Judicial Notebook

Should being sexually aroused by pubescent minors be considered a mental abnormality sufficient for indefinite civil commitment under the law? Acting upon sexual attraction to adolescents is a crime, but is it also a mental disorder?

In 1997, George Hamelin was charged with sexual exploitation of a child and possession of child pornography. When Hamelin was about to be released from prison in 2009, the Bureau of Prisons began commitment hearings that would indefinitely detain Hamelin if he met criteria as a sexually dangerous person. The bureau alleged that Hamelin suffered from "Axis I diagnoses of Paraphilia, Not Otherwise Specified, Sexually Attracted to Male Adolescents, Nonexclusive Type." In other words, according to the bureau, Hamelin's serious mental illness, abnormality or disorder was hebephilia.

The key issue in United States v. Hamelin was whether the diagnosis of hebephilia is an appropriate basis for civil commitment. Sexually violent predator commitment statutes allow certain high-risk sex offenders to be indefinitely committed at the end of their prison sentence, and a diagnosis of pedophilia regularly satisfies the "mental illness, abnormality or disorder" requirement in these laws. In Hamelin, however, a government expert ruled out pedophilia, defined as an erotic preference for children age 13 or under. The expert argued that the record did not support a pedophilia diagnosis because Hamelin did not have recurrent, intense sexual urges, fantasies or behaviors involving pre-pubescent minors.

The expert testifying for Hamelin agreed that he was not a pedophile. Instead, Hamelin's attraction was to post-pubescent minors. The judge decided that such an attraction was not clearly and convincingly a "serious mental illness, abnormality or disorder." Despite the fact that Hamelin's sexual interests, if acted on, might violate the law, the judge noted that sexual attraction to pubescent minors is not considered inherently deviant. Given testimony that characterized hebephilia as a contested diagnosis, the court found it to be inappropriate to predicate civil commitment on a condition that is not formally recognized in the DSM-IV-TR (though it may be included in the DSM-5).

Most of the mental health community would argue that sexual relationships between adults and pubescent minors — particularly when there is a significant age difference between the two — is exploitive of the adolescent. It is important to keep in mind the law's distinction between behaviors that are inherently wrong (as judged by society) and those that are wrong because they are against the law. In the United States, acting on an attraction to pubescent minors is illegal, though in other industrialized countries the age of sexual consent is 14. But sexual preference for pubescent minors need not be pathologized to be legitimately proscribed by law, and some have expressed concern that "the alleged diagnosis paraphilia not otherwise specified, hebephilia, arose, not out of psychiatry, but rather to meet a perceived need in the correctional system" (Frances & First, 2011).

The concern that sexually violent predator statutes expand the net of diagnoses in support of commitment is not new: In Kansas v. Hendricks, testimony established that Hendricks's diagnoses of "personality trait disturbance, passive-aggressive personality, and pedophilia" are types of impairments that generally fall below the threshold to support the mental illness requirement in civil commitment statutes that don't address sexually violent predators.

Data from several psychological studies contribute to our understanding of hebephilia. While the diagnosis may be a "discriminable erotic age-preference" (Blanchard et al., 2009), it is far from clear that attraction to adolescents is pathological or even deviant (Prentky & Barbaree, 2011). Though many cite the advertising industry's sexualization of adolescents as evidence of the normative nature of sexual attraction to youth, only a handful of small studies have empirically tested this. More work is needed to establish how common sexual preference for adolescents is in the general population. Given Levenson's (2004) findings about the diagnostic unreliability of pedophilia, research is needed to establish not only the validity but also the reliability of this construct.

"Judicial Notebook" is a project of APA's Div. 9 (Society for the Psychological Study of Social Issues).