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Dissociation: Defining the Concept in Criminal Forensic Psychiatry

Dissociation: Defining the Concept in Criminal Forensic Psychiatry

SPECIAL SECTION: AND TRAUMA Dissociation: Defining the Concept in Criminal Forensic

Dominique Bourget, MD, Pierre Gagne´, MD, and Stephen Floyd Wood, MD

Claims of and experiences in association with a violent crime are not uncommon. Research has shown that dissociation is a risk factor for violence and is seen most often in crimes of extreme violence. The subject matter is most relevant to forensic psychiatry. Peritraumatic dissociation for instance, with or without a history of , is quite frequently reported by offenders presenting for a forensic psychiatric examination. Dissociation or dissociative amnesia for serious offenses can have legal repercussions stemming from their relevance to the legal constructs of fitness to stand trial, criminal responsibility, and diminished capacity. The complexity in forensic psychiatric assessments often lies in the difficulty of connecting clinical symptomatology reported by violent offenders to a specific condition included in the Diagnostic and Statistical Manual of Mental Disorders (DSM). This article provides a review of diagnostic considerations with regard to dissociation across the DSM nomenclature, with a focus on the main clinical constructs related to dissociation. Forensic implications are discussed, along with some guides for the forensic evaluator of offenders presenting with dissociation.

J Am Acad Psychiatry Law 45:147–60, 2017

The concept of dissociation is relevant to forensic sault. All recalled the events preceding the violence psychiatry, as illustrated by the fact that amnesia and and most could identify a precise cutoff by which dissociation have frequently been associated with vi- they could not subsequent events. Only one olent crimes.1–9 In a review of the literature, Mos- subject had complete amnesia, leading the authors to kowitz4 found that higher levels of dissociation were conclude that complete amnesia is rare. associated with increased violence in a diverse range These considerations and findings merit the atten- of populations, including college students, military tion of the forensic psychiatrist. Little has been said veterans, psychiatric patients, and perpetrators of about the specific implications of dissociation in the sexual/domestic violence and homicide. Amnesia for forensic arena. The scope of this article is three-fold: the violent crime was reported in nearly one-third provide a synthesized review of the definition of dis- (30%) of homicides. Several studies found an associ- sociation and dissociative disorders from a diagnostic ation between amnesia, dissociation and crimes char- and neurobiological perspective; define the concept acterized by lack of planning and lack of premedita- of dissociation in greater detail from a forensic psy- tion, heightened emotional states, emotional ties to chiatric perspective while outlining the legal impli- the victim, and use.4,6,7,10 Evans et al.10 con- cations; and offer guidance to forensic experts in ducted a systematic and descriptive investigation of their evaluations of offenders who claim amnesia amnesia in a group of 105 young offenders convicted and dissociative experiences in connection with an of violent crimes (lethal and nonlethal bodily harm). offense. Twenty percent reported either partial or complete amnesia for at least the most violent part of the as- The Concept of Dissociation

Drs. Bourget and Wood are forensic psychiatrists, Integrated Fo- Dissociation is defined as the disruption of nor- rensic Psychiatric Program, Royal Centre, and Dr. mally integrated functions of consciousness, mem- Bourget is Associate Professor of Psychiatry, and Dr. Wood is a ory, identity, , body representation, motor lecturer in psychiatry, University of Ottawa, Ottawa, Ontario, 11 Canada. Dr. Gagne´ is Associate Professor of Psychiatry, University control, and behavior. Dissociative symptoms are of Sherbrooke, Sherbrooke, Que´bec, Canada. Address correspon- perceived as intrusive and disruptive and may be clas- dence to: Dominique Bourget, MD, Royal Ottawa Mental Health 12 Centre, 1145 Carling Avenue, Ottawa, Ontario, K1Z 7K4. E-mail: sified as positive or negative. Spiegel et al. defined [email protected]. positive dissociative symptoms (e.g., flashbacks) as Disclosures of financial or other potential conflicts of interest: None. intruding into awareness and accompanied by loss of

Volume 45, Number 2, 2017 147 Defining Dissociation continuity in subjective experience, whereas negative compartmentalization would thus be due to a mem- dissociative symptoms (e.g., amnesia) result in an ory retrieval deficit.21 inability to access information or to control normally readily accessible mental functions. Dissociation and Trauma Pathological dissociation has been linked to psy- Historical Roots chological trauma or overwhelming stress.12,22–28 It At the end of the 19th century, Janet13 conceptu- may occur more often in people who did not develop alized dissociation as a lack of integration of various effective coping strategies after stressful experiences mental functions when stress or exposure to trauma- in childhood.29–31 Individual characteristics, such as tizing events induced a hysterical reaction, a phe- cognitive flexibility and emotional processing ability, nomenon seen only in people with impaired mental may affect the likelihood of responding to stress with 32,33 or cognitive functioning. Freud’s psychodynamic ex- dissociative symptoms. planation further posited that dissociation was a psy- Although dissociation is a core feature of the dis- chological defense mechanism against negative feel- sociative disorders, such experiences are also among ings, conflicts, or experiences.14 William James15 the criteria for DSM-5 diagnoses of acute stress dis- order, posttraumatic stress disorder (PTSD), and and later investigators viewed dissociation as a di- 11 mensional construct ranging from daydreaming to borderline . In the DSM-5, the severe dissociative disorders.16–18 dissociative disorders are placed next to, but are not In response to criticism of the extensive nature part of, the trauma- and stressor-related disorders, 19 indicating the close relationship between these diag- of the dissociation concept, Holmes et al. and 11 Brown20 proposed a model of dissociation that in- nostic classes. The symptoms of PTSD reflecting cludes two distinct categories of dissociative phe- this relationship include dissociative flashbacks, am- nomena: detachment and compartmentalization. nesia for some aspects of the trauma, and emotional numbing. The specifier “with dissociative symp- “Detachment” is defined as an altered state of con- toms” can be applied to the PTSD diagnosis if the sciousness characterized by a sense of separation from individual experiences persistent or recurrent symp- aspects of everyday experience.19 There is often an toms of or . absence or flattening of emotional experiences dur- 21 Dissociation is related to a difficult, long-term ing these altered states. Detachment is thought to treatment course. In a recent review, Brand et al.34 arise from intense or trauma and includes dep- noted that symptoms of dissociative disorders are fre- ersonalization (an altered state of consciousness in- quently severe and that dissociative disorders are as- volving a sense of disconnection from one’s mental sociated with a higher rate of mental health treat- process or body), derealization (experiencing the ex- 19,20 ment and a substantial economic burden, compared ternal world as strange or unreal), or both. In with other psychiatric disorders (e.g., panic disor- some individuals, dissociative amnesia could arise ders, , and major depressive disor- during detachment related to an and stor- 21 der). Dissociation may also be an important predic- age deficit. tor of poor treatment response and high relapse rates, “Compartmentalization” is defined as a phenom- even in patients whose primary diagnosis is not nec- enon that meets the following four criteria: a deficit essarily dissociative disorder.35–37 Patients with dis- in the ability to maintain deliberate control of pro- sociative disorders have higher rates of suicidal ide- cesses or actions that would normally be amenable to ation, attempts, and -injurious behavior such control (including the inability to bring nor- than do people with other disorders.38 mally accessible information into conscious aware- ness); the deficit cannot be overcome by an act of Dissociative Disorders in the DSM and Essential will; the deficit is reversible, at least in principle; and Features it can be shown that the apparently disrupted func- The DSM-5 describes the following categories of tions are operating normally and continue to influ- the dissociative disorders: dissociative identity disor- ence , , and action.19 It includes der (DID); dissociative amnesia; depersonalization/ dissociative experiences such as amnesia. In contrast derealization disorder; other specified dissociative to detachment, dissociative amnesia representing disorder; and unspecified dissociative disorder.11

148 The Journal of the American Academy of Psychiatry and the Law Bourget, Gagne´, and Wood

Dissociative Identity Disorder Spiegel et al.12 noted several types of dissociative Dissociative identity disorder (DID; formerly amnesia, including “localized amnesia,” the inability termed multiple-personality disorder is characterized to recall a specific event or period of time; “selective by the presence of at least two distinct identities that, amnesia,” the inability to remember some, but not in turn, take control of the person’s behavior. Mem- all, of the events during a specific period; “system- ory dysfunction is a key diagnostic criterion of DID atized amnesia,” the inability to remember a partic- and usually presents in three primary ways: gaps in ular person or certain categories of (e.g., remote memory of personal life events (e.g., periods remembering being at school but having no recall of of childhood or adolescence); lapses in dependable home life during a particular grade); “continuous memory (e.g., of what happened today); or discovery amnesia,” the inability to remember successive events of evidence of daily actions and tasks that they do not as they occur (e.g., ongoing anterograde dissociative recollect doing (e.g., finding unexplained purchases amnesia); “generalized (global) amnesia,” or discovering injuries).11 This amnesia is not re- one’s entire life; and “thematic dissociative amnesia,” stricted to traumatic and stressful events; it can ex- in which different identity states in DID remember tend to regular everyday events as well, which can the same period, but not the events recalled by other- cause great distress in the individual and functional self states. impairment. Dissociative amnesia may be coded “with dissocia- The posttraumatic model of DID proposes that tive fugue” or “without dissociative fugue.”11 Disso- the disorder arises from a natural defensive reaction ciative fugue (also called a ) is character- to extreme sexual, physical, or ized by retrograde dissociative amnesia for personal in childhood that results in dissociative states (viewed identity, accompanied by suddenly leaving one’s as separate alternate identities, or “alters”) in which 48 8,39–41 home or usual place of daily activities. The loss of of traumatic events are stored. Be- memory is often precipitated by a stressful experience cause the onset is typically before the age of 5 or 6, the (e.g., combat or sexual assault), usually centered on child does not develop a unified sense of self and the traumatic event, and is commonly partial and instead develops multiple identities containing dif- selective. ferent memories.12 In stressful situations, dissocia- Dissociative amnesia usually results in significant tion becomes a coping mechanism.42 Dissociated distress or impairment. However, individuals are of- memories of experiences may be partially or totally ten unaware, or partially aware, of their memory inaccessible for voluntary retrieval by some dissocia- tive identities (interidentity amnesia).13,43,44 problems, minimize the importance of their memory loss, and are reluctant to discuss it.11 It may include Dissociative Amnesia about and the assump- tion of a new identity.11 It typically lasts hours to Dissociative amnesia (formerly termed psycho- 49 genic or functional amnesia) is a disorder character- days, but prolonged episodes have been noted. Af- ized by an inability to recall important personal ex- ter recovery, prefugue memories usually return periences and events (usually of a traumatic or intact. stressful nature) that is inconsistent with ordinary Depersonalization/Derealization Disorder forgetting. It causes significant distress or impair- ment and occurs in the absence of structural A person with depersonalization/derealization dis- damage or a known neurobiological cause and is not order has longstanding or recurrent feelings of dep- related to substance use or better explained by an- ersonalization or derealization. The disorder is char- other .11 Although there are reports acterized by a subjective experience of unreality, such of dissociative amnesia that occurred after an appar- as feeling as though one is in a movie or a dream, ently minor stressor,32,45,46 there is evidence of a se- which results in significant distress or dysfunction. ries of traumatic or stressful events over time in most An alteration in the perception of object size or shape of these instances.47 Dissociative amnesia typically (macropsia and micropsia) may occur, as might a occurs as a single episode and affects men and women sense that other people seem unfamiliar or mechan- in equal numbers, occurring most often in those in ical. Reality testing is unimpaired during deperson- their 30s and 40s.47 alization and derealization.11

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Depersonalization/derealization disorder can oc- in the potential adherent’s capacity to think clearly cur in response to severe traumatic lifetime events, and the will to critically evaluate ideas, which makes including childhood trauma (particularly emotional them more susceptible to influence and depen- abuse), accidents, war, and torture.50–52 Sexual dency.57 It has been compared with the dynamics abuse is a much less common antecedent but can be involved in battered-woman , where the encountered.11 It is often found as a comorbidity aggressor uses his influence to control, manipulate, with and panic disorders, major depressive abuse, and exploit the other into a state of “learned disorder, and bipolar disorder. Neuropsychological helplessness” using techniques such as isolation, testing of people with depersonalization/derealiza- provocation of fear, alternating kindness and threat tion disorder has identified deficits in , to produce disequilibrium, guilt, self-blame, and short-term memory, and spatial–temporal reason- dependency.58 ing, as well as cognitive impairments in early percep- 53,54 tual and attention processes. Men and women Acute Dissociative Reactions to Stressful Events. are diagnosed in equal numbers with this disorder, These reactions include two acute transient condi- with onset usually in the teens or early 20s; only five 11,55 tions that typically last from a few hours to less than percent have onset after age 25. one month.11 The first is an acute reaction to a stress- Other Specified Dissociative Disorder ful experience with symptoms including depersonal- ization, derealization, amnesia, and disruptions of The DSM-5 lists six examples of conditions that consciousness and stupor, such as ataque de nervios in fall under the other specified dissociative disorder Caribbean Latinos.12 The second is an acute state category: chronic and recurrent of mixed characterized by psychotic and dissociative symp- dissociative symptoms; identity disturbance caused toms. Dissociative symptoms may include amnesia, by prolonged and intense coercive persuasion (e.g., flashbacks, and disruptions of consciousness. Psy- brainwashing or thought reform); two types of acute chotic symptoms can include , hallucina- dissociative reactions to stressful events, one of which contains psychotic features; dissociative trance; dis- tions, , and grossly disturbed behavior. It sociative stupor or coma; and Ganser’s syndrome.11 may also include perceptual disturbances (e.g., time slowing, macropsia), microamnesias, transient stu- por, or alterations in sensory-motor functioning Chronic and Recurrent Syndromes of Mixed Dissocia- 11 tive Symptoms. This category includes identity dis- (e.g., analgesia, paralysis). The disorder stops sud- turbances that are less than marked discontinuities in denly with no symptoms remaining. This condition has been called “reactive dissociative ” or sense of self or in which there is no reported disso- 59,60 ciative amnesia, which results in the individual not “hysterical psychosis.” meeting the full criteria for one of the main dissocia- tive disorders.11 Dissociative Trance. This phenomenon is described as an acute narrowing or complete loss of awareness Identity Disturbance Caused by Prolonged and Intense of immediate surroundings that manifests as pro- Coercive Persuasion. This disorder is applied to in- found unresponsiveness or insensitivity to environ- 11 dividuals who have been subjected to intense coer- mental stimuli. Stereotyped behaviors (e.g., finger cive persuasion (e.g., brainwashing, torture, and re- tapping) may occur, as well as transient paralysis or cruitment by sects or cults) that results in prolonged loss of consciousness. These alterations are distress- changes or conscious questioning of their identity.11 ing, and they are not accepted as a normal part of a Streatfield56 described examples of attempts by gov- cultural or religious practice. ernment officials of various countries to engage in coercive persuasion, orchestrating situations (e.g., Dissociative Stupor and Coma. This may be used solitary confinement, sensory deprivation, , when the loss of consciousness, stupor, or coma are sodium pentothal, LSD, mescaline, cannabinoids, or not attributable to a general medical condition. Al- electroconvulsive therapy), in which the defenses of though the DSM-5 still refers to it, one has to go back individuals are substantially eroded. Similar tech- to the previous edition to find a definition by exclu- niques have been used by cults, causing impairments sion of an organic causation.61

150 The Journal of the American Academy of Psychiatry and the Law Bourget, Gagne´, and Wood

Ganser’s Syndrome. This form of dissociative disor- that 90 percent had experienced an acute traumatic der is an uncommon one that is currently defined in dissociation. Close to one-fifth described some form the DSM-5 as giving approximate and vague answers of memory impairment.78 to questions.11 Ganser62 originally described the syn- Moskowitz and Evans77 reported that a notable drome as being hysterical in origin and including a proportion of violent offenders experience PTD and semitrance state characterized by a tendency to give amnesia and that dissociative experiences are more approximate answers, with features of impairment of likely to occur when the violence is more ex- consciousness, amnesia, and . Onset of treme.77,79 They explored three theoretical possibil- Ganser’s syndrome is acute, and symptoms have ities as to the significance of PTD and amnesia in been reported to appear for brief durations or persist violent offenders, in that PTD may reflect: for months.63–65 The condition has been viewed as a 33,66 Traumatic reaction to one’s violent actions (in reaction to extreme stress. Ganser’s syndrome the absence of a preexisting dissociative disor- may occur with other psychiatric symptoms. der). Some violent offenders develop symptoms Unspecified Dissociative Disorder of PTSD in response to their own violence (with This category applies to situations when the symp- no prior evidence of a dissociative disorder).80,81 toms characteristic of a dissociative disorder that This suggests that the source of the trauma is the causes significant distress or impairment do not meet individual’s own violent behavior. 11 the full criteria for any of the dissociative disorders. A preexisting dissociative disorder. Some violent The clinician can also use it when he chooses not to individuals who report PTSD or amnesia have a specify the reason that the criteria are not met and in preexisting dissociative disorder (often DID). presentations where there is insufficient information Moskowitz and Evans77 suggested that the vio- to make a specific diagnosis (e.g., in emergency room lent crime may be an expression of a violent or settings). homicidal alter. A recent review of medicolegal Peritraumatic Dissociation and Violence challenges associated with DID noted that this Peritraumatic dissociation (PTD) refers to disso- area is an important consideration in many legal ciative symptoms (e.g., usually depersonalization or cases, as defendants claiming that their alter com- mitted the crime have pleaded not guilty by rea- derealization) experienced by people during trau- 82 matic events. PTD is strongly linked to the develop- son of insanity. A few studies have assessed the 67–71 frequency of violent and homicidal behavior in ment of PTSD over time. It is related to the 8 severity of PTSD and may predict subsequent amne- individuals diagnosed with DID. Putnam et al. sia.38,72–74 It is thought that PTD results in insuffi- found violent alters in 70 percent of patients with DID, most of whom were female. In contrast, cient encoding of the traumatic experience, thereby 83 disrupting memory and retrieval.75 Loewenstein and Putnam reported that male The lack of elaboration of the memory is proposed DID patients had a greater percentage of violent to be related to high emotion and dissociation dur- but not homicidal alters compared with a sample ing the traumatic experience.76 Longstanding disso- of female DID patients from the study by Put- ciation after the experience prevents memory elabo- nam et al. (90% compared with 74%). Homi- ration, resulting in fragmentation of the trauma cidal alters were present in about one-third of memory and PTSD. The memory disturbance that both sexes. In other research, more than one- third of alters in adolescents with DID had been can accompany high levels of dissociation may serve 84 to protect the individual from becoming over- violent or threatened violence. Homicide re- whelmed by aspects of the trauma before being able mained a rare event, however. to deal with it.77 The emergence of a dissociative disorder through Some have advanced the notion that peritraumatic the act of violence, with limited to no evidence dissociation may represent a normative reaction. In a afterward. Moskowitz and Evans77 suggested retrospective study, Rivard et al.78 examined the that some individuals may not have a dissociative prevalence of acute traumatic dissociation in a small disorder before an act of violence but would have convenient sample of 115 law enforcement officers met criteria for a dissociative disorder at the time involved in critical shooting incidents. It was found of violence. This pattern is similar to that seen in

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studies of homicide and first-episode psychosis PTSD has been strongly associated with violent be- that found that 30 to 61 percent of homicides havior.105,106 This violence may be driven by dissocia- committed during psychotic illness took place tive flashbacks from traumatic experiences, among the during first-episode psychosis.85–90 most common of PTSD symptoms.80,106,107

Dissociative symptoms have also been linked to vio- Neurobiological Basis lence in individuals diagnosed with other disorders. Although the concept of dissociation was first intro- Chronic psychosocial stresses could lead to disso- duced in the context of hysteria, it was eventually ciative disorders via dysregulation of hormonal stress applied to symptoms seen in , as they responses. Neurobiological findings and imaging relate to the disruption of thinking and .91 techniques have provided evidence that changes in In psychotic patients, delusions of control and of brain structure or metabolism underlie several psy- thought insertion have been identified as predictive chiatric disorders, including DID and dissociative 47,108 of violence.92,93 These types of delusions are also amnesia. reported often in people with DID, and are inter- Repeated exposure to stress may result in wide- preted as arising from alters influencing the “host” spread alterations in neurotransmission with direct 109–111 personality.94,95 The distinction between DID and effects on brain function. The model for dis- schizophrenia may pose a challenge as these condi- sociative amnesia described by Staniloiu and 47 tions share several psychopathological symptoms and Markowitsch suggests that traumatic experiences impairment. Using the dissociative experience scale, may change how specific neurotransmitters are acti- a controlled-group study concluded that patients vated and result in altered processing of incoming with schizophrenia have significantly more dissocia- information. The nature and extent of these changes tive symptoms than do nonclinical controls. In par- are affected by how the traumatic experiences (par- ticular, dissociative symptoms correlated with the so- ticularly those with early onset) interact with an in- called positive or productive symptoms, such as dividual’s genetic disposition, environmental factors, delusions and hallucinatory behavior.91 Such find- and the developmental window. Subsequent stress ings have challenged the notion that dissociative may lead to dissociation of the usual synchronization symptoms belong to the neurotic sphere rather than between emotion-processing areas of new informa- the psychotic sphere. tion (e.g., amygdala and septal region and basal fore- brain) and cognitive-processing areas, leading to the Persistent Dissociation and PTSD block of autobiographical information processing. Dissociation that occurs in response to trauma Such a model is consistent with evidence indicating usually dissipates over time. However, some individ- that early life experiences can lead to changes in stress uals have recurring trauma-related dissociative symp- responses and neuroanatomical changes affecting toms, including depersonalization and derealization, brain connectivity, structures, and volume, includ- for months or years after the event. Persistent disso- ing changes in the right hemispheric uncinate ciation, dissociative symptoms that occur after a trau- fascicle, a fiber bundle essential in the retrieval of matic experience and continue over time, may con- episodic- (e.g., personal tribute to the development and maintenance of context-based events).11,47,113–115 PTSD symptoms.96–99 Clinical and neurobiological The release of glucocorticoids and other stress evidence of dissociative symptoms lend support to a hormones negatively impacts the function of brain dissociative subtype of PTSD, which is now included structures necessary for the encoding or retrieval of in the DSM-5.11,100–103 information. Elevated glucocorticoid levels reduce Using epidemiologic data from 16 countries in the traumatic memory retrieval by inhibiting activity in World Health Organization World Mental Health the medial .116–120 In patients with Survey, Stein et al.104 reported that 14.4 percent of dissociative amnesia after stressful or traumatic expe- respondents diagnosed with PTSD met criteria for riences, Brand et al.121 found significantly decreased the dissociative subtype, a proportion within the glucose utilization in the right inferolateral prefron- range noted in prior studies. Dissociation was asso- tal cortex, known to play an important role in the ciated with heightened PTSD symptom counts, se- retrieval of autobiographical memories. The right vere impairment in role functioning, and suicidality. prefrontal cortex is strongly involved in synchroniz-

152 The Journal of the American Academy of Psychiatry and the Law Bourget, Gagne´, and Wood ing emotional and factual elements related to the wise, were associated with amnesia, and that disso- self.122–125 Brand et al.121 posited that such hypome- ciative symptoms at the time of the offense were re- tabolism in the inferolateral prefrontal cortex in pa- lated to the occurrence and duration of amnesia. tients with dissociative amnesia could indirectly Vignette 1 compromise executive functioning associated with retrieval deficits. A man’s marriage had recently broken up and he In a review of research investigating a neurobio- suspected his wife of having a lover. He reported logical basis for dissociation, Brand et al.34 suggested vague depressive symptoms and a history of domestic that different aspects of emotion dysregulation con- violence. One evening, he went out with friends and tribute to the subtypes of PTSD. They hypothesized used alcohol and cocaine and returned home, be- that hyperarousal symptoms and experiencing flash- coming increasingly paranoid. He confronted his backs after traumatic events could represent emo- wife and a verbal fight ensued. His wife pushed him tional undermodulation that is mediated by failure of and he became furious. He regained consciousness in prefrontal inhibition of activity in limbic regions. In a nearby swamp with his wife unconscious beside contrast, the dissociative subtype involving symp- him. He was charged with first-degree murder and toms of depersonalization and derealization could be found guilty. This description exemplifies peritrau- seen as emotional overmodulation, accompanied by matic dissociation triggered by , in the context increased activation of medial prefrontal structures of cocaine and alcohol-induced paranoid state. and hyperinhibition of limbic regions. Long-term Guide for Evaluation childhood abuse and military combat trauma are as- This section offers some practical tips and guid- sociated with the overmodulation characterizing the 72,102,126,127 ance with regard to critical elements that should be dissociative subtype. considered in the forensic evaluation of the offender who reports symptoms suggestive of dissociation Forensic Implications around the time of commission of a violent crime. The forensic psychiatrist may be called on to per- form an examination of an offender who presents a Type of Amnesia. It is nearly impossible to isolate clinical picture suggestive of dissociation and must dissociation from amnesia, because the main disso- form an opinion after the fact. This can be a difficult ciative disorders entail the presence of amnesia as an task, given that many elements need to be analyzed important feature. The quality and type of amnesia and weighed in that final opinion. have great relevance in the evaluation. Claims of par- In the face of numerous reports of peritraumatic tial or “patchy” amnesia are more likely than full dissociation claimed by offenders who have no sec- amnesia for the whole event, which can signal an ondary gains in doing so, cannot be as- attempt to feign an excuse for the criminal behavior. sumed but must be ruled out.1,77 The assessment In true claims of dissociative amnesia, the offender should take into careful account the credibility of the will recall some aspect of the crime and report a loss accused and claims of dissociation and amnesia. of control. Depersonalization and/or derealization Some offenders fabricate memory loss for their ac- phenomena will also be reported. According to the tions to escape criminal liability and potential incar- diagnosis that explains the dissociative event, other ceration. Research indicates that between 20 and 30 criteria will have to be met. percent of offenders who committed a violent crime, claim amnesia for their offense, while one-quarter The Offender’s Background. The psychiatric and to two-thirds of homicide offenders claim amne- personal history of the offender should be closely sia.7,10,128–131 Merckelbach and Christianson132 re- scrutinized, including previous experiences of psy- ported that offenders with more emotionally driven chiatric decompensating and inefficient stress-cop- homicides are more likely to claim amnesia (56%) ing mechanisms. Previous experiences of dissociation than offenders whose homicides involved planning need not be present but if so, they may assist in (30%). In the first study to examine neuropsycholog- validating the claims, such as in individuals with se- ical test performance in a group of convicted amnes- vere PTSD. Identifiable stressful events and height- tic offenders, Pyszora et al.133 found that crimes of ened emotional states in an individual with personal passion and history of blackouts, alcoholic or other- vulnerabilities preceding the crime are more likely to

Volume 45, Number 2, 2017 153 Defining Dissociation trigger a dissociative state and amnesia. A careful to amplify the reactivity of their violence and the role clinical evaluation will allow the expert to rule out of the victim.135 Previous statements and threats any organic condition or other explanations for the made against the victim also need to be factored in amnesia and dissociation. The presence of a prior and considered carefully. criminal history or previous incarceration experi- ence and potential “learning effect” will lead the Legal Perspectives on Dissociative Amnesia examiner to be cautious in assessing claims of am- Dissociation and dissociative amnesia for serious nesia and dissociation. offenses can have legal repercussions, because of their relevance to the legal constructs of fitness to stand The Problem of Malingering. Although the purpose trial and criminal responsibility. Regarding fitness or of this article is primarily to discuss the concept of competency to stand trial, as per the competency dissociation in a forensic psychiatric context, assum- standard set by Dusky v. United States (1960),136 dis- ing at the basis they are validated, the expert must sociative amnesia could render a defendant incompe- remain vigilant, as claims of amnesia or dissociation tent to stand trial because memory loss for the events are not always substantiated and the accused may be would prevent him from having a reasonable degree suspected of malingering. In these cases, the exam- of rational understanding and restrict his ability to iner should be alert to inconsistencies and improba- assist counsel in the preparation of his defense. Fit- bilities in the narrative of the accused. Consistencies ness to stand trial was addressed in Wilson v. United in the accused’s report over time are paramount. The States (1968).137 The U.S. Court of Appeals D.C. accused who feigns amnesia or dissociation may pro- Circuit ruled that lack of memory for an alleged of- vide an implausible description of the amnesia itself. fense is not a sufficient factor alone to negate com- As mentioned earlier, en bloc amnesia is a rare occur- petency. The Court concluded that the following rence. This being said, the expert is expected to eval- factors must be addressed in an evaluation of the uate the mental state of the accused at the time of the impact of amnesia on a defendant’s ability to stand crime and must be mindful of contaminations of trial: the defendant’s ability to consult with and assist memory based on knowledge acquired later on, counsel; the extent to which the memory loss affected through information that becomes available through the defendant’s ability to testify and to reconstruct police sources or other evidence, for example. evidence extrinsically; the extent to which the gov- In the legal context, symptom validity tests may be ernment assisted in that reconstruction; the strength administered to individuals who present with un- of the prosecution’s case; and any other general fac- usual conditions to help determine whether they ex- tors pertinent to the case. hibit negative-response bias or uncooperativeness.134 Although no convincing case law could be found A negative-response bias may cast doubt on the gen- regarding dissociative amnesia and fitness to stand uineness of the claimed symptomatology and reduce trial, Smith and Resnick138 provided a summary of the degree of medical certainty ascribed to the diag- United States v. Andrews,139 which involved an indi- nosis in question. It must be kept in mind that both vidual with a -induced amnesia surrounding a malingering and genuine mental disorder can co- count of bank robbery. In essence, Mr. Andrews was exist but the presence of a negative response bias found guilty of robbing the bank in a bench trial, would have the effect of raising the level of suspicion which he appealed, based on his claim that his am- with regards to the individual’s motivations. Lie- nesia for the relevant period of the robbery had ren- deception tests and other available deception validity dered him unable to assist in his own defense at trial. scales have seldom found their way to the court, The Court affirmed Mr. Andrews’ conviction and however. found that the district court did not err in its finding The presence of psychopathy would call for pru- that Mr. Andrews was fit to stand trial. Smith and dence in considering the credibility of the offender’s Resnick provided the reasoning for this determina- narrative. A study of 50 convicted offenders revealed tion, which relied heavily on the precedent set in that psychopathic offenders were more likely than United States v. Stevens,140 stating that “amnesia is nonpsychopaths to have committed instrumental not a bar to prosecution of an otherwise competent homicides; however, they were more likely to mini- defendant.” The appeals court also cited the standard mize the degree of planning and premeditation and laid out in Dusky v. United States136 and identified

154 The Journal of the American Academy of Psychiatry and the Law Bourget, Gagne´, and Wood the factors listed above when applying this standard manslaughter, based on the provocation defense. to an amnestic defendant. However, the court also Yeo144 pointed out that in Stone, the Court clarified acknowledged the importance of not trying individ- that unconsciousness need not be present in a state of uals who are unfit to stand trial, and that it is possible automatism and that the important element in au- that amnesia could impair fitness.138 An example of tomatism is whether criminal behavior is involuntary this could be a person with an ongoing dissociative or not. disorder with significant periods of amnesia and dys- Insane and noninsane automatisms are distin- functional mental states keeping him from produc- guished by a test of internal versus external cause. tively conferring with a lawyer (i.e., not able to dis- The defendant’s automatistic reaction to the psycho- cuss a traumatic index offense due to ongoing logical trauma is evaluated from the perspective of a dissociations, or dissociations during the trial or normal individual who experiences the same stressful when taking the stand). circumstances. If it is determined that a normal in- Dissociative states are legally relevant because of dividual would have reacted in a similar manner by the equating of memory loss with lack of intent and experiencing an automatistic state, a defense of non- involuntariness of behavior, when appropriate. Care- insane automatism would be supported, as the cause ful consideration is needed, because these situations of the automatism would be considered to be an call for different possible legal outcomes. Possible external event and not due to the psychological or verdicts include automatism, not criminally respon- emotional character of the defendant. sible, and diminished responsibility. Verdict of Not Criminally Responsible Verdict of Automatism In Canada, criminal responsibility is related to the In the context of criminal responsibility, amnesia ability of the accused to know that the act was wrong. for serious offenses has particular relevance, because To establish criminal responsibility, it is necessary to it may indicate automatism: criminal behavior that is show an element of criminal intent (mens rea) and not voluntarily controlled and is executed without that the actions of the accused were conscious and intent. In Canada in 1971 the automatism defense voluntary.145 In Canada, dissociative states are was extended from physical trauma to include psy- viewed generally as giving rise to insane automatism, chological trauma, a state of dissociation also referred akin to not criminally responsible (NCR).146 For the to as “psychological blow” automatism.141 In Can- purpose of the defense of NCR, the accused is deter- ada, dissociative states fall within the defense of mined to have been in a dissociative state at the time mental disorder; the automatism defense is either of the criminal act. noninsane (nonmental disorder) or insane (mental disorder) automatism. Noninsane automatism is Vignette 2 rare. The crime is attributed to involuntary action A married female with a teenage daughter enter- caused by a temporary impairment of mental func- tained an ambivalent relationship with the victim, a tioning that does not stem from a disease of the mind man with high influence in their community. They (leading to full acquittal, if the defense is successful). engaged in sexual intimacy without intercourse. A classic example is .142 Insane autom- They met in an isolated place to have sex. He became atism applies to a crime arising from organic brain violent and abusive, raped her, and threatened to do dysfunction, that is, involuntary action resulting the same to her daughter. The woman remembered from a “disease of the mind” (falling under the de- removing a weapon from the glove compartment of fense of mental disorder leading to a verdict of not the car. She was charged with murdering her assail- criminally responsible by reason of mental disorder). ant. She had with only partial In the landmark Supreme Court of Canada case of and blurred visual memories. She had no prior his- R. v. Stone,143 a man accused of murdering his wife tory of psychiatric illness or dissociative experience. raised the defenses of provocation and noninsane au- Clinical evaluation revealed nothing out of the ordi- tomatism, claiming a dissociative state triggered by a nary except for a high level of anxiety, although it was psychological blow. The jury ruled that the accused also understandable in the context of her legal case. did not have a disease of the mind and rejected the This illustrates an acute dissociation triggered by sex- defense of automatism. The accused was convicted of ual abuse and direct threat to integrity of her daugh-

Volume 45, Number 2, 2017 155 Defining Dissociation ter. A jury found her not criminally responsible by tion, an abnormality of mental functioning (e.g., a reason of a mental disorder. major or psychotic illness), that sub- Berger et al.147 provided an excellent review of case stantially impairs his or her ability for rational judg- law for PTSD-related dissociative symptoms, as a ment, understanding of his or her actions, and self criminal defense in the United States. Some exam- control. A mental disorder short of insanity may in- ples of successful insanity defenses included State of terfere with an individual’s capacity to form a specific New Jersey v. Cocuzza (1981), State v. Heads (1980), intent to carry out actions, such as killing. If dimin- State v. Wood (1982), and Commonwealth v. Tracy ished capacity is proven on a charge of murder, the (1989). In his first trial, Heads was found guilty of accused is convicted instead of manslaughter, a crime murder, but in a second trial, he was found not guilty of general intent. by reason of insanity after an expert testified about In State v. Warden,153 a woman charged with first- PTSD.148 All of these cases seemingly involved Viet- degree murder, raised the diminished capacity de- nam veterans committing an offense while in a dis- fense. At trial, an expert testified that she had PTSD sociative state. Dissociative flashbacks have been sug- with dissociation and that she lacked the capacity to gested by some to be the only legitimate basis for form a specific intent at the time of the crime. The insanity and other exculpating defenses, although trial judge did not instruct the jury on manslaughter. criminal defenses of hyperarousal symptoms and On appeal, the Washington Supreme Court over- sensation-seeking behaviors have also been pre- turned the conviction and found guilt on the lesser sented.147 Berger et al.147 indicated that PTSD has charge of manslaughter. A similar situation arose in received mixed treatment when offered as a basis for State v. Bottrell,154 where the same court of appeal re- insanity, being met with skepticism in several juris- versed a prior ruling. dictions. However, it appears that the main reason for the rejection of PTSD as an insanity defense often Conclusion stemmed from a lack of demonstrating how PTSD Dissociation and amnesia are two intimately (and dissociative phenomena) could lead to insanity linked concepts. We have seen their relevance in a due to the difficult-to-verify nature of DSM’s PTSD forensic context, as exemplified in the case law and 147,148 and dissociative disorder criteria. Although the vignettes. PTSD with dissociation is a condition there is a perception that individuals could abuse that has been recognized by the courts as meeting the 150 PTSD as a defense, Appelbaum et al. found that usual standard of admissibility for psychiatric expert defendants in the United States had no more success testimony. The complexity in forensic psychiatric as- with PTSD than with other mental disorders and sessments often lies in the difficulty of correlating that insanity pleas based on PTSD made up a small clinical situations with the current diagnostic frame- proportion of all insanity pleas. PTSD has been de- work of dissociation, including the DSM diagnostic termined to meet both the Frye standard and the system. Diagnostic categories and definition imper- Daubert standard, governing the admissibility of ex- fectly fit what can be observed clinically or descrip- 147 pert witness testimony in courts. tions made by offenders when there is no evidence of 151 Farrell provided a review of medicolegal chal- deception. The use of the DSM classification system lenges with DID and determined that most DID is sometimes of little help, which does not mean that 152 defenses did not hold up after State v. Milligan, in a dissociative episode is not clinically relevant. The response to which public outrage occurred after a courts expect the experts to provide coherent assess- serial rapist was not held culpable for his actions. It ment based on scientific knowledge. The limitations was opined that defendants who claim DID are usu- brought about by the current state of demonstrable ally viewed as having limited credibility because of knowledge of brain functioning make it difficult for the perception of malingering. the experts to convey clear clinical impressions when it comes to phenomena as complex as memory and Diminished-Capacity Defense dissociation. Certain jurisdictions have allowed the defense of This being said, dissociation is not an uncommon diminished capacity or diminished responsibility. feature in crimes of violence, although the relative The criteria for a verdict of diminished capacity re- contribution of dissociation to overall violence is quire that the defendant has an underlying condi- limited. Dissociation signals a disruption in the nor-

156 The Journal of the American Academy of Psychiatry and the Law Bourget, Gagne´, and Wood mally integrated functions of memory and con- 9. Loewenstein RJ: and psychogenic fugue: a comprehensive review. Am Psychiatr Press Rev Psychiatry 10: sciousness. To what extent this has an impact on 189–222, 1991 criminal responsibility in the context of the accused 10. Evans C, Mezey G, Ehlers A: Amnesia for violent crime among facing justice is the real task for determination by the young offenders. J Forensic Psychiatry Psychol 20:85–106, 2009 experts and the court. Thorough and thoughtful fo- 11. American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition. Washington, DC: rensic psychiatric assessments require clinical assess- American Psychiatric Association, 2013 ment skills above all. Assessments should always in- 12. Spiegel D, Loewenstein RJ, Lewis-Ferna´ndez R, et al: Dissocia- volve a critical analysis of available information, tive disorders in DSM-5. Depress Anxiety 28:E17–E45, 2011 13. Janet P: The Major Symptoms of Hysteria. London: Macmillan, including the characteristics of the offender; collat- 1907 eral information from family members, friends, or 14. Mayer-Gross W: On depersonalization. Br J Med other source; and circumstances surrounding the of- 15:103–6, 1935 15. James W: The Principles of Psychology. Cambridge, MA: Har- fense. Particular attention should be paid to personal vard University Press, 1890/1983 and psychiatric characteristics of the offender, such 16. Prince M: The Dissociation of a Personality. New York: Oxford as pre-existing psychiatric conditions, personality University Press, 1905/1978 factors, substance use, and prior history of dissocia- 17. Putnam FW: Dissociative phenomena, in Dissociative Disor- ders: A Clinical Review. Edited by Spiegel D. Lutherville, MD: tive events. In many cases, it will be possible to re- Sidran, 1993, pp 1–16 constitute the mental state of the accused before and 18. Ross CA: History, phenomenology, and epidemiology of disso- near the time of the crime to such an extent that the ciative disorders, in Handbook of Dissociation. Edited by Mi- chelson LK, Ray WJ. New York: Plenum, 1996, pp 3–24 expert will be able to formulate a sustainable psychi- 19. Holmes EA, Brown RJ, Mansel, W, et al: Are there two qualita- atric opinion. tively distinct forms of dissociation? A review and some clinical The task of the expert would benefit greatly from implications. Clin Psychol Rev 25:1–23, 2005 more in-depth knowledge surrounding complex top- 20. Brown RJ: Different types of “dissociation” have different psy- chological mechanisms. J Trauma Dissoc 7:7–28, 2006 ics such as dissociation and amnesia. The current 21. Spitzer C, Barnow S, Freyberger HJ, et al: Recent developments state of knowledge is limited by the nature of the in the theory of dissociation. World Psychiatry 5:82–6, 2006 condition and the fact that the diagnosis is largely 22. Bremner JD, Marmar CR: Trauma, Memory, and Dissociation. Washington, DC: American Psychiatric Press, 1998 based on self-report and subjective experiences, not 23. Gershuny BS, Thayer JF: Relations among psychological unlike other psychiatric diagnoses. The need for fu- trauma, dissociative phenomena, and trauma-related distress: a ture studies, using sophisticated and scientific meth- review and integration. Clin Psychol Rev 19:631–57, 1999 ods to assess dissociation in relation to violent behav- 24. Steiner H, Carrion V, Plattner B, et al: Dissociative symptoms in posttraumatic stress disorder: diagnosis and treatment. Child ior, would be of invaluable support to the domain of Adolesc Psychiatr Clin N Am 12:231–49, 2003 forensic psychiatry. 25. 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ative and neutral words. Neurobiol Learn Mem 83:158–62, 134. Merten, T, Merckelbach, H. Symptom validity testing in soma- 2005 toform and dissociative disorders: a critical review. Psychol Inj & 120. Schelling G, Roozendaal B, de Quervain DJ: Can posttraumatic Law 6:122–37, 2013 stress disorder be prevented with glucocorticoids? Ann NY Acad 135. Porter S, Woodworth M, Doucette NL: Memory for murder: Sci 1032:158–66, 2004 the qualities and credibility of homicide narratives by perpetra- 121. Brand M, Eggers C, Reinhold N, et al: Functional brain imaging tors, in Offenders’ Memories of Violent Crimes. Edited by in 14 patients with dissociative amnesia reveals right inferolateral Christianson SA. Chichester, UK: John Wiley & Sons, 2007, pp prefrontal hypometabolism. Psychiatry Res 174:32–9, 2009 115–34 122. Tulving E: Episodic memory: from mind to brain. Ann Rev 136. Dusky v. United States, 362 U.S. 402 (1960) Psychol 53:1–25, 2002 137. Wilson v. United States, 391 F.2d 460 (D.C. Cir. 1968) 123. Wheeler MA, Stuss DT: Remembering and knowing in patients 138. Smith D, Resnick P: Amnesia and competence to stand trial: with frontal lobe injuries. Cortex 39:827–46, 2003 amnesia for the time of the alleged crime is not a bar to compe- 124. Johnson SC, Baxter LC, Wilder LS, et al: Neural correlates of tence to stand trial and does not require a separate finding of fact self-reflection. Brain 125:1808–14, 2002 of competence at the termination of the trial. J Am Acad Psychi- 125. Northoff G, Heinzel A, de Greck M, et al: Self-referential pro- atry Law 35:541–3, 2007 cessing in our brain: a meta-analysis of imaging studies on the 139. United States v. Andrews, (7th Circuit, 2006) self. Neuroimage 31:440–57, 2006 140. United States v. Stevens, (7th Circuit, 1972) 126. Stovall-McClough KC, Cloitre M: Unresolved attachment, 141. R. v. K., [1971] 2 O.R. 401 (Can. Ont. High Ct.) 142. R. v. Parks, [1992] 2 S.C.R. 871 (Can.) PTSD, and dissociation in women with childhood abuse histo- 143. R. v. Stone, [1999] 134 C.C.C. 3d 353 (Can.) ries. J Consult Clin Psychol 74:219–28, 2006 144. Yeo S: Clarifying automatism. Int J Law Psychiatry 25:445–58, 127. Bremner JD, Southwick S, Brett E, et al: Dissociation and post- 2002 traumatic stress disorder in Vietnam combat veterans. Am J Psy- 145. R v. King [1962] S.C.R. 746 (Can.) chiatry 149:328–32, 1992 146. McSherry B: Getting away with murder? Dissociative states and 128. Jelicic M, Merckelbach H: Evaluating the authenticity of crime- criminal responsibility. Int’l J Law & Psychiatry 21:163–76, related amnesia, in Offenders’ Memories of Violent Crimes. Ed- 1998 ited by Christianson SA. Chichester, UK: John Wiley & Sons, 147. Berger O, Dale MD, McNiel DE, et al: PTSD as a criminal 2007, pp 215–33 defense: a review of case law. J Am Acad Psychiatry Law 40:509– 129. Evans C: What violent offenders remember of their crime: em- 21, 2012 pirical explorations. Aust NZ J Psychiatry 40:508–18, 2006 148. Forsythe S, Miller MK: Novel defenses in the courtroom. The 130. Pyszora NM, Barker AF, Kopelman MD: Amnesia for criminal Jury Expert, August 20, 2014, pp 1–15 offences: a study of life sentence prisoners. J Forensic Psychiatry 149. Cohen ZE, Appelbaum PS: Experience and opinions of forensic Psychol 14:286–95, 2003 psychiatrists regarding PTSD in criminal cases. J Am Acad Psy- 131. van Ooursouw K, Merckelbach H, Ravelli D, et al: Alcohol chiatry Law 44:41–52, 2016 blackout for criminally relevant behavior. J Am Acad Psychiatry 150. Appelbaum PS, Jick RZ, Grisso T, et al: Use of posttraumatic Law 32:364–70, 2004 stress disorder to support an insanity defense. Am J Psychiatry 132. Merckelbach H, Christianson SA: Amnesia for homicide as a 150:229–34, 1993 form of malingering, in Offenders’ Memories of Violent Crimes. 151. Farrell HM: Dissociative identity disorder: medicolegal chal- Edited by Christianson SA. Chichester (England): John Wiley lenges. J Am Acad Psychiatry Law 39:402–6, 2011 and Sons, 2007, pp 165–90 152. State v. Milligan, No. 77-CR-11-2908 (Franklin County, Ohio, 133. Pyszora NM, Fahy, T, Kopelman, M: Amnesia for violent of- December 4, 1978) fenses: factors underlying memory loss and recovery. J Am Acad 153. State v. Warden, 947 P.2d 708 (Wash. 1997) Psychiatry Law 42:202–13, 2014 154. State v. Bottrell, 14 P.3d 164 (Wash. Ct. App. 2000)

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