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413 Chapter 3 Pathological Criminal Incapacity and The CHAPTER 3 PATHOLOGICAL CRIMINAL INCAPACITY AND THE CONCEPTUAL INTERFACE BETWEEN LAW AND MEDICINE “Every isolated passion is, in isolation, insane; sanity may be defined as a synthesis of insanities. Every dominant passion generates a dominant fear, the fear of its non-fulfillment. Every dominant fear generates a nightmare, sometimes in the form of an explicit and conscious fanaticism, sometimes in a paralyzing timidity, sometimes in an unconscious or subconscious terror which finds expression only in dreams. The man who wishes to preserve sanity in a dangerous world should summon in his own mind a parliament of fears, in which each in turn is voted absurd by all the others.” (Bertrand Russel, 1955) 1 Introduction He was born in Milwaukee and raised in Bath, Ohio which is an average middle class community. He grew up in a home where his parents were constantly fighting and detesting each other, paying little attention to him. Lonely and neglected, Dahmer retreated deeper and deeper into his own fantasy world. He developed a profound and unique hobby – killing small animals, skinning them and removing their meat with acid. He displayed his collection of squirrel and chipmunk skeletons in his backyard and also created a pet cemetery next to his house. One day several boys in the local neighbourhood, strolling by Dahmer’s house, made a shocking discovery – they found a decapitated dog’s head impaled on a stick. The skinned and gutted body of the animal was found not too far from this scene. His parents got divorced and eventually his mother abandoned him. One day he picked up a nineteen year old hitchhiker named Steven Hicks. After they enjoyed a pleasant evening together, Hicks told Dahmer that he was moving on. Dahmer smashed the back of Hicks’s skull and strangled him. He dragged the corpse into a space under the house, dismembered it and stored the pieces in plastic bags. Jeffrey Dahmer’s horrific and savage acts had begun. He was only eighteen years old. A year later Dahmer killed another gay man. He kept the skull as a souvenir after scraping it clean of flesh. Soon hereafter another victim 413 followed. Two years later, Dahmer was charged with sexual assault and enticement of a child for immoral purposes, after he lured a thirteen year old boy to his apartment, drugged him and fondled him. He was admitted to prison and released after ten months. Dahmer butchered three more men the following year. Eventually, neighbours started to complain about an obscure oudor coming from Dahmer’s apartment. Dahmer apologised and stated that the cause of the smell was his broken freezer which caused his meat to go rotten. Dahmer’s victims increased with the passing of time until one evening in July 1991, two patrolmen saw a dazed man moving in their direction with a pair of handcuffs dangling from his one wrist. The police went to investigate Dahmer’s apartment and discovered Jeffrey Dahmer’s chamber of horrors. In his drawers the police discovered body parts and mutilated corpses. Inside a freezer the police found three human heads together with an assortment of organs which included intestines, lungs, livers, kidneys and a heart which Dahmer stated he was keeping to “eat later”. Seven skulls and five complete skeletons were kept in various locations around the apartment. Other remains, including bone fragments, decomposed hands and sexual organs were kept in a lobster pot. These were the remains of eleven victims. At his trial in 1992, his legal representative argued that the very nature of Dahmer’s deeds which included “skulls in a locker, cannibalism, necrophilia, lobotomies and defleshing” proclaimed the “madness” of the mental illness from which he was suffering. The jury, however, rejected the insanity defence and found Dahmer guilty1 and sentenced him to fifteen consecutive life sentences. He was, however, murdered by another inmate in November 19942. These terrible and horrific facts serve to set the stage for the defence of pathological criminal incapacity, often referred to as the “insanity” defence. The interface between criminal law and the field of psychiatry and to a lesser extent, psychology, has manifested predominantly in pathological criminal 1 Schechter, H “The Serial Killer Files – The who, what, where, how and why of the World’s most terrifying murders” (2003) at 200– 204. 2 Schmalleger, F “Criminology Today” (996) at 198. Despite the fact that insanity was raised as a defence in Jeffrey Dahmer’s case, one psychiatrist, Park Dietz, testified that although Dahmer suffered from various psychological disorders, he had the choice whether to kill or not. Another expert witness, however, provided a dissenting opinion by stating that Dahmer “had uncontrollable urges to kill and have sex with dead bodies ...” 414 incapacity or described differently criminal non-responsibility attributable to mental illness3. 3 Snyman, CR “Criminal Law” (2008) at 170 – 178; Snyman, CR “Strafreg” (2006) at 167 – 177; Snyman, CR “Criminal Law” (2002) at 167 – 176; Burchell, J and Milton, J “Principles of Criminal Law” (2005) at 370 – 402; Burchell, J and Milton, J “Cases and Materials on Criminal Law” (2007) at 348 – 360; Kaliski, SZ “Psycholegal Assessment in South Africa” (2006) at 93 – 110 and 237 – 249; Louw, R “Principles of Criminal Law: Pathological and Non-pathological criminal incapacity in Kaliski “Psycholegal Assessment in South Africa (2006) at 34 – 57; Africa, A “Psychological evaluations of mental state in criminal cases” in Tredoux et al “Psychology and Law” (2005) at 384 – 410; Strauss, SA “Doctor, Patient and the Law – A selection of practical issues” (1991) at 121 – 135; Report of the Commission of Inquiry Into the Responsibility of Mentally Deranged Persons and Related Matters R.P. 69/1967 (hereafter referred to as the “Rumpff report”); Kruger, A “Mental Health Law in South Africa” (1980) at 146 – 220; Du Toit et al “Commentary on the Criminal Procedure Act” (2007) at 13-1 - 13-30; Joubert, WA and Faris, JA “The Law of South Africa” vol. 6 (2004) at 65 – 70 hereafter “LAWSA”; De Wet, JC and Swanepoel, HL “Die Suid-Afrikaanse Strafreg” (1974) at 108 – 114; Kriegler, J and Kruger, A “Hiemstra – Suid-Afrikaanse Strafproses” (2008); Burchell, EM and Hunt, PMA “South African Criminal Law and Procedure – General Principles of Criminal Law” (1997) at 162 – 182; Visser, PJ and Maré, MC “Visser and Vorster’s General Principles of Criminal Law through the cases” 3rd ed. (1990) at 316 – 359; Smith, JC “Smith and Hogan – Criminal Law” (2002) 10th ed. at 213 – 231 hereafter “Smith and Hogan”; Card, R “Card, Cross and Jones – Criminal Law” (21004) 16th ed. at 724 – 741; Greig, DN “Neither Bad Nor Mad – The competing Discourses of Psychiatry, Law and Politics” (2002) at 107 – 122; Fradella, HF “From Insanity to Diminished Capacity – mental illness and Criminal Excuse in Contemporary American Law” at 15 – 58; Whitlock, FA “Criminal Responsibility and Mental illness” (1963) at 1 – 93; Slovenko, R “Psychiatry and Criminal Culpability” (1995) at 1 – 66; Slovenko, R “Psychiatry in Law – Law in Psychiatry” (2002) at 187 – 290; Slovenko, R “Psychiatry and Law” (1973) at 77 – 91; Slovenko, R “Crime, Law and Corrections” (1966) at 82 – 101, 367 – 373; Jones, DW “Understanding Criminal Behaviour – Psychosocial approaches to criminality” (2008) at 37 – 71; Bean, P “Madness and Crime” (2008) at 1 – 60; Bartol, CR “Criminal Behavior – A Psychosocial Approach” (1991) at 143 – 171; Carson et al “Applying Psychology to Criminal Justice” (2007) at 1 – 20; Dennison, S “Criminal Responsibility” in Carson et al (2007) at 131 – 146; Winstone, J and Pakes, F “The Mentally Disordered Offender Disenablers for the Delivery of Justice” in Carson et al (2007) at 167 – 182; Roche, PQ “The Criminal Mind ... A study of Communication Between the Criminal Law and Psychiatry” (1958) at 1 – 30; Bartol, CR and Bartol, A: Criminal Behavior – A Psychosocial Approach” (2005) at 187 – 235; Schopp, RF “Automatism, insanity, and the psychology of criminal responsibility” (1991) at 27 – 69; Melton, GB, Petrila, J, Poythress, NG and Slobogin, C “Psychological Evaluations for the Courts” (2007) at 201 – 266; Kermani, E “Handbook of Psychiatry and the Law” (1989) at 152 – 193; Meyer, RG, Landis, ER and Hays, JR “Law for the Psychotherapist” (1988) at 57 – 86; Macdonald, JM “Psychiatry and the Criminal – A Guide to Psychiatric Examinations for Criminal Courts” (1976) 3rd ed. at 62 – 84; Fesch, EA “Psychology and Psychiatry in Courts and Corrections – Controversy and Change” (1980) at 1 – 37; Brody, BA and Engelhardt, HT “Mental illness: Law and Public Policy” (1980) at 3 – 25; Rubin, S “Psychiatry and Criminal Law – Illusions, Fictions and Myths” (1965) at 1 – 18; Mcauley, F “Insanity, Psychiatry and Criminal Responsibility” (1993) at 1 – 90; Arrigo, CEA “Punishing the Mentally ill – a critical analysis of law and psychiatry” (2002) at 127 – 144; Power, DJ, Curran, P and Hughes, JM “Criminal Law and Forensic Psychiatry” (1996) at 332 – 355; Wright, F, Bahn, C and Rieber, RW “Forensic Psychology and Psychiatry” (1980) at 3 – 26; “The Mental Health Professional and the Legal System” Report no. 131 formulated by the Committee on Psychiatry and Law (Group for the Advancement of Psychiatry) (1991) at 26 – 29; Carstens, PA “Die Strafregtelike en Deliktuele Aanspreeklikheid van die Geneesheer op Grond van Nalatigheid” (unpublished LLD thesis University of Pretoria) (1996) at 522 – 523; Carstens, PA and Pearmain, D “Foundational Principles of South African Medical Law” (2007) at 745 – 747; Schiffer, ME “Mental Disorder and the Criminal Trial Process” (1978) at 121 – 151; Brakel, SJ and Brooks, AD “Law and Psychiatry in the Criminal Justice System” (2001) at 5 – 60; Shapiro DL “Forensic Psychological Assessment – An integrative Approach” (1991) at 59 – 91; Gutmacher, MS “The Role of Psychiatry in Law” (1968) at 3 – 108; Finkel, NJ “Insanity 415 The defence of criminal incapacity is primarily and exclusively concerned with the human mind and the human psyche.
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