The Captivation of Murder

Principles of Criminal Law
Jonathan M. Burchell
Juta and Company Ltd, 2013

[Footnotes mostly removed]

...

3 Psychopathy and 'dangerous offenders'

The dubious identification of certain criminals as psychopaths (ie persons who were
apparently distinguishable by their lack of guilt feelings or remorse, low frustration
tolerance, anti-social behaviour, etc) and their purported need to be subjected to a
special type of rehabilitation, in what were called ‘hospital prisons’, temporarily
distracted the attention of criminal theorists the prison authorities.

The Interim Report of the Commission of Enquiry into the Continued Inclusion of
as Certifiable Mental Illness and the Dealing with Psychopathic and
Other Violent Offenders under the chairpersonship of Mr Justice WH Booysen,
however, recommended that the ‘retention of psychopathy as a mental illness in the
Mental Health Act is not only scientifically untenable, but is also not effective in
practice’.

The Commission, however, recommended the creation of an indeterminate
sentence of imprisonment with a set minimum period determined by the court in
respect of a ‘dangerous offender’ (after the expiry of the minimum portion of the
sentence the dangerous offender may apply to court for his or her release). The
Commission also recommended the creation of a statutory offence punishing threats
of violence and the establishment of a central register of dangerous persons.

Section 286A of the Criminal Procedure Act now provides for the declaration of
certain persons as dangerous criminals and s 286B for the imprisonment for an
indefinite period of such persons.

Even before the Booysen Commission’s Report, the South African courts had not
been prepared to accept psychopathy in itself as exempting from criminal liability
or even as warranting a lesser sentence on account of diminished responsibility.

In Mnyanda, Rumpff CJ stated:

In the absence of any exceptional symptom, a full-fledged psychopath does net lack
criminal capacity. He is doli capax because he knows what is and what is nor lawful and he
has the mental capacity to act accordingly, ie to exercise his will accordingly. What
apparently differentiates a full-fledged psychopath, however, from ordinary people, is that
his will-power to refrain from unethical deeds or crimes is less powerful than that of
ordinary people and this weakened will-power forms part of a distinctive personality.
Although a ‘normal’ habitual criminal also has a reduced will-power as far as abstaining
from committing crimes is concerned, a psychopath and such criminal can, according to
psychiatry, be distinguished. The general picture of the one differs from that of the other,
although they show the same symptoms in many respects.

In deciding whether or not a person has full criminal capacity and whether or not he
suffers from reduced criminal capacity, such person’s capacity to control his will must . . .
be considered in view of the available evidence, including evidence of a psychiatric or
clinical psychological nature. . . . The mere fact that an accused is clinically considered to
be a psychopath, does not afford a basis for finding that he lacks full criminal capacity.
Reduced criminal capacity is only present when it is found with reference to a specific
offence that the psychopathic disorder was such that the accused’s capacity of controlling
his will was so diminished that his moral blameworthiness was reduced.



So too, as MT Steyn J said in J, where a 16-year-old-boy was found guilty of
murder with extenuating circumstances:

The true question is not one of branding the accused as a psychopath, but rather that his
true character should be revealed in order that the court, in determining whether on the
relevant night specific circumstances played a role concerning the personality traits of the
accused, will then be in a position to establish whether these traits were of such a nature
that they could be considered as extenuating features.

ln the result, the judge found that:

The circumstances of the night in question affected the defective and incomplete
personality of the accused who, even under normal circumstances, was not as capable of the
same control of, and escape from, evil impulses as the ordinary man. He was under the
influence of liquor and this further threw his defective mechanism out of gear. He was, in
our finding, in a state of diminished responsibility during the commission of this crime,
consequent upon the influence of the liquor he consumed on his retarded personality
which in turn was caused by his youthfulness, his immaturity and mental deficiency—the
psychopathy under which he strained.

In Lehnberg Rumpff CJ warned against a too-ready acceptance of psychopathy:

lt is . . . necessary to point out that the question of psychopathy as an extenuating
circumstance ought to be dealt with with great care because it would otherwise be easy
thereby to introduce the doctrine of determinism into our criminal law by the back
door. . . . On the other hand it is possible that a psychopath is not able to mount the same
resistance as a perfectly normal person and in such cases his weakness may be considered as

290 Principles of Criminal Law

an extenuating circumstance. . . . It must further be pointed out that the evidence about
psychopathy must also be approached with care.

In Phillips Milne JP drew attention to the difficulties of defining psychopaths but,
nevertheless, regarded psychopathy (in conjunction with other factors) as a mitigat-
ing factor regarding sentence.
...

[Some footnotes to this extract]

...

99 The Booysen Report on The Continued Inclusion of Psychopathy as a Certifiable Mental Illness
and the Handling of Psychopathic and Other Violent Offenders 24 indicates that the number of
certified psychopaths in prison was 13 in February 1992, and the Brandvlei Hospital for
Psychopaths had closed down.

100 For a survey of the historical approach to psychopaths, see FFW van Oosten ‘Psychopathic
Violent and Sex Offenders: A Legal Appraisal“ 1992 De Jure 1 at 6ff. An ardent supporter of the
categorisation of particular criminals as psychopaths was Roux (n 77) 49.


103 Criminal Procedure Act (n 15) s 286B(1)(b) further provides that the court shall ‘direct that
such person [who is declared a dangerous criminal and sentenced accordingly] be brought
before the court on the expiration of a period determined by it which shall not exceed the
jurisdiction of the court. The Supreme Court of Appeal in Bull; Chavulla 2001 (2) SACR 681
(SCA), emphasising the detailed procedures of ss 286A and 286B, including psychiatric
evidence, upheld the constitutional validity of these sections.

104 Strauss (n 90) 231. A psychopathic personality does not in itself amount to mental illness or
disease in law: Kennedy (n 79) 434: Von Zell 1953 (3) SA 303 (A) 308; Webb (2) 1971 (2)
SA 343 (T) 344-5. Psychopaths are distinguished from psychotics and neurotics: Williams
Criminal Law - The General P ed (1961) 533, 538-40. A number of proposals submitted
to the [100] Rumpff Commission attempt to exclude from the definition of
‘mental disease‘, sec ss 6.16, 6.17, 6.23; cf American Model Penal Code s 4.01 (see [100]
Rumpff Commission (n 10) para 2.17). If the courts did accept psychopathy as insanity they
would be submitting to ‘a test which permits all to stand or fall upon the labels or classifications
employed by testifying psychiatrists: US v Charles Freeman (1966) 357F 2d 606.

Robben Island and Prisoner Resistance to Apartheid
Fran Lisa Buntman
Cambridge University Press. 27 Oct 2003

Political Imprisonment and the State

...

Conversations with “Other” Prisoners

Although, as noted, visits by the state or outsiders usually focused on
Mandela and his politics, an important exception to this general practice
was that by General Jan Roux. Roux was the deputy commissioner of pris-
ons and took a personal interest in meeting with and speaking to a broad
range of prisoners on Robben Island. Cooper recalled that Roux would, for
example, come to the cells late at night, perhaps after a dinner of wine and
crayfish, and would meet with individual prisoners, some of whom were half
asleep, to question them, especially about their political views.

Roux had a doctorate in psychology, and was apparently interested in
the political ideas and psychological makeup of the prisoners. Ahmed
Kathrada’s first experience of and with Roux is revealing. At least to the
knowledge of the prisoners, General Roux’s first visit to Robben Island was
in 1975, or just before then. Prisoners knew something was happening when,
beginning with Jeff Masemola, one by one each prisoner in the single cells
was called in by the prison administration. They were being summoned to
meet Roux although they were not aware of this at the time; prisoners did
not immediately return to the single cells after their “visits.” Eventually it
was Kathrada's turn, and he was introduced to Roux who was accompanied
by other important people in the prisons department. Roux asked whether
he had any complaints; Kathrada replied that he had many grievances. When
m asked him to elaborate, Kathrada said he was not prepared to tell this
grouping because he did not know who they were and therefore there was no
reason for him to identify his concerns. (Subsequently, Kathrada learned that
Mandela had responded in an almost identical fashion.) Sometime after this
experience, Kathrada was summoned before a prison psychiatrist who had
been brought to the prison on Roux’s instruction (which apparently offended
the prison doctors who felt their medical authority was being undermined).
The psychiatrist was sent to evaluate Kathrada because Roux wanted to
know what was “wrong” with Kathrada given his refusal to discuss his
complaints.

Roux was also widely credited by Prisons Service personnel for be-
ing a reformist who wanted to institute change and improvements ...

[Relevant Footnote]

114 Author's conversations with Khehla Shubane, Johannesburg, 1994 and 1996. The fairly
sinister impression political prisoners on Robben island had of Roux is supported, albeit
in a different arena, by Dirk van Zyl Smit (South African Prison Prison Law, 37), who argued that
Roux was responsible for introducing or making respectable the idea of "psychopathy"
when the concept “was in relative decline abroad.” Van Zyl Smit noted that the very
idea of psychopathy was challenged by critics, as was "the allocation of resources to staff
intensive units for psychopaths. Moreover, it had been suggested that intensive treatment
of this kind constitutes an unjustified onslaught on the personal integrity of the prisoner
who is classified as a psychopath."

The Quiet Diplomacy of Liberatlon: International Politics and South African Transition

Chris Landsberg
Jacana Media, 2004

...

On his return home, De Klerk said that European leaders had
received him “politely and warmly” and had not “expressed unrealistic
expectations” Roux said 24 that “there was a meeting of minds between De
Klerk and European leaders". There was a more crucial outcome to this
European safari than simply an opportunity for De Klerk to gain valuable
international experience in preparation for his inauguration as head of state.
The exposure to European leaders brought him and his delegation “face-to-
face” with the depth of unfavourable international perceptions about South
Africa. The trip served as a key inspiration for the bold reforms ...

24 Interview with Dr JP Roux former director-general in the office of President De Klerk
10 January 2000.

Psychopathy as a cause of violent crime in South Africa:

 A study into the etiology, prevalence and treatment of
psychopathy as a cause of violence with particular reference
to domestic violence in South Africa

By

Tareen Ellis

Submitted in fulfilment of the requirements for the degree of
Master of Arts in the subject Psychology at the
UNIVERSITY OF SOUTH AFRICA
…

Summary:

Murder, rape, corruption and gang wars, sounds like something out of a bad action movie
but for many it is their way of life and not a movie they can stop. Many people today live
with the constant threat of attack and the threat is often not by some stranger but someone
they know, their neighbour, their uncle, their father, their domestic worker and on occasion
even their own mother.

As crime escalates more people are asking the question, "Why this rapid increase in crime
and why is there such an increase in the number of violent crimes?” South Africa is well
known, unfortunately, for its high crime rate and in particular it's exceptionally high violent
crime rate. South Africa is rated in the top 10 for the highest murders per capita (UNDOC
2011). Over the past 20 years the number of violent crimes has progressively increased and
the reason for this increase needs to be examined.

There appears to be a rapid increase in the number of people presenting personality
disorders in society. A number of studies have been conducted on the etiology of anti-social
personality disorder and on psychopathology. In the past the majority of these studies had
been conducted in developed countries and in the past few years a number of studies have
started to be conducted in developing countries. Although very interesting with great insight
very few have tried to examined any trends and differences between developed and
developing countries. During the course of these studies it has been observed that inmates
and people exhibiting Psychopathy traits are more likely to commit violent crimes and in
addition reoffend.

The thesis proposed examines trends between developed and developing countries to find
any links between crime and psychopathology and in addition the etiology, prevalence and
prevention of psychopathology. The study will identify a number of models utilised to
understand violence in society and personality disorders with particular reference to
psychopathy. The study is being done in order to obtain a better understanding of a link
between psychopathology and escalating crime in South Africa and what, if anything can be
done to decrease this prevalence.

This thesis outlines a number of diagnostic tools utilised in order to determine if a person is
indeed suffering from psychopathy. Each one of these is discussed and the validity of each
considered for both developed and developing countries as a diagnostic tool.

The study clearly show that there are a number of unanswered questions around
psychopathy within South Africa and that more research within a South African context
needs to be conducted if this disorder is to be properly understood .
...

Is Psychopathy Genetic?

August 24,2012 Abuse. Personality and Character Disorders. Psychological
Manlpulation

Interest in the most severe form of character disturbance (psychopathy) has grown rapidly in the past several years,thanks mainly to the research conducted by Dr.Robert Hare of Canada and others. And one of the more interesting findings to come out of clinical studies on brain functioning is evidence of a possible biological basis for the psychopath's diminished capacity for empathy. So does that mean that the most seriously disordered characters among us - or for that matter, all disturbed characters - are simply born the way they are?

It's been established for some time that genes play a significant role in the make-up of those individuals eventually diagnosed with such conditions as Antisocial Personality Disorder (APD, sometimes also now termed Dissocial Personality Disorder or DPD).

And while the concepts of psychopathy and sociopathy have been around for a long
time, neither has been recognized as an official disorder (although it's likely that the upcoming revision of the official diagnostic manual will include the key aspecst of psychopathy as a variant form of APD). Historically, the evidence for a genetic predisposition to APD has come from studies of monozygotic (identical) twins reared apart. The fact that the twin of an individual with an antisocial behavior history is more likely to show the same kind of behaviors despite being raised in a different environment argues for a genetic predisposition to the disorder. And it's of particular interest that twin studies have shown that the key component of psychopathy (i.e. lack
of guilt or remorse and callous use and abuse of others rooted in empathy deficits) also appears to be influenced by biological factors. The 'concordance' rate between twins reared apart for the various traits associated with APD, DPD, psychopathy and sociopathy is not strong enough to confirm a strictly genetic basis, but there can be no doubting a strong biologically based predisposition. And one fairly recent study on monozygotic twins reared apart demonstrated that the biological predisposition toward empathy deficiency shows up even in children as young as 7 years old (see: Evidence for Substantial Genetic Risk for Psychopathy in 7-Year Olds)


In the past several years studies of brain activity in individuals meeting the criteria for psychopathy have yielded some groundbreaking findings. CAT scans reveal that with psychopaths, areas of the brain typically associated with emotion, especially the integration of emotion with other mental constructs, do not operate in the same manner as they do with normal individuals. Show most people a picture of something typically associated with a sentiment (e.g., a wedding Ceremony), and areas of the brain that process information about the event as well as areas of the brain involved in emotion both show activity. But show the same image to a psychopath, and although the area of the brain recognizing the image or event is active, the area of the brain typically associated with an emotional response appears dormant. Other brains studies measuring different aspects of the integration of emotions with other human experiences have shown the same abnormalities when it comes to psychopaths.

So,what does this all mean? And would it be fair to say that all the disturbed characters among us are simply born the way they are? Naturally, the answer is not all that simple. Suffice it to say that many of the traditional assumptions about traumatic or impoverished environments being the "cause" of some of these conditions have now been rightfully and significantly challenged. There are biological factors at work and some of these factors are strong contributors to some of our more serious character disturbances. And there at least appears to be a strong genetic component to an individual's capacity to experience empathy, guilt, and remorse. And while all this might come as welcome news to those exasperated parents who used to blame themselves and who we used to blame for raising monsters, there's still a lot we don't know about all the factors that contribute to someone becoming a full-blown psychopath.