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 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.