Hastings Constitutional Law Quarterly


This article explores tensions between law and psychiatry after the California Supreme Court's affirmation of the Sexually Violent Predator Act ("SVPA")-a statute providing for the involuntary civil commitment of sex offenders at the end of their prison terms. The United States Supreme Court upheld a similar Kansas law in 1997. Following a brief discussion of the SVPA's constitutionality, the article considers three issues in greater detail: (1) the sex offender's right to treatment during civil confinement, (2) potential problems with finding a right to refuse treatment, and (3) the need to reconcile the standard for civil confinement under the SVPA with the legal definition of insanity at the guilt phase.

Federal right-to-treatment case law offers a means to enforce the SVPA's therapeutic provisions and ensure that it serves a civil, rather than penal purpose. However, sex offenders do not have a constitutional right to either be cured, if no completely successful therapy exists, or to refuse treatment. Finally, the adoption of the guilty but mentally ill ("GMBI") verdict, paired with psychiatric treatment of GMBI inmates, is suggested to harmonize the SVPA with guilt determinations. Rather than attacking the SVPA's constitutionality, this article urges the courts, the legislature, and the psychiatric profession to seek to curb sexual violence within the parameters of the statute.