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The sexual psychopath laws are still with us. They re-emerged in the 1990s under a new rubric—“sexually violent predator” laws—in twenty states that are now incarcerating thousands of people who have already served prison terms for sex offenses. They rely on a legal fiction: that the offenders are so incapable of controlling their behavior that they must be hospitalized immediately under civil commitment procedures. The judicial system would undoubtedly not tolerate such a scheme for burglars or arsonists or even murderers, but the Supreme Court, in Kansas v. Hendricks (1997), did uphold the sexually violent predator laws. The decision, and the indifference of mainstream civil liberties advocates, is powerful evidence that in the law as in all social institutions, sex is different. Public fear has bent the Constitution to punitive ends, and there is no public fear like that of sex involving minors.

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