By: LJSJ Staff

No one wants to talk about Pedophilia. It’s understandable why—the media and AMBER alerts keep us apprised of the constant threat that our children or loved ones could become victims of sex crimes. Neighborhoods once infamous for not locking their doors turned into communities surrounded by gates and security cameras in fear of the John Wayne Gacys and Jared Fogles of the world. Everyone knows the location of the neighborhood sex offender. And these protective measures make sense, but they also do not address the issue at its core.

It is indisputable that Pedophilia, or Pedophilic Disorder, is a mental illness. Since 1968, Pedophilia has been recognized in the Diagnostic and Statistical Manual of Mental Disorder (DSM). In the current iteration, DSM-V, a person is diagnosed with Pedophilic Disorder when they have “acted on” their sexual urges or when the urges “cause marked distress or interpersonal difficulty.” And when they do act on their urges, they commit a crime—whether that is the crime of sexually molesting a child, viewing child pornography, or committing statutory rape. Regardless, when they are caught and convicted, they are often sent to prison. But, unlike other offenders, their punishment does not always end once their incarceration does.

Under the Americans with Disabilities Act of 1990 (ADA), a person qualifies as disabled if they have “a physical or mental impairment that substantially limits one or more major life activities.” Pedophilic Disorder fits this definition—a person with this disorder suffers from overwhelming sexual urges that affect their ability to participate in society. However, Section 12211 specifically excludes pedophilia from protection under the Act. This means that those who are diagnosed with Pedophilic Disorder—whether or not they act on these urges—can lose their job if they ask their employer for reasonable accommodations to seek treatment. Not only would it be helpful for people with Pedophilic Disorder to have their disability legally recognized, but it would also aid in the prevention of future sexual abuse by making sex offender treatment programs safer to access.

Assuredly, those who are convicted of a sex offense should have limitations on their employment options. They should not be allowed to be teachers, daycare providers, or work any job that involves contact with children. But, shouldn’t they be able to request accommodations to allow them to receive treatment without fear of being fired? If we are allowing sex offenders to rejoin society, should we not provide them with the same protection afforded to those with other mental disorders? And what about those who are diagnosed with Pedophilic Disorder but never act on it?

A common response is that if we allow there to be reasonable accommodations and we treat pedophilia as a disability under the ADA, it is in some way condoning their crimes or placing future victims at risk. What this response ignores is that sex offenders already face extreme limitations on their lifestyle once they are released from imprisonment. They face restrictions on where they can live, who they can live with, and where they can work. Depending on their offense, sex offenders have to comply with their state’s registration requirements and their neighbors must be notified of their status. Enabling them to disclose their diagnosis or to receive accommodations for treatment does not undo any of these restrictions—it simply allows them to be employed without fear of being fired if their employer discovers their registration status.

There is no movement for including Pedophilic Disorder as a disability under the ADA. The temperament of the general public toward those with this Disorder is that they deserve every punishment they receive and then some. While that may be true, granting them protection from discrimination under the ADA can only have a positive impact on society. Prison terms are fixed, and absent bad behavior while imprisoned, these individuals are let back into society and expected to participate to every extent possible. It simply seems logical that we should provide them with the tools to allow them to assimilate.

Published by Law Journal for Social Justice at Arizona State University

The Law Journal for Social Justice ("LJSJ") is the first student-run and student-created online journal at Sandra Day O'Connor College of Law. LJSJ aims to edit, publish, and produce notable works through its online website from legal scholars, practitioners and law students. LJSJ also publishes twice a year, featuring articles that focus on important, novel and controversial areas of law. LJSJ will provide a fresh perspective and propose solutions to cornerstone issues that are often not discussed, which may also have the potential to positively impact local communities.