Maurice I. Millard v. David W. Harris, Acting Superintendent, St. Elizabeths Hospital

MILLARD, Appellant, I. Maurice Acting Superintend- HARRIS,

David W. Appellee. Hospital, ent, Elizabeths St.

No. 21492. Appeals States Court

United Circuit. Columbia District Sept.

Argued Judgment Entered

Decided 8, 1968. Nov.

Opinions Dec. Rendered Kuder, Washington, Mr. Armin U. D.

C., Carliner, with whom Mr. David Wash- brief, C., ap- statute, ington, was on ments of whether the D. pellant. petitioner sexual misconduct which the indulge or is suffi- Ackerman, Atty., De- Mr. Robert A. ciently justify commitment, serious to partment Justice, Messrs. with whom appellant and whether was re- the Q. Atty., Bress, Frank David G. U. S. ceiving adequate Saint at Elizabeths the Altshuler, U. Nebeker Attys., Oscar Asst. S. psychiatric care and treatment to which brief, appellee. were on the for we found him entitled. Judge, Before Chief Bazelon, Wilbur Contrary prior representa- Judge, and Circuit Senior Miller, K. counsel, appellant tions the testified Judge. Wright, Circuit hearing at two the remand that the psychiatrists examined him in 1962 Judge: BAZELON, Chief testify hearing pre- did in fact the challenges appellant The continued attorney ceding his commitment. His Hospital Elizabeths commitment Saint longer argues consequently no that the Psychopath He Act.1 under the Sexual procedural requirements of statute the patient there since October has been a appellant were not Nor does met. the Slightly than a month before 1962. more appeal contest the conclusion of charged date, old he was judge proceed- trial remand Municipal of Gen- Court Court—now ings Hospital that Saint Elizabeths “is exposure, indecent eral Sessions—with treating petitioner.” been Mil- punishment was for which the maximum does, however, challenge vigorously lard fine, days imprisonment for or $300 finding the court below that he Corporation for The Counsel both.2 psychopath” “remains a sexual as de- however, Columbia, filed the District of Alternatively, fined statute. he trial a stating the court before statement validity attacks the constitutional allegations in addition to the Psychopath argues Sexual Act and complaint giving fe- “several rise to the Mentally Hospitalization neighborhood him seen have males partially wholly supersedes Act4 expose himself” on other occasions. the statute. In order to resolve these pursuant response, court statute, issues, entwined only we must examine not psychiatrists ex- directed two below, the record the un- also reported to doctors Millard. The amine position Psycho- certain of the Sexual arrived at the court that “we path Act in the District of Columbia ais I. Millard conclusion Maurice books under the Constitu- psychopath in the Sex- defined as tion. af- The court Statute.” ual hearing appellant ter a then ordered I “until Saint Elizabeths en- Act was competence and to mental restored prac- acted in “a 1948 as humane provi- with the released in accordance approach problem tical sions of law.” unable to control their emo- legis- has been before tions.” Unlike more recent re-we jurisdic- that occasion Court before.3 On lation in a number of other evidentiary hear- tions, permits proceedings an manded the case for ing the statute orig- (1) whether psychopath determine commitment a sexual require- commitment fulfilled the inal to be instituted either or after before Comm, (1967). 1. 3503-11 §§ on the D.C.Code Senate District Providing Columbia, Treat- (1967). 1112(a) 2. § D.C.Code Psychopaths ment of Sexual Cameron, S.Rep.No. Millard Columbia, district (1966). Cong., 373 F.2d 468 80th 2d Sess. 5 501-591 §§ D.C.Code trial, or for matter even when no psychiatrist tional. The reported had charge pending. criminal A petitioner in Miller v. Over- hospitalized a sexual thus be holser9 was not “insane” in the then having popular without ever been use of the term: single criminal convicted even of- This man is not insane. He is of legislative plan fense. While was sound display mind and does not cur- provide for commitment and “to rently, any symptoms indica- psychopaths treatment psychosis. tive of a He is oriented in manner to the similar treatment afford- all delusions, fields and are no there Congress persons,”6 ed insane ex- neither are there hallucinations.10 plicit in its intention to insane exclude Court, concluding persons operation while This from the of stat- alleged “in- did not his ute: statute authorize place in main- carceration a psychopath” “sexual The term ** violent, crim- for the tained inal, a who person, not means insane, insane,” approved by im- hopeless in sex- misconduct of course place plication commitment “in a de- lack has evidenced matters ual signed operated and treatment of impulses power to control of ill who are not insane.”11 persons dangerous other to be as 1948, twenty years attack or other- how he since because pain loss, ever, changes or injury, seen in at inflict have broad wise language objects of his desire.7 on the titudes and lawyers with which both evil psychiatrists approach and men insane, and the of The exclusion disturbances. In 1954 this tal Court language, explicable in was choice insanity reformulated the defense with “insane,” was an individual If in the District of Columbia. Durham v. committed; civilly the com- could be United rule that States12 announced the spoke in then force statute mitment criminally responsible “an accused not language.8 And if throughout in that product unlawful act was the “insane” at the defendant criminal mental or mental defect.” disease We “insanity offense, de- of his time adopted escape this “broader test” to punish- him from excuse fense” “misleading emphasis cognitive” on the ment. M’Naghten rule13 and to free to invoke then senseless Nor itwas jury as fact-finder “to all in consider provide model medical formation advanced scien relevant persons a class of hospitalization disciplines.”14 hope tific It was our tendency not “insane.” were who thereby jury making its allow equate term to then still extant judgments “guided by moral wider be reality break with psychosis a clear knowledge concerning horizons men category large ain resulted 15 life.” tal “insane,” needed but who not defining In later profit psychiatric a “mental and would acknowledged disease or abnor [to defect include] Court This treatment. mal condition of the mind which sub we first encountered when much stantially constitu- emotional affects and found 114, 10. Id. at at 418. F.2d Id. 115, 11. Id. (empha- 3503(1) at at 419. F.2d § 7. 22 D.C.Code added). sis U.S.App.D.C. 228, 241, 12. 94 214 F.2d 862, 874-875, 1939, 326, Aug. 9, Stat. A.L.R.2d 1430 eh. 8. Act of 308-325; (formerly §§ 21 D.C.Code 238, 13. Id. at 214 F.2d at 871. 1964). repealed 239, 14. Id. at 214 F.2d at 872. F.2d 9. 92 15. Id. F.2d at %8 substantially impairs panacea. processes be be concepts may Other words and other Mc controls,” similarly reaffirmed transformed havior ** now, insani that the into labels. At least for Donald United States ty encompass prohibit testimony the fullest rather defense should defect,” inquiry condition “mental try the mental disease we shall into Psychia help psychiatrists development accused. understand court, expert witnesses their participating role thus eliminate trists unsatisfactory rule application Durham- fundamental cause of expert testimony.21 to decide tortured themselves tagged name the conditions legislatively-formulated law of taxonomy a “men called their should be changed in has also civil commitment their ef The outcome tal illness.”17 conceptions of response to broadened re uncertain.18 forts remains still since the mental disturbances particular con gardless doctor what Psychopath Act was enacted. a “mental christened cludes should be Congress hearings, en extensive after today clearly need illness,” an accused Mentally Hospitalization acted pass hallucinating psychotic to be a replace 1939 statute ll Act22 I insanity through eye de insanity provide for “An act to entitled state of current fense. Whatever the proceedings of Colum in the District swiftly changing vo “the esoteric 23 leg given new name bia.” As the cabulary made psychiatry,”19 as of we through suggests, used the term islation of clear in McDonald definition “insanity,” legislation, prior out the purposes of for the “mental disease” is ill replaced act “mental in the new insanity legal a and not defense provided question. psychiatrists definition medical “What ness.” may de fuller, or legislature consider a ‘mental disease con more reflects the * * * may purposes for clinical fect’ conception mental disturb textual dis not be the same as mental permeated formula our ances which has jury’s purpose in deter ease for the mining insanity tion and administration of responsibility.”20 In criminal defense: deed, to com in our most recent effort psychosis or “mental illness” means expert tendency of witnesses to bat the substantially im- other disease which conelusory testify in without fashion person.24 pairs underlying the mental of a facts relat health discussion ing condition, to the defendant’s mental upon infrequent On occasions ap it was with we reluctance this Court encountered the new stat- has

proved the continued use the term utory scheme, we accorded the term testimony: expert “mental disease” “mental illness” a liberal construction. 25 example, In re Alexander affirmed testimony about [Prohibition civil a disturbed men- defect” commitment of disease “mental States, States, 114 20. v. 114 U.S. U.S. McDonald United v. United 16. McDonald 847, App.D.C. 847, 120, 124, 124, 120, 851 App.D.C. 312 F.2d 851 312 F.2d (1962). (1962). States, States, Washington See, e.g., 107 21. v. United 129 v. U.S. Blocker United 17. 572, App.D.C. 29, 41, 444, 64, (1967). 63, U.S.App.D.C. 573 456 F.2d 390 F.2d 274 States, (1959) ; 101 Briscoe United (1964), Stat. 944 21 D.C.Code 78 §§ 640, 6, 318, F.2d U.S.App.D.C. 248 n. 322 (1967). 501-591 (1957). 644 n. 6 (formerly 23. 53 1299 21 Stat. D.C. States, King e.g., See, v. United 308-325; repealed 1964). §§ Code 383, 320-323, 318, F.2d U.S.App.D.C. (1967). 24. 21 (1967). D.C.Code § 385-388 U.S.App. States, 25. 125 Campbell 372 F.2d 925 v. United 260, 277, F.2d D.C. legislature following lan- statute books unless tal defective argues repealed appellant it. guage : Hospitalization Mentally * * * the 1964 psychia- Although just ** did are unable Act that. We reluctant trists agree. Congress explicitly stated psychosis, or appellant’s illness label prior of the 1964 Act the Section 19 specifically attempt to fit in fact to legislation repealed thereby.27 The Sex- the various classes into ual Act was not mentioned. recognized Ameri- mental illness strong Presented with evidence else- Association, Psychiatric the thrust can where in the 1964 Act that the Sexual testimony was of their superseded, Act was suffering from a condition which was might simply this was conclude that substantially impaired mental lacking. casus omissus. Such evidence health, was inter- that this condition speaks remainder of the new statute deficiency, and mental related with his “mentally ill,” category broader occurred antisocial behavior leg- those “insane” under of this manifestation as a result and providing ap- But in for the islation. underlying illness. We plication provisions of certain satisfied, complete review after a Hospitalization Mentally 111Act record, that there to those committed before Con- jury for the sufficient evidence gress protection limited the new appellant was suf- find that to those “declared or of insane fering from a mental illness.26 pursuant unsound mind a court or- course, II This, der.” in- would not any persons previously clude developments pose in the law These Psychopath Act, under the Sexual since question role for of what remains requirement hospitalization a for their Psychopath Act, if indeed Sexual finding they was a not insane. that were that at On the statute survives all. might policy, level of one well conclude Repeals by implication are not now that the more flexible standards strength favored,29 of whatever insanity applied of the de- in the areas Psycho arguments that the Sexual fense and civil commitments leave scant repealed path been Act have should separate statutory need for a scheme Mentally Hospitalization of the the 1964 for the world sexual offenders. While of Act, 111 legislative we cannot find evidence might of the insane” in 1948 have “not supersede the 1948 intent to many men for treatment included whom of 1964 The coexistence statute. within institution was more a mental regarding civil commitments Act appropriate punishment, criminal Psychopath presents Act Sexual changes in substance and semantics determining however, problem, of since then narrowed if not elim- ap of individuals to which each classes ineligible inated the class offenders law, plies. the verbal Before new insanity for or the civil commitment dividing clear, to line if difficult but still too sick to crim- defense deserve eligible persons apply: were “insane” punishment. inal commitment, and those “not for civil under the Sex insane” for commitment Ours, however, the task is not Act, Psychopath providing the other ual requirements policy. to resolve such issues of The met. were that statute Psychopath in the Sexual Act remains Zacks, (1966) ; Id. 375 States v. 445 United 354-355, 26. at 927-928. 372 F.2d 178, 59, 67-68, 11 U.S. 84 S.Ct. L.Ed.2d (1964). 953 78 Stat. (1963) ; York Stock Silver v. New 341, 357, Exchange, 589(a) S.Ct. U.S. 28. 21 D.C.Code § L.Ed.2d 389 States, E.g., 384 U.S. Amell v. United 165-166, 16 L.Ed.2d 86 S.Ct. mutually regarding categories the two were thus ex- statutes release. provides merely clusive, Sexual Miller v. Over- Act and since edge person “may cutting that be re- holser30 we found classification, “sanity,” Superintendent leased that of when the meaningful one, Hospital problems equal no Saint Elizabeths finds that protection sufficiently he has so recovered as not arose. dangerous persons to be other however, Today, confront we statutes ** Hospitalization providing if the civil for commitment Mentally Act, hand, pro- III other on the “mentally and, person ill because is specifically periodic vides for re-exam- * * injure likely illness, patient by inations one more persons,”31 other and for himself physicians including, in some circum- — psychopath as a sexual commitment stances, acting one in his behalf—and * 'x' person insane, “not hearing physicians a court if the disa- by a miscon course [but] gree patient as to whether “the con- matters in sexual has evidenced duct mentally tinues to ill be extent power to his sexual such lack of control injure himself or dangerous impulses to be to other other persons.” earlier Our discussion “mentally strange logic ill” the class It would indeed shown persons, argue term is to as that understood fact day, mentally individuals “mentally includes some disturbed not so ill ill” but “not been considered would have was under- be “insane” as that word Psycho withholding the Sexual justifies insane” at the time stood path enacted in protections Act was commit- him the of the civil problems equal protection serious ment conceive law. Nor can we shading conclude that proce- would arise rational reason permit rights statutes Government dural commitment and incident to mentally persons under person’s commit ill these simply release because the dan- gerous while all proclivities Act manifest themselves ill are ac individuals in the tainly of sexual misconduct. Cer- form greater procedural protections argued, corded the no ever ex- one has Hospitalization incorporated ample, crim- the context Mentally 111Act.33 alleged rapist While the prosecution the inal an is en- provide appoint former does for protection right statute to titled to less hearing jury ed a an accused murderer. counsel and a at which a trial than jury may requested, pres unlike be might argued to It law commitment does not ent civil it problems procedural pro avoid these against proceeded individual assure tections of the civil commitment law right warning jury to of his a determ Psycho should be into the read Sexual provide it ination.34 Nor does for path Act. But while this Court has in preliminary determination before interpreted some contexts other statutes Commission, which is as Mental Health dealing mentally ill in a man with signed responsibility for civil initial statutory ner to overall harmonize the per important, More commitments.35 framework in the District Columbia thereby probl avoid constitutional haps, differences between are vast 3505, Compare 110, 22 D.C.Code 3507 §§ F.2d 415 206 30. 92 543, 21 §§ with D.C.Code (1953). (1967). (1967). § 21 D.C.Code (1967). 35. See 21 D.C.Code §§ (1967). 3503(1) § 32. 22 D.C.Code (1967). 36. 22 D.C.Code § Herold, v. 383 U.S. 33. See Baxstrom §§ D.C.Code 546-549 L.Ed.2d 86 S.Ct. * * * process. (a), ems,38 Subsection are to this we would have limits there Mullen,39 completely rewrite Cameron v. section.”43 As we said Second, Hospitalization Supreme quoting deci since Court State,40 Mentally Secretary ju- Aptheker Act entrusted exclusive sion in risdiction over civil to the commitments that “[al- be remembered must It Court,44 District we to re- would have though strain often this Court will write that statute as well authorize legislation it as to save so construe judge of the Court of General Ses- attack, against must constitutional impose “to sions conditions reserved carry will not not and * * *45 proceedings. civil commitment perverting purpose of a point ” * * problems To identical here. judicially re- statute Psychopath harmonize the Sexual Act writing it. aspects procedural with the of the civil to that faced problem here is similar commitment statute not we would had appellant there been in Mullen. The legislation, need to rewrite the former Hospital Elizabeths Saint also, Psychopath since Sexual after Sessions the Court of General Act be invoked in the Court of insanity. Mrs. acquittal reason an General and the Sessions Juvenile Court charged the mis- with been Mullen had Court,46 as well as the District we would simple in- assault, and the demeanor jurisdiction upon have to confer those by the sanity raised defense had been by Congress courts reserved to the Dis- agreed objection. her We court over trict Court. she filed where District with Court corpus petition of habeas for a writ We therefore cannot avoid the empower problems did constitutional the statute that arise if appellant. so applied court commit trial Act can be reasoning part integral mentally persons by of our importing An ill civil logic of our “under consequent conviction commitment standards. And ly Supreme decision in prob Court’s recent we conclude that to avoid these Herold, serious lems Baxstrom v. we must construe the words “not attend insane” doubts constitutional (a) ill,” Subsection mean construction “not as indeed post-verdict indefinite con- the Government authorized conceded should protections argument finement” without the the oral of this case. commitment statute.42 civil Ill reasons to unable two We Having so, however, done we must argument agree Government’s examine the Sexual Act judge had obviated these the trial interpreted. when so The statute de- hearing holding problems psychopath” fines a “sexual provides and commitment law the civil apply person, insane, a instructing hospital not civil who a course repeated import First, all misconduct “to in sexual release standards. mat- ters into evidenced power standards has such civil commitment lack U.S.App.D.C. U.S.App.D.C. Harris, 42. 241, 128 at v. 130 38. See Bolton 387 F.2d at ; (1968) 199. 1, Rouse F.2d 642 366, Cameron, U.S.App.D.C. 373 F.2d 245, 43. Id. at F.2d at 203. (1966). 21 D.C.Code § defines 245, U.S.App.D.C. 235, F.2d 39. 128 purposes “court” for of civil commitment (1967). 193, 203 as “the United States District Court 500, 515, the District of Columbia.” 84 S.Ct. 40. 378 U.S. (1964). 12 L.Ed.2d 45. 28 F.2d at 301(a) § D.C.Code 3503(2)

46. 22 D.C.Code § mentally impulses an offender was Nor as to be dan- ill. would to control his persons gerous it even to find from the because he is be sufficient other likely or inflict record in this case that is to attack otherwise mentally ill, only expert spoke loss, pain, injury, or who other evil directly question to the To objects testified. desire.47 his meaningless, conclude that the statute is to mean “men- is When “insane” read we would need to find that the intersec- tally term ill” in the broad sense that dangerous tion of re- the class sexual in the statutes be used come mentally of not cidivists and the class jurisdiction, a court decisions of this e., ill is the null set—i. that there lan- question whether its arises serious dangerous person is no who is a sexual meaningless guage self- so is not mentally recidivist but is ill. who not constitutionally contradictory as to be are This we reluctant to do. de- problem Specifically, infirm. consistently cisions this court have pattern of person whether emphasized that determinations of men- repeated has demon- misconduct sexual case-by- tal illness to be made on sufficiently dangerous to himself strated basis, case attention individualized statutory part defini- meet of the paid personality to the in- matter, not, men- tion is as definitional past present volved, con- behavior and tally ill outside the statu- and therefore sweeping flicts. To rule establish a tory definition. dangerous ipso all sexual recidivists are legal literature is The medical and mentally facto ill would stand direct person- voluminous which deals with principle. contradiction to this Our ality problems recidi- lead concerning the of men doubts number large no that a vism.48 have doubt We place whose conduct would within them proportion of are mental- such offenders the Sexual but who are Act ly be- ill in the that their broad sense mentally may question not ill lead us personality their havior affected the wisdom of for the need statute. psychiatric problems treatment and that changes approach in our appropriate for would be more them sorely disturbances since 1948 dat- have traditional mechanisms of deterrence impulses gave ed the humanitarian simple or repeated Evidence restraint. legislation, rise to im- even certainly be misconduct pulses were well considered then. jury relevant to a determination implications in other of declar- areas light issue, of McDonald and ing all as a matter law that individuals imagining difficulty Alexander we have guilty sexual misconduct are com- circumstances where we would be mentally ill render us loath take this finding pelled to of mental reverse step until we all have examined upon premised such evidence. illness possible dispositions of this case. However, to strike down the Sexual necessary to It would be strike down meaningless and self- legislation Act as this case if we go contradictory, applicable ap- fur- found pellant. we would the statute to the need Regardless enough most whether Millard ther. It not, may mentally in some is applicable ill or ill statute is not recidivists past appropriate to him sense of that difficult con- unless his cept. Nor sufficient that we would misconduct enables us to conclude that is it dangerousness reversing difficulty places him a determination with- statutory by jury that in or other fact-finder such the definition. Offenses, Etiology, Pathology, 3503(1) (1967). His 47. 22 D.C.Code § Psychodynamics (3d and Treatment e.g., C. ed.1957); Allen, F. Lindman Mc- A Handbook T. & D. M. See, Mentally Psychosexual Intyre, Jr., (1962); B. Disabled Disorders Karpman, and and the Law 298-313 Sexual Offender pro- would need to examine whether the IV requirements cedural of the statute meet scrutinizing question, we this only constitutional the stat- standards begin premise “not that when with the is, applicable matter, ute as an initial mentally ill” “not insane” is read mean appellant. the We therefore must first justification un for commitment the sole question consider of whether der statute is the sexual statutory falls within defi- dangerousness is to others. that Since psychopath. nition of a sexual true, realistical we must the statute view pre ly upon as one which borders close V un which ventive detention —detention dangerousness, Predictions of require der our not even statute does whether under the Sexual prior of a criminal act. conviction context, require in Act or some other de the statute is evaluated When terminations several sorts: type; light, in issues may constitutional conduct individual gravest magnitude immediately appear. engage; probabilitj the likelihood - question Substantively, there is serious indulge that he will in fact con can confine a duct; whether the state ever and the such conduct if en effect against simply he gaged citizen will because Depend in will have on others. future, likely dangerous is ing to be on of conduct effect fear the sort having actually danger opposed to been ed, may require these variables also fur prediction past. ous in the Since such a ther refinement. Our evaluation dangerousness likely only can dangerousness ultimate forms of certain premised upon past behavior, are there may vary frequency of behavior with the closely procedural questions con related they expected. so, with which can be If cerning proof past conduct. When necessary only it will be to evaluate not being person committed to the likelihood that the individual will hospital he ill not because fashion, misbehave in such but also the alleg past because his conduct probability he will offend with a edly likely dangerous demonstrates his frequency. certain And since the effect great ness, difficulty imagining we may depend on others on victim protection full how the of the self-in is, an estimate the likelihood right privilege crimination person may prove certain sort of and cross-examine witnesses may necessary. confront victim also be constitutionally could him.49 be denied Each all of these deter Supreme no Court has demonstrated difficult, minations well be as this astray intention led circum to be such case demonstrates. But an examination legislative stances label aspects problem all is essential. proceedings “civil” rather than Because court below short-circuited proceeding “criminal.” “is When the analysis required, find we we can closely related to the behavior accept its ultimate conclusion that to his rather mental condi appellant “by misconduct, his sexual apart behavior,” tion from his considered injury, loss, pain to inflict as the Government in its brief describes plethora other evil on others.” A of evi proceedings under Sexual pro dence was introduced at remand guaranties Act, im constitutional ceedings, however, the basis of plicit process law must come due exploration appellant’s full play. into personality problems we are able Psycho- On score also conclude has borne his burden path appears corpus proceeding Act vulnerable. this habeas to show Patterson, Specht 386 U.S. 50. See id. at 87 S.Ct. 1209. Cf. 1209, 18 87 S.Ct. L.Ed.2d Shortly preponderance after Millard was committed in the evidence51 a sexu wife told a confinement as his social worker that that his continued appellant justified the the had walked around naked

al under presence in his construed it. home the his small as we have holding penis children, his in his hand. psychiatrists the testified at Five Although appellant the denied ever hav- hearing concerning appellant’s dan- ing so, although done and neither his gerousness. Weickhardt, appel- Dr. wife nor even the social worker have ever physician former Eliza- lant’s at Saint any proceedings testified in re- agreed Hospital, he beths stated that appellant’s commitment, lated to the this hospital diagnosis with made at alleged played prominent incident in October 1962 when Millard was first expert testimony role in the at appellant committed: was not and hearing. the remand psychotic, per- is not from a but suffers sonality categorized “pas- disorder hospital no records contain evi- sive-aggressive personality, passive-de- dence Millard that has exhibited himself pendent type, exhibitionism.” None of becoming patient since at Saint Eliza- remaining expert witnesses criticized any beths. Nor were of the three doctors diagnosis. All of the tes- witnesses any from Saint Elizabeths aware of such appellant tified is unable to appellant. misconduct Millard relationship enter into a mature with himself such acts while in the denied women. The sexual misconduct which hospital. Nevertheless, although the tes- precipitated commitment, the 1962 ex- tifying spoke psychiatrists varying hibitionism, product is the dif- degrees certainty, majority agreed ficulty. psychiatrists that, testified appellant since still suffers experiencing when he was difficulties personality disorder, from the same marriage, with his Millard react would, released, likely exhibit by exhibiting public, himself public himself at times stress. masturbating. sometimes On occasion explaining why they appel- felt that triggering event his misconduct ways lant would revert old re- his once disturbing would be some other occur- despite years ap- leased almost six rence, job. such as the loss his parent good sexual behavior the hos- according even cases, in these to the ex- pital, psychiatrists spoke both of the pert testimony, appellant would ex- supervision hospital close at the and the hibit himself not because of his distress appellant’s opportunity lack of while losing job, at but because he felt that tension-pro- there to encounter the same regard such a setback his wife to led ducing gen- difficulties with women in him as less a man. particular pre- eral wife cipitated his misconduct before his com- Concerning appellant’s exhibition- mitment. public places ism in commit- before his allegations record no contains dispute. ment in 1962 little there seems committed a vio- ever There was also some in the hos- evidence testifying offense, lent pital records that Millard admitted to as- agreed psychiatrists that because of “the voyeurism sorted acts of before his mar- inferiority, aggressiveness, lack of ti- riage. stand, however, On he denied midity immaturity heterosexual having peeping tom then. been a since exhibitionist,” [typical] indi- Although testimony there markedly less to com- viduals voyeurism and are fre- exhibitionism ,mit violent sexual crimes associated, quently psy- least one of sexual offenders. chiatrist, Dabney, /jtypes Dr. testified up” testimony in Millard’s two did not seem “tied There was also drawn hospital concerning records various case. Harris, U.S.App.D.C. 1, 12, 51. See Bolton v. 395 F.2d ing aggressive consequences of a non-sexual nature of the acts his acts. appellant. allegedly ways. And he does committed two With men, aggressive- particularly, of these was said to he The most serious acts city ly, may Millard was occurred while he even become violent physically. parole hospital in November from With women he has felt purchased ease, car and ill He had a used afraid of intimate relation- angry ship; refused to when seller became therefore he tends to ex- money pose after car broke himself or refund his to masturbate so that complaint hospital a down. received women could The see him. saleswoman, husband from the I think that this reaction with men to his house that Millard had come said part and with women is same night, “Trick on Halloween said thing; that with both the behavior lye treat,” and thrown a solution against reaching is sort of a defense through open doorway, some intimacy really for which he eye. complainant in the which struck the longing. longs I think he for an inti- having consistently denied Millard has relationship mate people, sort of done this. yet he sort of afraid of it. hospital There was also evidence involving Were case civil appellant had struck a records that commitment, such rounded view visiting home about salesman personality past individual’s be His same time with a window screen. havior of course be essential both city parole privileges were revoked to a determination he whether hospital appellant returned so, and, ill his con whether incident, a third because of which dangerous dition would him to cause squabble became involved in a at his pe to himself or others. since the allegedly slapped home and his sister-in- titioner has been as a intruding law he felt in- because she was psychopath, our sole concern is the like dispute. private to a domestic lihood that he would if released be dan gerous to of sexual others because mis al- doctors Saint Elizabeths conduct. aggressive so testified to certain acts appellant hospital. while speaks plainly The Act of “mis slapped considerably He once smaller matters,” conduct our patient because, as told the doc- Millard concerning doubts the constitutional va tor, go man wouldn’t let “the me into lidity preventive of the sort of detention the water section On oth- [bathroom].” implicit certainly in the statute do not er was said to occasions the permit us broaden the words of the changing have violated ward rules corollary, moreover, act. As a must television consent channels without meaning read “sexual” in common patients; Mil- because of considering term in what acts size, impressive physical lard’s the other applying be considered in this statute. patients supposedly too intimidated Similarly, appellant’s mental dis- object. partial justi- order is itself even testifying psychiatrists viewed commitment, fication for his for the rea- aggressive acts as these but non-sexual sons opinion. discussed earlier in this passive- the same a manifestation testimony regarding appellant’s aggressive personality disorder aggressive men, acts toward and the evi- earlier led to his exhibitionism and presents diagnosis dence to confirm the Weickhardt, voyeurism. ex- As Dr. passive-aggressive personality, ample, stated: therefore relevant a determina- challenges dangerousness tion reaction to trivial of his [I]n because self-esteem, probable impulsive. he becomes misconduct. this re- gard, appellant’s alleged history think- words, In other he acts without might, behavior,

aggressiveness toward men de- his father’s sexual but the report apparent general timidity spite ex- the does show that Darrell has an sphere, problem part emotional which is due hibitionists the heterosexual might relationship the that Millard to his with his father. affect likelihood commit sponse In re- a violent sexual assault. continued, The examination example, , question, such a * * * Q. Now, a is it not fairer in- replied: Dr. Cameron child, ference, Weiekhardt, Dr. that the Darrell, rejection you suffered Assuming have stat- because of facts by by being father, his virtue of a masturbates them, who a ed *** scapegoat, rejection being physical- exhibiting himself while ly abused, you indulge likely an inference that might more be problem part drew that there If due other time. some assault throwing lye exhibitionism of his some father? history ais superficially, at aggressive act— my of these that all A. It’s view one would act—then least, non-sexual you things interrelated that are so person was that to believe injury any really one attribute can’t aggression be and we would capable of of them. aggres- concerned about more psychiatrist’s sympathize We with sion. compart- reluctance, inability, to indeed relationship appel- with Concerning mentalize the father’s effect of damage others, psychia- done his son and evaluate lant’s exhibitionism vary misconduct, any. by if the former’s sexual agreed effect would that trists But, unfortunately, compartmental- Most women the viewer. Psycho- required by the ization is repulsive, distress but their act find the legislation path provides for Act. The testified Dr. Owens would be brief. might the institutionalization individuals con- find such that some women dangerous others amusing; in who because to concur declined duct misconduct, diagnosis” not for “layman’s their sexual judge’s trial hospitalization traumatize laughed of fathers who any “is sick.” who that women by general pattern of their children rejection expert was witnesses consensus If the effect and abuse. highly be woman would sensitive alleged seclusive, “very sexual misconduct cannot be shocked, more and that separated out, applying solution in suspicious” withdrawn, shy, sensitive heap together the statute not to all the might upset.” “quite woman become unhappy unhealthy parent- effects of an case, the effect would be even relationship child as evidence of the days.” no There was three “two or produced by harm “sexual misconduct.” presented any evidence actual harm to past appellant’s from the adult women VI exhibitionism. opinion In an written after however, testify, Dr. Weiekhardt did hearing completion held in that one viewer had suffered “serious response to our earlier remand psychological appellant’s harm” —the son case, the trial court summarized at some Darrell, years time who was six old at the length presented each the evidence appellant’s in 1962. commitment psychiatrists testified con who based, His conclusion not on dangerousness cerning appellant’s independent boy, examination of the doing it without others. so recited' upon report an evaluation health a child past related to distinction evidence center where Darrell in 1966. was treated sexual misconduct women and the toward cross-examination, however, On Dr. alleged aggressive acts toward men. admitted, Weiekhardt opinion speaks also the “serious nothing report psychological

There’s in this harm” suffered petitioner physically shows that Darrell suffers because of child “whom abused statutory psychop- petitioner of sexual rejected definition and before whom athy alleged by reported imply, does not as the Government his wife [was suggests, psychiatrist he must demonstrate that worker social highly probable paraded ap- is “certain or at trial to testified have] genital pellant, released, again holding hand his would not nude ** publicly expose organ.” below failed Here also the court masturbate dangerousness distinguish so, [or] between due if he did children delicate dangerousness among adult misconduct and women to sexual could potential Rather, For these reasons due to other behavior. viewers.” bear his to accept petitioner proof to the burden we are unable conclusion of the for a writ weighing that, corpus “After of only of the court habeas must trial show that his past behavior, I all of the evidence in case conclude this viewed under the illumina- petitioner provided by psychiatric if to be at that released tion evaluation by he, actions, time his sexual mis- of those justify does not the likely injury, conduct, loss, inflict is to conclusion that he falls the within statu- tory pain, other evil on others.” definition of one who is to likely injury inflict on others. analysis the trial court the of findWe incomplete, on an- erroneous, or at least the Because trial failed court para- final the well. In other score distinguish to and non between sexual appellant’s the graph of its discussion of justification sexual for misconduct as a dangerousness, summarized the court commitment and also failed to evaluate testimony, expert the opposed the mere likelihood as to the possibility misconduct, sexual must of we *, Dabney’s opinion Except Dr. for appel reverse its decision to the dismiss opin- of the all witnesses petition lant’s corpus. for a writ of habeas through public petitioner, ion that are, however, We reluctant to masturbation, would exhibitionism yet hearing remand this case for a third loss, injury, pain or likely other inflict petition originally on a filed more than type or an- evil on one individual years especially ago, three have since we physical contact. without Some other difficulty envisaging thorough a more psychologi- women viewers would presentation expert testimony cally affected small children as would hearing just was in the adduced con petitioner’s viewers. Since miscon- cluded. the view of unusual circum public been in such wom- duct has the ease, therefore, stances of this we have “potential en and children are view- ourselves scrutinized record and find ers.” appellant that we can conclude that the reasoning pre- is the has Implicit borne his burden show ponderance that some assumption mere fact that he is not that the evidence among now, was, if he ever and children are such women appellant’s statutory Limiting within “potential definition. viewers” released is expected ourselves to an evaluation exhibitionism likeli misconduct, hood of justify conclu find enough ultimate appellant unlikely engage likely dangerousness. is But sion dan misconduct other than requirement exhibition- commitment possibility possibility ism. As for the gerousness that Millard the mere not may expose perhaps himself and harm, mastur likelihood. its of serious public, not that he bate we do conclude effort to evaluate court made no trial possibility, unlikely probability, opposed do find from the do so. We recognize testimony the Saint Elizabeths diffi harm. We psychiatrists appellant’s culty But the self- such determinations. insight corpus personality control into habeas Millard in this fact that sufficiently shortcomings improved proceeding must the burden show bear permit conclusion such mis- ing not fall within does infrequently minority. likely occur sensitive” women are a conduct While protect For six law must and does them like at times stress. citizens, years appellant not deen detected there are limits on the has although himself, sweep exposing extent to the witnesses law can possible streets clear of did all sources of testified he encounter women Saint occasional distress to It be true that the limbo such women. Small Elizabeths. present problem. hospital prevented children a different life sort of expert plagued testimony But that have was not tensions toward women past building up. typical injured from the by witnessing small child would be exposure the same token it an was isolated act part choice, his, stranger, on the of a but rather that Government’s psychological danger greater opportunity develop- no to their he has had prove exposure he ment The fact that his self-control. successfully the limited to such resisted abnormal adult sexual behavior. supports temptations placed him We therefore before conclude that the likelihood testimony Miller, appeared injury happening who serious to a Dr. child appellant expose appellant’s behalf, see public that the fear himself punishment (and perhaps justify is too a now remote to commitment. self-control) appellant’s internalized will As harm to the sense own children, already reduce the likelihood of future we have adverted in passing questionable misconduct. nature of the appellant sole evidence that the ever did testimony of unanimous expose himself in his home before them. expert serious witnesses all accept Even if evidence, however, this psychological harm result appellant might and assume that unusually only exposure sen public expose himself in released, his home if children small women and sitive adult protected his children can be from the concludethat future leads us to might harm repeated which follow from appellant, any, misconduct of the exposure by other means than his in- sufficiently likely to the sort not cause voluntary hospitalization. His wife need justify required of harm statute permit appellant not to so abuse his appellant did commitment. The further children, legal and other remedies are true, prove not, that no such available to her to insure that he does “potential him view viewers” would not inflict such harm on his children. any future exhibitionism. course proceed- Reversed and remanded for unlikely having was shown ings opinion. accordance with this great or un commit such acts frequency, in the controllable and Reversed. would be misconduct harm of such event proportion produced small Judge WRIGHT, J. SKELLY Circuit fairly population, could (concurring): that it show demand of Government case, concur in the result and I in this of these restricted members Judge opinion in Chief as far Bazelon’s merely “potential classes were not goes. However, opinion as it I think his

viewers,” likely This the viewers. go enough, accordingly does far not wholly failed to do. And Government my I set forth own views. any without the assistance evidence score, conclude adduced on this we cannot Congress enacted the Sexual supersensitive women and small Psychopath Act1 under in 1962 likely children are to suffer serious harm Maurice Millard was committed. The from isolated instances of exhibitionism. key definitional section of that statute seclusive, “Very withdrawn, shy, psychopath defines a sexual (1948), 3501-3511 §§ Stat. 347 D.C.Code apply it cannot to Millard or person, insane, course “a sex described therein. Thus misconduct legal developments lack of medical and over has evidenced matters years impulses the last 20 power his sexual rendered to control dangerous persons self-contradictory to other be- Act as to be meaningless. or otherwise he is to attack cause injury, loss, pain, evil or other inflict I objects desire.” D.C. on the of his (Emphasis sup- 3503(1). Act was When the Sexual Code § fairly clear enacted in there was a plied.) separation the terms “insane” between years passed since that have “mentally ill.” The criterion for enacted have seen statute was general civil commitment under changes in the dramatic state time commitment statute psychiatry It related law. is in- person course, And, that a be insane.4 upon cumbent us construe this insanity ground relieving was also light changes.2 these responsibility. of criminal construed, I find the statute is so When Insane taken to be a narrow- following: (1) term “not insane” group general people er class of ill,” mentally “not means in the statute who were ill. in 1953 Thus “mentally ill” taken is to be court, Overholser, in Miller legal this court sense defined broad F.2d States, 114 U.S. in McDonald v. United (1953) , referred to the of “treatment (1962) (en 120, 847 App.D.C. 312 F.2d mentally holding insane,” ill who are banc) (per curiam). (2) of The lack they were committable under impulses power de control to sexual Psychopath Sexual Act. something in means scribed statute By major changes place, 1964 had taken propen strong mere more than sexual blurring the difference between mental sities; persons who evidence it refers to insanity. illness and criterion power of control their lack “an utter commitment under the new civil commit- * * * impulses and are sex ment act5 became mental illness. This * * * injury inflict development followed the criminal objects their uncontrolled and uncon of law, States, as seen in Durham v. United light trollable desire.”3 And U.S.App.D.C. 228, 94 214 F.2d 862 psychiatric opinion, appears it of recent (1954) , States, McDonald v. United lacking psychopath” “sex supra, which made mental illness the test impulse control described relieving person re- criminal legal come within the definition of must sponsibility. develop- The result of these mental illness. is, ments as the Government at conceded argument,6 require oral that the Therefore, limits its the statute since Psychopath apply mentally ill, Act be construed to persons not application to fairly grounds well U.S.App. as Harris, narrow for ob e.g., See, 130 Bolton v. 2. taining See, e.g., his release. 21 D.C. (1968). 1, F.2d 395 642 D.C. (preliminary § 543 Code determination v. Probate ex Pearson Minnesota rel. 3. Health) ; Commission on Mental 544 § 270, Ramsey County, 309 U.S. Court (notification writing right jury 525, 523, 273, L.Ed. 744 84 S.Ct. 60 trial) ; 546, (periodic examination; 548 §§ criteria). (1940). protections release These are person not available to the un committed 315 § 21 D.C.Code der the Sexual Act. Thus if 545(b) § 5. 21 D.C.Code apply per held latter act were to a mentally ill, required because son the differential treat concession was 6. This per mentally under ment accorded to such ill ill equal protection sons entitled to would raise evident act commitment civil problems. safeguards, procedural raft of a whole mentally ill, habitual course misconduct than those those not rather matters, evidenced an utter lack “not insane.” power to control their the 1964 defined illness is Mental impulses who, result, as a psychosis as “a act commitment civil likely to attack inflict or otherwise substantially impairs disease which injury, loss, pain or other on the evil person.” D.C. health objects of their uncontrolled and un- (or (1967). Mental disease Code § controllable desire. It would not be defect) established criterion is the provisions apply reasonable to responsi- relieving criminal Durham for every person guilty the statute to legal gave bility. In McDonald sexual misconduct nor even to defect: for mental disease or definition having strong propensities. or defect includes disease “mental ” * * * 273, at U.S. at S.Ct. mind which condition of the abnormal (Emphasis added.) substantially or emotion affects mental substantially impairs processes As shown al Senate Committee ” Report,8 114 U.S. controls. District of Columbia Act’s behavioral 124, App.D.C. definition F.2d at was intended at to mean the same as the court construction of the act in legal applied This broad definition was Any Pearson. doubt on this score was term mental for commit- to the illness ago long settled as when we said: act in In re Alexan- ment under the 1964 “ 354-355, U.S.App.D.C. 352, der, 125 * * * The draftsman of our (1967).7 F.2d 927-928 local act wrote into it not the terms of the Minnesota statute but the inter II pretation Supreme which the of Columbia Sexual District approved.” Court Overholser, Miller v. passed conform Act was supra, 206 F. Supreme Court’s construction (Footnote 2d at 417. omitted.) sex law. Minnesota’s District Columbia Sexual rel. Probate Minnesota ex Pearson v. therefore, Psychopath Act, applies to 270, Ramsey County, of 309 Court U.S. persons repeated who have evidenced a (1940), 523, the L.Ed. 744 60 S.Ct. 84 pattern utterly “uncontrolled and un- of had been attacked Minnesota act driving impulses controllable” vague grounds un- as constitutional question them to harm others. then rejecting claim, In certain. this presented considering present is: Supreme approved the construc- Court learning legal by state of defini- given medical tion of the act the Minnesota illness, psycho- courts: tion of is mental sex “* * * path in the described District of Columbia act is intended [T]he mentally persons who, by an statute ill a of include as matter law those psychia- appellant suffering “Although from a ill- was mental it true that is ” ** * label ness. trists were reluctant this case psychosis, appellant’s fact illness a or in psychopath is substan- 8. “Sexual defined specifically attempt to fit it into tially by language used the Minne- of the of illness various classes mental Supreme interpreting sota Court Psychiatric recognized by American Minnesota This definition statute. testimony Association, the thrust of their accepted interpretation was the Su- suffering from a was that preme Min- Court of the United States impaired substantially condition which Court, nesota ex Pearson v. Probate rel. health, in- this condition was mental ” supra. deficiency, and with his mental terrelated S-Rep-No. Cong., Sess., p. 1377, 80th 2d antisocial behavior occurred (1948). 6 result of this under- a and manifestation Columbia, lying See D.C. satisfied Lomax v. District illness. We are mental ** evi- 211 there was A.2d 772 sufficient C.A. jury find for dence

981 judicial coverage construction of the two central outside the therefore parts of this definition—“not insane” Act? power and “lack of to control his sexual Ill impulses,” both of which must be determining whether the area of In applied— satisfied before Act can be purpose person is ill to see whether the statute matter of as a responsi relieving him of criminal self-contradictory. law is If the state of great given always bility, has this court knowledge substantially medical jury. is to the This deference ambiguous, development ifor recognition criminal area relating law had not mental illness great degree, is, responsibility progressed has, as far as it I would community values, held reflection permit (and the statute to stand allow knowledge light medical and jury people to search for those particular problems. exposure How coming Act). However, within after jury ever, area in this traditional even examining say the authorities we can appropriate it have said persons reasonable with certitude that a matter direct a for a court verdict evidencing the kind of of control lack guilty person not that a is lawof called for must of statute neces- insanity. v. United reason of Isaac sity legal come within the definition U.S.App.D.C. 34, States, F.2d 284 109 illness. States, (1960); v. United Satterwhite problem statutory narrow. 398, U.S.App.D.C. F.2d 675 language, “a course mis- States, Fielding (1959); v. United conduct sexual matters” and “lack of (1957); U.S.App.D.C. 251 F.2d 878 power impulses,” to control his sexual U.S.App. States, Wright v. United obviously part comes within that Douglas (1957); F.2d D.C. dealing McDonald-Alexander definition States, United impairment with substantial of behavior (1956); United and see Brock v. F.2d 52 then, question, controls. The States, Cir., 387 F.2d 254 whether such also suffer dealing requirement with case we are the other this of McDonald- responsibility. Alexander, of criminal area “abnormal condition of the an the issue not have I And we do to decide mind.” shall look to sources to see two person’s (1) act was causation—whether a this latter condition is met: Rather, literature, product experi- of his disease. medical Congress type Hospital defined ence of St. Elizabeths ap- general It commitment. intended for and with Maurice particular.10 propriate to match Millard in court frequently psychoses disorders, in the literature 10. I note listed as mental along non-psychotic with psychiatrists, conditions. And in the discussions of and designed is Manual that tors to aid doc- problems men- are referred to as mental dealing people in with clear: sick is Perhaps time it at one tal disorders. publishing “In Asso- Manual appropriate to hassle been would have provides psychi- ciation a service to the really ill- a disorder an whether over presents of the United atrists and States beyond that. I think we are now ness. a nomenclature that is usable in encompass term disorder used hospitals, psychiatric clinics, in of- and ranging variety ills, of mental a broad practice. has, fact, fice It a wider psychoses In to character defects. usage psychiat- growth because of the clearly re- sense the term functional general hospitals, work in ric both on meaning appropriate illness in the fers to psychiatric wards in consultation and for mental condition abnormal here—an patients hospital services to the in other ap- to be is felt medical treatment departments, comprehensive and com- propriate. for manual Thus standard munity mental will health centers. It by psychiatrists, diagnosis Amer- used also be used in courts consultations Diagnos- Psychiatric Association’s ican health and industrial services.” of Men- Manual tic and Statistical p. Manual, viii. Foreword, 1967), (2d reflects ed. tal Disobdees Schizophrenia approach. other and Etiology, Offenses, A. Medical Literature His and Offender psychodynamics Pathology, Treat- and Group early As Karpman examined Dr. ment Psychiatry, in its Com- Advancement psychoanalytic deviancy from a Psychiatry, studied mittee on Forensic viewpoint. psychogenic discussed He PsYchiatrically report, area. Its deviancy by to the reference (Report No. Deviated Offenders Sex morally paraphilia, includ- term neutral repetitive 1950), sex recommended that pedophilia, ing among paraphilias mentally ill. treated offenders be voyeur- homosexuality, and exhibitionism recommend- here are criteria Relevant Karp- ism, frottage Dr. and fetishism.11 psychiatrists ed the Committee man noted: determining offend- sex use whether “ * * * psychiatry Modern The criteria er disordered. recognize has come to these are included: degeneracies, illnesses Repetitive Compulsive Acts “1. word, having specific full sense having Repetitive compulsive acts etiologies being courses, and and as similarity pattern (dynamic) and fully amenable to treatment as are community point carried out to the ” * * * psychic diseases. P. heed- intolerance. Such acts manifest 384. disregard consequences seek less Paraphilia is seen as akin to neurosis: expression attain even ultimate momentary encounter- obstacles are “Thus, in terms of when viewed ed. genetic dynamics, paraphilias Relations Forced “2. sisters under neuroses are forcing relations basically the skin and the same. part of non-compliance implies on the Paraphilias every sense are neuroses party. Forced relations offended word as measured usual homosexual.” hetero- either commonly standards with which we Report, p. 2. * Like neuroses. evaluate they Benjamin Karpman, neuroses are the results of life then Dr. ** long, Psychotherapist Elizabeths development at St. Chief thwarted Hospital, published his book P. 388.12 Experience (on female) as the with Indecent assault adult (which Voyeurism excludes District of Columbia’s rape) charged Homosexuality persons is that ex pedophiles proposals the bulk form hibitionists Indecent statute, Dobbs, Dorothy under Letter from Dr. S. St. Hospital, homo some overt frotteurs and with some Elizabeths November public advanc who make sexuals “ * * * Dynamic psychiatry sees example, re For also included. es paraphilias profound disturbances ported showed: the statute cases under patterns sex life of the of sex- ; (exhibitionist) present Clatter case ultimately behavior not ual directed to- Overholser, buck v. goal procreation, ward all normal ; (pedophile) Miller 278 F.2d 20 paraphiliac sex life. The has not matured Overholser, v. having integrate sexually, to failed (pedophile) ; (1953) Lomax v. F.2d 415 way sexual needs and activities such a (ex- Columbia, supra Note 9 of District socially accepted as to accord with modes hibitionist) ; District of and Carras expression. represents of sexual He D.C.Mun.App., Columbia, A.2d 393 early period of life that at an of kind development sex July 1, (exhibitionist). From goal, lost its normal or rath- persons through were October er, having it, never reached detoured into under St. Elizabeths to leading aberrant to an abortive channels types of as to * The breakdown * statute. * activity. aim-inhibited sexual offenses is: persistent behavior [T]he is most because ** Exhibitionism it is so close to the instinctive. People suffering Pedophilia paraphiliac neuro- unhealthy repressed the term sex emotions.” Karpman discussed Dr. general P. loose- decrying its psychopath, meaning. psychopaths who Sex ness of explanations psychoanalytic For other of compulsive over of control lack exhibit deviation, Friedman, sexual see Sexual sub-group felt, impulses are, he sexual Deviations, 1in American Handbook of group paraphilias, a whose within Socarides, (1959); ch. 29 Psychiatry, developed has sexual behavior aberrant along Meaning Pedophiliac and Content aof put He one to antisocial routes. Perversion, 7 J. of Am. Psychoan. Ass’n people isolated abnormal commit side sexually acts, people deviant whose text in the area is Dr. Clif- A classic of situational the result behavior Psychosex- ford A Textbook Allen’s (e. g., normal pressures absence published When ual Disorders environment). His discus- objects 1962 it the first textbook was individuals centered on those whose sion psychosexual diseases, an indication of expression of an uncon- are “an actions development psychiatric the recent logic urge, committed without or trollable learning prefaced field. Dr. Allen in this rationale, strong, under influence of a felt text “it is statement that Psychi- overpowering P. 478. drive.” psychosexual are an ac- diseases now repeated atry of this views deviation part corpus ceptable respectable group “part large as behavior sort pointed medicine.” P. ix. out as He ** *.” P. 478. disorders they treated, and felt diseases should be Karpman described, clearly Dr. under paraphilias, psychosexual “the heading “Chief Characteristics disorders, capable of are treatment as Psychopathy,” Sexual the sick character any P. other neuroses.” Thus persons, of such the need to treat attempted text to “examine sexual psychiatric them tech- with established way abnormality in the same niques : other P. illness.” “ * * doubt that There is little Among types discussed reactions are attributed types are who have been committed beyond psychopaths are Psycho- District under voluntary sphere of con- conscious path 11, supra. For Note Act. See they neuroses, *. have trol As example, chapter one is devoted to causations, specific their scoptophilia-exhibition- frotteurism and long-past origin at the be of ism, infantosexuality (pedo- another moment manifested itself philia). on The discussion centers Dynamic particular sexual violation. psychopathology and treatment of such psychiatry these views reactions as disorders. Dr. Allen makes clear neuroses, fullest which in the sense they instance, are mental disorders. For importance they It are. less ascribes after a review literature personal immediate to constitutional or attempted mentions two writers who functional, deep- than it factors does to grounds “explain exhibitionism psychogenic seated emotional factors. psychological,” and concludes that long reason, attempted For this it has they “[i]t obvious that could not have psychopaths cure in the samé gone deeply patients’ psyche—as into the as it manner treats other neurotics. paper they indeed their indicates failed Amazingly enough, many patients do.” P. 154. responded psychotherapy Studies sex offenders have referred actually improved some instances to the mental disorders of those offend- entirely cured, specific when subject ers who uncon- etiology was uncovered and the impulses. trollable tradi- need for given discharge opportunity grati- compulsively Karpman, B. are driven to seek The Sexual ses Offender urge.” apparently and His of an insatiable fication Offenses psychiatric tional treatment Hospital; such as examination at D. C. General group psychotherapy individual and here did examination not reveal suffi- pointed g., Mohr., See, been out. psychopathology e. J. cient to warrant Pedophilia R. Turner & M. diagnosis, and, further, Jerry, the offense (1964); Peters, Pedigo, probably had no sexual motivation.” Exhibitionism Steg McKenna, Group Psychotherapy & exception explainable by Thus one Offender, the Sex 32 Fed. Probation illegally the fact that one com- (September 1968). person’s mitted. If that actions were not sexually motivated, then the statute’s Diagnostic Statistical requirement of uncontrollable supra, Disorders, Manual of Mental impulses was not met. lists “sexual deviation” a mental dis- This order. is defined as: Focusing particularly Maurice arguing Millard, here Government are sexual interests whose “individuals exhibitionsim, despite Millard, objects primarily toward directed validly and thus is sex, opposite people mentally ill. The Elizabeths doctors St. usually as- acts not toward sexual hearing hold a who testified Millard’s at coitus, or toward coitus sociated with different view. performed circumstances under bizarre pedophilia, necrophilia, diagnosed, Millard was though sadism, Even and fetishism. diagnosis challenged by any of was not distasteful, many practices find their doctors, passive-aggressive as a they remain unable to substitute type personality, passive-dependent —ex- for them. This normal sexual behavior person- I hibitionism. note first diagnosis appropriate is not passive- ality disorders, specifically perform deviant sexual individuals aggressive personality, are listed as objects acts Diagnostic because normal are mental disorders them.” not available to P. 44. Manual. Hospital B. St. Elizabeths Cameron, Superinten- Dr. Dale C. then Maurice Millard Elizabeths, dent of St. testified about July through Millard as follows: From October 30, 1968, persons “ were committed to * * * fully conpleted He has not St. Elizabeths via program hospital. his treatment at the diagnostic Act. The of these breakdown * * * fully are not certain that [W]e is;13 persons he would not be harmful to others be- Personality disorder cause his mental disorder at Neurosis time.” syndrome Chronic brain following colloquy place: Later the took Without mental disorder * * * [by A Dr. Cameron] These data confirm the view that * * * hospitalized [W]hen he was validly coming within the attempt there interrupt was an exception disordered. The one * * * process, stop disease it. report by is accounted for in the draft Admitted Dr. (Characteristics what unusual without mental disorder. determination 3; p. Dorothy “ * * * to Saint Elizabeths S. Dobbs of One situation, followed patient Prisoner-Patients St. Elizabeths In this some- psychiatric was found Hospital), judicial the disease is which has been inter- nosis is carried. tire rupted A ^[*] Q record, “passive-aggressive Without Could at the ^[*] I see you hospital ^[*] going state, precisely, * * * ^[*] ? through personality” the en- diag- what Letter, supra Note 11. Yes, A George Eliza- I am. St. Weiekhardt Dr. treatment. He Millard’s beths described Q diagnosis? is that What diagnostic studies, had

stated that Millard aggressive reaction, pas- A Passive (indivi- therapy, psychotherapy somatic dependent type sive —exhibitionism. nursing care, group), and ward dual and therapy, in- therapy, milieu educational Q psychiatric terminology, In the government, therapy, patient dustrial diagnosis regarded psy- is this as a grounds tested and soon will be with chiatric illness? being privileges. short, Millard is Yes, A it is. given range of- broad of treatment Q it, rather, personality Isn’t dis- mentally types fered to most ill order? patients at Dr. Elizabeths. Weick- St.

program, hardt, illness in stated “it’s defending Millard’s treatment like the treatment it is a mental illness. A It is a ^[******] personality disorder but Robinson, also of St. D. Dr. Luther experience Millard, with and at St. treatment. Elizabeths, Millard’s described general, Elizabeths in thus confirms the placed in West Millard was noted that He view taken in the literature discussed patients Lodge, general ward construed, above. If the statute is as is problems. No of mental all sorts required, apply only repeated for, and no special reserved section sexual offenders who cannot control program type special of treatment impulses and thus act on them to to, psychopaths. given Dr. Rob- others, hardly harm of it con- Cameron, testified, Dr. did Dr. as inson person that such a in ceivable 1968 could Miller, that Michael and Dr. Weiekhardt regarded mentally be as other than ill as treat- psychotherapy favored would be a defined in McDonald-Alexander. Thus participated in ment. Dr. Robinson the District of Columbia Act suffers following colloquy: from a self-destructive internal contra- Q you diction —a the clini- sex familiar with as defined Are diagnosis necessity mentally therein must of has been rendered be ill cal —which renders it for Mr. Millard? unenforceable.14 unnecessary disposition it This makes it is not clear whether this includes protection against issues constitutional full to reach several self-incrimina- First, complete right noted which trouble the statute. as tion and confron- supra jjro- if “not insane” at Note tation. Without them the statute’s con- stitutionality precarious. is taken in its old vision of the statute would be meaning, apply Finally, some the Act be vulnerable persons, raising equal protec- vague. Supreme mentally to an ill attack as problems. Court, su^pra Pearson, tion Note avoided excluding by construing apply Second, as when construed this claim act purpose utterly power persons, statute’s ill those who lack the great degree preventive impulses de- to control becomes to a grave problem, likely tention. There is a who are therefore to inflict substan- notes, Judge However, for non- Bazelon whether tial harm on their victims. ever con- individuals “the state can is the construction we have found be sick simply equated against be- will with mental A fine a citizen illness. lesser dangerous reopen vague- cause he is construction would thus reaching Further, void-for-vague- And without ness issue. future.” even way issue, long commitment it is clear ness doctrine has come since suspect constitutionally the Pearson would be case was decided knowledge regarding meas- without the full sex- could be instituted the state safeguards appropriate a defendant ual behavior. There oc- ure of afforded statute, proceeding. can, light in § casions when a court of in- a criminal right creasing knowledge legal doctrine, 3508, provides has a that a hearing question validity jury, old decision of to a and to an ju- applicable Eng- higher rules of evidence that court or of a court. See “[t]he apply, proceedings in the court” land v. Louisiana of Medical dicial State Board 986 general under commit- mitted civil

IV ment statute.15 Declaring of Columbia the District sum, to the alternatives Sexual Act unenforceable field, Act society’s cover the render- does not mean hands are ing dealing the statute needless. The statute’s problem. The tied in with per- aspect of contrary presently forced isolation one is true. There are psychiatrically personality son’s makes through available two clear channels may run afoul of The statute artificial. which sex offenders can be dealt with. respects. the Constitution in several Those whose actions are isolated acts finally, the definition And statute’s own product urges can be controllable pressed into of sex has been prosecuted variety under a of criminal meaningless self-contradictory statutes, depending upon the nature of expansion pulp of medical and others, the act. The those are sub- legal thought years. past over ject repeated impulses and drives they powerless check, can, which are MILLER, K. Circuit WILBUR Senior they pose danger Judge, society, be com- dissents. Cir., Examiners, (1958), merely F.2d “If sat- sex relations were petition physical urge, they rehearing, 661, on isfaction of a 263 F.2d animals, might denied, 1149, 1012, cert. be differ- 79 S.Ct. matter U.S. May ; (1959) ; people sex Dawson v. ent function 3 L.Ed.2d up emotion, City City, with so tied mercy much at the or and Cir., Council of Baltimore so thoughts, beliefs, prejudices, 386, denied, F.2d cert. 350 U.S. very superstitions, 76 S.Ct. 100 L.Ed. 774 taboos and many can- It statute, be that a attack on the instances the instinct itself renewed Pearson, function in manner. even as not a normal construed merely successfully vague personality involved, whole fell it as too the sexual function.” authorize commitment. Richmond, Hand- W. Overholser & W. Judge dangerousness, 15. The issue of Psychiatry book of notes, is Bazelon a barrier on which clearly the statute viewed sexual Yet foundering. been The statute statute has requires problem. psychopathy psychiatric as a on as harm focused require two Sections 3506 prerequisite commitment be psychiatrists person it is examine the person’s by the activities. caused reports on their form the basis By focusing particular aspect hearing proceeds. which his commitment person, psychiatrists the statute forces problems supports the view that This part attempt a sterile isolate a into seen statute deals should be per- person’s of a behavior from his total illness, a the broader context of sonality. psychiatrists make in which can context here unable to do this. The doctors meaningful based estimates about folly expected to. As It is them per- integrated whole of his on an view Superin- Overholser, Dr. Winfred former sonality. Hospital, tendent of St. Elizabeths stated Psy- year before the Sexual chopath Act enacted:

Case Details

Case Name: Maurice I. Millard v. David W. Harris, Acting Superintendent, St. Elizabeths Hospital

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Dec 12, 1968

Citation: 406 F.2d 964

Docket Number: 21492_1

Court Abbreviation: D.C. Cir.