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Dissociative Identity Disorder as an Insanity Defense


Dissociative identity disorder (DID; popularly and formerly known as Multiple Personality Disorder), which is characterized by the presence of two or more distinct identity states that recurrently take control of behavior, along with episodes of amnesia (APA, 2000), has been a controversial diagnosis since it was first described in 1816 (Casey, 2001). Interest in DID has surged in recent years, ever since it was incorporated into the 2nd edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM) as Multiple Personality Disorder in 1968, and was later included as a dissociative disorder in the revised version of the 3rd edition of the DSM (1987). Mental health professionals disagree over many aspects of DID, including whether it is truly characterized by coexisting multiple identities, what causes DID, and even whether or not it is a “genuine” condition (Lilienfeld & Lynn, 2003). The nature and etiology of DID have legal implications, as people have used this disorder as a key part of their criminal defense of legal insanity – admitting they committed the alleged offense, but claiming they should not be held responsible for their actions because of an incapacitating mental illness. The controversial status of DID in combination with current American laws regarding insanity defenses render DID a typically unsuccessful insanity defense. Examining the histories of legal insanity laws, as well as the controversies surrounding DID across time will help to illustrate why DID is often fruitless when it comes to pleading legal insanity for a crime.

American Legal Insanity Defenses: British Origins

Contemporary jurisprudence has roots dating back to religious and ethical practices and principles of Judeo-Christian traditions, which themselves relied on classical Greek philosophers. A complete narrative of the history of criminal law and legal insanity is beyond the scope of this paper; however, current American standards regarding legal insanity were heavily influenced by English traditions, which are not only more amenable to exploration, but are also the direct predecessors of our current, “Anglo-American” legal system. Documentation exists of kings in medieval England pardoning murderers because they committed their crimes “while suffering from madness” (Melton, Petrila, Poythress, & Slobogin, 2007). In particular, a series of landmark cases in Great Britain in the 18th and 19th centuries, in which mental illness was claimed as an excuse for a crime, helped to define insanity defenses as they stand today.

Edward Arnold (1724)

In 1724, Edward Arnold was tried for shooting and wounding the Right Honorable Lord Onslow (Trial of Edward Arnold, 1724). The two men were not acquainted with each other, though Onslow was a public figure. According to the records, Arnold walked up to Onslow, who was returning from a fox hunt, and shot him. The fact that Arnold shot Onslow was never in question; he committed the act in front of several witnesses who had accompanied Onslow on the hunt. When it appeared that Onslow had not been fatally wounded, Arnold seemed to struggle to attack him again, but was restrained. His actions seemed planned and deliberate; earlier in the day, other witnesses testified, Arnold asked about Onslow’s whereabouts, and attempted to purchase a larger shot for his musket. However, Arnold pled Not Guilty. What was in question was Arnold’s mental status at the time of the offense. Arnold maintained that Lord Onslow had sent imps to disturb him and was constantly plaguing him. Many witnesses testified on both sides; Arnold’s brothers and sister-in-laws argued that he was a madman who was ill-natured and nonsensical, and had been for years. Other people, who saw Arnold on the day of the shooting, claimed he never seemed mad to them. Interestingly, there were no expert witnesses (i.e., impartial professionals) in this trial. In the end, the judge who presided over the case, Justice Robert Tracy, gave the jury specific instructions for deciding a verdict:

(T)he shooting of lord Onslow, which is the fact for which this prisoner is indicted, is proved beyond all manner of contradiction; but whether this shooting was malicious, that depends up on the sanity of the man. That he shot, and that willfully [is proved]: but whether maliciously, that is the thing: that is the question; whether this man hath the use of his reason and sense? If he was under the visitation of God, and could not distinguish between good and evil, and did not know what he did, though he committed the greatest offense, yet he could not be guilty of any offense against any law whatsoever…If a man be deprived of his reason, and consequently of his intention, he cannot be guilty; and if that be the case, though he had actually killed my lord Onslow, he is exempted from punishment; punishment is intended for example, and to deter other persons from wicked designs; but the punishment of a madman, a person that hath no design, can have no example. This is on one side. On the other side, we must be very cautious…When a man is guilty of a great offence, it must be very plain and clear, before a man is allowed such an exemption; therefore it is not every kind of frantic humour or something unaccountable in a man’s actions, that points him out to be such a madman as it is to be exempted from punishment: it must be a man that is totally deprived of his understanding and memory, and doth not know what is doing, no more than an infant, than a brute, or a wild beast, such a one is never the object of punishment [italics added]. (p.764)

This test became termed the “wild beast” test – a defendant must be “totally deprived” at the level of an “infant”, “brute” or “wild beast” in order to be held not responsible for his/her crimes. As we will see, this is a difficult standard to meet that is not represented in current laws. The jury found Arnold guilty after a short deliberation and he was sentenced to death. Notably, the victim himself, Lord Onslow, interceded, and Arnold was instead sent to prison where he died, some 30 years later.

James Hadfield (1800)

At the turn of the next century, former soldier James Hadfield was charged with high treason after attempting to assassinate King George III by firing shots at him at the theatre. (Hadfield’s Case, 1800). While serving in the military for England, Hadfield was nearly decapitated by an enemy’s repeated sword blows to his head and neck. Though his life remained intact, his mind was severed; whether it was a result of structural damage to his brain and nervous system, or psychological effects of the trauma, Hadfield fell violently mentally ill immediately following his ordeal. Hadfield became delusional, thinking that he had contact with God, that the world was going to end, and that he had to sacrifice himself in order to save the world. However, suicide was not an option as it would not result in salvation, so he instead chose to publicly attempt to assassinate George III, with the ultimate goal of being executed for treason. Never did Hadfield indicate that he had wished to harm to or kill the king, only that he was aspiring to lose his life in a deliberately failed attempt (O’Reilly-Fleming, 1992).

Hadfield was represented by Thomas Erskine, a renowned lawyer at the time. Erskine knew that Hadfield would not pass the “wild beast” test, so he proposed a new test, the “irresistible impulse” test. Erskine argued that Hadfield suffered from delusions that gave him an irresistible impulse to attack King George – he could not control his actions as a result of his mental illness. He did so using expert witnesses to attest that Hadfield’s extensive injuries directly caused his bizarre delusions, as well as using character witnesses to speak for his premorbid personality and functioning. After Erskine called several witnesses, with plans to call several more, the judge, Lord Kenyon, intervened to see if prosecution would accept a Not Guilty plea. Indeed, the prosecution, defense, and court were convinced that Hadfield was insane at the time of his assassination attempt. The jury was retired and found Hadfield Not Guilty “being under the influence of Insanity at the time the act was committed” (Hadfield’s Case, 1800, p. 1356). Hadfield was confined in Bethlam Hospital (Bedlam) until his death in 1841. This case formed the precedent for the irresistible impulse test, which is still represented in many jurisdictions today as the “volitional prong” of the definition of insanity – an impairment in ability to control one’s criminal behavior (this will be explored further below). According to O’Reilly (1992), Hadfield’s verdict “sounded the death knell of …Arnold’s ‘wild beast test’” (p. 173).

Edward Oxford (1840)

The trial of Edward Oxford was the result of another failed assassination on royalty. Oxford fired two shots at Queen Victoria as she took her evening carriage ride up Constitutional Hill (Oxford’s Case, 1840). He was subdued by a witness and taken into custody. Oxford readily admitted to shooting at the Queen and did not resist arrest or interrogation. Though the specific actions Oxford had taken were somewhat in question (e.g., whether the pistols were loaded or not), the greater issue was his mental status at the time of the event, based on precedent set forth in Arnold’s and Hadfield’s cases. Oxford’s friends and family members testified that not only Oxford, but also his father and grandfather, were prone to odd and violent behavior, none of them being in their right minds. Two physicians testified that Oxford was of unsound mind, simply based on the facts that he had no clear motive for his attack, freely admitted to the shooting, and made no attempts to escape apprehension or conviction, though they did not examine Oxford, personally. A famous physician, Dr. Connolly, who was in charge of the Hanwell Lunatic Asylum, did interview Oxford and noted his “total inability to reason” and “an apparent incapacity to comprehend moral obligations, to distinguish right from wrong” (Oxford’s Case, 1840, p. 540). The judge, Lord Denman, instructed the jury that if Oxford was in “that state of mind that you cannot say he was a free agent, but that some controlling disease was the acting power which he could not resist, he would not be guilty, and would be entitled to be acquitted.” (Oxford’s Case, 1840, p. 551), reiterating the “irresistible impulse” test from Hadfield’s case. The judge then went on to say that a

…man charged as a criminal is not responsible for the act, who, in the language of our law, is non compos mentis, or not able to distinguish between right and wrong. The meaning of it is that he, from a diseased state of mind, is wholly unconscious that it is wrong in him to do the act charged upon him. (Oxford’s Case, 1840, pp. 551-552)

This represents the “cognitive prong” of the definition of insanity, the incapacity to appreciate the wrongfulness of one’s behavior, which is used to this day in many jurisdictions to determine legal insanity (again, current legal standards will be illustrated further below). Oxford was found “Not Guilty, he being at the time insane” (Oxford’s Case, 1840, p. 556) by the jury, and sent to Bedlam.

Daniel M’Naughton (1843)

By far, the most well-known and most influential trial from Britain’s history of insanity defenses is that of Daniel M’Naughton (the spelling varies and has also been written as M’Naghten or McNaughton; The Queen against Daniel M’Naughton, 1843). M’Naughton suffered from vague delusions of persecution by what he called the “Tories”. He shot and killed Edward Drummond, secretary to Prime Minister Sir Robert Peel, in a botched attempt to assassinate the Prime Minister himself. Apparently, M’Naughton believed he had to do so to protect his own life. M’Naughton’s case was different from the aforementioned insanity defenses because he succeeded in taking a life and was charged with murder, compared to the previous charges of high treason. Several expert physicians testified that M’Naughton was delusional and of unsound mind, and should be considered legally insane. The judge, Chief Justice Tindall, interrupted the proceedings and asked the prosecutor whether he wanted to continue to press for a verdict against the prisoner. The prosecutor did not have medical evidence to counter, and declined. The judge then gave the following instructions to the jury:

If he was not sensible at the time he committed that act, that it was a violation of the law of god or of man, undoubtedly he was not responsible for that act, or liable to any punishment whatever flowing from that act…I cannot help remarking, in common with my learned brethren, that the whole of the medical evidence is on one side, and that there is no part of it which leaves any doubt on the mind. It seems almost unnecessary that I should go through the evidence…but if on balancing the evidence in your minds you think the prisoner capable of distinguishing right and wrong, then he was a responsible agent and liable to all the penalties the law imposes. (The Queen against Daniel M’Naughton, 1843, pp. 72-73)

The jury found M’Naughton “not guilty, on the ground of insanity”, based on his delusional thoughts, without even retiring for deliberation (The Queen against Daniel M’Naughton, 1843, p. 73). M’Naughton was sent to Bedlam just as his predecessors had been.

The Aftermath of M’Naughton’s Verdict

The public outrage at M’Naughton’s acquittal was intense and immediate. The Times published scathing letters and satires of the judicial system. Queen Victoria herself wrote a letter to Robert Peel complaining about the Oxford and M’Naughton verdicts. Particularly troubling was the fact that, during these trials, the judges effectively stopped the trials and instructed the juries to find the prisoner Not Guilty on the grounds of Insanity. The criteria and standards for insanity defenses were vague and inconsistent, and it was time for consensus and reform. The House of Lords was surveyed and their responses became known as the “M’Naughton Standard”:

To establish a defense on the ground of insanity, it must be proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing or if he did know it, that he did not know what he was doing was wrong (House of Lords Debate, 1843, p. 75).

In effect, this ruling did away with the “irresistible impulse” test of insanity (i.e., the volitional prong) which had been used successfully in the past, and restricted legal insanity exclusively to the cognitive aspects of knowing right from wrong (the “right-wrong test”). By this standard, M’Naughton would have not have been acquitted, and instead would have been found guilty of murdering Drummond since he knew his actions were wrong. Unfortunately, this seemingly informal survey of judges’ opinions on insanity had outrageously long term consequences for English and American laws, despite its known shortcomings. In both England and America, it was not until a century later that insanity defenses would be re-reformed.

Contemporary American Legal Developments

It is notable that current laws and definitions regarding legal insanity vary widely from state to state; there are even four states which do not allow for an insanity defense (Utah, Montana, Kansas, and Idaho). There were three major events in modern America which helped to shape insanity defenses as they stand today, Durham’s trial (1954), the American Law Institute Standard (1962) and Hinckley’s trial (1983).

The Durham Rule (1954)

Monte Durham was a young man with a documented history of mental illness and psychiatric hospitalizations. In 1953, Durham was convicted of house breaking, to which he had admitted to doing, but argued that he was of unsound mind at the time of the offense. Durham later appealed his conviction on the grounds that “(1) because the trial court did not correctly apply existing rules governing the burden of proof on the defense of insanity, and (2) because existing tests of criminal responsibility are obsolete and should be superseded” (Durham v. United States, 1954). Judge Bazelon granted Durham’s appeal, rejecting the rigid and obsolete “right-wrong” test in favor of the “product standard” (now also known as the Durham standard), stating, “It is simply that an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect” (Durham v. United States, 1954). This decision was intended to give greater weight to forensic experts in providing relevant mental health testimony; it replaced a moral standard (“right-wrong”) with a supposedly more neutral and scientific one that could be buttressed by medical and psychological research.

Unfortunately, in practice, the Durham standard was vague and difficult to apply, and did not result in clearer expert testimony. Firstly, though “mental disorder” and “mental defect” were defined (i.e., a condition which is considered capable of either improving or deteriorating; and a condition which is not considered capable of either improving or deteriorating and which may be either congenital, or the result of injury, or the residual effect of a physical or mental disease, respectively), they were still too open-ended to guide decision-making. Did any diagnosable mental disorder qualify, or was it only psychosis? It was also unclear how one could demonstrate with certainty that the crime was causally related to the mental disease/defect (i.e., the product of a disease/defect). Finally, the product standard was too broad and allowed alcoholics and drug addicts to be acquitted of their crimes after voluntary intoxication. Although it was acclaimed in the psychiatric community, the Durham standard failed to gain acceptance in state courts and was ultimately replaced by the same court that implemented it, in 1972, by the American Law Institute’s Moral Penal Code test.

American Law Institute Standard (1962)

The American Law Institute (ALI) drafted a Moral Penal Code in 1962 that included a standard for the insanity defense. This standard combined the cognitive aspect of the M’Naughton Standard with the volitional aspect of Hadfield and Oxford’s “irresistible impulse” test, such that impairment in either area will allow a defendant to be considered insane. According to the ALI standard, a defendant could be found Not Guilty by Reason of Insanity (NGRI) if “as a result of mental illness or mental defect he lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law” (ALI, 1985). The wording of this standard is more inclusive than the M’Naughton Standard because the defendant must lack “substantial capacity”, but not total capacity, to appreciate wrongfulness. Similarly, a shift away from an “irresistible impulse” to instead lacking a “substantial capacity…to conform conduct” refocuses the issue away from the strength of the impulse and onto the individual’s ability to exercise control over such impulses. The ALI standard was widely accepted in state courts and is still commonplace practice.

Interestingly, as Packer (2009) points out, the ALI standard specifically

Act vs. Intentions (actus rea vs. mens rea)

The purpose of Legal Insanity defenses

Hinckley’s trial and verdict

Hinckley Aftermath: States without Legal Insanity Defenses, Data from those states

Current American Insanity Defense Laws

Origins of Dissociative Identity Disorder

Anna O.

Chris Sizemore and the DID Epidemic

Other Reasons Why Experts Argue over DID

Integrating DID and Legal Insanity

Other issues: “mental illness” as a legal/moral standard, not a psychological one (quote DSM)

Difference between defining mental illness legally & psychologically

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