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Irresistible Or Irresisted Impulse Cleveland State Law Review Volume 9 Issue 3 Psychiatry and Law (A Symposium) Article 6 1960 Irresistible or Irresisted Impulse Wladimir G. Eliasberg Follow this and additional works at: https://engagedscholarship.csuohio.edu/clevstlrev Part of the Law and Psychology Commons How does access to this work benefit ou?y Let us know! Recommended Citation Wladimir G. Eliasberg, Irresistible or Irresisted Impulse, 9 Clev.-Marshall L. Rev. 447 (1960) This Article is brought to you for free and open access by the Journals at EngagedScholarship@CSU. It has been accepted for inclusion in Cleveland State Law Review by an authorized editor of EngagedScholarship@CSU. For more information, please contact [email protected]. Irresistible or "Irresisted" Impulse?' Wladimir G. Eliasberg* A FTER SO MUCH BICKERING between psychiatrists and lawyers, a court of appeals stated that the latest development, the Durham Rule, does not require a different examination by the psychiatrist, but only a different examination of the psychiatrist by the lawyer.2 In another decision quoted in the same case, the court pointed out that "the value of an expert's testimony rests upon the material from which his opinion is fashioned and the reasoning by which he has progressed to his conclusion; the ex- planation of the disease and its dynamics, that is, how it occurred, developed and affected the mental and emotional processes of the defendant" (italics added). It is the purpose of this paper to show that the requirements made on psychiatry have not changed in the least since the ap- plication of the Durham Rule. It will be shown that now and in the future as before, the demonstration of the development and the dynamics of the mental processes is what the psychiatrist has to offer. Questions of guilt are not in his province. Now as before this latter remains the prerogative and obligation of the finders of fact, not of the experts. During those centuries when penal law was built on the concepts of the criminal intent, criminal culpability and guilt, there also was developed a kind of lawyers' psychology and psychiatry from which were derived the tests to exclude guilt. Exclusion of guilt would be the consequence of 'raving madness,' irresistible impulse, lack of knowledge of right and wrong. One * M.D., Ph.D., Diplomate in Psychiatry and Neurology; author of "Multi- tudes, Moguls and Mindhealers"; and other books; contributor to "Present Day Psychology," "Handbook of Correctional Psychology," "Encyclopedia of Criminology," and other books; and author of more than 300 publications, many on psychiatry and the law; formerly lecturer on forensic psychiatry for the Munich Bar Ass'n.; visiting professor at the Academy of Political Science in Prague; and lecturer in psychology at Rutgers University. 1 Permission has been granted by Psychiatric Quarterly to make use of a previous article in 21 (1) Psych. Qu. Suppl. 102 (1947). 2 This decision quoted from Watson, Durham Plus Five Years: Develop- ment of the law of Criminal Responsibility in the District of Columbia, 116 Am. J. Psychiat. 291 (1959). This excellent paper gives a survey of the be- ginning change in the handling by the courts and the juries of cases in which the pleas of not guilty on account of insanity is interposed. Cases on the shift of the burden of proof, on the reluctance of the trial courts to ac- cept the new rule, on the court's taking exception to the vagueness of the concept of irresistible impulse are quoted. This should make good reading for both psychiatrists and lawyers. Published by EngagedScholarship@CSU, 1960 1 9 CLEV-MAR. L. R. (3) Sept., 1960 need not dwell on the history of these tests3 because lawyers have come to acknowledge-often reluctantly-that with isolated tests little could be achieved. The hypothesis4 that someone could be partially insane and otherwise responsible, that he could be in- tellectually insane and emotionally sane and vice versa, has had such grotesque consequences that, with a certain about-face, the lawyers now keep turning to the psychiatrists to say whether an indicted person is suffering from mental disease. If experts' opinions oppose each other-so much the worse. There seemed to be only the problem of having reliable experts render opinions. However, the question of objective criteria that would be under- standable to laymen was abandoned too early. The impulsive character of an action does not in itself render it unpunishable. Table 1 shows that there are a great number of impulsive actions where no irresponsibility may be claimed and the guilty intent may be established by proving guilty intent or criminal negligence either for the complete crime or overt action at the stage of criminal attempt. The impunity of an impulse action which would otherwise be a crime can be established on the basis of certain objective criteria which in a single case need not all be present and not all in the same degree. The idea of the following sections then is to base the diagnosis on pre-existing facts, i.e., facts demonstrating abnormality before, and in no con- nection with, the crime. Likewise, a conscientious objector will not be believed unless he can prove that his attitude existed before induction. Table 1 Punishable and Unpunishable Impulse Actions I. Punishable impulse actions A. Punishable normal impulsive actions: many crimes for the purpose of gratification of impulse, carrying out a guilty intent. 3 See, for the historical development-Weihofen, Insanity as a Defense in Criminal Law (1933) and Glueck, Mental Disorder and the Criminal Law (1935). 4 (a) First published in Eliasberg, W. G., Die abnorme Triebhandlung in forensischer Beurteilung, 21 Monschr. f. Kriminal psychol. u. Strafrechts- reform (1930). (b) See also same author: The Acute Psychosexual Situation, 33 J. Crim. Law and Criminol. 443 (1943); Opposing Expert Testimony, 36 J. Crim. Law and Criminol. (Nov.-Dec., 1945). https://engagedscholarship.csuohio.edu/clevstlrev/vol9/iss3/6 2 IRRESISTIBLE IMPULSE B. The abnormal impulsive action with full accountability to law on the basis of "irresponsibility tests." C. Punishable negligence* of persons who are no longer "beginners" who, suffering from strong (uncontrollable) nonpsychotic impulses, neglect to prepare for, or avoid, such situations in which impulses have become over- whelming. II. Unpunishable impulse actions A. Unpunishable normal impulsive actions B. Unpunishable abnormal impulsive actions 1. Obsessive-compulsive actions within the frame of ob- sessive-compulsion if found combined with clinical psychosis, or disorder of consciousness, or dementia, 2. Other unpunishable abnormal sexual actions. The impulse action is observed rather early in life. It per- sists throughout life, little influenced by experience and social surroundings. It should, however, be noted that for an action to be im- pulsive, it need not be congenital. Congenitality, or the heredi- tary nature of an action is difficult to prove in human beings. The results of maze experiments with rats can by no means be easily transferred to humans. That a certain disposition is con- genital, does not in itself make it non-punishable. Neither does the fact that the deed is in keeping with the character guarantee impunity. The controversy has been whether a deed should be punished more severely because it is obviously in keeping with the character and thus proves the moral turpitude of the perpetra- tor or whether just because it is obviously a product of the evil- doer's nature and nothing more, should be dismissed as free of guilt. Cases where such controversies arise are those of sexual perversions, particularly of homosexual misdemeanors and felo- nies. The normal urge shows developmental phases, as has been demonstrated particularly in the psychoanalytic teachings on the development of the sexual urge. The pathological urge often re- mains at the early infantile stage and cannot be sublimated. * For the concept of negligence, its handling in court and in the theory of psychoanalysis and the right to punish negligence in impulsive actions, see Eliasberg, Rechtspflege und Psychologie (1933). Published by EngagedScholarship@CSU, 1960 3 9 CLEV-MAR. L. R. (3) Sept., 1960 There is no formation of compounds between the urge and the other aspects of the personality, his aims and his social attitudes. The pathological urge is marked by abnormal intensity, be it higher or lower than the average. It is not always easy to get indicators of abnormal intensity. However, there is not too seldom a strong tendency toward conversion into physical symp- toms, dizziness, nausea, vasomotor reactions, fainting. Such con- versions have rather indiscriminately been called hysterical.' F. Alexander 6 has drawn attention to the fact that not all of these symptoms are of conversional nature. There may be di- vergencies from the normal merely along the line of vasomotor abnormalities, with or without secondary psychoneurosis.7 The better we learn to differentiate between hysterical conversion and other types of psychogenic abnormality, the more the interest of the lawyer will be served. However, there are types of in- creased intensity of the urge which resemble definitely the hys- terical type in abrupt and sudden changes. There is also a type in which it is not some more or less conscious, i.e., psychological, urge which is carried into physical symptoms. In this type, it is primarily the physical symptoms-e.g., vasomotor ones-which only secondarily are reflected in consciousness, but which, by a short circuit, reach the vasomotorium. Such a case was described by the writer.8 This was a 29- year-old man who would form strong attachments to women of what he called his type, only to detest them utterly the moment that an affair became serious. He would then back out, only to do anything possible to get the same woman back; as a pleasant and good-looking fellow, he would repeatedly be successful.
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