We’ve never quite known whether child molesters should be treated as sick people or punished as criminals

On Sunday, HBO premieres Leaving Neverland, the new documentary that tells the stories of two men who say they were repeatedly sexually abused by Michael Jackson while they were children. The new reckoning raises the persistently tricky question: Should pedophilia be treated as a sickness or punished as a crime? After Jackson was charged with several counts of child molestation, Dahlia Lithwick looked into the research to try to answer the question. Initially published in January 2004, the original, still enlightening, is reprinted below.

Again, and for all the wrong reasons, we can’t take our eyes off Michael Jackson. Whether or not the allegations are substantiated, the question is in the air: Is pedophilia a disease to be treated, or a crime to be punished? Are people who seduce minors sick or evil? Our current legal and medical systems blur both views. We call for the most draconian punishments (life imprisonment, castration, permanent exile) precisely because we view these acts as morally heinous, yet also driven by uncontrollable biological urges.

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If sex with children is truly the product of freely made moral choices, then we should deal with it through the criminal justice system. But if it is a genetically over-determined impulse, an uncontrollable urge nestled in our DNA, then punishing pedophiles must be morally wrong. As science—and culture—increasingly medicalizes bad behavior, finding a neurological component to everything from alcoholism to youth violence, we run the parallel risks of either absolving everyone for everything, or punishing “criminals” who are no guiltier than cancer patients.

What science has revealed about the moral/medical roots of pedophiles is, of course, ambiguous. What is clear is that the binary choice laid out above is an oversimplification. The medical community, which started to view pedophilia as a disease rather than a crime in the 19th century, has amassed evidence that at least some violent and antisocial behaviors have genetic links and signposts. But researchers have been unable to isolate a biological cause for pedophilia, or even to agree on a personality profile. Not to mention the terrific confusion within the medical community in defining what this “disease” really involves. Until a few years ago, for example, the DSM-IV—the Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders—defined pedophilia as a disease only if the sufferer’s “fantasies, sexual urges, or behaviors cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.” In other words, a non-impaired, remorseless pedophile was apparently perfectly healthy.

Advocates of the “disease” school say pedophilia is often the product of uncontrollable impulses that seem to respond to treatment (including castration, both surgical and chemical) particularly in conjunction with monitoring and behavioral therapy. This raises at least a possibility not associated with car thieves and insider traders: That small tweaks to one’s brain chemistry may neutralize the impulse to commit more crimes. And if that is the case, they contend, shouldn’t we be treating rather than punishing? Can we really call ourselves a just society if we are jailing folks for their neurochemical profile? In a thoughtful essay in Reason, Thomas Szasz urges that pedophilia is ultimately still a moral failure regardless of its biological roots: “Bibliophilia means the excessive love of books. It does not mean stealing books from libraries. Pedophilia means the excessive (sexual) love of children. It does not mean having sex with them.” The crime, he argues, is not the psychological impulse, but the willingness to give in to it. But this conclusion assumes an answer that science is still uncertain about: whether for some pedophiles, the impulse to molest has become a pathology. If that is the case, pedophiles can’t have the criminal intent necessary to want to commit a crime, and that mens rea is the cornerstone of our criminal law...

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