(concurring and dissenting in part):
I agree that the case should be remanded in light of Millard v. Harris, 132 U.S.App.D.C. 146, 406 F.2d 964 (1968), for a hearing to determine whether Appellant is “mentally ill.” Since the case is to be remanded, however, I think it wholly unnecessary — if indeed not inappropriate — for this court to intimate by way of obiter dicta general views as to apparent Constitutional issues which may never arise in this case. The majority takes issue with my challenge to their excursion into what is essentially no more than “legal literature” expressing personal views of two judges. I risk their displeasure because of my strong view that judges should generally confine themselves to the case at hand. The undesirability of such excursions is that it *1108exerts a pressure on other judges to respond lest the personal views be mistaken for judicial pronouncement.
If Appellant is found to be committable under the Hospitalization of the Mentally 111 Act1 and if that Act is found applicable to, Appellant, it seems to me rather obvious that the Constitutionality of the mandatory commitment provisions of the Sexual Psychopath Act2 would not properly be before the trial court or this Court. I therefore see no utility in framing issues on the theory that they will be “in aid of remand.” No court may ever have occasion to deal with these issues; when and if the occasion arises, the District Court will pass on the issue and in due course it may be open to review here. By treating issues not now before us the majority seems to be reaching for every conceivable opportunity to shed further “illumination”; surely such an advisory opinion is beyond our function. These important issues should not be anticipated and to do so opens the court to criticism that we do not wish to entrust these questions to whatever District Judge and whatever Division of this Court may later have the legitimate occasion to resolve them. Cf., e. g., Ash-wander v. TVA, 297 U.S. 288, 345-348, 56 S.Ct. 466, 80 L.Ed. 688 (Brandeis, J., concurring).
Turning to matters of substance, I must also dissent from those portions of the majority opinion relating to “dangerousness.” Appellant has already conceded that he is “dangerous,” 3 and no judge is bound to follow Millard to the extent that it purports to legislate new concepts of “dangerousness.” In short, the dicta of Millard should be accorded no more standing than the wide-ranging dicta of today’s majority opinion.
In Millard the majority discounted Appellant’s demonstrated inclination for exhibitionism which “most women would find * * * repulsive” even though, depending upon their sensitivity, they might be “quite upset” but “for only ‘two or three days’” 132 U.S.App.D.C. 146, 158, 406 F.2d 964, 976 (1968) (emphasis added).4 Judicial concern ought to be fairly apportioned between the delinquent offender and the victims whose traumatic injury may be very grave.
The Millard court also noted the possibility of serious psychological harm which might result to small children from witnessing Millard’s “expected exhibitionism,” but concluded that none of these factors warranted the delinquent offender’s commitment. Both in Millard and in the instant case the majority has placed an undue emphasis on the subject’s lack of a physically assaultive or violent nature, denigrating the hazard of *1109psychic trauma which is so much the subject of psychiatric inquiry. Such an approach seems to equate “dangerousness” with conduct involving only physical impact; it tends to ignore the potential for psychic damage to the young. There is simply no basis whatever, either in common law or common sense, for so limiting the range of public values and interests which a legislature may legitimately protect. The law properly shelters psychological as well as purely physical interests. No reasons have been advanced in this case which justify substitution by the majority of its own theories of psychiatry or public policy for those of the legislative branch.
This is not a case where an individual is being committed solely because of an imagined propensity to engage in anticipated conduct obnoxious or offensive to others; thus, contrary to the majority, I do not think we are confronted with a situation involving strictly preventive detention. Appellant’s record stipulation that he recently engaged in various acts of indecent exposure supplies the basis for commitment to one of the institutions designated by Congress. A civil commitment statute is not rendered constitutionally suspect as a form of preventive detention simply because in a given case the civil confinement may exceed the sentence which could be imposed under a criminal statute for the same acts. The possible disparity of confinement, which is by no means inevitable, may reasonably be justified by the social desirability and public necessity of providing the patient with therapy.
Admittedly there are a multitude of problems involved in determining psychological trauma to the victims and then in balancing the gravity of the harm to the public with the necessity for involuntary commitment of a delinquent or emotionally disabled offender. But these are essentially legislative policy determinations, not primarily judicial questions. Indeed, Congress, being sensitive to the fact that psychiatry is at best an infant and developing discipline which employs imprecise and changing standards and definitions,5 has experimented with a variety of statutes to provide a rehabilitative system for individuals prone to aberrant sexual conduct. Since we are not here dealing with penal legislation we should be especially cautious of substituting our own predilections concerning psychiatry for those of a fact-finding body entrusted with formulating our legal and social policies; courts have neither the authority nor the facilities nor the competence for marshalling the data necessary to displace the policy judgments of the legislature.6 The approach of each of us is all too likely to be shaped by what books we read on the subjects outside our own discipline.
Aside from the undesirability of engaging in legislative-type speculation, the views expressed by my colleagues, both here and in Millard, are at odds with the recent obscenity cases. The Millard opinion discussed at great length the questionable impact on various groups which might result from public exposure of a given course of sexual misconduct. I think it significant that in discussing virtually the same problem in the context of upholding a state law precluding the sale of obscene literature to minors under 17 years of age, the Supreme Court employed a sensibly fluid standard of causality between the condemned material and the danger sought to be avoided. The court stated that it was “require [d] only * * * to say that it was not irrational for the legislature to find that ex*1110posure to material condemned by the statute is harmful to .minors.” Ginsberg v. New York, 390 U.S. 629, 641, 88 S.Ct. 1274, 1281, 20 L.Ed.2d 195 (1968) (emphasis added). And even though it was “very doubtful” that the legislative findings “expresse[d] an accepted scientific fact,” the fact that a “ ‘causal link has not been disproved’ ” precluded the Supreme Court from concluding that the statute had “no rational relation to the objective of safeguarding * * * minors from harm.” Likewise, in the present case, there is no assertion by Appellant, or determination by the majority, that it was irrational for Congress to conclude that exposure to Appellant’s conduct may cause harm. And regardless of whether this Congressional finding represents an “accepted scientific fact,” since a “causal link has not been disproved” this court is precluded from substituting its own preferences for the views of Congress. Id. at 641-643. The standard set forth in Ginsberg also governs the instant case, and its use would result a fortiori in affirmance since we are dealing with action rather than mere words. We would do well to exercise the restraint demonstrated by the Supreme Court in Ginsberg.
Moreover, it is well established that the state may legitimately shelter specific groups of individuals from exposure to obscene materials. See, e. g., Ginsberg v. New York, supra; Prince v. Com. of Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944). Yet the Millard Court relied heavily on the conclusion that “only a small proportion of the population” would be injured by Appellant’s misconduct. This not only contravenes the controlling principles, most recently stated by the Supreme Court, that the State may properly guard against the “danger that obscene material might fall into the hands of children * * * or that it might intrude upon the sensibilities or privacy of the general public; ” it also flies in the face of common human experience. Stanley v. Georgia, 394 U.S. 557, 567, 89 S.Ct. 1243, 1249, 22 L.Ed.2d 319 (1969) (citations and footnote omitted) (emphasis added). However grievous the intrusive potential of the written word, it seems clear that overt public misconduct has an even more devastating impact, an impact destructive of the “privacy and sensibilities of the general public.” We need not assess “fault” on the lewd actor;7 but we must be able to remove him from public areas —gently but firmly — in order to protect the public and to carry out corrective treatment.
. 21 D.O.Code §§ 501-91 (1967).
. 22 D.O.Code § 3503-08 (1967).
. The majority states that “appellant’s dangerousness was not in issue below * * (p. 1099). This, of course, is simply because Appellant did not dispute his being “dangerous to other persons because he is likely to attack or otherwise inflict injury, loss, pain, or other evil on the objects of his desire.” 22 D.C.Code § 3503(1) (1967) (emphasis added). When Appellant conceded to being “dangerous” for purposes of the Sexual Psychopath Act, he necessarily brought himself within the purview of the Hospitalization of the Mentally 111 Act, which provides that a person may be detained if there is “reason to believe” that he is “mentally ill and, because of the illness, is likely to injure himself or others * * *.” 21 D.C.Code § 521 (1967) (emphasis added). I am therefore baffled by the majority’s statement that “On remand, the court will have to decide [the] question [of dangerousness] if it determines that [Appellant] is not mentally ill.” (p. 1099) A person who is likely to “injure others” is, necessarily, “dangerous to others”; thus, a concession of “dangerousness” under the Sexual Psychopath Act satisfies the synonymous language of the Hospitalization of the Mentally 111 Act as well. It would seem, then, that the only question left open for remand is whether Appellant is “mentally ill” in light of Millard v. Harris, 132 U.S. App.D.C. 146, 406 F.2d 964 (1968).
. See Sas v. State of Maryland and Director of Patuxent Institution, 295 F. Supp. 389, 405-406 n. 12 (D.Md.1969) (Watkins, J.), expressing similarly vehement reactions on these same points.
. An illustration of this is found in the many state statutes addressed as the “sex psychopath,” a term now rejected by many psychiatrists as without meaning; yet this term is embalmed in codes in many jurisdictions.
. It is now widely acknowledged, for example, that I.Q. testing has limited utility and is not an accurate measuring device. In Jenkins v. United States, 113 U.S.App.D.C. 300, 307 F.2d 637 (1962) (en banc), it was noted that the Appellant’s I.Q. test varied from 63 to 90 over a short period of time. Id. at 315 n. 1, 307 F.2d at 652 n. 1 (dissenting opinion).
. See Adams v. United States, 133 U.S. App.D.C. 137, 413 F.2d 411 (May 8, 1969) (special concurring opinion of Fahy, J.)