In this, sexual abuse differs from
all other therapeutic programs known to the author…sexual abuse
programs differ from the traditional stance on confidentiality in that
individuals are asked to surrender their right to have total confidentiality
upon entry to the program and may be denied entry if they do not agree…(Salter
1988:89-90).
SEX OFFENDER TREATMENT PROGRAMS: A SYSTEMATIC SABOTAGE OF TRADITIONAL
ETHICS
Most sex offender treatment programs are administered as specific components
of punishment ordered by a court, parole board, or similar body. Ethically,
they thus follow the treatment-as-punishment model described above with
the therapist being required to adopt a value-system which is very much
at odds with the codes of practice traditionally used by mental health
clinicians. Protection of the community, rather than the welfare of the
offender, is the primary aim of treatment.
Of course, no form of mental health intervention is entirely beneficent:
for example, diagnosis of a disorder may be a process which the patient
experiences as dehumanising, discrediting, and punitive (Reich 1999).
Nevertheless, except in some totalitarian regimes such as the former USSR,
mental health clinicians are expected to take heed of these risks, using
recognised ethical principles such as beneficence and promotion of the
patient's autonomy.
However, in sex offender treatment programs, the responses to such ethical
dilemmas over-ride traditional ethical guidelines and are usually not
in the best interests of the patient. Furthermore, these non-beneficent
values are seen as an intrinsic and necessary features of the therapeutic
regime: the mark of a good therapist is as much their adherence to these
values as is their clinical skill. Even though they constitute clear breaches
of traditional codes of mental health ethics, they pervade all aspects
of treatment programs for sex offenders.
Examples of these breaches and of the treatment procedures which require
their incorporation include the following:
1. The primary measure of treatment success is that of the protection
of society rather than alleviation of the offender's suffering. Evaluations
of effectiveness of treatment programs tends to focus almost solely on
measures such as recidivism rates, delays in onset of reoffending, decreases
in the violence and intrusiveness of behaviours of those who do reoffend,
and/or decreased cost to the community and victims. Outcome measures such
as offender satisfaction with the program appear to be largely ignored
or considered to be irrelevant, even though it is acknowledged that some
techniques such as promoting an offender's self-esteem are important in
achieving decreased recidivism rates (Marshall et al. 1999, chapters 4
and 10).
Nearly all codes of ethics in mental health practice, however, require
the patient's interests to be paramount, except in certain well-defined
circumstances. For example, ethical standard (3) of the World Psychiatric
Association's Declaration of Madrid requires that:
The patient should be accepted as partner by right in the therapeutic
process. The therapist-patient relationship must be based on mutual
trust and respect…(World Psychiatric Association 1996, reprinted
in Bloch et al. 1999:518)
2. Treatment, to be effective, must usually be involuntary.
For paedophiles, for example, court ordered therapy is "essential"
in that offenders are more likely to persist with therapy and the therapist
is less likely to collude with offender denial. Offenders who "volunteer"
for treatment generally are considered to have a worse outcome than their
involuntary counterparts, whether in a community or institutional setting
(Salter 1988: 86-87).
In recent times, prominent writers in the field have become even more
blatant about their advocacy for coercive therapy. Marshall and his colleagues
firmly believe that:
Such interventions should sensibly combine treatment with incarceration.
These men knowingly engage in behaviours that are unlawful, as evidenced
by the fact that they take great care to avoid detection and by the
fact that most act to prevent their victims from reporting the offence…clear
feedback from society, by way of a prison sentence, makes it apparent
to these men, as it does to all other offenders, that their abusive
actions are not acceptable (Marshall et al. 1999:3).
Such stances clearly contravene accepted practice. All mental health
ethical codes provide that involuntary treatment (for example, for people
with severe mental illness) can only be contemplated as an intervention
of last resort, based on a finding that the person, "because of mental
illness, cannot form a judgement as to what is in his/her own best interests
and that, without such treatment, substantial impairment is likely to
occur to the person or others" (American Medical Association 1988,
reprinted in Bloch et al. 1999:525-526).
3. Effective treatment requires that confidentiality be breached.
As noted above, in sex offender treatment programs it is routine to offer
only limited confidentiality. Offenders are required to give permission
for their cases to be discussed with a wide variety of people and agencies.
The recipients of this information may include both clinical and non-clinical
personnel, especially judicial officers, parole authorities, corrections
officers, members of their family, past and potential victims and those
associated with them, and (in the case of group therapy programs) fellow
offenders. This is characteristic of even more enlightened programs which
seek to use persuasive, rather than confrontational, methods of therapy
(see, for example, Birgden and Vincent, 2000). The ethical dilemmas arising
from such requirements have been discussed above.
4. Generally, the offender must not be allowed any choice of therapy
or therapist. Sex offenders are required to complete particular
programs, irrespective of any other treatment that they might be receiving,
in order to gain parole or (in the case of community programs) avoid imprisonment
(Birgden and Vincent 2000; Peebles 1999). The reasons for this insistence
that an offender complete a particular program or a particular type of
program are not entirely clear. There is some empirical evidence that
programs based on particular treatment methods (particularly cognitive-behaviour
therapy supplemented, if necessary, by pharmacological interventions)
result in lower recidivism rates (Marshall et al. 1999, chapter 10). There
may also be economic and organizational justifications. Nevertheless,
there appears to be an almost morbid and irrational preoccupation with
the ability of sex offenders to manipulate gullible and vulnerable therapists
and a corresponding concern that offenders receive therapy only from those
who hold the right kinds of attitudes and values (Salter 1988:91-93; O'Connell
et al. 1990).
Whatever the reason, such practices clearly infringe on the therapist's
ethical duty to promote the offender's right to self-determination, including
(for example) the "general right to engage in and to end the professional
relationship…" (European Federation of Professional Psychologists
Associations, 1995, reprinted in Francis 1999:234).
5. Offenders may be forced to accept therapy from non-clinicians
or unqualified staff. A large number of sex offender treatment
programs rely heavily on the use of prison officers and other unqualified
staff (ATSA 1996). Such arrangements might be justified by financial constraints
or the promotion of a therapeutic environment in the setting concerned.
However, they will often contravene the ethical requirement to offer offenders
high standards of care provided by appropriately qualified professionals
(see, for example, the Declaration of Madrid, 1996, section 2;
American Medical Association 1988, sections 1 and 5).
6. Effective therapy requires multiple other infringements on an
offender's dignity and autonomy. Not only are offenders forced
to accept involuntary treatment, limitations to confidentiality, loss
of choice of therapist and services from unqualified staff, they are also
required to adopt specific attitudes, values, and behaviours determined
largely by the therapist. They are not allowed to deny their offending
behaviours, even though this might place them at risk of incriminating
themselves in hitherto undetected criminal activities (Kaden 1998). They
may be forced to admit to detailed plans for offending or extensive pre-offending
sexual fantasies, despite the evidence that, in at least some offenders,
such plans or fantasies may be non-existent (Marshall et al. 1999:62-64).
They are required to carry out behaviours determined by the therapist,
to prevent relapse; although some of these requirements are reasonable
(e.g. paedophiles avoiding schools and playgrounds), others may involve
quite arbitrary dictates (for example, the standard of personal hygiene
which an offender must follow) (Marshall et al. 1999:131-132).
The therapist remains actively in control and the price for the offender
of questioning the goals set by the therapist is a heavy one: possible
expulsion from the program or at least an unfavourable report to a court
or parole board. Although few writers in the field have acknowledged it,
this sort of control comes perilously close to brainwashing, with the
aversive stimulus being the threat of further punishment if the offender
does not comply. Those who have used aversion techniques for sexual dysfunction
generally (for example, to change sexual orientation) have concluded that
they are not only ineffective but also unethical unless the patient is
able to reject or withdraw from treatment (Bancroft 1991). They clearly
infringe upon an offender's right to self-determination as enshrined in
all of the ethical codes cited above.
SHOULD MENTAL HEALTH CLINICIANS ABANDON SEX OFFENDER TREATMENT PROGRAMS?
Clinicians who treat sex offenders are probably practicing in an ethical
vacuum. They are required, as part of "good" clinical practice
to violate the precepts of most traditional ethical codes. On the other
hand, they are rarely provided with guidance as to appropriate ethical
principles that might replace those which they have been obliged to breach.
Where attempts have been made to provide such guidance, they have produced
considerable ambiguity. For example, most writers in the field would at
least grudgingly acknowledge that sex offenders, as human beings, deserve
to be treated with dignity and respect. However, the major justification
for doing so is really an instrumental one in that (for example) promotion
of self-esteem in sex offenders reduces their tendency to re-offend: people
with low self-esteem generally feel more threatened by negative feedback,
are less motivated, are more likely to do poorly in tasks, and are generally
disinclined to make commitments to change (Marshall et al. 1999:55).
Yet there appear to be good pragmatic reasons for mental health clinicians
to continue to be involved in the treatment of sex offenders. Firstly,
such programs work; a number of methodologically sophisticated studies
have now shown a significant drop in recidivism rates for offenders treated
via cognitive-behavioural techniques compared to groups of offenders who
were either untreated or treated by a different means. The effect is particularly
striking for those programs evaluated within the last few years, i.e.
precisely those programs that demand the violations of traditional ethical
codes listed above. (For a review, see Marshal et al. 1999, chapter 10).
As many have pointed out, these sorts of successes have produced an enormous
reduction in the suffering experienced by potential victims and the community
and huge savings in the costs of criminal justice and other interventions
for sex offenders and their families.
A second reason for clinicians continuing to treat sex offenders is that
the presence of behavioural professionals in correctional institutions
and programs, in general, has a humanizing effect. Although often parodied,
the world-view of mental health professionals encompasses more than just
the rehabilitative ideal. It is important for offenders (and even more
important for correctional officers) to know that criminals are not incorrigible,
conflict with them is not inevitable, and harsh punishments are not the
only solution to the problem of crime (Burt 1993).
Thirdly, at the very least, sex offender treatment programs are not hypocritical
(except that the term treatment continues to be widely used). The
therapist is firmly committed to the good of society rather than the welfare
of the offender. Thus, unlike the offender therapy and rehabilitation
programs which caused so much concern during the sixties and seventies,
therapists are not allowed to fool their clients (or themselves) into
believing that the abuses of aversive therapy and pharmacological treatments
practiced then represent therapy in any conventional sense (see also Kittrie
1977, chapter 4).
ARE ETHICAL CODES NECESSARY IN OFFENDER TREATMENT?
One way of sorting out the problem is to ask whether ethical codes are
necessary in this sort of clinical work. Clinicians and their philosophical
advisers use such codes for a variety of purposes. It could be that, for
the purposes of treating sex offenders, ethical codes are either irrelevant
or unnecessary.
Firstly, codes of ethics can be seen as simply a way of encouraging certain
standards of conduct. It is believed (although this is not necessarily
supported by the empirical evidence) that members of a profession following
a particular ethical code will be more likely to act in certain desirable
ways. Lichtenberg (1996) has described some processes by which this might
occur: "bringing to consciousness" the relevant rules of conduct,
attaching sanctions (for example, censure by fellow professionals) to
breaches, increasing people's motivations to act in a certain way (by
encouraging people to believe that they can "make a difference"
by so acting), and decreasing the sacrifice involved in carrying out such
activities (by encouraging widespread conformity with a rule that might
otherwise disadvantage those who do conform to it).
The problem with this formulation (as acknowledged by Lichtenberg herself)
is that codes of ethics devised for these reasons give little recognition
to the motives and values of an individual who has to act to resolve a
particular ethical dilemma. They are simply prima facie assumptions as
to how an individual ought to act generally. They rarely, if ever, will
conclusively decide the specifics of individual cases, and they are always
rebuttable by appeal to considerations such as the autonomy of the individual
professionals and their right to "conscientiously object" to
the provisions of a code which may not apply to them.
At crucial times, therefore, ethical principles fail as guidelines for
practice: there is little guidance for the vast majority of ethical dilemmas
which involve ambiguous issues or borderline breaches, whereas clear-cut
violations (e.g. assaults on clients) are capable of being dealt with
by other mechanisms, such as the criminal law.
A second, and more venerable, approach to defining the need for a code
of ethics arises from the protection and promotion of particular professional
groups (the Hippocratic oath is a notable example). Therapists in sex
offender treatment programs are no different from other professionals
in wanting to ensure special recognition of their status, knowledge, particular
privileges (such as self-regulation, setting their own fees), and generally
as a powerful group within society (Bloch and Pargiter 1999). Indeed,
cynics might argue that sex offender therapists are no different from
other professionals who, in George Bernard Shaw's terms, are "conspiracies
against the laity". Ethical codes with this purpose place a high
premium on rules, which increase the coerciveness of the professional
group involved (e.g. obligations to educate one's junior colleagues and
preserve the secrets of one's craft). The duty to serve the best interests
of one's client is assumed to be a natural part of the nobility of one's
professional calling, rather than a specific ethical requirement of practice.
Clearly, ethical codes with this sort of aim are not appropriate for those
working with sex offenders, where one of the most problematic areas of
the professional relationship is the already huge power imbalance between
therapist and offender. If anything, ethical codes aimed at establishing
and strengthening professional privileges are likely to simply increase
that imbalance, something that is already being done by the breaches which
have been described above.
A third, and possibly more satisfactory approach, is to treat a code of
ethics as a public commitment by a professional group to a particular
set of standards and rules. In this way, an ethical code becomes part
of a group's self-definition and also a justification of its role within
society. For example:
The primary ethical justification of the institutionalisation of medicine
seems to be to provide members of the community with the means by which
their illnesses can be cured and their pains alleviated. The professional
body's activities of credentialing, of further education, of drawing
up codes of ethics can also be justified by reference to this purpose
and the ethical justification of the institution provides a guide as
to what should be included in the code of ethics. (Coady 1996:46).
This notion fits nicely with the modern concept of "risk management"
in organizations. The best justification that a professional group can
have for claiming a special role in society is to point out that misconduct
by individual members of the group is an aberration. No matter what stereotypes
may be raised about a particular profession in the scandal which invariably
accompanies cases of spectacular misconduct, the group as a whole is entitled
to defend itself by emphasizing its general commitment to the highest
standards of ethical practice (Francis 1999:50).
While they are a relatively new phenomenon, clinicians in sex offender
treatment programs increasingly want to define a public role for themselves.
The Association for the Treatment of Sexual Abusers, for example, in its
position papers, not only provides information about treatment and its
effects but also is well aware of its responsibilities to offenders, the
victims, and the community at large (ATSA 1996). The public persona of
those running sex offender treatment programs is becoming increasingly
important, as is a commitment to high standards of practice.
It does seem, therefore, that those involved in treatment of sex offenders
need an ethical code for the purposes of defining themselves as a professional
entity, committed to certain standards of practice, and ready to uphold
such standards should one of their members breach them. But we now return
to our original problem: what is to guide clinicians treating sex offenders
in resolving ethical dilemmas if they, as part of their routine practice,
are required to violate the ethical codes which have performed this important
function in the past?
ADAPTING OLD CODES: THE USE OF PATERNALISM
Codes of ethics for mental health professionals rest on a framework of
basic principles. Generally these are: respect for autonomy (ensuring
that the patient or client is free from external constraints and promoting
their capacity to make voluntary informed decisions), non-maleficence
(avoiding harm to the client), beneficence (the welfare of the patient
is the primary goal of treatment), and justice (ensuring that the patient
is treated fairly, equitably, and in accordance with his or her rights
and entitlements) (Beauchamp & Childress 1994, chapters 3 - 6, also
see the summary in Beauchamp 1999). When these principles conflict (as
they invariably must), the norms and rules that they produce should be
suitably specified to cover the particular dilemma which demands attention.
Paternalism is an important instance of how such conflicts arise. A person's
autonomy is limited in some fashion, with the justification that this
limitation will be of benefit to him or her. A classic example in mental
health practice is that of the involuntary hospitalisation of mentally
ill people. There are usually numerous legal and ethical restrictions
as to how paternalistic powers may be exercised. For example, patients
have to be unable to provide informed consent to treatment, they must
pose a danger to themselves or others, the treatment proposed is necessary
and available in the institution to which they are to be admitted, etc.
The point to note is that, when these very specific conditions are met,
paternalism becomes a justifiable, even laudable, way of approaching the
problem of patient treatment.
It is tempting, therefore, to use a notion such as paternalism to justify
the multiple restrictions on sex offenders' autonomy and the resultant
harms that they suffer when they participate in the sorts of treatment
programs described above. These programs can readily be seen as producing
long term benefits for the offenders themselves, in addition to their
primary aim of protecting society: because they reduce recidivism, offenders
will be less likely to suffer the personal consequences of their offending
behaviours. Such consequences can be serious and include lengthy periods
of incarceration, the loss of an offender's livelihood and reputation,
and estrangement from his or her family and friends.
Paternalism, therefore, provides a way for therapists working with sex
offenders to adapt traditional mental health codes of ethics to their
own needs. It explicitly recognizes that, in specialist treatment programs
for offenders, there is a significant conflict between some basic ethical
principles underlying mental health practice, but the specifics of the
situation justify the dominance of one particular principle, i.e. beneficence,
over the rest. Clinicians treating sex offenders can assure themselves
that they are, despite a number of ethical irregularities in their own
practice, like other mental health practitioners in that they are ultimately
(even if only indirectly) interested in the welfare of their clients.
There are two major criticisms of this adaptation of more traditional
codes. Firstly, justifications relying on paternalism generally assume
that the subject's autonomy has already been impaired in some way even
before a decision is made to restrict it further. Involuntary psychiatric
patients are generally not able to make informed decisions about their
care or treatment. By contrast, most sex offender treatment programs very
carefully evaluate the offender's capacity to consent to treatment. If
an offender refuses or ceases participating in treatment, they do so autonomously,
i.e. they nearly always have been fully informed about the nature of the
treatment and the consequences of refusal or non-participation.
One way of getting around this apparent forcing of treatment on those
who are competent to refuse it is to appeal to other ethical principles
apart from beneficence. One could say, for example, that, paradoxically
enough, the temporary restrictions on an offender's autonomy imposed by
treatment programs may be justifiable in that they promote increased long-term
autonomy. Indeed, psychological therapies generally often assume an increase
in the patient's autonomy as being the long-term primary goal, even if
this means some transient and temporary limitations on the patients' ability
to determine their own lives. Some types of psychotherapy, such as the
"paradoxical techniques" of family therapy, allow therapists
to deceive and manipulate patients in order that they may escape from
bonds of crippling anxiety and rigid patterns of behaviour. A conscientious
clinician should feel no shame if he or she can show that ethically dubious
techniques ultimately produced a patient who has a greater capacity for
rational and informed decision-making about his or her life (Holmes and
Lindley 1991:145-148).
The cognitive-behavioural techniques used in sex offender treatment programs
do precisely this: by teaching offenders to understand their patterns
of behaviour and to recognize their harmful consequences, these treatment
techniques ultimately aim to increase offenders' capacities to make informed
and rational choices including that of a non-offending lifestyle. Many
writers firmly believe that the offender's learning this "internal
management", rather than having to rely on external controls, is
itself an important factor in reducing recidivism (Marshall et al. 1999:161-162).
A more cogent criticism of paternalism as a way of adapting traditional
codes of practice for sex offender treatment programs is that (as we have
already seen) it is an accidental or secondary effect of such treatment.
Their primary aim remains the protection of the community. Some might
argue that the intention behind a clinical intervention is not important,
provided that it ultimately (even if accidentally) benefits the offender.
However, practically speaking, the sum total of harmful effects in this
case may outweigh long-term benefits, particularly for recidivist offenders.
Confidentiality will repeatedly need to be breached to enhance detection
of past and potential crimes. The offender's choice of therapy will have
to be severely restricted to ensure consistency of treatment and monitoring.
The offender's lifestyle will be strictly controlled to limit opportunities
for re-offending. These restrictions, if enforced over a prolonged period,
may not be justified by the dubious rewards of less time in prison or
less ostracism by the community.
Ultimately, therefore, clinicians working in sex offender programs are
unable to usefully adapt any codes of ethical mental health practice which
are fundamentally based on serving the offender's best interests, i.e.
most traditional codes. Yet, as we have seen, these practitioners increasingly
recognise the need for some sort of code, not least of all because such
a code, rather than their knowledge and skills, will be instrumental in
defining their professional roles and responsibilities.
AN ANSWER FROM THERAPEUTIC JURISPRUDENCE
Therapeutic jurisprudence is the "study of the role of the law as
a therapeutic agent" and, in particular, the influence of the law
on emotions and on psychological well-being (Wexler & Winick, 1996:xvii).
It "offers the promise of creating a 'law of healing'", with
a particular emphasis on modifying the conflict, stereotyping, and scape-goating
which often characterize legal systems and their interactions with those
caught up in them (Perlin 2000).
The therapeutic jurisprudence perspective can also be seen as the product
of the disquiet regarding both the excesses of the "therapeutic state"
and the deficiencies of the criminal justice system which was first raised
three or four decades ago. Kittrie's influential work, particularly the
book, The Right to be Different (Kittrie 1977) provided convincing
and distressing details of the abuse of therapeutic zeal in dealing with
a wide range of socially deviant populations including the mentally ill,
delinquent youths, psychopaths, drug addicts, alcoholics, and the mentally
retarded. What needs to be remembered, however, is that Kittrie emphatically
refused to blame these excesses on allegedly sinister and power-hungry
cabals of mental health professionals seeking, as in Brave New World
or A Clockwork Orange, to brainwash humanity into a mass of
dull conformity. Rather, he points out that the applications of mental
health therapy techniques to offenders are a direct and necessary outcome
of the "inability of classical criminal law to secure order and tranquillity
in present-day society" (Kittrie 1977:374). Unfortunately, treatment
programs have often become "the receiving ground for past mistakes
of criminal law, when society finally repents of its error but is not
yet willing to tolerate the offensive activity, even though it is not
particularly harmful" (Kittrie 1977:383).
In the particular case of sex offenders, writers on therapeutic jurisprudence
have strongly advocated for improvement in legal procedures to facilitate
rehabilitation and treatment. Wexler (1993) has suggested that judges
should not accept a plea such as nolo contendere ("no contest")
without questioning the basis for such a plea, otherwise the judicial
officer concerned could well be implicitly colluding with an offender's
denial ("I didn't really do it, but they told me it would be easier
for me this way"). Winick (1998) has emphasized the anti-therapeutic
effects of laws which require public notification of the presence of a
convicted sex offender in a particular community. Such labelling reinforces
the offender's own perception of himself as a person unable to change
or take responsibility and may, indeed, become a self-fulfilling prophecy.
Other writers have highlighted the role of therapeutic jurisprudence in
justifying "gentler" sentencing options such as extended community
supervision (rather than long-term incarceration) as a more cost-effective
way of ensuring community protection (Peebles 1999).
On the other hand, "it is clear that an enquiry into therapeutic
outcomes does not mean that therapeutic concerns 'trump' civil
rights and civil liberties" (Perlin 2000, italics in original). Indeed
Perlin's comments in this context, applied to legal processes affecting
those with mental disabilities, are equally applicable to anyone caught
up in the criminal justice system. We must be aware (to extend Perlin's
concepts) of disguising, as therapeutic, interventions that are really
aimed at allaying our own anxieties about offenders.
At a more practical level, these concerns have recently been elaborated
as a subspecialty of therapeutic jurisprudence, rather cumbersomely labelled
"jurisprudent therapy". The concept remains poorly developed
but essentially it involves:
Different facets of mental health in a social science context [being]
evaluated for their 'jurisprudent', neutral, or 'antijurisprudent' effects.
The term 'jurisprudent' in this context is defined in terms of legal
rights, privileges and options (Drogin 2000:492).
This sort of approach is exemplified by the difficulties sex offenders
face when they insist on denying some or all of their offences while in
a treatment program. In the US, the Fifth Amendment to the Constitution
gives offenders (even after conviction) a fundamental right against self-incrimination.
Yet, in treatment programs, they are routinely required to waive that
right or else be regarded as untreatable and face harsher penalties. Matters,
of course, are made worse by the fact that, as we have seen, sex offender
treatment programs will generally guarantee their clients only limited
confidentiality, with obvious implications for reporting of disclosed,
but previously undetected, offences, by the therapist to the relevant
authorities (Kaden 1998).
The courts in the US have adopted different views as to whether an offender's
right against self-incrimination can be protected after conviction. The
relevant legal considerations appear to include the plea entered at the
time of conviction [State v. Imlay, 813P.2d 979 (Mont. 1991); State v.
Gleason, 576A.2nd 1246 (Vt.1990)] and the gravity of the consequences
of such self-incrimination [McKune v. Lile, WL 1270605 (U.S.) (2002)].
Yet it is clear that this right is not one that should be given up easily.
Kaden (1998) has astutely pointed out that there is no good empirical
evidence to support the intuitive assumption that confession of one's
misdeeds results in a decreased risk of antisocial behaviour. Rather,
admission of responsibility for an offence simply is an image of the "rehabilitated"
offender, which sits most comfortably with stereotypes adopted by the
courts. In practice, as Kaden shows, there are many types of treatment
approaches that rely very little or not at all on offenders disclosing
their crimes but which are still effective in reducing recidivism rates.
In some cases, a therapeutic jurisprudence approach reveals that the law
is exerting both antitherapeutic and antijurisprudent effects. John La
Fond (1999) has eloquently demonstrated that sexual predator laws in Washington,
Kansas, and other US jurisdictions use treatment as a justification for
indeterminate civil detention of sex offenders, thus denying them their
constitutional right not to be punished twice for past crimes. Yet it
is clear that the same legislators and officials who have devised and
implemented these laws cynically doubt the efficacy of any treatment program.
They have complied only grudgingly with court injunctions to improve the
inadequate programs currently being offered and probably never intended
that detained offenders ever be released, even after successful completion
of treatment. If one adds to these conditions the dubious ethical practices
of the treating clinicians described above, then the potential for abuses
of fundamental human rights becomes very high.
Therapeutic jurisprudence and its extensions, therefore, promote an acute
awareness of the complex psychological and social processes, which accompany
the legal system in all its manifestations. The therapeutic jurisprudence
view of sex offenders (if such can be characterized at this early stage
of the discipline's development) appears to involve: (a) Mitigation of
some of the harsher (anti-therapeutic) sanctions imposed on them (e.g.
long sentences, compulsory community registration), justified as much
by the benefit to the community as by the effects on offenders themselves,
(b) Modification of legal processes that might impede rehabilitation,
even though advantageous to offenders themselves (e.g. unquestioning acceptance
of a nolo contendere plea), and (c) A continuing insistence that treatment
techniques, however beneficial for the offender or the community, do not
jeopardize the civil and legal rights of individual offenders. The implied
model of punishment is essentially a utilitarian one, tempered by some
basic principles of retributive justice, or what philosophers have labelled
as "teleological retributivism" (Ezorsky 1977). That is to say,
the law should promote punishment regimes which minimize suffering to
sex offenders while still effectively protecting the interests of society
and ensuring the preservation of an offender's basic civil and legal rights.
The treatment programs described above are one important (but not the
only) way of achieving these goals.
AN ETHICAL CODE SUGGESTED BY THERAPEUTIC JURISPRUDENCE
Therapeutic jurisprudence, at this stage of its development, remains primarily
a practical project, focused on humanizing legal processes. Yet, from
the above discussion, one can see some important principles emerging which
can be applied to offender treatment programmes in general and, in some
cases, specifically to programmes for sex offenders. Many of these principles
would be familiar to legal professionals in other contexts, for example,
as statutory or case law guidelines for sentencing courts. What therapeutic
jurisprudence has done, however, is to highlight the importance of these
principles for therapeutic programs which are part of a regime of punishment
or, to reiterate a concept discussed earlier in this paper, programs of
treatment-as-punishment.
For the clinician involved in sex offender treatment, three important
groups of principles stand out:
(a) The offender must be treated with procedural fairness.
Therapeutic jurisprudence is concerned, perhaps more than other jurisprudential
systems, with an all-encompassing approach to natural justice or due process.
This means not only attention to traditional concerns such as the right
to notice of a hearing, the right to be heard by an unbiased judge, the
right to legal representation etc, but also the provision of a "voice"
to all stakeholders in the criminal justice system. Whether they are an
offender, victim, or witness, all participants should be entitled to the
time and resources to enable them to feel that they have properly put
their views to a court or other decision-making body (Freiberg 2001).
For a therapist in a program for sex offenders, this means, at the very
least, giving careful and adequate consideration to an offender's views,
comments, and explanations; particularly when decisions are being made
which might impact on that offender's liberty or personal rights (such
as expulsion from the programme, limitations on an offender's ability
to visit certain locations, or engaging in particular activities).
This does not necessarily mean that formal judicial processes be followed
every time such decisions are made. Rather, there needs to be evidence
that appropriate principles of natural justice or due process have been
followed. For example, a therapist who develops strong feelings of like
(or dislike) for an offender (and this is a common situation) should avoid
participating in any decision as to whether an offender continues to remain
in the program. Offenders should have some process of appeal against conditions
of program participation which appear to place harsh or unnecessary restrictions
on their daily activities, such as the maintenance of standards of personal
hygiene, requirements to fully confess all past crimes and misdemeanours,
however trivial, etc. Such appeals, in the first instance, may well be
to other clinical practitioners (perhaps working outside the program)
who could form an independent judgement as to whether the restrictions
involved were necessary to achieve the aims of the program.
Procedural fairness, like many ethical ideals, is not easy to achieve.
As we have already seen, manipulative behaviour and therapist-shopping
are hallmarks of sex offenders, particularly those who are trying to deny
or minimise their behaviours. They may well use concerns over their rights
as excuses for avoiding important therapeutic issues. On the other hand,
to allow the therapist to have unfettered powers is an even more unpalatable
option: therapeutic jurisprudence hopefully emphasises a middle way between
these two extremes.
(b) The amount and type of treatment is governed by the seriousness
of the offence at least as much as by the need for treatment.
This is basically a context-based restatement of the well-known sentencing
principle of proportionality. The punishment imposed must be proportionate
to the seriousness of the offence. There are many offenders with serious
psycho-social problems who could probably benefit greatly from prolonged
and extensive participation in various treatment and rehabilitation programmes
but whose crimes are so minor that they simply do not deserve the imposition
of punishments which would enable such interventions to be carried out.
In a therapeutic jurisprudence field, this issue has risen to prominence
with the establishment of "problem-solving" or "problem-oriented"
courts whose purpose is to consider the wider psycho-social problems being
faced by offenders rather than a narrow focus on offence-related issues.
Thus (for example) there are now drug courts, mental health courts, domestic
violence courts, etc.; all aimed at identifying defendants with particular
problems and referring them to specialised clinical agencies, rather than
using more traditional methods of disposition such as imprisonment (Freiberg
2001; Rottman & Casey 1999). While there is no doubt that the intentions
of these courts are entirely benevolent, the sentences or other forms
of disposition, which they encourage, may well be seen as being more burdensome
than traditional punishments by the defendants who appear before them.
For example, many substance abusers in a UK study say that they prefer
imprisonment to the daily reporting and frequent urine testing which are
the requirements of a "community" drug treatment program (Walsh
1999).
For clinicians treating sex offenders, the principle of proportionality
has wide-ranging ramifications. There is no doubt that treatment programmes,
which are longer, more extensive in their use of different modalities,
and based on involuntary participation, have a great chance of reducing
recidivism. Nevertheless, the "nuisance" crimes such as indecent
exposure committed by many sex offenders may not warrant the imposition
of this sort of treatment-as-punishment regime, particularly if it involves
onerous restrictions on an offender's lifestyle. Furthermore, the mere
establishment of a treatment programme may itself lead to the well-known
phenomena of net-widening and sentence escalation: offenders who may not
have been previously considered for a custodial sentence may receive one
because the prison concerned operates a treatment programme.
The adoption of proportionality as an ethical principle will force many
clinicians in sex offender treatment programmes to think more carefully
about issues such as their preference for mandatory programmes, the appropriateness
of incarceration as part of a treatment regime, and the use of harsh restrictions
on an offender's lifestyle to achieve treatment outcomes.
(c) Infringements on an offender's legal rights must be minimised.
In some ways, this principle is analogous to the well-known requirement
for the use of the "least restrictive alternative" when clinicians
have to treat clients involuntarily. The aim, however, is different. It
is not the traditional one of promoting client autonomy (although this
may well be an important consideration, see Holmes & Lindley 1991,
ch.1). Rather, the guiding rule is that of non-maleficence; minimally
restrictive treatment/punishment interventions are used because unnecessary
punishment is intrinsically unethical. A simple, but powerful, justification
for this rule is offered by the utilitarians who will:
[only] justify a particular punishment if the suffering inflicted by
that punishment is less than the harm caused by the crime which would
have occurred had there been no punishment (Ten 1987:142).
Thus (for example) if two punishments, one harsher than the other, are
equally as effective in deterring a crime, then the less harsh one is
to be used.
An example that has been referred to throughout this paper is that of
forcing offenders to incriminate themselves even when the offending behaviours
involved have been the subject of any formal legal attention. The use
of this principle would require clinicians to investigate treatment methods
which do not require an offender to provide a comprehensive confession
of all their past behaviours (and, indeed, such methods are already being
tried).
More broadly speaking, this principle also requires clinicians to think
carefully about any treatment procedures, which might infringe on offenders'
fundamental rights, e.g. rights to privacy, freedom of expression, freedom
of movement, etc. Forcing an offender to adopt a therapist's views and
attitudes, unnecessarily restricting their daily activities or arbitrarily
breaching confidentiality are all demeaning and humiliating experiences
which an offender may well not be forced to undergo to the same extent
in other punitive environments such as a prison. Under the minimal restriction
of rights principle, clinicians would not necessarily be required to abandon
these measures but would be asked to justify them and constantly review
them with reference to the aims of the treatment programme and the protection
of society generally.
PUNISHMENT AND TREATMENT: RE-ESTABLISHING THE BOUNDARY
Clinicians working within the criminal justice system have always faced
ambiguous ethical boundaries and irresolvable moral quandaries. Their
problems have simply intensified when they have attempted to become involved
in the actual administration of punishment, no matter how benevolent their
intentions. The central danger has always been that of hypocrisy: pain
and suffering inflicted by the state must not be presented as acts of
kindness by caring professionals. Yet the boundary between treatment and
punishment remains blurred; Butler's ironic image of the tender care which
is necessary for a person "suffering from a severe fit of immorality"
is only tempered by the sad realisation that mental health professionals
have been willing to use such tenderness to disguise harshness and cruelty.
It is unfortunately necessary that in treating sex offenders, clinicians
abandon any pretence to have a primary or even a principal interest in
their clients' personal needs. The empirical evidence is accumulating
that mental health technologies can be used to prevent recidivism and
thus create immense social benefits. But that promise has come with an
ethical cost: in order to achieve these benefits, clinicians are required,
at least in part, to abandon their responsibility for their clients' welfare.
No one else, however, can fully assume this burden. And mental health
professionals themselves lose out if they live in an ethical vacuum: they
lose, in fact, a core component of their identity.
Therapeutic jurisprudence, although not providing all the answers to this
dilemma, nevertheless, points out a way. By attempting to apply procedural
fairness, proportionate treatment interventions and minimisation of infringements
on clients' rights, therapists can acknowledge that they are indeed inflicting
pain and suffering on a largely unwilling client population but are nevertheless
using their treatment technologies as fairly and as sparingly as they
possibly can. This may not fit the image of the perfect therapist but
may be sufficient to preserve at least a modicum of professional integrity
and honour.
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