It is established that statutes like Mental Hygiene Law article 10, under which sex offenders who have mental abnormalities that make them dangerous may be committed to mental health facilities “for care, treatment and control” (Mental Hygiene Law § 10.06 [k]), are constitutional (Kansas v Hendricks, 521 US 346 [1997]). And even if the question had not already been decided, it would be hard to argue that the civil commitment of mentally abnormal sex offenders is constitutionally forbidden per se. It is permissible, as a general rule, to use civil proceedings to commit to institutions people who are mentally ill and dangerous to themselves or others {see Addington v Texas, 441 US 418 [1979]), and it hardly seems possible that dangerous sex offenders could be an exception to that rule.
Nevertheless, article 10 and kindred statutes create dangers of abuse—abuse that could threaten some very important *109principles. Many sex offenders are, or could reasonably be found to be, dangerous, and in common parlance they all have mental abnormalities: Mentally normal people do not commit sex crimes. Thus, unless “mental abnormality” is defined with scientific rigor, such statutes could become a license to lock up indefinitely, without invoking the cumbersome procedures of the criminal law, every sex offender a judge or jury thinks likely to offend again.
Some will intuitively respond: Not a bad idea. But it is a very bad idea, because not even a concern for public safety should be allowed to trump certain fundamental rules. Among them are that criminals can be confined only for crimes they have committed, after their guilt is proved beyond a reasonable doubt in a procedure in which they receive the many protections that our Constitution gives to those accused of crime, and that even when convicted they can be incarcerated for no more than the term of the maximum sentence provided by law. If the present sentences for sex offenders are too short, the legislature should make them longer, but it should not, and constitutionally cannot, simply substitute civil for criminal proceedings as a means of keeping dangerous criminals off the streets (see Kansas v Hendricks, 521 US at 372-373 [Kennedy, J., concurring]).
Thus the scope of statutes permitting the civil commitment of sex offenders must be kept within strict bounds. The United States Supreme Court, even while upholding such statutes, has made that clear. In his concurring opinion in Hendricks, Justice Kennedy—whose vote was necessary to the decision—wrote separately “to caution against dangers inherent when a civil confinement law is used in conjunction with the criminal process” (521 US at 371-372 [Kennedy, J., concurring]). He remarked: “If . . . civil confinement were to become a mechanism for retribution or general deterrence, or if it were shown that mental abnormality is too imprecise a category to offer a solid basis for concluding that civil detention is justified, our precedents would not suffice to validate it” (id. at 373; see also Kansas v Crane, 534 US 407, 412 [2002] [quoting Justice Kennedy’s Hendricks concurrence]; Foucha v Louisiana, 504 US 71, 82-83 [1992]).
The Supreme Court has warned that the application of statutes like article 10 must be limited to people who can be shown by scientifically valid criteria to have a “serious mental illness, abnormality, or disorder”—one that distinguishes them “from the dangerous but typical recidivist convicted in an *110ordinary criminal case” (Kansas v Crane, 534 US at 413). Appellant here seems to me to be a prototype of “the dangerous but typical recidivist convicted in an ordinary criminal case.” I see nothing in this record to support a finding that he is any more mentally abnormal than any other repeat sex offender. I therefore dissent from the majority’s holding that he may be committed indefinitely to a mental health facility in a civil proceeding.
The majority accepts as sufficient to support civil commitment the diagnoses proffered by the State’s experts that appellant suffers from “paraphilia not otherwise specified” (paraphilia NOS) and “hebephilia.” The majority also mentions the State experts’ diagnosis of “antisocial personality disorder” (ASPD) (majority op at 103), but wisely does not rely on it, for ASPD, at least as used by the State’s experts in this case, means little more than a deep-seated tendency to commit crimes. One of the State’s experts acknowledged that “maybe somewhere around half’ of the prison population could be labeled as having ASPD. If a diagnosis of ASPD could support civil commitment, the State could have locked up half of those now in prison without bothering with the complexities of the criminal law.
The diagnoses the majority does accept, paraphilia NOS and hebephilia, are problematic for several reasons. As applied to this case, they are not supported by the current edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR), the standard classification used by mental health professionals in this country. Paraphilia NOS is listed in the DSM-IV-TR, but only as a “residual category” for “Paraphilias that are less frequently encountered” (DSM-IV-TR at 567)—examples given include necrophilia (attraction to corpses) and zoophilia (to animals) (id. at 576). The DSM-IV-TR description of paraphilia NOS is plainly not applicable to the appellant’s “abnormality”—a tendency to have sex with teenaged girls. And hebephilia—a State’s expert’s name for that tendency—is not in the DSM-IV-TR at all.
Appellant’s expert gave testimony that seems to me to support a finding that these two diagnoses, as presented by the State’s experts, amount to junk science devised for the purpose of locking up dangerous criminals. I have grave doubt whether either diagnosis would survive a Frye hearing to determine whether it is “sufficiently established to have gained general acceptance” in the psychiatric community (Frye v United States, 293 F 1013, 1014 [DC Cir 1923]). But no Frye hearing was held, *111the factfinder below accepted the State’s experts’ testimony, and I am not prepared to say as a matter of law that no diagnosis not mentioned in the DSM-IV-TR can have scientific validity. Thus I will assume for present purposes that the diagnoses of paraphilia NOS and hebephilia on which the State relied are scientifically defensible.
Even on that assumption, these diagnoses cannot be the basis for civil commitment in a case like this. That is because they do not perform the task that the Supreme Court in Crane said such a diagnosis must perform: “to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case” (534 US at 413). As to paraphilia NOS, I can demonstrate the problem simply by repeating the majority’s quotation from a State expert’s definition of that ailment:
“recurrent and intense sexual fantasies, urges, or behaviors which involve . . . [t]he physical or psychological suffering, including the humiliation of oneself or one’s partner or children or other non-consenting partners which occurs over a period of at least six months and results in personal distress or impairment in some clinically significant area of functioning” (majority op at 104).
This could describe the mental state of every dangerous rapist.
As for hebephilia, an expert testifying for the State defined it by distinguishing it from an indisputably recognized disorder, pedophilia, an attraction to prepubescent children. There is no evidence, the expert acknowledged, that appellant is a pedophile; rather he “is more inclined toward pubescent females, which would technically make him more of a hebephile.” But of course, the idea that a man’s mere attraction to pubescent females is abnormal is absurd. What is abnormal about appellant, and others who commit statutory rape by having sex with girls below the age of consent, is not that they find the girls attractive, but that they are willing to exploit them for their sexual pleasure—in other words, they commit statutory rape.
In short, in the State’s lexicon, paraphilia NOS is essentially a tendency to commit rape, and hebephilia a tendency to commit statutory rape. If these are mental abnormalities warranting civil commitment, most if not all of the people who commit these crimes can be civilly committed. But, as Justice Kennedy *112pointed out in his Hendricks concurrence, a statutory interpretation that permits “civil confinement ... to become a mechanism for retribution or general deterrence” cannot be sustained under Supreme Court precedent (521 US at 373).
Appellant seems, from the record in this case, to be a very bad actor. The community may well be safer if he is kept behind bars. But to put him there on the fiction that he has some sort of mental condition other than a tendency to commit the crimes for which he was convicted (and has served his time) is and should be constitutionally unacceptable. I therefore dissent.
Judges Ciparick, Graffeo and Read concur with Judge Jones; Judge Smith dissents in a separate opinion in which Chief Judge Lippman and Judge Pigott concur.
Order affirmed, without costs.