Constituting the ‘sexually violent predator’: Law, forensic psychology, and the adjudication of risk
| Author | Stefan Vogler |
| DOI | 10.1177/1362480618759011 |
| Published date | 01 November 2019 |
| Date | 01 November 2019 |
| Subject Matter | Articles |
759011TCR0010.1177/1362480618759011Theoretical CriminologyVogler
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Article
Theoretical Criminology
2019, Vol. 23(4) 509 –526
Constituting the ‘sexually
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violent predator’: Law,
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https://doi.org/10.1177/1362480618759011
DOI: 10.1177/1362480618759011
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forensic psychology, and the
adjudication of risk
Stefan Vogler
Northwestern University, USA
Abstract
Considerable socio-legal scholarship demonstrates law’s constitutive power, and
much criminological research has considered the effects of actuarial risk assessment.
However, these strands have rarely been brought together to consider how legal
risk assessment practices constitute sexual subjects. This article argues that law and
forensic psychology co-constitute the category of the ‘sexually violent predator’ (SVP)
as a distinct type of person through the use of psychiatric diagnosis and actuarial risk
assessment. Contrary to dominant views of actuarialism as de-individualizing, this article
asserts that SVP proceedings are centrally concerned with individualized intervention,
yet such proceedings continue to produce static risk subjects rather than the dynamic
subjects identified in recent research on actuarial practices. It is argued that this stems
from entrenched cultural views of sexuality as a fixed essence inherent in individuals.
The risk assemblage in SVP proceedings therefore presents a unique theoretical case
that does not clearly fit prevailing accounts of actuarialism.
Keywords
Actuarialism, forensic psychology, risk, risk assessment, sex offender, sexuality, sexual
predator, sexual violence
We are accustomed to thinking about how law regulates sex and sexuality. We are less
used to thinking about how law brings those very sexualities it seeks to regulate into
Corresponding author:
Stefan Vogler, Northwestern University, 1810 Chicago Avenue, Evanston, IL 60208, USA.
Email: Svogler@u.northwestern.edu
510
Theoretical Criminology 23(4)
being.1 I take up that issue in this article by asking how the legal process of ‘sexually
violent predator’ (SVP) civil commitment trials in the United States reconstitutes sexu-
ally violent behavior into a legal and social identity. I argue that courts constitute the
legal identity of the SVP as a distinct type of person requiring exceptional penal meas-
ures by drawing on the scientific authority of forensic psychology and the purported
objectivity of actuarial risk assessment (ARA). I show that forensic psychology lends
support to this legal construction by providing mental health diagnoses and actuarial risk
assessments that serve as the basis for durable social and sexual identities for SVPs. Each
SVP trial reinforces collective understandings of sexuality and sexual violence through
the legal constitution of an individual SVP. The aggregate effect is to constitute ‘sexual
predators’ as permanently pathological and indefinitely dangerous.
Extant work on actuarialism and psychological risk assessment predominantly por-
trays such technologies as de-individuating techniques aimed at efficiently controlling
populations (e.g. Feeley and Simon, 1992; Rose, 1998). Scholars argue that actuarial tech-
niques produce static subjects that cannot change and therefore cannot be rehabilitated
(Hannah-Moffat, 2013; Prentky et al., 2015). This view has been contested from many
angles, including assertions that ‘actuarial justice’ theories never described on-the-ground
reality (Hannah-Moffat, 1999; O’Malley and Valverde, 2014), that risk practices are much
more hybridized than the ‘new penology’ suggested (O’Malley, 1999), and that risk
assessment practices are shaped by gender and race (Kendall, 2005; Raynor and Lewis,
2011). Some scholars also argue that risk assessment processes can be dynamic, individu-
alizing, and used in service of rehabilitation (Hannah-Moffat, 2005; Simon, 2005).
Against this backdrop, I argue that in the context of SVP trials, both psychological
diagnoses and actuarial assessment are deployed to individualize punishment, yet in a
way that constitutes the SVP as a largely static legal and sexual subject. Actuarial tools
provide a baseline from which forensic psychologists create individualized risk biogra-
phies. While some consideration is given to dynamic risk factors, they are typically used
to make individualized upward adjustments to risk estimates to meet the legal threshold
for civil commitment. Rehabilitation remains secondary. US SVP trials, therefore, evince
a hybrid risk assemblage that is not clearly in line either with ‘actuarial justice’ or newer
approaches that suggest a return to rehabilitation.
This, I contend, arises from three factors. First, dominant cultural conceptions of sex
offenders, and particularly ‘sexual predators’, portray them as incurable, pathological
monsters (Douard and Schultz, 2013; Lynch, 2002). Moreover, in the USA sex has histori-
cally held outsized importance and justified exceptional measures and continues to do so
today, as exemplified by SVPs. Second, sexuality is generally understood in US culture to
be an individual attribute unamenable to change. Though this view is increasingly con-
tested, it continues to draw support both from the way sexuality is evaluated in SVP pro-
ceedings and from the gay rights movement, which has strategically adopted a ‘born this
way’ stance on sexuality (Waidzunas, 2015; Walters, 2014). Finally, and the primary focus
of this article, forensic psychology offers scientific backing to often misguided cultural
tropes by cooperating with courts to provide predictions of indefinite future riskiness and
psychiatric diagnoses that are understood to be permanent and incurable.
In addition to pointing to the constitutive, and not just punitive, aspects of risk
assessment, I offer three contributions to the theoretical literature on actuarial risk
Vogler
511
practices. First, contra views of actuarialism as de-individuating, I join a growing lit-
erature that argues that actuarialism is not anathema to individualization but that it
grows out of the desire to individualize punishment and ‘know the criminal’ (Harcourt,
2007; Lynch and Bertenthal, 2016). Second, where some scholars have argued that
new actuarial risk practices are dynamic and compatible with rehabilitation, I assert
that the SVP presents a contrary case, where a static conception of the offender remains
despite attempts to individualize. Third, scholars have pointed to the ways that risk
assessment is shaped by race/ethnicity and gender and can constitute non-white and
female offenders as particularly dangerous or mentally disordered (Goddard and
Myers, 2017; Kendall, 2005). I argue that cultural conceptions of sexuality similarly
contour risk assessments of sex offenders. I ultimately suggest that SVP trials serve as
a site for the constitution of social understandings of sexuality and sex offenders that
have resonance far beyond the courtroom.
Constituting sexual subjects
The law has long been brought to bear on sexuality-related issues. Laws have also
inscribed categories, such as ‘citizen’, with sexual significance by excluding sexual
‘deviants’ from entering the country, serving in the military, or otherwise claiming the
full rights of citizenship (Canaday, 2009; Halley, 1999). Through such legal processes,
the law delimits certain sexual expressions and experiences that are limited and narrowly
constructed, yet appear as social fact. Because the institutional processes are masked,
particular sexual expressions take on the appearance of naturally occurring phenomena
that are discovered, not created (Zylan, 2011). Such is the case with the SVP.
Though the notion of the sex offender seems like a transcendent classification, it is, in
fact, little more than 100 years old and has carried considerably different meanings over
the course of the 20th century. Like the ‘homosexual’ theorized by Foucault (1990), the
‘sex offender’ was not understood as a distinct type of person until the late-19th century.2
Though the justice system dealt with sex crimes before this time, there was no sense of
sex criminals as distinct or menacing types of offenders. After the 1880s US psychiatry
began viewing sexual deviants as possessed of an essential ‘perversion’ rather than sim-
ply committing aberrant acts. Yet through the 1920s, many sex crimes, such as non-vio-
lent molestation and homosexuality, were viewed as mere nuisances that received
leniency or were ignored by the police (Jenkins, 1998).
Beginning in the late 1930s, states started passing ‘sexual psychopath’ laws engen-
dered by a moral panic around sex crimes, and by the late 1950s, 27 states and Washington,
DC had some form of sexual psychopath law (Cole, 2000; Prentky et al., 2015). The laws
diverted those charged under these statutes from prisons into psychiatric hospitals and
disproportionately targeted low-level offenders, such as homosexuals and exhibitionists
(Cole, 2000; Kunzel, 2017). Unlike today, rapists were rarely considered ‘psychopathic’
because aggression was viewed as a natural part of the male sexual impulse unlike homo-
sexuality and pedophilia which were seen as unnatural (Freedman, 1987). Some psychia-
trists voiced concern over the vagueness of the term ‘sexual psychopath’, which was a
legal creation that provided a veneer of scientific legitimacy rather than a proper psychi-
atric...
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