By Maximilian J. Auerbach
Twenty states currently have laws providing for the civil management of sex offenders through involuntary confinement or outpatient supervision. These “SVP statutes” unanimously require a finding of a “mental abnormality,” a legal standard that has generated significant debate since the Supreme Court affirmed the standard’s constitutionality in Kansas v. Hendricks. Proving the existence of a mental abnormality requires psychiatrists to diagnose sex offenders, and much of the aforementioned criticism focuses on the reliability of these predicate diagnoses. The New York Court of Appeals, in State v. Donald DD., interpreted these cases to mean a sole diagnosis of antisocial personality disorder is insufficient to find a mental abnormality.
This Note investigates whether, and to what extent, the Donald DD. decision has affected New York’s ability to civilly manage sex offenders and changed the diagnoses used in those civil management proceedings. Part II explores the constitutional requirements for SVP statutes established by the Supreme Court in Kansas v. Hendricks and Kansas v. Crane. Part III details the civil commitment scheme in New York, with particular focus on the diagnostic stages of a case. Part IV summarizes a review of civil management cases in New York since 2007 in order to determine whether Donald DD.’s holding affected New York’s ability to civilly manage sex offenders, or the diagnoses offered by state experts when seeking civil management. This review includes analyses of whether Donald DD. has changed how frequently New York recommends sex offenders for civil management, and how frequently the State succeeds at trial. This Note observes that, while the case may have had some effect on referral, it has not affected trial success rates. Additionally, this Note finds some evidence that Donald DD. may have led to increased psychopathy diagnoses, unspecified and other specified paraphilic disorder diagnoses, and the number of diagnoses assigned to individual respondents.