Expert witnesses

Quite by chance a few days ago, I picked up my copy of the book by Frances at reference 1, primarily about the difficult business of classifying mental disorder in the US – perhaps for statistical, diagnostic or insurance purposes – and turned a few pages again. A book first noticed some years ago now at reference 2.

This led in due course to the paper at reference 3 and after that to the debate in the US about the execution of criminals of low intelligence.

I learn that for what seemed like good reasons at the time, in large parts of the US, discretion had been replaced by fixed seven year terms for rapists – discretion which had resulted in excessive punishment of black rapists. But fixed terms resulted in some very dangerous people being released onto the streets, all too likely to reoffend.

The workaround was to use a candidate diagnosis of mental disorder – paraphilia not otherwise specified – as a tool to lock such people up in mental institutions which amounted to prisons.

Frances takes exception to this use of this candidate diagnosis, rejected for inclusion in the standard list of mental disorders several times, as a vehicle for the incarceration of dangerous rapists. The proper solution was to have proper sentencing for the original crimes.

He also takes exception to the decriminalisation, the medicalisation of rape. In his view, most rape is a straightforward criminal matter which should be punished in a straightforward criminal way. I failed to turn up any discussion which threw useful light on the extent to which bad background could extenuate crime. On what exactly a straightforward criminal was. In any case, the issue here is as much taking a dangerous person out of circulation as punishment.

Whereas:

Few if any countries punish children for crimes. The boundary between child and adult being rather arbitrary, but it is at least clear;

Few if any countries punish the mad for crimes. With being mad being one sort of mental disorder. With the boundary between sane and insane being anything but clear; 

Few if any countries punish the mentally handicapped for crimes. With being mentally handicapped being another sort of mental disorder. With the boundary once again being anything but clear;

Incarcerating people for crimes they might commit is a tricky area. But the risk of offending again is certainly taken into account in sentencing and in considering someone for parole. While people who are deemed to have severe mental disorders often get locked up, often more or less indefinitely, often without any crime having been committed. Preventative detention;

my own view is that Frances takes his argument a little too far. I think that someone’s mental health, or lack of it, is something which should be considered in criminal proceedings and that psychiatrists have to step up to this plate – while agreeing that the wheeze of paraphilia not otherwise specified is rather unsatisfactory, with an unpleasant whiff of the Soviet abuse of psychiatry for social control purposes about it.

While noting that the use of expert witnesses, be they psychiatrists or phlebotomists, does bring problems of its own, not least because not all experts make good witnesses.

In much the same way as the boundary between sane and insane is unclear, the boundary between normal intelligence and low intelligence is unclear, not fit to be used as a criterion to decide whether someone should be executed or not. Someone in favour of capital punishment generally might argue here that if you have committed a capital offence, going through what might be regarded as the intelligence test lottery is part of the punishment. At the margin, it does not really matter whether slightly too few or slightly too many offenders get executed. They have all committed capital crimes and most of them deserve what they get. But I am not in favour of capital punishment generally and do not so argue – while I do argue that not having capital punishment at all would do much to mitigate the problem of capital offenders of low intelligence.

PS: according to Wikipedia: ‘paraphilia (previously known as sexual perversion and sexual deviation) is the experience of intense sexual arousal to atypical objects, situations, fantasies, behaviours, or individuals’.

References

Reference 1: Saving normal – Allen Frances – 2013. 

Reference 2: http://psmv2.blogspot.com/2013/06/dsm-5.html. 

Reference 3: Paraphilia NOS , Nonconsent: not really ready for the courtroom – Frances & First – 2011.