Washington and Lee Law Review Volume 72 | Issue 1 Article 4 Winter 1-1-2015 Taking Pedophilia Seriously Margo Kaplan Rutgers School of Law - Camden Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Criminal Law Commons, and the Health Law and Policy Commons Recommended Citation Margo Kaplan, Taking Pedophilia Seriously, 72 Wash. & Lee L. Rev. 75 (2015), https://scholarlycommons.law.wlu.edu/wlulr/vol72/iss1/4 This Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. Taking Pedophilia Seriously Margo Kaplan* Abstract This Article pushes lawmakers, courts, and scholars to reexamine the concept of pedophilia in favor of a more thoughtful and coherent approach. Legal scholarship lacks a thorough and reasoned analysis of pedophilia. Its failure to carefully consider how the law should conceptualize sexual attraction to children undermines efforts to address the myriad of criminal, public health, and other legal concerns pedophilia raises. The result is an inconsistent mix of laws and policies based on dubious presumptions. These laws also increase risk of sexual abuse by isolating people living with pedophilia from treatment. The Article makes two central arguments: (1) although pedophilia does not fit neatly into any existing legal rubric, the concept of mental disorder best addresses the issues pedophilia raises; and (2) if the law conceptualizes pedophilia as a mental disorder, we must carefully reconsider how several areas of law address it. Specifically, it argues that sexually violent predator statutes expand state power to civilly commit individuals by distorting the concept of pedophilia as a mental disorder. At the same time, anti-discrimination law is dismissive of pedophilia as a mental disorder, excluding it from civil rights protections ordinarily associated with mental illness. Closer examination of * Assistant Professor of Law, Rutgers School of Law–Camden. I am indebted to several individuals for their thoughtful comments and advice, including the organizers and attendees of the New Voices in Criminal Law Theory Workshop—in particular Michael Moore, Antony Duff, Doug Husak, Mitchell Berman, Heidi Hurd, Sandra Marshall, and Gideon Yaffe—the participants in the Pace Law School faculty colloquium, the participants in the Rutgers School of Law—Newark faculty colloquium, and to Elizabeth Emens, Katie R. Eyer, Kimberly Kessler Ferzan, Andrew M. Koppelman, Kathryn Kovacs, Margaret Lewis, Kimberly Mutcherson, Michael Seto, Gerardo Vildostegui, and Alec Walen. I would also like to thank Lauren Martinez and Alexi Velez for their tireless and enthusiastic research assistance with a difficult topic. 75 76 72 WASH. & LEE L. REV. 75 (2015) these distinctions reveals them to be based on questionable premises. The law should take pedophilia seriously as a mental disorder. Many individuals living with pedophilia pose a danger to others. Yet we should not categorically deny pedophilia the civil rights protections afforded to other mental disorders without a convincing normative justification supported by cogent scientific evidence. Strengthening civil rights protections for those with pedophilia also increases access to treatment and support that helps prevent child abuse. Table of Contents I. Introduction ...................................................................... 77 II. What Is Pedophilia? .......................................................... 86 A. Behavior vs. Status ..................................................... 86 B. Characteristics, Causes, and Treatment ................... 87 C. Living with Pedophilia ............................................... 95 III. Reconceptualizing Pedophilia in the Law ........................ 98 A. Pedophilia as Mental Disorder or Sexual Orientation ................................................................. 99 1. Pedophilic Disorder ............................................... 99 2. Erotic Age Orientation: Pedophilia as a Sexual Orientation ...............................................107 B. Pedophilia as a Legal Concept ..................................113 IV. Rethinking the Law’s Approach to Pedophilic Disorder............................................................................122 A. Pedophilia and Anti-Discrimination Law .................122 1. Disability Discrimination and the Pedophilia Exception ...........................................122 2. Rethinking the Pedophilia Exception ..................126 B. Civil Commitment Law .............................................138 1. Civil Commitment: Justifications and Limitations ...........................................................138 2. The Content of Sexually Violent Predator Civil Commitment Laws ......................................143 3. Implications for Pedophilic Disorder ...................148 TAKING PEDOPHILIA SERIOUSLY 77 4. Rethinking Sexually Violent Predator Statutes ................................................................150 V. Conclusion ........................................................................157 A. Implications for Other Areas of Law and Policy ...................................................................157 1. Public Health .......................................................157 2. Criminal Law .......................................................159 3. Constitutional Law and Sexual Freedom ............164 4. Mandatory Reporting Laws .................................165 B. Implications for Other Paraphilias ...........................168 C. Final Thoughts ..........................................................169 I. Introduction Ethan Edwards is a pedophile.1 He has also never touched a child in a sexual manner and vows he never will.2 Edwards is one of the two founders of “Virtuous Pedophiles,” a website dedicated to supporting individuals with pedophilia who are morally opposed to sexual contact with children.3 The site attempts to reduce the stigma of pedophilia by demonstrating that it is an unchosen sexual attraction and that many individuals with pedophilia live law-abiding lives.4 A section called “Who We Are” is full of testimonials from individuals living with pedophilia5 1. See Who We Are, VIRTUOUS PEDOPHILES (2012), http://www.virped.org/index.php/who-we-are (last visited Jan. 27, 2015) (introducing Ethan Edwards pseudonym for a man struggling with pedophilia) (on file with the Washington and Lee Law Review). The name “Ethan Edwards” is a pseudonym. 2. Id. 3. Id.; Tracy Clark-Flory, Meet Pedophiles Who Mean Well, SALON, (June 30, 2012, 9:00 PM), http://www.salon.com/2012/07/01/meet_pedophiles_ who_mean_well/ (last visited Jan. 27, 2015) (reporting on Virtuous Pedophiles) (on file with the Washington and Lee Law Review). 4. See Who We Are, supra note 1 (presenting testimonials from Virtuous Pedophiles members); Clark-Flory, supra note 3 (reporting on Virtuous Pedophiles); Jennifer Bleyer, How Can We Stop Pedophiles, SLATE (Sept. 23, 2012, 2:32 PM), http://www.slate.com/articles/health_and_science/medical_ examiner/2012/09/stop_childhood_sexual_abuse_how_to_treat_pedophilia_.html (last visited Jan. 27, 2015) (relating the stories of several pedophiles and examining the debate surrounding the treatment of pedophiles) (on file with the Washington and Lee Law Review). 5. Where possible, this Article uses the “people first” language preferred 78 72 WASH. & LEE L. REV. 75 (2015) who oppose any sexual contact with children but have nowhere else to turn for support.6 They live in fear of discovery, which would result in loss of their jobs, friends, and community.7 Many contemplate suicide.8 Pedophilia presents something of a paradox for the law. Those who are sexually attracted to children are perhaps the most reviled group in our society, regardless of whether they have acted on their desires.9 Yet it is commonly presumed that such in mental illness and disability law. See H.R. REP. NO. 101-485, pt. 2, at 74 (1990) (endorsing individualized determinations of what handicapped individuals are capable of doing rather than broad generalizations and fears); S. REP. NO. 101-116, at 51 (1989) (stating preference for term “individual with handicaps”); JOHN PARRY, REGULATION, LITIGATION AND DISPUTE RESOLUTION UNDER THE AMERICANS WITH DISABILITIES ACT: A PRACTITIONER'S GUIDE TO IMPLEMENTATION, app. A (2d ed. 1996) (outlining key definitions and terms in the field). This language refers to individuals first rather than their mental illness or disability; for example, as “people living with schizophrenia” as opposed to “schizophrenics.” See H.R. REP. NO. 101-485, pt. 2, at 74 (1990); S. REP. NO. 101-116, at 51 (1989); JOHN PARRY, MENTAL DISABILITY LAW: A PRIMER 1 (5th ed. 1995) (stressing the importance of language in disability law). Because this Article discusses pedophilia as a mental disorder, it therefore uses the term “people with pedophilia” or “people living with pedophilia” as opposed to “pedophiles,” unless, as with Ethan Edwards, an individual chooses to identify himself as “a pedophile.” Who We Are, supra note 1. 6. See Who We Are, supra note 1 (including introductory statements from over seventy individuals and in-depth testimonials by others). 7. See Alice Dreger, What Can Be Done About Pedophilia?,