Decisional Capacity and Sexual Offender Treatment

Respect for autonomy is at the heart of behavioral health ethics. It, alongside justice, beneficence, and non-maleficence, compose the four principles of Beauchamp and Childress’ principlism, one of the dominant theories of biomedical ethics.[1] Directly connected to respect for autonomy is decisional capacity. Decisional capacity is the ability to make one’s own medical decisions. There are four abilities that are ordinarily thought to underlie decisional capacity: communication, understanding, appreciation, and reasoning.[2] In this paper, I will explore different ways that sexual offenders might be vulnerable to deficits in one or more of these abilities when it comes to sexual offender treatment. After doing so, I will consider the threat of coercion in treatment settings and its relation to the decisional capacity of sexual offenders. In the end, I will conclude that sexual offenders may frequently suffer impairments in all four capacities and that coercion poses a marked threat to informed consent in carceral environments. Before beginning, two often-stated but relevant clarifications about decisional capacity are in order: first, that decisional capacity is not all-or-nothing but gradated[3] and second, that decisional capacity is decision-specific. As such, we cannot make any sweeping claims about whether sex offenders lack decisional capacity, but we will point out some areas of concern that may impact the fullness of an individual’s decisional capacity.

Communication
There is robust evidence suggesting that sexual offenders may suffer from deficits in social skills. They often lack communicative skills when compared to non-offenders, particularly when talking about sex.[4] Regarding decisional capacity, since sexual offenders frequently lack communication skills, they may find it difficult to express decisions about their treatment. This issue is connected to and compounded by the high prevalence of social anxiety among sexual offenders—especially contact child sexual offenders (CCSOs).[5] As such, “people-pleasing” behaviors and fluctuating communication may pose challenges in assessing the intention or decisions of sexual offenders.

A group of particular importance is autistic sexual offenders. While autistic individuals are not more likely to commit crimes than the general population, when they do commit crimes they are more likely to commit sexual offenses than anything else.[6] Autism is characterized partially by deficits in communication, such as literal thinking and interpretation, difficulties employing non-verbal forms of communication, and repetitive language.[7] As such, autistic sex offenders might communicate choices about treatment in ways that are not obvious to assessors, they may be slower to come to a communicable decision, or may struggle to communicate decisions that they have in fact made. Communicative abilities are something to be carefully assessed and monitored when acquiring informed consent for sex offender treatment.

Understanding
Understanding is the ability to grasp the fundamental meaning of information, such as risk and reward, about a medical choice.[8] Some common avenues by which understanding can be disrupted are “deficits in attention span, intelligence, and memory.”[9] Sexual offenders may be at risk to suffer deficits in one or more of these ways. Adolescent sex offenders have been found to have relatively high rates of attention-deficit/hyperactivity disorder (ADHD) symptoms, which were in turn positively correlated with risk for serious criminal behavior.[10] Individuals with intellectual disabilities moreover may engage in harmful sexual behaviors (HSBs), which can count as sexual offenses depending on the type of behavior and the laws of the jurisdiction.[11] Some sex offenders suffer from deficits in memory related to dissociation, which can crucially include instances of their own offending behavior.[12] There are multiple cognitive deficiencies that may occur alongside sexual offending behavior, which may impair the ability of the sexual offender to retain and understand the nature of a proposed treatment, its risks and possible benefits, and alternative treatments.

Appreciation
Deficits in appreciation may be the most common failure of decisional capacity among sexual offenders. Appreciation refers to the specific understanding that a given illness or disease state is present in oneself, the “probable consequences of a treatment or its refusal,” and the likelihood of other consequences.[13] It is, essentially, to understand that a medical situation is one’s own and has palpable impacts on one’s future. Notably, sexual offenders often lack insight into the nature of their sexual offending and fail to recognize it as pathological or harmful to others. This is due to layers of cognitive distortion that cause the offender to view their own behavior as normal or unproblematic.[14] As such, it is likely that many sexual offenders, when presented with treatment, will refuse due to a faulty belief that nothing is wrong with them. Given that sex offender treatment does in fact offer significant benefits in reducing recidivism, we should think that a failure to appreciate is the rule, not the exception, among sexual offenders.[15]

Reasoning
Reasoning is the ability to manipulate information in a rational manner. As Appelbaum & Grisso point out, there are a range of conditions that can impair the ability to reason properly: delirium, anxiety, depression, euphoria, anger, and so on.[16] Given that anxiety, as we have said, is common among sexual offenders, there is the ever-present possibility that sexual offenders may struggle to reason about treatment options due to excessive anxiety about risks and benefits. Depression is also quite common among sexual offenders, which can impair motivation to reason due to its perceived pointlessness.[17] Finally, many sexual offenders are quite impulsive and may fail to reason their way through a treatment proposal and instead jump to a conclusion about what would be best for them.[18] Reasoning is an area of decisional capacity that sexual offenders may find particularly difficult due to high rates of psychiatric illness.

Coercion and Informed Consent
The above highlights some ways in which sexual offending and common comorbidities are associated with impairments in the four abilities that comprise decisional capacity. However, decisional capacity is only one element of informed consent. Another crucial component of informed consent is voluntariness: that consent be given without significant internal or external pressure. However, given that sexual offenders are typically making medical decisions in a carceral environment, it is questionable whether they can give any sort of voluntary consent to sexual offender treatment at all. Sexual offender treatment is frequently used as a bargaining chip for rewards or the lessening of severe punishment. If it comes down to it, a sexual offender will most likely choose to pursue treatment if the alternative is a higher security level, a longer sentence, or extended parole or probation. These are not choices made free from significant pressure. Of course, there may be compelling public health reasons to mandate treatment under threat of punishment, but we should not pretend that informed consent is any longer at play in such scenarios.

Further Questions
While the above, I believe, establishes that sexual offenders often suffer from conditions and beliefs that impair decisional capacity and informed consent for sexual offender treatment, that does not resolve the ethical question of what we should do after a determination has been made that a sexual offender lacks decisional capacity. Questions surrounding surrogate decision-making in carceral environments are quite complex and have provoked significant discussion and reflection.[19] Perhaps most importantly, though, is the question of the value of informed consent for sexual offenders. It appears the competing duty toward beneficence might trump respect for autonomy when treating sexual offenders. In any case, it is important that instruments measuring decisional capacity be deployed when assessing a sexual offender’s consent or lack thereof to sexual offender treatment.

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