MULTIPLE PERSONALITY DISORDER

AND CRIMINAL RESPONSIBILITY

I. INTRODUCTION

What does multiple personality disorder (“MPD”) mean for the law?

One of the most wrenching situations in which this question arises concerns

criminal law. When a multiple commits a crime, is she responsible for her

act? Other vexing questions arise concerning people with MPD—Are they

competent to contract? Are they parentally fit? Should we swear in separate

alters at trial?—but I focus here on the question of criminal responsibility

alone.

∗ Orrin B. Evans Professor of Law, Psychiatry, and the Behavioral Sciences, University of

Southern California Law School, Research Clinical Associate, Los Angeles Psychoanalytic Society &

Institute.

In my discussion of criminal responsibility, I will first look at the ways

courts have treated MPD. Second, I will briefly consider three different

ways of conceptualizing alter personalities. In the third Part, the heart of

this Article, I will analyze the criminal responsibility of people with MPD

under these three conceptualizations of alters. Fourth, I will suggest that

most multiples are nonresponsible under the law, and I will propose a rule

for when they should be found responsible and nonresponsible. Finally, I

will discuss whether my standard is practicable.

II. THE VIEWS OF THE COURTS

There are at least two problems with the courts’ treatment of MPD and

criminal responsibility to date. First, most courts do not specify how the

insanity defense applies to people with MPD, and thus abdicate their

authority to the experts. Second, the few courts that do articulate a standard

get the standard wrong—although at least one court has come close to my

vision of the correct view.

III. THE PROPOSED STANDARD: A PERSON SUFFERING FROM

MPD SHOULD NOT BE HELD RESPONSIBLE FOR A CRIME

UNLESS ALL OF HER ALTERS KNEW ABOUT AND

ACQUIESCED IN THE CRIME

A. WHY THE STANDARD PROPOSED SHOULD BE ADOPTED

To understand why the standard I propose is appropriate, it is necessary

to understand the nature of alter personalities. There are three plausible

ways of understanding alter personalities: as persons, as personlike centers

of consciousness, and as parts of a divided person.12 Philosophers tend to

take the first two views,13 while mental health professionals tend to take the

third.14 It is a mistake to defer to the mental health experts on this question.

How to conceptualize alter personalities depends on what is meant by the

word “person.” It is philosophers and lawyers, not psychiatrists, who are

the authorities on this issue, although psychiatrists will naturally provide

important empirical data. In my view, how we should conceptualize alters

remains an open question.

1. Criminal Responsibility If Alters Are Persons

Are multiples nonresponsible if their alter personalities should be

construed as different people? Here the answer is clearly yes.19 True, there

is a guilty alter. But what about all the innocent alters? We do not put one

person in prison for the crimes of another. Consider, for example, a set of

conjoined twins. If one of the twins impulsively picked up a gun and killed

someone, we would not put the twins in prison, although we would restrain

them in some nonretributive institution if the homicidal twin remained

dangerous.

2. Criminal Responsibility If Alters Are Personlike Centers of

Consciousness

Are multiples nonresponsible if alters are personlike parts of people?

The answer still seems to be yes when a part commits a crime.22 Personlike

entities, because they are capable of guilt and innocence and capable of

suffering from punishment just as persons are, should not be punished if

innocent any more than innocent people should be.

3. Criminal Responsibility If Alters Are Nonpersonlike Parts of a

Deeply Divided Person

If alters are nonpersonlike parts of a deeply divided person, there is still

reason for holding that multiples are nonresponsible.24 Consider certain

phenomena that the law allows as a basis for exoneration: sleepwalking,

acts performed under hypnosis and posthypnotic suggestion, and acts

performed in certain epileptic states.25 What do all of these phenomena have

in common? One thing is that they are all dissociative phenomena. They all

involve “a disruption in the usually integrated functions of consciousness,

memory, identity, or perception of the environment.”26 But if dissociative

phenomena ordinarily lead to exoneration, why not MPD, the paradigm of

dissociation?

4. The Proposed Rule

While multiples are often nonresponsible, in whatever way we construe

their alter personalities, there are nevertheless two occasions when

multiples should be found responsible. First, they should be responsible

when all of their alters know about and acquiesce in a crime, unless only a

trivial number of very fragmentary alters do not acquiesce.29 I would find

acquiescence if there is any act of complicity, or where the alter knows

about the crime and can prevent it without undue danger or effort, but does

not attempt to do so. In other words, I would impose a duty to intervene.