Table Of ContentMonstrous Crimes and the Failure
of Forensic Psychiatry
INTERNATIONAL LIBRARY OF ETHICS, LAW,
AND THE NEW MEDICINE
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DAVID C. THOMASMA†
DAVID N. WEISSTUB, Université de Montréal, Canada
THOMASINE KIMBROUGH KUSHNER, University of California, Berkeley,
U.S.A.
Editor
DAVID N. WEISSTUB, Université de Montréal, Canada
Editorial Board
TERRY CARNEY, University of Sydney, Australia
MARCUS DÜWELL, Utrecht University, Utrecht, the Netherlands
SØREN HOLM, University of Manchester, United Kingdom
GERRIT K. KIMSMA, Vrije Universiteit, Amsterdam, the Netherlands
DAVID NOVAK, University of Toronto, Canada
EDMUND D. PELLEGRINO, Georgetown University, Washington D.C., U.S.A.
DOM RENZO PEGORARO, Fondazione Lanza and University of Padua, Italy
DANIEL P. SULMASY, The University of Chicago, U.S.A.
VOLUME 53
For further volumes:
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John Douard (cid:129) Pamela D. Schultz
Monstrous Crimes
and the Failure
of Forensic Psychiatry
John Douard Pamela D. Schultz
Rutgers University Alfred University
New Brunswick , NJ, USA NY , USA
ISSN 1567-8008
ISBN 978-94-007-5278-8 ISBN 978-94-007-5279-5 (eBook)
DOI 10.1007/978-94-007-5279-5
Springer Dordrecht Heidelberg New York London
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John dedicates this book to his late parents,
Zora and Lemuel Douard, who taught him
fairness and love; and his sister and nieces:
Marianne, Brittany, and Tammy.
Pamela dedicates this book to her husband,
Brien, and her children, Eileah and Brysen:
You are my love, my hope, my light.
Acknowledgments
The usual apologies are due to those whom we haven’t the space to name, which
includes most of our friends, teachers, and the scholars whose work we shamelessly
use, with, we hope, proper citation in the book. Because we have different intellectual
and personal backgrounds, we will separately acknowledge the people who have
most directly in fl uenced us.
John Douard
I have had many important mentors and friends over the years who have shaped my
intellectual and moral development, not all of them academics. First among them
are: George Thomas, my extraordinarily generous criminal law professor and friend,
without whom I would not now be a criminal defense attorney; and Arthur Fine, the
philosopher whose mentorship and support over the past 40 years permitted me to
think outside the academic box. George and Arthur will doubtless be gently critical
of this book, because they are remarkable teachers, and teachers must be critical
of their students’ work. I must also thank Sherry Colb, who taught me criminal
procedure and mental health law.
In 1985, I completed a Ph.D. in philosophy at the University of Illinois in Chicago
(then called University of Illinois Chicago Circle). My advisers made it possible for
me to complete that work on Freud as a proto-cognitive scientist, and I thank them
here: Michael Friedman, Neal Grossman, Tom Jobe, and Mark Wilson. I single out for
special thanks, primarily because of their thankless work on my little project, Mike
Friedman and Tom Jobe, with both of whom I spent endless hours in conversations
over a period of about 3 years. Tom and I talked about psychoanalysis and new
frontiers in cognitive science nearly every week, and Mike told me when I could
stop writing and rewriting. Arthur Fine was unfailingly available, although he had
moved to Northwestern University by then, and participated crucially in my oral
exam. Kathy Pyne Addelson is the philosopher from whom I learned that most good
philosophy is not done in academia, but in the street.
vii
viii Acknowledgments
Stephen Asma’s brilliant and creative book O n Monsters has in fl uenced our work,
but I want to single it out as perhaps the most unique book on the subject I have
ever read. It is panoramic in scope, but written with such grace that its scholarship
may not be immediately apparent. Unfortunately, we only discovered Stephen’s
book in the late stages of the writing of our book, so its in fl uence is more s otto voce
than it should be. Another friend and scholar who has written a book on sex offense
laws, from which we learned a great deal, is sociologist Chrysanthi Leon. Her book,
Sex Fiends, Psychopaths, and Pedophiles, traverses some of the same territory we
examine here.
Doug Husak, my colleague in the Rutgers University Department of Philosophy,
where I teach as an adjunct professor, exempli fi es the best work in applied philosophy.
His work on the philosophy of criminal law and overcriminalization is rigorous and
a joy to read. I understand criminal law far more deeply because of his work. I have
also learned from law professors Eric Janus and Michael Perlin far more than the
references to their work in this book represent.
My friends have helped to shape my moral and intellectual development over the
years, proving Aristotle’s claim that one ought to choose one’s friends wisely.
In 2003, as a new, but not young, criminal defense attorney, I represented sex
offenders who had been civilly committed after serving their prison terms. While
I had studied mental health law in law school, including the important United States
Supreme Court cases on sex offender laws, the work of representing these most
dehumanized of our criminal defendants must be learned on the ground. Joan Van
Pelt, Esq., taught me everything I know about how to represent civilly committed
sex offenders. She is a political conservative, but in the pre-tea-party sense: she
respects the rights of even those our society has deemed “monsters.”
Our colleague Lew Sengstacke has always challenged my more over-the-top
ideas, for which I am grateful. Incredibly important to my thinking about forensic
psychiatry are Daniel Greenfi eld, M.D., and psychlogist Tim Foley, who taught me
about not only the ethical problems of the fi eld, but also about the diagnoses often
used to label sex offenders.
Joan Broadman, playwright and professional copy editor, read an early version
of chapter one, hated it, but provided excellent writing suggestions that we
followed.
Laura Kramer has been both my partner and my mentor in sociology for over
20 years. I cannot thank her enough for her love and insight.
Two other friends, neither of whom are academics but both of whom are among
the most intellectually stimulating people I have ever met, should know they mean
the world to me: Mick Archer, jazz pianist extraordinaire, and Lisa Markwart, with
whom I share a passion for Marcel Proust. Mick will create his masterpiece when
he no longer has to earn a living playing music other people want to hear. Lisa will
write a great book – a memoir, perhaps, or a novel or a collection of poetry – in
which I hope I play at least a minor role.
Barry and Betty Codell are among my oldest friends. Our friendship dates back to
1965, when Barry and I worked together in a Chicago bookstore and did impressions
of Bob Dylan. Barry is the world’s foremost, if not the only, philosopher of maieutics;
Acknowledgments ix
and Betty is a poet who stopped writing many years ago, but who continues to have
a poetic imagination. One of my former students, and now a friend, Karim Lakhani,
M.D., has shared his brilliant insights into bioethics in practice and changed my
thinking about certain issues.
The rest of my friends and co-workers I must thank in the form of a list. Lists are
a literary form that are far more important that most people know. Many criminal
defense attorneys have taught me the law over the last few years: Marcia Blum (also
my theater companion), Mark Friedman, Susan Brody, Dan Gauthier, Susan Green,
Steve Hunter, Mike Jones, Yvette Kyles, Sylvia Orenstein, Lon Taylor, and Josh
Sanders. For their friendship at work and in life, I am grateful to Alyssa Aiello and
Rochelle Watson, with whom I share musical and literary tastes. The list has to
stop somewhere, but many other friends and colleagues have helped me grow as an
attorney and a philosopher. I hope they do not dislike this book too much, but they
will surely tell me how it should have been written.
The administrative assistants at work supported me in myriad ways: Anne Marie,
Kecia, Geneva, and Sheletta. Since my share of this book was written outside
the ambit of my job, they could not help me with it, but they unfailingly supported
me in my day job. Raa fi ah Muhammad, who began as my administrative assistant
9 years ago, is now a close friend with whom I share a love of hip hop. Sometime in
the next few years she will complete law school and she will be a terri fi c attorney.
I also want to thank the brilliant classical, jazz, rock, folk, and hip hop musicians,
whose art taught me about the depths of emotion to which music can take you.
I won’t name them because there are too many, but suf fi ce it to say that without their
music I would be lost. I cannot overstate the extent to which music has been my
most important companion.
I must thank my extended family: my aunts, uncles, and cousins, all of whom
are farmers and small-business entrepreneurs, and, as they are politically far more
conservative than I, they keep me honest. It may seem silly to most readers, but my
extended family deserves my gratitude far more than anyone because they helped
to shape me in myriad ways. As I write, my Uncle Emil has just died, and last year
my Uncle Eli died, both at age 97. They were extraordinary and brilliant farmers.
My Aunt Annie died several years ago, but my aunts Eleanor and Rose, both in their
90s, are thankfully still in my life. I have my aunts and mother to thank, because of
their strength and kindness, for my respect for, and love of, powerful, intelligent
women. Without my family, I would be anchorless.
I have dedicated this book to my late parents: Zora (“Peggy”) Obradovic and
Lemuel (“Red”) Douard; and my sister and nieces: Marianne, Brittany, and Tammy.
My mother was a beautician and farmer who had an intuitive sense of justice and
compassion. My father was a machinist, union man, jazz musician, booky, repo man,
and used car salesman, more or less in that order. Among other things, they taught me
that prejudice is simply stupid, and that everyone deserves a second chance.
Finally, I thank my co-author Pamela D. Schultz. As I started developing my
ideas about the legal and moral problems when sex offenders are framed as mon-
sters and predators, I read Pamela’s book N ot Monsters . Her book helped to crystal-
lize my belief that whenever we dehumanize with rhetoric people who frighten or
x Acknowledgments
disgust us, we fail to accord them the respect due all humans. They are, as Pamela
urges in the book, not monsters , and we cannot properly address the problem of sex
offending, and especially child sexual abuse, if we refuse to acknowledge that
offenders are human. Pamela’s personal experiences, recounted below, lend her
insights a gravitas far weightier than the central intellectual insight she and I share.
Pamela D. Schultz
When I was a graduate student at Wayne State University in the late 1980s and early
1990s, I struggled with balancing my academic goals with the challenges I encoun-
tered in my personal life. It was during this time that I was fi nally able to face the
reality of what had been a de fi ning—perhaps even t he de fi ning—period of my life.
As a child, I had been molested by a neighbor, a man who was a close and trusted
friend of the family. The sexual abuse began when I was 5 or 6; it ended when I was
a young adolescent. Although, like many children, I was fascinated by fairy tales
and myths that used fanciful monsters to teach lessons and warn of the consequences
of bad behavior, I hadn’t expected to be living next to one. No one else seemed to
recognize the danger, either, so I found ways of coping with the abuse on my own.
Because it began when I was too young to understand what was happening, I treated
it as any other game of let’s pretend. When I got old enough to realize what was
occurring, I did not know how to articulate it aloud and so I did not tell anyone
about it. The man who molested me was adept at keeping secrets, after all, and my
confused silence kept me one of his many little secrets.
Years later, his death shattered my somewhat successful effort to bury the
experience deep in my subconscious. It was a pivotal moment for me, to realize
that the person I had become was either because of, or in spite of, my childhood
molestation. From a place of maturity, I also realized that the man who abused me
was not a monster, however monstrous his actions. I believe that it would have been
easier to come to terms with my abuse if he had been an unquali fi ed monster, a
mindless, slavering beast I could dismiss as instinctually, irredeemably evil. But
I had known him well, apart from the abuse, and although he took advantage of me,
he also had a caring, sensitive, even oddly protective, side to his personality.
When therapy did not suffi c e to help me reconcile this complexity, I turned
to scholarship. I found solace and understanding in translating my pain into an
academic exercise; it became the topic of my dissertation. I was blessed with a
brilliant, sensitive adviser who became both my muse and my friend as the process
evolved. Bernard Brock was a renowned expert on the work of Kenneth Burke, a
symbolic interactionist to the core, who used his impressive knowledge to comment
on issues ranging from politics to spirituality. Bernie taught me that intellect should
be wielded with compassion and conviction. His un fl agging advice, insights, and
guidance shaped my ideas and solidi fi ed my commitment to use my experience in
some concrete way. Even though Bernie passed away some years ago, his ideas
