Sexual Perversion and Morality: How an Attorney’s Personal View of Deviance Can Shape the Quality of Representation in Sex Offender Cases

• In Event: Legal Services for the Indigent – Legal Representation and Mental Health

Abstract

Both the Catholic theologian St. Thomas Aquinas and the contemporary secular philosopher Thomas Nagel agree that what is unnatural in human sexuality is perverted. Aquinas strongly believed that sex which did not lead to procreation was morally wrong, yet for Nagel, a sexual encounter need not be procreative in form, as long as the requisite psychology of mutual recognition is present. Individual views on the morality of sexuality are continually shaped by religious, societal, constitutional and personal opinions and experience. Judges, defense attorneys and prosecutors have all developed their own personal sense of what is morally wrong, improper and deviant outside of the law’s commands. At the criminal level, certain sexual acts are illegal under our laws; thus, the commission of such acts is criminal and therefore wrong. But at the sex offender civil commitment stage, categorization of the underlying criminal sexual act has already been resolved, and thus attention shifts to the offender’s deviance. This paper will assess varying philosophies on sexual perversion and morality, and discuss how attorneys’ personal view of deviance, perversion and morality might prevent them from rigorously defending a sex offender civil commitment case. I will discuss the extreme importance of effective counsel in these cases and how the lack of effectiveness– due to prejudices fueled by personal and morally driven perceptions of the client - could potentially lead to loss of liberty and indefinite commitment.

Author

• Heather Cucolo, New York Law School