Moral, rational and emotional understanding about the criminal responsibility of the defendant have their roots in many different disciplines. Observations about psychological abnormality have come from writers, philosophers, theologians and lawyers, whose insights have crossed guild lines and fertilised new associations of ideas. For example, Hamlet’s rebuke ‘The lady doth protest too much methinks’ found its way into Freud’s notion of reaction formation as psychological defence mechanism. There is no monopoly on insight and difficult questions require many viewpoints. But the chief resource for the American criminal justice system when analysing insanity issues is the discipline of psychology.
Psychiatrists and psychologists perform insanity evaluations. Courts rely upon them for relevant, candid and accurate assessments of a defendant’s mental capability, using the legal standard of insanity. Mental health professionals are at their best when performing their analysis as objective consultants rather than advocates for a particular viewpoint. We should not attempt to prosecute or defend an accused person. Ultimately, decisions about a defendant’s criminal responsibility should not be abdicated to psychiatrists or psychologists, but should remain with triers of fact. While mental health professionals may reflect values of the community where the trial occurs, these evaluators are not accountable to the community as would be an elected official or jury. The insanity test which mental health professionals apply is not a product of the mental health sciences but a legislative codification of the community’s notion about justice and responsibility.
The test for insanity appears as a single sentence in the Wisconsin Statutes: ‘A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacked substantial capacity to appreciate the wrongfulness of his conduct or conform his conduct to the requirements of the law’. Moral value judgements are clearly embedded in this standard. There is no precise definition of the word ‘substantial’. The term suggests something less than total, but more than a little. The word cannot be understood further without placing it in some value context.
The test does not excuse behaviour merely because a defendant is mentally ill. For example, a person diagnosed with schizophrenia who robs a gas station to obtain beer money may be as accountable as one without such a diagnosis. A lack in substantial capacity to appreciate or conform must flow from the disease or defect. However, if the robber had delusional beliefs to the effect that he owned the gas station and all its contents, then he might be legally insane. Under those circumstances, the disease resulted in, by way of the delusions, a substantial lack in capacity to appreciate the wrongfulness of his conduct. Additionally, it is true that mere deficiencies in psychological abilities do not satisfy the test. Psychological wounds from troubled lives are not likely to be sufficiently incapacitating. While the test is an instrument used to make a dichotomous decision, people’s abilities exist on a continuum. Some people properly found responsible for criminal conduct may have been less able to appreciate or conform than others who are also found responsible. The test is also time, crime and person specific. It does not necessarily follow that once a person is found insane he or she will always be unaccountable for future conduct. Nonetheless, a documented history of psychosis and past judgements of non-responsibility may help reinforce current evidence for insanity. Such was not the case with Jeffrey Dahmer.
The evaluation of Jeffrey Dahmer’s mental responsibility was eventually assigned to eight psychiatrists and psychologists. These professionals collectively represented a range of experience working with criminal defendants, and some of them had specialised training with persons suffering from sexual disorders. They also had varied experience in addressing forensic mental health questions. By and large they worked independently. In the proper order of things, there should have been eight opinions, hopefully convergent about Dahmer’s state of mind at the time he committed the fifteen crimes charged, and particularly what that state of mind implied about his mental capability to appreciate the wrongfulness of his conduct and his capacity to conform his conduct to the requirements of the law.
Seven of those eight examiners testified at trial. I did not. The legal system attempts to find truth by sharpening distinctions between opposing sides. While an accused person’s abilities to conform or appreciate may fall anywhere on a continuum, it is chiefly those experts’ opinions which reflect one extreme or the other that are brought to court. As one can see below, my opinions were not sufficiently supportive of the defence position and yet I was a defence-retained expert. Interestingly, the District Attorney, who was alert to the implications from the fact I did not testify during the defence presentation, considered subpoenaing me for testimony. He later explained that he decided not to subpoena me because he would be cutting new legal ground in Wisconsin and did not want to unnecessarily create an issue for an appeal. At the same time, his ongoing assessment of his case was that his experts were doing well.
Among the seven who did testify, the opinions about Dahmer’s state of mind seemed more similar than divergent. Most thought he was not psychotic in the sense of sensory disturbance or having significant disorders of thought or affect. Most described severe sexual disorders, marked problems with intimacy and alcohol abuse. The fact that opinions did vary somewhat on a complex topic did not hinder the operation of the insanity defence nor did the differences reflect badly upon the professionals. Among major league umpires, the strike zone will vary somewhat. Here, too, the system can work with less than absolute precision.
The discussion concerning whether Dahmer had a mental disease and the opinions people reached showed greater divergence of thought than did the general description of his mental state. Several of the experts who testified reluctantly affirmed that Dahmer had a mental disease as appropriately defined. One expert steadfastly denied that he did. Ten of the twelve jurors said ‘no’ as well.
The question that was asked of them was whether Dahmer had an ‘abnormal condition of the mind which substantially affected mental and emotional processes’ at the time he committed any or all of the fifteen homicides. This is the appropriate definition of mental disease under Wisconsin law. The analysis would appear to be straightforward. The mind is not an anatomical thing, but the confluence of all psychological activity, except perhaps for physical behaviour. Dahmer’s psychosexual functioning was well established to reflect severe psychopathology defined as necrophilia. The rarity of Dahmer’s mental activity as manifested by his sexual behaviour was as evident to the individual on the street as it was to the mental health professionals. This abnormal condition of the mind greatly affected Dahmer’s mental and emotional processes by dictating the erotic thoughts that he would think and the longings and passions he would feel. Dahmer’s abnormal condition affected his mental and emotional processes in the same manner that a turned key affects a car motor. The processes themselves were not rendered inoperable, yet that is not the requirement of the definition.
Experts who are not accustomed to forensic work may mistakenly apply a more stringent definition of mental disease, and lay people may intuitively agree with them. By design, however, the insanity defence concept of mental disease is much broader. The issue of mental disease is a threshold question. If one were to give shape to the insanity defence, it would appear as a funnel with the disease being the larger aperture. Many who meet the mental disease criteria eventually fail the test. The definition of the disease is broad enough to encompass nicotine withdrawal, but that condition will not ultimately prevail in an insanity defence. One should also note that the term ‘mental disease’ in the mental health system is used for a different purpose than it would be in the law. In one context it is for diagnosis and treatment while the legal system uses it for the purpose of conceptualising conditions potentially suitable for exculpation. The broader definition in law is expressly for the purpose of giving the jury great discretion when considering the insanity issue. Psychosis, implied by the more stringent d
efinition of mental disease, is not irrelevant to the insanity analysis, but it is not a necessary condition at the threshold. The impairments consequent to psychosis are more likely to be critical when mental capabilities are assessed.
Under the law, there are several conditions which are not mental diseases, even though those conditions are abnormal and they substantially affect mental and emotional processes. For example, the state of mind created by the voluntary ingestion of alcohol or drugs, including hallucinogens, will not qualify, even though the mental condition momentarily mimics functional psychosis. This and other exceptions are simply rules based upon the values arising from the moral consciousness of the community. In this example, the value appears to be that one is responsible for intoxicated behaviour if the intoxicated state was voluntarily created. Dahmer’s mental state did not fit any one of these exceptions. There were multiple influences upon his behaviour when he committed the homicides, but none of those influences undid the fact or created the fact that he had necrophilia. The jury’s refusal to recognise Dahmer’s mental disease may have reflected their moral judgement that a new exception to the mental disease definition should be made so that the paraphilia do not qualify for insanity.
The equivocating testimony by some experts regarding the mental disease issue and the jury’s ultimate conclusion that Dahmer did not have a mental disease, appeared to be instances when something other than reason was controlling opinions. Perhaps a demand for logic could not hold back the revulsion arising from Dahmer’s conduct. Some may have been fearful as to what an acknowledgement of a mental disease would lead to in both this and future cases. If that is what occurred, they failed to understand the rigours of the remaining test. There were also clear instances when experts failed to maintain their roles and were allowed to expand upon their personal views of moral responsibility. The fact that some experts personally believed that it was or was not a good idea to include necrophilia as a mental disease, was inappropriate. Lectures about social policy are not proper material for forensic mental health experts when testifying in insanity trials.
While Dahmer acknowledged that he probably had not invented any new crimes in the history of humanity, he repeatedly stated that his acts were the worst imaginable and that there could be no forgiveness or salvation. For years he had acted outside the most fundamental rules of social behaviour. He was among us only in the most superficial ways. With the revelations of his crimes the line between him and the rest of the community became very clear to all. His mind and his behaviour, in separate yet related functioning, made him different from us. In talking with me, he never held out much hope that he would be ultimately acquitted or that his behaviour would be excused. Yet as the trial approached, he seemed to want to use the test to find acknowledgement that there was something not part of him (a disease) that made him want to commit his crimes. He never expected to be a physical part of the community (i.e., to walk Wisconsin Avenue), yet the disease acknowledgement held out some possibility that some day he could be reaffirmed, find acceptance and re-establish a connection with other people. He knew he had been very far apart from the rest of us and the disease issue became a connecting thread. This time the line of separation would not be drawn by his mind or his behaviour, but by the judgement of the jury. For Dahmer’s purposes, he did not fail the test, but the test failed him.
The logic of the jury instructions meant that those representatives of the community would never formally consider the issues of his capacity to appreciate or conform his behaviour. Without satisfying the threshold question, the rest becomes moot. Nonetheless, the testimony did dwell upon those issues and the rigours of those standards meant that his conviction at the end of the trial was inescapable.
In regard to Dahmer’s capacity to appreciate the wrongfulness of his conduct, none of the examiners thought he was exculpatorily insane on that account. The framers of the insanity test deliberately replaced the word ‘know’ with the word ‘appreciate’ and thereby seemed to embrace additional meaning. The term appreciate is more than cognitive. Most people assert that it implies emotional understanding as well as thinking. In this case, one must recognise that Dahmer’s lack of empathy or even sympathy for his victims was astounding. Clearly, his senses must have been seared in order for him to have done what he did. Nonetheless, he did go to extraordinary efforts to conceal his activity. After he was caught, he reported that he knew while he was killing that his actions were wrong and that they were against moral and criminal codes. With these facts, the enhanced concept of ‘appreciate’ seemed to be no more than a thin veneer over a solid core of evidence, indicating that he knew what he was doing was wrong. The difference between ‘appreciate’ and ‘know’ was a distinction without meaning.
The analysis of Dahmer’s capacity to conform his behaviour was unsettling because it never appeared entirely satisfactory. At the outset there were fundamental problems as to how one proves that certain behaviour is out of control. What data does one look for? What decision rules should apply? How much data does one need to make a firm decision? What assumptions should one make? How can out-of-control behaviour be reliably (repeatedly) distinguished from reckless or impulsive behaviour? The purpose of raising these questions is to keep the evaluation within the rules of scientific inquiry.
One way to assess the control question would be just to consider Dahmer’s behaviour and then attempt to infer control capabilities. There were innumerable instances when Dahmer seemed to alter his intended course of behaviour in order to avoid detection or for some other consideration. Altered behaviour implied influence and influence implied some level of control. Conversely, there were instances when his behaviour showed little caution and was frankly reckless. Those instances might invite the casual conclusion that only out-of-control people would engage in such dangerous (apprehension-prone) behaviour. Unfortunately, that would be poor reasoning because the observation does not settle the essential question: did he choose not to control his behaviour or did he try and fail? An analysis of his mere behaviour would not appear to be productive.
Some acknowledged Dahmer’s influence over his behaviour but then argued that his actions merely reflected practical decisions carried out in accordance with a higher-level imperative over which he had little or no control. This assertion refocuses analyses directly upon his internal psychological phenomena and would attempt to weigh the strength of his drive to commit the crimes against the resources he possessed to control himself. The question becomes one of a gas pedal versus a brake.
Clearly, Dahmer had an imperfect ability to conform his behaviour. A person who has no urge to have sex with corpses is likely to have a perfect ability to refrain from killing for intimate gratification. The equation is immediately different when there is an urge that needs controlling. Beyond this simple truth, the defence was able to flush out some of Dahmer’s limitations. He could find few pleasures to seek other than those he sought with corpses. He was also walled out of the social community. To the extent that conformity is achieved through a socialisation process, Dahmer had long since isolated himself from that process.
While his abilities were imperfect, they were not absent. In fact, they were very evident at an operational level of decision-making. It is relevant here to consider the evidence that his sensory functioning was not impaired; he could think logically and there was no gross impairment in his emotional functioning. He could delay gratification, set goals and problem-solve with relative effectiveness.
The drive that Dahmer needed to control was difficult to articulate because it was difficult to understand. It could not be measured physiologically in any meaningful way. One general assessment of drive found in psychology is that the strength of a drive can be estimated by the amount of work done in order to achieve a particular goal. Dahmer clearly engaged in a great deal of physical, mental and emotional work in order to carry out his crimes, and therefore one could surmise that he had the strong drive to pursue those activities.
r /> Additional considerations reinforce this logic applied and thereby strengthen any conclusions. There is an assumption when conducting psychological evaluations that the subject is ‘normal’. The task of evaluation is to observe the person on a relevant continuum and then measure or appraise the discrepancy from that point of observation to ‘normality’. For example, ‘normal’ intelligence may be defined in part in terms of an I.Q. of 100. A person’s measured intellectual ability takes meaning from that reference point. When conducting insanity evaluations, the initial assumption is that the accused person retains substantial capacity to appreciate the wrongfulness of his conduct or conform his conduct to the requirements of the law. An accused person’s abilities to appreciate or conform have meaning in reference to the abilities of an average person.
There is also a general rule in behavioural science that the amount of data needed to declare that a condition exists contrary to expectation must be significant. The purpose of this rule is to minimise erroneous declarations of deviancy. The assertion that a deviant condition exists must be clearly supportable. Ultimately, the testimony would have to be to a ‘reasonable degree of professional certainty’, rather than a reasonable degree of personal certitude. The denial that such a condition exists means either that it does not exist or that evidence was not found to prove that it exists. The import of this reasoning is that Dahmer needed to demonstrate significant evidence of his inability to conform his conduct in order for the examiner to confidently advise the court that such a condition existed. When the facts were held against this standard, the conclusion was that Dahmer did not demonstrate a substantial lack in his capacity to appreciate the wrongfulness of his conduct or conform his conduct to the requirements of the law. The evidence failed to prove Dahmer insane.
The Shrine of Jeffrey Dahmer Page 31