THE SEXUAL PSYCHOPATH: LEGAL PROCEDURE
In the majority of states that have sexual psychopath laws the individual must be convicted of some offense, usually but not necessarily a sex offense, before he is subject to examination. In seven states an arrest alone suffices as ground for examination. In four other states the statutes are so vague that apparently a person could be examined and adjudged to be a sexual psychopath without being charged with a specific misdemeanor or felony.”
While the laws have had considerable popularity, they are marked primarily by their disuse. For example, in Indiana the annual number of persons judged sexual psychopaths can be counted with the fingers of one hand. Some of the disuse may be attributed to inertia and some to the disinclination of the offender to request an examination which might stigmatize him as being “crazy,” but some seems to be a reluctance arising from basic legal concerns. There is in the minds of many attorneys the question of double jeopardy, since in many jurisdictions the sexual psychopaths after incarceration and treatment are returned to court where they may, at the judge’s discretion, be sentenced to prison on the basis of the original charge. To put it simply, a man may be convicted, judged a sexual psychopath, locked up for months or years during treatment, returned to court as “cured,” and then imprisoned to begin a sentence for his offense. In addition to this matter of double jeopardy, some legal scholars feel that the reports of clinicians and therapists derived from conversations with the man examined constitute a form of self-incrimination.
One state, California, has made extensive use of the sexual psychopath statute, and it is from this state that we have derived nearly all our data regarding persons labeled sexual psychopaths. In California after a person has been convicted of an offense (either misdemeanor or felony), that person, his attorney, the prosecutor, or certain other persons involved in the case may request that the offender be examined for sexual psychopathy. The judge may then appoint two psychiatrists who examine the offender, generally in jail, and report to the judge whether or not there is evidence of sexual psychopathy. On the basis of this report the judge then decides either to sentence the offender or send him to an institution for a 90-day observation period during which it will be determined whether he is a sexual psychopath an whether he is amenable to treatment. If the man is judged to be not a sexual psychopath or if he is judged to be a sexual psychopath but not amenable to treatment, he is returned to court for ordinary sentencing.
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